Op EdsOP. ED.


Identity may be thought of as a quality of a thing or a person. In an instance where the court must know the identity of any person or thing which would substantially help in adjudicating upon a case, then every fact which establishes such identity becomes relevant. With the development of law, police use visual, scientific, audio, etc. modes for obtaining identification of suspects. Indeed, there is no restriction on facts to be given in court to establish the identity in question, but their admissibility may vary. This paper focuses on the study of witness evidence that are admissible in proving the identity of a suspect and problems which may curtail the admissibility of such shreds of evidence.

Significance of identification evidence

The two questions which hold great importance in criminal trials are: whether the offence that is alleged was committed and if yes, then who committed it. Talking particularly about the questions pertaining to identity may come up in two ways—

  1. A person’s identity with an ascertained person.
  2. A person’s identity as the doer of a particular act.

When a person’s identity with an ascertained person is in issue then it may be proved and disproved presumptively by similarity or dissimilarity of characteristics like weight, size, hair, voice, etc[1].

The identity of a person or thing is necessary to prove relevant facts of the case and the identification test is not a substantive piece of evidence. It provides a kind of assurance to the investigating agency and the court that they are proceeding in the right direction. The same was held by the court in Musheer Khan v. State of M.P.[2].

There is this notion that witnesses are the best sources of extracting reliable evidence because of the assumptions that if a person sees someone commit a crime especially a stranger he or she would not forget the accused face or appearance because the person witnessed an unusual event and it is a human tendency to remember such things somewhere in the back of their minds which was not normal to them. Also, Bentham said “witnesses are the eyes and ears of justice”, this makes the role of a witness of paramount importance in the justice delivery system.

Though identification evidence is potentially unreliable and merely corroborative in nature, errors in recording them or cases of mistaken identity though in good faith can lead to effects like wrong convictions which can prove to be extremely serious for the defendants and his/her family also many times. For a long time misidentifications have bedeviled our justice system and continue to, with a rate of 52% wrongful convictions every year as a consequence of it. So, the testimonies and identification evidence made by a witness must be dealt with utmost sensitivity as they play a vital role in deciding a matter and delivering judgment. Any false or wrong identification made on part of the witness becomes a gateway to the wrongful conviction of an innocent for the crime which that person to all intents and purposes didn’t commit. It is of paramount importance for the Judge to check and weigh the credibility and accuracy of such identification evidence given by the witnesses along with keeping a check that the evidentiary standards are maintained to avoid a miscarriage of justice.

Many times, it becomes difficult to identify the accused as the crimes are committed under the cover of darkness. In such cases, the identity of a person or thing and commission of a crime can be established using circumstantial evidence[3]. In cases where the guilt gets established by circumstances in such cases, the identification of the accused either in court or through test identification parade is not a sine qua non[4].

Under Indian law

Section 9 of the Evidence Act, 1872 deals with the facts which establish the identity of anything or person.

As per the section, all these facts are relevant[5]

  1. One’s which are necessary to explain a fact in issue or relevant fact.
  2. Which are required to introduce any fact in issue or relevant fact.
  3. That support the inference suggested by a fact in issue or relevant fact[6].
  4. Which rebut any or all conjectures made by a fact in issue or relevant fact[7].
  5. Which establish the identity of a person or a thing whose identity is relevant.
  6. Which fix the time or place at which the facts in issue or relevant fact happened[8].
  7. Establish the relations of parties between whom any such fact was transacted.

These facts are not otherwise admissible as far as they are necessary for the purpose pointed out in each category[9]. These facts sometimes give strength to the evidence given by one side and sometimes break the force of evidence given by the adverse side. These are explanatory pieces of evidence that are not relevant in themselves and the effect of these may not be affirmative in all cases, still, they prove to be substantial for corroboration of other shreds of evidence.

As we know that our criminal law stands on the saying “innocent until proven guilty” and this principle makes it mandatory for the prosecution to establish the evidence beyond reasonable doubt for the conviction to take place. The cases which rely on identification evidence tend to fail even if there exist any room for misidentification to occur because then the probative value of such evidence slump down[10].

There are various modes of identification—

  1. Photofits

Photofit is a reconstructed picture of a person what in layman terms we know to be a sketch of the face of a person or an attempted description of someone[11]. This technique is basically used as an attempt to reproduce the face of the suspects soon after the crime takes place so that the witness can let out whatever he can recall from the incident which he witnessed. It is claimed by Psychologist Ebbinghaus in “forgetting curve” that–

if attempts are made to recall and rehearse information then it can become a part of long-term memory otherwise at its first stage the information forms a part of our short-term memory which tends to fade away over a period of time[12].

