Criminal Procedure (Identification) Bill: Features, Benefits and Concerns – Explained, pointwise

Introduction

The Criminal Procedure (Identification) Bill, 2022 was introduced in the Lok Sabha on March 28, 2022. The Bill allows the police to collect, store and analyze physical and biological samples of certain persons. The government has come up with the new Bill to aid the investigation process and improve the law and order situation of the country. However many experts have expressed concerns over the Bill, particularly its conflict with the right to privacy and expansion of state’s surveillance powers.

What is the background?

The Bill replaces the Identification of Prisoners Act, 1920. The Act authorized the collection of certain identifiable information about specified persons (such as convicts) for investigation of crime. The Bill expands the definition of persons whose details can be taken as well as the ambit of such details. It authorizes the National Crime Records Bureau to collect, store, and preserve these details.

How is the Criminal Procedure (Identification) Bill different from the earlier act?

Coverage: According to the Identification of Prisoners Act, 1920, certain persons (like those convicted of offenses punishable by minimum 1 year of rigorous imprisonment) were required to give photographs and specified details.

The Bill widens the ambit of such persons to include all convicts (convicted of an offense punishable under any law for the time being in force), arrested persons, as well as persons detained under any preventive detention law.

Quantum of Details: The Identification of Prisoners Act permits the collection of photographs and specified details about convicts and other persons including finger impressions and footprint impressions. The Bill expands the list of details that can be collected. It will now include: (a) Palm-print impressions; (b) Iris and retina scans; (c) Behavioral attributes such as signature and handwriting; (d) Other physical and biological samples such as blood, semen, hair samples, and swabs, and their analysis.

Persons authorized to collect details: Under the Act, details may be collected by police officers who: (a) Are in charge of a police station; (b) Conduct investigation under the CrPC, or (c) Are at least at the rank of a Sub-Inspector.  

The Bill permits the collection of details about specified persons by either a prison officer (not below the rank of Head Warder), or a police officer (in charge of a police station, or at least at the rank of a Head Constable).

Power to make Rules: The Identification of Prisoners Act vested rule-making power only in the State government.  The Bill extends this power to the Union government as well. The Union or State government may make rules on various matters, including: (a) the manner of collecting details, and (b) the manner of collection, storage, preservation, destruction, dissemination, and disposal of details by NCRB.

What are the other key features of the Criminal Procedure (Identification) Bill?

Retention of details: The Bill requires the details collected to be retained in digital or electronic form for 75 years from the date of collection. The record may be destroyed in case of persons who: (a) Have not been previously convicted; (b) Are released without trial, discharged, or acquitted by the Court, after exhausting all legal remedies. A Court or a Magistrate may direct the retention of details in the case of such persons after recording reasons in writing.

Resistance to giving details: As per the Bill, resistance or refusal to give details will be considered an offense under the Indian Penal Code, 1860.  In such cases, police officers or prison officers may collect details in the manner prescribed under Rules made by the State government or the Union government. The furnishing of details is mandatory in case of crimes against women and children or offences punishable with a minimum 7 years of imprisonment.

Role of the National Crime Records Bureau (NCRB): The Bill empowers NCRB to collect the details about the persons covered under the Bill from State governments, Union Territory (UT) administrations, or other law enforcement agencies. Other functions of NCRB under the Bill include: (a) Storing and destroying the details about specified persons at the national level; (b) Processing the details with relevant criminal records; (c) Disseminating the details to law enforcement agencies.

What is the significance of the new Bill ?

Aiding Investigative agencies: It will enable the use of modern techniques to capture and record appropriate information. This would aid the investigative agencies, resulting in faster completion of trials. 

Maintenance of Law and Order: Faster adjudication of cases and certainty of punishment will enhance the law and order situation in the country.

Voluntary Nature: Arrested persons will not be obliged to give their biological samples unless they have committed an offense against a woman or a child, or an offense punishable with a minimum of seven years of imprisonment.

Cooperative Federalism: The Bill extends rule making power in the hands of the Union government as well, while earlier it was only with the State government. This will help in strengthening cooperative federalism between the Union and states.

Flexibility: Apart from NCRB, State governments and UT administrations may notify agencies to collect, preserve and share details about specified persons in their respective jurisdictions.

What are the concerns associated with the Criminal Procedure (Identification) Bill?

Lack of Clarity: Several provisions are not defined in the Bill. For instance, the statement of objects says it provides for collection of measurements for “convicts and other persons” but the expression “other persons” is not defined. It does include ‘those accused of certain offenses’, but it can be argued that the police could use the law to expand it to others.

Excessive State Surveillance: The proposed Bill brings a legal framework for police surveillance using technology, but experts fear that it could be expanded or misused.

Violation of Fundamental Rights: Some experts have argued that it violates fundamental rights of citizens including the right to privacy. The Bill states “increasing the conviction rate” as one of its aims. However experts believe it would not pass the 3 three-fold test of K.S Puttaswamy v Union of India case, which recognised the right to privacy as a fundamental right. The 3 parameters are (a) The activity must be backed by a law; (b) The State must have a legitimate interest in the subject to bring such a law that collides with fundamental rights; (c) The State’s infringement must be proportional to its aim.

The proposed law will also be debated against Article 20(3) of the Constitution, which is a fundamental right that guarantees the right against self-incrimination. It states that “no person accused of any offense shall be compelled to be a witness against himself.” 

What lies ahead?

First, the modalities of collection, storage or use of data will be prescribed in rules by the government and are not outlined in the Bill. This should be duly formulated and put in public domain for discussion and deliberation.

Second, given that policing is a state subject, it remains to be seen if any States refuse to share the information with NCRB. If this happens, then the objective of the new Bill would not be achieved.

Third, the Bill could be challenged in courts and hence the government should be prepared to satisfy the 3 fold privacy test.  

Fourth, the government should also formulate data protection law as recommended by the B.N Srikrishna Committee. This will reduce privacy breaches and provide more clarity on the right to be forgotten. It is necessary as the Bill also brings to focus rights of prisoners and the right to be forgotten since biometric data can be stored for 75 years. 

Conclusion

The Statement of Objects and Reasons of the Bill says that new ‘‘measurement’’ techniques being used in advanced countries are giving credible and reliable results. However, it can be considered useful in India only when it is in synchronization with the fundamental rights of citizens.

Source: Indian Express, Indian Express, The Hindu, Times of India