Op EdsOP. ED.

The Code of Criminal Procedure[1] now has a new leg to stand on[2]. Bill 93 of  2022 intends to entirely replace the existing “Identification of Prisoners Act, 1920”[3]. The Bill as it stands on the day of presentation to Parliament, gives the enabling provisions in Section 3(c) as produced below, which poses a particular conundrum:

“Any person, who has been, … or (c) arrested in connection with an offence punishable under any law for the time being in force or detained under any preventive detention law, shall, if so required, allow his measurement to be taken by a police officer or a prison officer in such manner as may be prescribed by the Central Government or the State Government:”

This poses a two-pronged conundrum, each considered individually or even if they were to be ascertained collectively:

(1) The emphasis is on “any person”, mentioned in Section 3(c) of the Bill intends to cover any person irrespective of the acquittal or conviction. This contrasts with “the Identification of Prisoners Act, 1920″ which intended to cover only convicts or persons falling under the erstwhile Section 118 of the Code of Criminal Procedure, 1898[4].

This poses a constitutional issue and derogation of the established jurisprudence in criminal law that any person is reasonably assumed to be innocent until convicted. This has not only been found in the “Universal Declaration of Human Rights”[5] (UDHR), the Supreme Court of United States’ jurisprudence on the “Coffin case[6] and the contemporary Indian jurisprudence which reiterated in numerous instances including Rajesh Prasad v. State of Bihar[7].

(2) “Arrested under any law” apropos is an event which is pre-trial and not adjudicated. Technically, a person could be arrested under any law and discharged without a conviction. This could very well be an error in the arrest procedure as established in Section 41[8] of the Code of Criminal Procedure. This was analysed in Roshan Beevi v. Govt. of T.N.[9] The obligation in this proposed Bill, is being cast on the person to prove that their “measurement” should not be taken.

This effectively enables a police officer relying on Sections 53[10] and 53-A[11] of the Code of Criminal Procedure to obtain not only photograph but history of behaviour of the person. Section 2(b)[12] of the proposed Bill defines measurement as:

“‘measurements’ includes finger impressions, 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 referred to in Section 53 or Section 53-A of the Code of Criminal Procedure, 1973;”

Comparing this to the definition of measurement, as seen in the Oxford Dictionary as “a unit used for stating the size, quantity or degree of something, a system, or a scale of these units, weights and measures”, one can reasonably comprehend the conundrum of why the term “measurement” was used in the Bill.

 The intention of the Criminal Procedure Code to be updated with this, as proposed by the Bill, is to enable the National Crime Bureau to effectively store and retain the records and for 75 years as can be seen in Section 4(2) of the proposed Bill[13]. This is a glaring view and points to the International Covenant on Civil and Political Rights[14], which proposes in Article 17[15] that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation”. India is party to the covenant. A further reading into the Criminal Procedure (Identification) Bill and especially the proviso to Section 4(2) states that the person, for the purposes of deleting their record and consequently being subjected to this “measurement” process must “exhaust all remedies” of trial before seeking protection from the inapplicability of this “measurement” by the police. This too is caveated by the provision that the Magistrate has to satisfy himself to that effect. As if this did not have enough teeth, if one looks at Section 6(2)[16] of the Bill which makes resistance to such measurement an offence, the law enforcement itself would be puzzled by the inherent self-defeat of the Bill. To hypothesise the scenario, by resisting to take measurement under the fundamental rights of the Constitution[17], one may commit an offence under this Bill and thereby resulting in a reasonable claim by law enforcement that they should be subjected to “measurement”.  This unambiguously casts the obligation on the accused or arrestee to present beyond reasonable doubt, their case that they have exhausted all remedies. This, again, is derogating the established criminal jurisprudence that the person accusing must prove beyond reasonable doubt and not the person accused.

Turning to international norms, it is an established principle under international law that right to privacy is a jus cogens or pre-emptory norm. It cannot be derogated by any legislation and an actionable claim lies against it. Surveillance, as it stands now, is limited to the Telegraph Act, 1885[18] and the Information Technology Act, 2000[19]. However, this is limited to the online/cyber infrastructure. Insofar as the Criminal Procedure (Identification) Bill which has been tabled, the concept of surveillance has gained wider ambit as compared to the law that it intends to replace i.e. the Identification of Prisoners Act, which restricted itself to convicts and preventive detainees.

The Magistrate Courts (lower judiciary) are already burdened with a host of criminal cases coupled with the fact that the number of Public Prosecutors available are fifty per cent of the capacity. Adding to their burden, is the administration of this enabling provision in the Bill, in which the Magistrate must make a determination on a case-by-case basis.

This neither stands the test of the Constitution of India nor the international covenants. Another question before the law enforcement is the territorial reach of the law insofar as convicts who have been released after their sentence and perhaps residing in another country. The law is ambiguous on the extent to which the law enforcement can reach to take the “measurement” of the person. Adding to the intrigue is the provision of “measurement” which has to be taken and preserved for 75 years in Section 4(2). The length of the preservation of records and intent is unclear. To contextualise, various High Courts in India preserve their records for 30 years. The period of limitation for a criminal case is infinite for serious offences but has been prescribed between 6 months to 3 years for certain offences. In this instance, the evidence that could be adduced for an offence, including behavioural pattern of an arrestee has been given the high latitude of 75 years. This is more or less the average life span of a person in India.

This said, the obligation now, is on the municipal jurisdictions i.e. the High Courts and the Magistrate Courts to amend their manuals to accommodate this. The obligation is also cast on the States to enact a supplementary law in their own “Police Act”. While all of this is being done, the fundamental test of this law is awaiting at the corridors of the Supreme Court of India and in International Court of Justice.


* Professor of International Law and an alumnus of The Hague Academy, Netherlands. Author can be reached at casrikantparth@gmail.com.

** Amirthalakshmi R, Principal Counsel, Chambers of Dr. Srikant Parthasarathy 

[1] Criminal Procedure Code, 1973.

[2] Criminal Procedure (Identification) Bill, 2022.

[3] Identification of Prisoners Act, 1920.

[4] Identification of Prisoners Act, 1920, S. 3(b), “(b) ordered to give security for his good behaviour under S. 118 of the Code of Criminal Procedure, 1898 (5 of 1898)”.

[5] United Nations — Universal Declaration of Human Rights, Art. 11.

[6] Coffin v. United States, 1895 SCC OnLine US SC 53 : 39 L Ed 481 : 156 US 432 (1895).

[7] 2022 SCC OnLine SC 23.

[8] Code of  Criminal Procedure, S. 41.

[9] 1983 SCC OnLine Mad 163 : 1984 Cri LJ 134.

[10] Criminal Procedure Code, 1973, S. 53.

[11] Criminal Procedure Code, 1973, S. 53-A.

[12]  Criminal Procedure (Identification) Bill, 2022.

[13]  Criminal Procedure (Identification) Bill, 2022.

[14] International Covenant on Civil and Political Rights, 1966.

[15]  International Covenant on Civil and Political Rights, 1966, Art. 17.

[16]  Criminal Procedure (Identification) Bill, 2022.

[17] Constitution of India.

[18] Telegraph Act, 1885.

[19] Information Technology Act, 2000.

Experts CornerSanjay Vashishtha

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.