The chances of misidentification increase with the increase in the time interval between the crime and identification exercise. In Reg. v. Cook (Christopher) the appeal that a photofit was not a written statement that could come under the purview of the rule against hearsay was dismissed and the photofit evidence was held to be admissible by virtue[13].

  1. Identification by photographs

Identification by photograph is another method used specifically at the investigation stage. It was held by the Supreme Court that there is no legal provision which states that identification by photograph is not admissible. In fact, it becomes a substantive piece of evidence when such identification is made in the Court[14]. Moreover, according to the court, identification by photograph must take place of test identification[15]. It is to be noted that in cases where the witness lays out some identifying features of the accused the course of action to be adopted by the investigating officer should be the one where the witness is shown more than one photograph of the suspect if available to draw out a confirmation as to the identity of the accused[16].

  1. Video and voice identification

Identification of the accused by the witness through video recording is admissible. In the case of D. Gopalakrishnan v. Sadanand Naik[17], it was said by the court that where there is the availability of video recording through which the witness can testify the identity of the accused then the photographs of the suspects should not be shown before such identification.

On the other hand, identification by voice is a bit risky in criminal trials particularly where the witness is not acquainted with the suspect and there are fine variations in overtones.[18] Many a time the legality of the orders passed by courts directing the accused to furnish the sample of his or her voice as a part of the identification process has been challenged. This question particularly was dealt with by the Law Commission of India in its 87th Report[19] on the Identification of Prisoners Act, 1920[20] when on the realisation of the fact that there is no legal provision in Indian laws, the necessity to amend Section 5[21] of the Act of 1920 was suggested which would empower the courts to direct the accused to give a sample of his voice. The controversy was finally settled by the Supreme Court in Ritesh Sinha v. State of U.P.[22], invoking its plenary power under Article 142[23] of the Constitution of India through the process of judicial interpretation the court under the cover of Section 54-A of the Criminal Procedure Code, 1973[24] engrafted the power on the Magistrate to pass orders directing the voice samples to be furnished by the accused or the suspect whenever in the case, the witness is capable of confirming the identity of the accused on the basis of voice recognition[25].

  1. Test identification parade

One of the most popular and widely used methods of identification of witness is the identification parade. Test identification parade is one where the witness who claims to have seen the culprit at the time of occurrence is to identify the accused from the midst of suspects without any aid or other source. These are meant to test the veracity of the witness and the capability to identify unknown persons. Test identification parade should be conducted at the earliest possible so as to eliminate the chance of the accused being shown to witness prior to the identification parade which might otherwise affect the memory of the witness along with the credibility of the evidence to be sought.

Test identification parade belongs to the investigation stage and there is no provision in the Code of Criminal Procedure, 1973[26] under which the accused can claim it as a matter of right or makes it mandatory for the investigating officer or agency to hold an identification parade[27]. In Ramanathan v. State of T.N.[28] the Supreme Court explained the utility of the evidence created by test identification parade (TIP). The Court said that the purpose behind holding a test identification parade by placing suspects in a line up so that the witness of the incident could recall the features in sufficient details and to find out who is the perpetrator of the crime.

It is not a substantive piece of evidence rather is used for the purpose of corroboration and to strengthen the trustworthiness of substantive evidence of a witness in the Court[29].The parades come under the purview of Section 164[30] of the Code of Criminal Procedure, 1973[31].

Delay or failure in holding the TIP does not by itself render the evidence inadmissible or unacceptable but affects the credibility and weight attached to such identification[32]. The Supreme Court held that the identification by witness of the accused for the first time in the court is worthless till the time it is not tested prior by test identification parade[33]. But this view was changed later on in Ravi Kapur v. State of Rajasthan[34] it was held that court identification is itself a good identification in the eye of the law, it depends on the facts and circumstances of each case and is not necessary that it must be preceded by test identification parade.

Procedure for test identification which is generally followed is

  1. Test identification parade is conducted by the Magistrate.
  2. Such parades are conducted in special rooms with one side view glass where on one side of it the suspects are lined up and on the other side the witness and Magistrate.
  3. The witness and Magistrate must not be on the side where they are not visible to the suspects. The main reason behind this is the protection of the witness and also to avoid any kind of influence or threat which could compel the witness to make false identification.
  4. Also, the attire of the suspects must be changed every time a witness is called to identify the accused among them.
  5. The Magistrate must prepare, certify and carry multiple copies of TIP reports[35].

With the development of technology and sophisticated computer systems countries like Britain nowadays use VIPER (video identification parade electronic recording) as a replacement for live parades where a line up of 15-second clips are shown in a sequence which starts with the person’s front face and then slowly turning to show left and right profiles[36]. There is a dire necessity to introduce such a system in India as well.


