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On The Criminal Procedure (Identification) Bill: Of Ambiguity and Intent

On March 28, 2022, the Criminal Procedure (Identification) Bill was tabled in the Lok Sabha. It allows for the acquisition of certain personally identifiable information about specified people, such as criminals, in order to conduct criminal investigations.

Furthermore, it broadens the scope of such information and the people whose information can be obtained, and gives the National Crime Records Bureau the authority to collect, store, and keep certain records of palm impressions, iris and retina scans, signature and handwriting, and various physical and biological samples, as well as their individual analyses. What is more, a Magistrate may also order the taking of measurements or images of a person to aid in the investigation of an offence this being the sole objective the bill intends to serve.

Expounding on why the bill has tended to serve as a cause for concern is because its implementation amongst several grey areas comprises the fact that:
  • The data can be collected not only from convicted people, but also from people arrested for any crime and from anyone else to aid an investigation
  • The data collected does not have to be related to the evidence required for the case
  • The data is stored in a central database that can be accessed widely
  • The data is stored for 75 years

The obvious consequences of the aforementioned would be a hindrance in the fundamental rights of citizens. For instance, biometrics (fingerprints, palm prints, foot prints, iris and retina scan), physical and biological samples (not defined but might include blood, semen, saliva, etc.), and behavioural traits, all find a place in the ambit of the bill (signature, handwriting, and could include voice samples).

Hence, it does not limit the measures to those that are required for specific research purposes. The bill, in this light, allows a person detained for rash and irresponsible driving to have his or her handwriting sample taken. It has also chosen to be silent along the lines of taking DNA samples, which may contain information other than just for determining identity.

Notably, biological samples and their analysis are only permitted under Section 53 of the Code of Criminal Procedure, 1973, if 'reasonable reasons for believing that such examination will give evidence as to the conduct of an offence' have been provided.

Moreover, considering the case of biological materials, the bill makes an exception. A person may decline to provide such samples unless they are arrested for one of the following crimes - assault on a woman or child, or a crime punishable by at least seven years in jail. For my part, the first seems like a broad exemption. It could, for example, be a case of theft committed against a woman. A clause like so would also gainsay the sworn oath of equality in the eyes of the law.

Thus, it has been well argued that the said bill breaches the right to self-incrimination and reverses the assumption of innocence in a criminal investigation, and rightfully so. It essentially alters the scope of criminal investigations by granting investigatory agencies and the federal government unfettered authority. The dominant power in this stance, currently bestowed solely upon the state governments, would be extended to the central government. A cause of concern also arises when we overlook the bill's influence in bringing in reform so as to remit the police to gather data of such nature.

In rebutting this argument, a critic may argue that the current provisions of the law only apply to prisoners, those on bail, and to those arrested for major crimes. Arguably though, the bill tends to extend this indiscriminate data gathering to everyone who is arrested, inclusive of those on the grounds of suspicion, thus creating concerns on the issue of privacy. Why this is essential for us to consider is due to the mere fact that the Right to Privacy is bore as a fundamental right in India's Constitution.

The Apex Court has time and again established principles that should be followed by any statute restricting this freedom, namely - there must be a public purpose, a rational connection between the law and the aim, and that this is the least invasive means to achieve the goal. To put it another way, the invasion of privacy must be both essential and reasonable to the goal, which the said bill fails as a test. Moreover, it also misses the mark to meet the requirements of Article 14 for a legislation to be just, as well as for equality under the law.

Rummaging back to the first paragraph of this article, we now find ourselves asking us the question of what purpose the bill then tends to serve, all over again. Evidently, this bill makes the conduct far worse than the indication.

The government's proclivity for employing surveillance tools to target protestors and political opponents translates to us that the threat posed by this bill is severe. Ultimately, it empowers those in authority to undertake intrusive investigations in an uninformed fashion, targeting individuals with little accountability and few legal limits, let alone serving its initial purpose of easing investigations while new problems arise at the hindsight.

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