The Criminal Procedure (Identification) Bill, 2022 and the Right to Privacy

Introduction

On 28-3-2022, the Criminal Procedure (Identification) Bill, 2022 was tabled in the Lok Sabha[1]. The Bill seeks to repeal the Identification of Prisoners Act of 1920, which permits the acquisition of personally identifiable information about certain people, such as criminals, in order to conduct criminal investigations. The Bill was introduced with the objective of authorising the taking of measures of convicts and other persons for the sake of identification and investigation in criminal circumstances, as well as the preservation of records, among other things. This Bill expands the reach of such information as well as the people who can get it. It authorises the National Crime Records Bureau to collect, store, and maintain specified records. It must have been developed to allow for the use of contemporary technology to take and record accurate body measurements. Finger imprints, palm print and footprint impressions, photos, iris and retina scan, physical, biological samples and their analysis are all included in the Bill’s definition of “measurements”.

Key factors of the Bill

It has surfaced:

  • To allow for the application of contemporary technology to take and record accurate body measurements.
  • Invest the National Crime Records Bureau (NCRB) with the authority to collect, store, and preserve records of measurements, as well as to share, disseminate, destroy, and dispose of records.
  • To allow a Magistrate to order anyone to take measures; additionally, a Magistrate can order law enforcement officials to collect in the case of a specific category of convicted and non-convicted individuals, “fingerprints, palm print impressions, footprint impressions, photographs, iris and retina scan, physical, biological samples and their analysis, behavioural attributes including signatures, handwriting, or any other examination”.
  • To any person who resists or refuses to offer measures should be able to be measured by police or jail authorities.

For the purposes of inquiry, the Bill also permits police to keep track of signatures, handwriting, and other behavioural characteristics referred to in Section 53 or Section 53-A of the Code of Criminal Procedure, 1973.

On the direction of a Magistrate, finger and footprint impressions, as well as a limited category of convicted and non-convicted persons’ pictures, are permitted.

According to the Bill’s criteria, anyone convicted, imprisoned, or held under any preventive detention act will be obliged to give “measurements” to a police officer or a prison official.

Necessity of the Bill

  • The Bill was introduced to enable for the use of modern means to capture and record acceptable body dimensions, as the existing law, the “Identification of Prisoners Act, 1920,” only allowed for the capturing of fingerprint and footprint impressions of a select group of convicted individuals.
  • In addition, the Bill aims to broaden the “ambit of persons” who can be measured, which will aid investigative authorities in gathering adequate legally admissible evidence and establishing the accused person’s crime.
  • In addition, the Bill stipulates legal authority for taking proper body measurements of those who are compelled to submit such measurements, which would improve the efficiency and speed of criminal investigations while also enhancing the conviction rate.

Constitutional validity of the Bill with respect to privacy

By altering the Act’s scope and repealing it, the legislation has expanded the jargons of the Identification of Prisoners Act of 1920. The Bill has defined the term measurements under Section 2(1)(b), which includes finger impressions, palm impressions, foot impressions, photographs, iris and retina scan, physical, biological samples and their analysis, behavioural attributes such as signatures, handwriting, or any other examination referred to in Section 53 or Section 53-A of the Code of Criminal Procedure, 1973.

The legislature’s intention to make the word measurement exclusive in nature by including general words like physical and biological samples could lead to narcoanalysis and brain mapping through the use of force implicitly in collection, directly violating Article 20(3), right to self-incrimination, and Article 21, right to life, of the Indian Constitution.

According to Article 20(3) of the Constitution of India (COI), no person accused of a crime may be forced to testify against himself. It has become a source of concern regarding the privacy of individuals, which is in jeopardy.

  • It should be noted that it is also in violation of the United Nations Charter’s Human Rights requirements. Privacy is a fundamental human right, and there are various aspects of privacy such as privacy of space, privacy of body, privacy of information, and privacy of choice that have evolved over time through a catena of Supreme Court judgments beginning with K. Gopalan v. State of Madras[2], Kharak Singh v. State of U.P.[3], Charles Sobraj v. Supt. Central Jail[4], Sheela Barse v. State of Maharashtra[5] and Pramod Kumar Saxena v. Union of India[6].
  • In addition, Clause 4(2) of the Bill allows for the retention of measurement records for 75 years, which is a clear infringement of the right to be forgotten, as recognised by the Supreme Court in S. Puttaswamy v. Union of India[7].
  • Furthermore, it contradicts the core concept of criminal law that no one is guilty until proven guilty in a court of law.
  • Further, In Narayan Dutt Tiwari Rohit Shekhar[8], the Court declared that nobody should be compelled to be subjected to any techniques in question in any circumstances, even when it is in the context of an investigation in a criminal matter. Such actions would constitute an unjustified infringement into an individual’s personal liberty.
  • In Kharak Singh State of U.P.[9], the Court determined that the term “life” refers to more than animal existence. The resistance to its loss spreads to all of our limbs and faculties, allowing us to appreciate life. The right to life, it could be argued, does not only apply to animals. It refers to more than a person’s physical well-being.
  • The Supreme Court added a new dimension to Article 21 in Maneka Gandhi Union of India[10], declaring that the “right to life or live” includes not just bodily existence but also the right to live with dignity. This Bill puts a person’s life on hold, and he will always be under government observation, which is a serious invasion of privacy.
  • The Supreme Court ruled in State of A.P. Challa Ramakrishna Reddy[11] that one of the basic human rights guaranteed to everyone is the right to life. It is so fundamental that no one, including the Government, has the authority to violate it. Even when incarcerated, a person retains his or her humanity. He retains his human status and is thus entitled to all fundamental rights, including the right to life.

Conclusion

As a result, the Bill was introduced in order to allow for the use of modern means to capture and record acceptable body dimensions, with the goal of authorising the taking of measurements of convicts and other people for the purposes of identification and investigation in criminal cases, as well as the preservation of records, among other things. The Bill has infringed citizens’ fundamental rights by granting the State broad powers to store prisoner records and conduct physical and biological tests with the implied force of law, which is contrary to the rule of law and arbitrary in character. People do not lose their humanity while they are imprisoned.

The Supreme Court of India, as well as many other Indian courts, have reaffirmed this position in a number of cases to ensure that prisoners do not become victims. Since then, the legislature has been unable to qualify the intangible differentia and rational connection tests. As a result, it is a blatant infringement of the citizen’s fundamental rights stated in Sections 14, 19, 20(3), and 21 of the Constitution of India.


† Advocate is a practicing counsel at the Supreme Court of India, BA LLB (Hons.), LLM in Comparative Criminal Law from McGill University, Canada and MSc, Criminology and Criminal Justice from University of Oxford and Research Associate (India) University of Oxford, United Kingdom.

[1] See HERE .

[2] AIR 1950 SC 27.

[3] AIR 1963 SC 1295 : (1964) 1 SCR 332.

[4] (1978) 4 SCC 104.

[5] (1983) 2 SCC 96.

[6] (2008) 9 SCC 685.

[7] (2017) 10 SCC 1.

[8] (2012) 12 SCC 554.

[9] AIR 1963 SC 1295 : (1964) 1 SCR 332.

[10] (1978) 1 SCC 248.

[11] (2000) 5 SCC 712.

One comment

Join the discussion

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.