Though there are many ways to set up accused identity, the admissibility and credibility of such identification evidence given by a witness need to be weighed, especially in cases where the case of prosecution solely depends on such identification evidence. Therefore these evidences are a paradox in themselves because the memory of the witness can be easily flawed due to factors like duress or stress after witnessing a crime, influence from accused, family or acquaintance, and lapse of time, etc. and this affects the quality and credibility of such evidences making them hopelessly unreliable. Research tells that the memory of the witness of the accused appearance may remain in short memory for a brief period of time which can be easily lost. Also, the chances of memory for face getting affected and altered are substantial, particularly in situations where the eyewitness receives any misleading information through any source. Therefore these evidences are merely corroborative and not substantive in nature because their credibility and accuracy remain in question which prevents them from being the sole basis of conviction of the accused. Still, the importance of the identification evidence given by witness cannot be ignored completely while adjudicating upon a case. Steps should be taken by the courts to understand the subjectivity of the question involved, carefully weigh the identification evidence and accordingly apply legal principles[37].

3rd year student, BA LLB, Delhi Metropolitan Education affiliated with GGSIP University, e-mail: prerna_mohan@yahoo.com.

[1] Irshad v. State of Rajasthan, 2004 SCC OnLine Raj 474

[2] (2010) 2 SCC 748

[3] Prakash v. State of Karnataka, (2014) 12 SCC 133 : (2014) 6 SCC (Cri) 642

[4] Visveswaran v. State, (2003) 6 SCC 73 : 2003 SCC (Cri) 1270

[5] The Evidence Act, 1872, S. 9

[6] Shantanu Chakrak, S. 9 of the Evidence Act, 1872, Shareyouressays (25-3-2021, 12.02 a.m.), <https://www.shareyouressays.com/knowledge/section-9-of-the-indian-evidence-act-1872-2/120396>.)

[7] SRD Law Notes (22-3-2021, 16.00), <https://www.srdlawnotes.com/2016/12/identification-parade_23.html>.

[8] Tan Shoo May, Visual Identification: Recognition and Identification, Law of Evidence (23-3-2021, 11.10 a.m.), <http://evidencejournalist.weebly.com/bloggers/visual-identification-recognition-identification>.

[9] Batuk Lal, The Law of Evidence, 129 (22nd Edn., Central Law Agency, 2018).

[10] Riya Sharma, The Eyewitness Enigma: A Paradox in the Law of Evidence, The Criminal Law Blog, National Law University, Jodhpur (23-3-2021, 17.31),  <https://criminallawstudiesnluj.wordpress.com/2019/03/07/the-eyewitness-enigma-a-paradox-in-the-law-of-evidence/#_ftn1>.

[11] Reg. v. Cook (Christopher), (1987) 2 WLR 775

[12] Siegen K. Chou, What is the Curve of Forgetting? 45(2) The American Journal of Psychology 348 (1933).

[13] (1987) 2 WLR 775

[14] Umar Abdul Sakoor Sorathia v. Narcotic Control Bureau, (2000) 1 SCC 138

[15] Laxmi Raj Shetty v. State of T.N., (1988) 3 SCC 319

[16] D. Gopalakrishnan v. Sadanand Naik, (2005) 1 SCC 85

[17] (2005) 1 SCC 85

[18] Dola v. State of Odisha, (2018) 18 SCC 695

[19] <http://www.scconline.com/DocumentLink/515Y2gm2>.

[20] Law Commission of India, 87th Report on the Identification of Prisoners Act, 1920,(1980) 

[21] <http://www.scconline.com/DocumentLink/Wz2R58rl>.

[22] (2019) 8 SCC 1, para 27

[23] <http://www.scconline.com/DocumentLink/z3Hfxsu4>.

[24] <http://www.scconline.com/DocumentLink/WRitQgBb>.

[25] P.N. Prakash, Sanjay S. Jain and Sharath Chandran, The Legality of Voice Exemplars: An Opportunity Missed: Ritesh Sinha v. State of U.P., (2021) 1 SCC J-73 

[26] <http://www.scconline.com/DocumentLink/y587uE3Q>.

[27] Malkhansingh v. State of M.P., (2003) 5 SCC 746

[28] (1978) 3 SCC 86 at pp. 1211-1212

[29] Ram Babu v. State of U.P., (2010) 5 SCC 63; Vijay v. State of M.P., (2010) 8 SCC 191, 199

[30] <http://www.scconline.com/DocumentLink/JD3w6KNb>.

[31] Sarvesh Kumar Shahi, Rules and Principles of Identification under Criminal Justice System, SCC OnLine (25-3-2021, 13.00), <https://www.scconline.com/blog/?p=234322#_ftn23>.

[32] Shyamal Ghosh v. State of W.B.,  (2012) 7 SCC 646

[33] V.C. Shukla v. State (Delhi Admn.), (1980) 2 SCC 665 at p. 1396

[34] (2012) 9 SCC 284

[35] Murugasamy v. State, 2017 SCC OnLine Mad 37658

[36] Sarvesh Kumar Shahi, Rules and Principles of Identification under Criminal Justice System, at p. 6, SCC OnLine (25-3-2021, 13.00), <https://www.scconline.com/blog/?p=234322#_ftn23>..

[37] Riya Sharma, The Eyewitness Enigma: A Paradox in the Law of Evidence, The Criminal Law Blog, National Law University, Jodhpur (23-3-2021, 17.31), at p. 3  <https://criminallawstudiesnluj.wordpress.com/2019/03/07/the-eyewitness-enigma-a-paradox-in-the-law-of-evidence/#_ftn1>.

Case BriefsForeign Courts

Supreme Court of Louisiana: While determining the constitutionality of statutory requisite under La. R.S. 40:1321(J) and La. R.S. 15:542.1.4(C) that, persons convicted of sex offences carry an identification card branded with the words ‘sex offender’, the Court with a ratio of 2:1 held that this requirement constitutes compelled speech and fails to survive the strict scrutiny analysis of First Amendment, hence the requirement is unconstitutional. Observing thusly, Court upheld the decision of the District Court declaring the aforementioned provisions to be unconstitutional.

Facts and Contentions

 As per the law prevailing in State of Louisiana (hereafter the State), La. R.S. 15:542.1.4(C) sets forth the penalties for altering a branded identification card and the ‘obtain-and carry’ provision found under La. R.S. 40:1321(J). The defendant was charged with altering an official identification card to conceal his designation as a registered sex offender in violation of La. R.S. 15:542.1.4(C). Stating that the applicable provisions are unconstitutional, the defendant argued that the impugned provisions violate the First Amendment prohibition against compelled speech. The Defendant also objected to showing others an identification prominently showing the words ‘sex offender’ because of the social consequences of that message rather than for religious or political reasons.

Per contra, the State argued that the defendant lacks locus standi to challenge the requirement that he carries his branded identification card, as he was charged with altering it and not failing to carry it. The State further contended that the defendant’s ID card lacked First Amendment protection due to- the impugned statute regulates conduct, not speech; defendant’s actions fell outside of First Amendment protection because they constituted speech integral to criminal conduct; and, defendant acted fraudulently, and fraud is not protected speech.  The State also argued that imposition of restrictive measures on sex offenders adjudged to be dangerous is a legitimate non-punitive governmental objective.

The District Court upon perusing the arguments, had quashed the State’s bill of information against the defendant and held that the provisions in question are facially unconstitutional.

The First Amendment provides that the ‘Congress shall make no law… abridging the freedom of speech’ and protects against prohibitions of speech, and also against laws or regulations that compel speech.

The Majority Opinion- 

Genovese and Weimer, JJ., formed part of the majority, with Weimer, J., giving his concurring opinion. The majority found the State’s contentions to be non-persuasive. Referring to the precedents of Wooley v. Maynard, 1977 SCC OnLine US SC 63 and Walker v. Texas Division, Sons of Confederate Veterans, Inc., et al, 2015 SCC OnLine US SC 67, the Court deliberated whether Louisiana’s identification is more like a license plate which can be a hybrid of compelled and government speech, or more like a passport. It was noted that identification card branded with ‘sex offender’ is speech, thus, even though an identification card is government speech, a compelled speech analysis may still be required. Perusing the facts of the case, the majority noted that the defendant is required not only to register his residence, to provide information to the government, but he is also required to display the words ‘sex offender’ on his ID card which he will have to show to the public while performing everyday tasks. Furthermore, the branded ID card is compelled speech, and it is a content-based regulation of speech that consequently must pass strict scrutiny. While the State certainly has a compelling interest in protecting the public and enabling law enforcement to identify a person as a sex offender, Louisiana has not adopted the least restrictive means of doing so. “A symbol, code, or a letter designation would inform law enforcement that they are dealing with a sex offender and thereby reduce the unnecessary disclosure to others during everyday tasks. As Louisiana has not used the least restrictive means of advancing its otherwise compelling interest, the branded ID requirement is unconstitutional”.

The Dissent

 Disagreeing with the majority, Cairn, J., observed that The First Amendment sternly limits a state’s authority to compel a private party to express a view with which the private party disagrees. Referring to Johanns v. Livestock Mktg. Association, 2005 SCC OnLine US SC 36; the Judge deliberated whether in the present case observers would attribute, or actually have attributed, the speech to the individual rather than to the government. It was observed that nothing about the placement or content of the subject speech remotely suggests it is made or endorsed by the defendant. It declares the defendant is a sex offender. It appears on a state-issued ID card and “Persons who observe designs on IDs routinely—and reasonably—interpret them as conveying some message on the issuer’s behalf” [Walker]. “No reasonable observer, when looking at the ID card, will conclude that the defendant chose to promote his status as a convicted sex offender by voluntarily procuring and personalizing a state-issued ID card to declare that information for the world. This case turns on a single determinative question: who is the speaker? Any reasonable observer of the defendant’s state-issued identification card would readily ascertain the speaker is the government, not the defendant”.[State of Louisiana v. Tanzin Ardell Hill, No. 2020-KA-0323, decided on 20-10-2020]

Sucheta Sarkara, Editorial Assistant has put this story together

Image Credits: Courthouses.co

Op EdsOP. ED.


To obtain an identification of the suspect, police uses several modes like visual, audio, scientific and test identification parade. Although numerous jurisdictions have made improvements to their identification procedures in recent years, a large share of jurisdictions have still not made significant reforms. Although some courts have been making better use of the scientific findings on eyewitness identification, most courts are still using an approach that is largely unsupported by scientific findings. This paper focuses on the study of study of how eyewitness evidence is perceived in the criminal justice system. The paper highlights the relevancy and admissibility of identification of the accused in Court, having regard to the criminal burden of proof, the frailties of eyewitness identification evidence and the problems in the line-up procedures employed by the police.


The issue of identification is one for you to decide as a question of fact”.[1]

Identification evidence is highly persuasive to triers of fact. There is an intuitive sense that when someone witnesses a stranger commit a crime, he or she should be able to remember that face. After all, we see and remember faces every day. However, more than four decades of research has revealed this assumption to be flawed, there is clear evidence that witnesses often struggle with accurately recognising the face of a stranger perpetrator[2]. Indeed, although eyewitness testimony can be an important and valuable form of evidence, eyewitness identification errors are a leading cause of wrongful convictions in many countries[3].

The evidence which requires particular attention is identification evidence, which resembles confession evidence in being, at the same time, both extremely compelling and potentially unreliable. Witnesses are frequently required to identify persons whom they have only seen fleetingly and often in confused circumstances. The identification of the perpetrator is often the only issue that needs to be determined in a criminal trial[4].

Mistaken identity may often occur in good faith, but the effects can be extremely serious for the defendant and, for this reason, there is an obvious need for caution in relation to such evidence. As with evidence of lies by the defendant, the hazards associated with identification evidence are addressed by means of a Judge’s direction, but there are additional safeguards which apply where the identification has been made by means of a formal procedure conducted under police supervision, such as an identification parade[5].

In its 1993 Report, the Royal Commission on Criminal Justice spoke of the compromise that has to be struck between crime control and due process values, so that “the risks of the innocent being convicted and the guilty being acquitted are as low as human fallibility allows”[6]. There are references to the need to strike a reasonable balance between the protection of a suspect’s rights and allowing the police the freedom to do their job throughout the Report, leaving the reader with the impression that if we could find this rather mystical balance, then all would be well.


‘Identification’ is the proof in a legal proceeding that a person, document, or other thing is that which is alleged to be. Identification is the evidence of identity[7]. Phipson states that “it is often important to establish the identity of a person who a witness testifies that he saw on a relevant occasion. Sometimes, the witness will testify that he had seen the person before, or even know the person well, and therefore recognised the person observed on the relevant occasion”.[8] The identity of a person can be established by the evidence of persons who know him[9].


Many times crimes are committed under the cover of darkness when none is able to identify the accused. The commission of crime, in those cases, can be proved by establishing the identity of accused. Identification evidence is seen to be inherently fragile. In Alexander v. R[10], Mason, J. stated that:

“Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognising on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed.”

The identification evidence has for some time been regarded as potentially dangerous for the simple reason, that mistakes are easy to make where identification is concerned.[11] Before we notice the circumstances proving the case against the accused and establishing the identity beyond reasonable doubt, it has to be borne in mind that approach required to be adopted by courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity. Further, the evidence is required to be appreciated having regard to the background of entire case and not in isolation.[12]

In another case[13], where the question was raised whether evidence is permitted even in absence of formal proof by the Executive Magistrate concerned? The Court held that the fact that the Executive Magistrate concerned did not prove the Test Identification Parade does not make it inadmissible.


In response to widespread concern over the problems posed by cases of mistaken identification, the Court of Appeal in R v. Turnbull[14] laid down important guidelines Judges in trials that involve disputed identification evidence.

Where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification(s). The  Judge should tell the jury that:

i. caution is required to avoid the risk of injustice;

ii. a witness who is honest may be wrong even if they are convinced they are right;

iii. a witness who is convincing may still be wrong;

iv. more than one witness may be wrong;

v. a witness who recognises the defendant, even when the witness knows the defendant very well, may be wrong.

The  Judge should direct the jury to examine the circumstances in which the identification by each witness can be made. Some of these circumstances may include:

i. the length of time the accused was observed by the witness;

ii. the distance the witness was from the accused;

iii. the state of the light;

iv. the length of time elapsed between the original observation and the subsequent identification to the police.


Section 9 of the  Evidence Act, 1872 is concerned with the admissibility of facts which are necessary to explain a fact in issue or relevant fact. The section deals with that kind of evidence which if considered separate and distinct from other evidence would be irrelevant; but if it is taken into consideration in connection with some other facts, proved in the case it explains and throws light upon them[15]. As per Section 9, facts which establish the identity of accused are relevant[16]. This section does not deal with testimonial identity. Circumstantial evidence of identity are dealt within this section[17].

Where the court has to know the identity of anything or any person, any fact which establishes such identity is relevant. Personal characteristics such as age, height, complexion, voice, handwriting, manner, dress, blood group, knowledge of particular people and other details of personal history are relevant facts[18].

Identification proceedings are facts which establish the identity of an accused person as the doer of a particular act, and would be relevant under Section 9; but only if evidence of such identification is given by the witness. On the question of the admissibility of the evidence, the Supreme Court[19] held that “if a Magistrate speaks of facts which establish the identity of anything, the said facts would be relevant within the meaning of Section 9 of the Evidence Act; but if the Magistrate seeks to prove statements of a person not recorded in compliance with the mandatory provisions of Section 164 CrPC, such part of the evidence, though it may be relevant within the meaning of Section 9 of the Evidence Act, will have to be excluded.”


In a case involves disputed identification evidence, and where the identity of the suspect is known to the police, various methods like finger/thumb impression, voice, digital, comparison of writing, identification parade by police are used for the purpose of establishing facts showing identity of accused and properties which are the subject-matter of alleged offence. All the modes are discussed broadly as follows:

(i) Test Identification Parade (popularly known as TIP)

One of the methods used for establishing the identity of a person as the doer of a particular act is by means of identification parades[20]. In a case which involves disputed identification evidence a parade must be held if the suspects ask for one and it is practicable to hold one. A parade may also be held if the officer in charge of the investigation considers that it would be useful, and the suspect consents. The main purpose of an identification parade is to confirm the identity of the accused and help the police in their investigation[21]. The utility of the evidence created by an identification parade was explained by the Supreme Court in  Ramanthan v. State of Tamil Nadu[22]. The Court opined that “Identification parades have been in common use for a very long time for the object of placing suspect in a line up with other persons for identification. It enables the investigating officer to ascertain whether the witnesses had really seen the perpetrator of the crime and test their capacity to identify him and thereby to fill the gap in the investigation regarding the identity of the culprit.”

(a) Procedure of TIP

A crime is reported to the police. Some description might have been given of the suspect. In any event, the police investigate and arrest a particular person as the culprit. Then the complainant is taken to the police station to identify him i.e. to pick him out of a group of persons of similar complexion and stature. If the complainant picks him out then the police know that the witness is telling the truth and also that they are on the right track.

The Magistrate conducting the Test Identification Parade (TIP) is directed to take two photocopies of TIP report under his direct supervision and after certifying the same, hand over one to I O with specific directions that contents of such report should not be divulged to any person till charge sheet under Section 173, CrPC is filed. Second photocopy shall be retained by the Magistrate as “confidential” record in a sealed cover for future requirements, if necessary[23].

To conduct the procedure in an appropriate manner, special rooms for conduct of Test Identification Parade in all the prisons in the State shall be made. Such rooms shall have one side view glass separating those lined up for parade, on one hand and witness and the Magistrate, on the other — Witness and Magistrate should not be visible to those who are lined up, but, suspect and dummies should be visible clearly to the witness and the Magistrate. Enclosure in which the suspect and dummies are lined up shall be illumined and should also have ante room for them to change their attire[24].

(b) Value of TIP

Evidence of Test Identification Parade is not substantive evidence whereas evidence given in the court, is. However, when a witness correctly identified the accused at the parade but not in court the evidence of the Magistrate, who conducted the test parade that the witness correctly identified the accused at the parade, supported by the remarks of the trial  Judge regarding the demeanour of the witness that he was frightened and was unable to recognise the accused at the trial, was sufficient to convict the accused[25].

Identification of the accused made in court, is substantive evidence, where as identification of the accused in test identification parade is though a primary evidence but not substantive and the  same can be used only to corroborate the identification of accused by the witness in court[26].

Further, it is pertinent to note that the holding of TI parade is not compulsory. Where the witnesses were well acquainted with the accused and the incident was also widely covered by media, it was held that non-holding of TI parade was not fatal to the prosecution case[27]. As to when an identification parade may be necessary was explained by the Supreme Court in Jadunath Singh v. State of U.P.,[28]  that “ Of course, if the prosecution fails to hold an identification parade on the plea that the witnesses already knew the accused well and it transpires in the court of trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case. It seems to us that if there is any doubt in the matter, the prosecution should hold an identification parade”.

In a case[29], where identification parade was held after an inordinate delay of about five weeks from the arrest of the accused, the explanation for the delay was not trustworthy. Plea as to the non-availability of a Magistrate in a city like Bombay though the investigating agency was not obliged to get the parade conducted from a specified Magistrate, was not accepted. It was held that the accused was entitled to benefit of doubt.

Thus, the identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact[30].

(ii) Video Identification

In the paper-based world, law assumes a process which is mutually understood and observed by all the parties. Almost without thinking, a four-part process takes place, involving acquisition, identification, evaluation and admission. When we try to apply this process to digital evidence, we see that we have a new set of problems[31]. Nowadays, in most countries live parades have now been largely replaced by video parades, an innovation that has been made possible by the development of sophisticated computer systems used to compile video images from a standardised database of moving video clips[32]. In Britain, two different IT systems are in widespread use to provide video identification: VIPER (Video Identification Parade Electronic Recording) and PROMAT (Profile Matching). Each system has its own database of images. VIPER lineups are prepared in a standardised format comprising approximately 15-second clips of each person shown in sequence one after another. The sequence starts with a head and shoulders shot of the person looking directly at the camera, who slowly turns their head to present a full right profile followed by a full left profile. Finally, the person returns to looking directly into the camera in a full-face pose. Each image is checked for quality control by the centralised National VIPER Bureau.

The relevancy of identification of the suspect by a witness who was not present at the scene of the crime, but knew the suspect and recognised him on video recording depends upon whether the witness needed for this purpose special skills and experience[33].

(iii) Visual/Eyewitness Identification

An eyewitness is one, who saw the act, fact or transaction to which he testifies. A witness is able to provide graphic account of the attack on the deceased can be accepted as eyewitness[34].  Identification of an accused in court by an eyewitness is a serious matter and the chances of false identification are very high[35].

In cases involving eyewitness identification evidence, the logical starting point is the integrity principle, which “states that the agents of law enforcement should not use, and the courts should not condone, methods of investigating crime that involve breaches of the rules”.[36] This promotes fairness to defendants and a moral consistency from the State: in responding to law-breaking the State should follow its own laws and rules.

Eyewitness evidence is usually the main type of evidence on which convictions are based[37]. There seems to be a general assumption by lay triers of fact that eyewitness testimony is one of the safest bases for any identification; there have certainly been convictions based on very weak visual-identification evidence[38]. In fact visual-identification evidence is often unreliable, and is therefore a potentially hazardous way of connecting a person to an offence. The classic example is where a witness testifies that he saw the offence being committed by a stranger some distance away, for a relatively short period of time, in far from ideal conditions. But it is not just such `fleeting glance’ identification evidence which can lead to miscarriages of justice.

The reliability of the witness’s opinion depends entirely on the reliability of the visible features of the first image which were actually seen and mentally recorded by him (which in turn depends on the extent to which he was paying attention, his physical and psychological powers of perception at that time and his memory) together with the reliability of his comparison of the stored image with the visible features of the second image.

Identifying witnesses may focus on broad impressions or features which stimulate their own subjective preferences rather than on the multitude of specific physical details, so markedly different facial characteristics between the offender and the accused may go unnoticed while vague similarities may be given undue weight. The problem becomes even more acute when the identifying witness and the identified person (the offender) are from different racial groups or generations. Another problem, which may arise in a case of purported recognition, is that of `unconscious transference’ where the witness confuses the offender with a different person seen in some other context. Conversely, if the witness claims never to have seen the offender before, the reliability of his identification is likely to decrease with time as his memory fades[39]. the eyewitness may be honestly mistaken but sincerely convinced that his identification is correct. In R v. Fergus[40] for example, the sole prosecution witness was said to have felt an `invincible conviction in the correctness of his identification’ of the accused even though the witness had poor eyesight, did not take much notice of the offender’s face and first described the offender as 5′ 11” tall with a light complexion and stubble, when the accused was 5′ 7” tall, dark-skinned and had not yet started shaving.

The conventional forensic tool for revealing weaknesses in testimony is cross-examination, but where visual-identification evidence is concerned this tool may be singularly ineffective and, ironically, may indirectly buttress the witness’s testimony.

Alarmingly, research shows “that approximately 40% of eyewitness identifications are mistaken”.[41]” Further, “it is estimated there may be more than 10,000 people a year wrongfully convicted, most of whom were convicted as a result of mistaken identification.”[42] This has led many in the criminal justice system to finally realise what others concluded long ago: eyewitness identification evidence is “hopelessly unreliable.” Unreliability, in turn, leads to a dual problem: not only is an innocent person likely to be convicted, but the true perpetrator necessarily goes free, often to commit additional crimes.[43]

Despite its hopeless unreliability, eyewitness identification evidence has proven to be an extremely powerful tool for the prosecution. The reality is that jurors are “unduly receptive to identification evidence and are not sufficiently aware of its dangers.”[44] Nothing is more convincing to jurors than a live witness who takes an oath and confidently proclaims that he saw the defendant commit the crime. In fact, the level of confidence exhibited by an eyewitness has been found to be the most powerful predictor of guilty verdicts.

In a case, where it was not certain that the visual recognition of the appellants by the complainant on a fateful night was unhindered and unhampered especially when he was fired at first and allegedly saw the occurrence under stress of a threat, the court acquitted the appellants of the charge by extending them the benefit of doubt[45].

Thus, the appreciation of the evidence of eyewitness depends upon[46]:

– The accuracy of the witness’s original observation of the events which he described, and

– The correctness and extent of that he remember and his veracity.

(iv) Forensic Identification

When false eyewitness identifications and wrongful convictions are discovered, they are usually exposed through post conviction DNA testing. However, in the vast majority of criminal cases, DNA evidence has either been destroyed[47] or, more commonly, never even existed in the first place[48]. This, of course, poses a significant problem for the innocent defendant convicted based primarily on eyewitness evidence.

Erroneous eyewitness identifications have plagued our criminal justice system since its inception. When DNA evidence became a prevalent tool for law enforcement in the 1980s, not only did it assist prosecutors in obtaining convictions, but it also reopened prior convictions that were obtained based primarily on eyewitness testimony. Studies now reveal that erroneous eyewitness identifications “are the single greatest cause of wrongful convictions in the United States, and are responsible for more wrongful convictions than all other causes combined.”[49] In fact, in 80% of the first one hundred post conviction DNA exoneration, the underlying wrongful convictions were based primarily, if not solely, on false identifications.[50]

In these DNA exoneration cases, the DNA evidence proved to a scientific certainty that the defendant did not commit the crime charged and had been wrongfully convicted. But even today, most innocent defendants do not have the luxury of DNA evidence to prove their innocence. For example, in some cases the police do not collect or properly preserve the available DNA evidence.[51]

(v) Voice Identification

Voice itself may be an issue in a criminal case, inasmuch as it may itself be a personal characteristic upon which an identification of a criminal depends. It thus seems appropriate that we have in recent years seen the coining of the word ear-witness for the witness who heard, rather than saw[52], something:

In obscene phone calls, bomb hoaxes, ransom demands, hooded rape, robberies, muggings, or in crimes committed in darkness, the perpetrator’s voice may be the only definite piece of evidence available to aid police investigation and court conviction. That most research into witness testimony and identification has been conducted in the visual realm reflects the fact that most identification situations involve a witness using visual cues. The preponderance of such research serves to obscure the fact that in many instances both visual and verbal information is available and in many others only verbal cues exist. The awareness of the existence of the last two types of criminal situation dictates that research into human abilities to recognise voices should not be neglected but rather be rapidly pursued.[53]

With visual-identification evidence, however, there is the very real possibility of error on account of the circumstances surrounding the witness’s initial perception of the offender’s voice (and the medium through which it was heard), the witness’s ability to remember the way the offender spoke and, in particular, his ability accurately to compare the offender’s voice with that of the accused[54].

It was recognised by New Zealand’s Court of Appeal in R v. Waipouri[55],  that voice-identification evidence is generally less reliable than visual-identification evidence and that even greater caution is required when relying on it. In R v. Roberts[56] the Court of Appeal received expert evidence to the effect that a voice identification is more likely to be wrong than a visual identification, that ordinary people are as willing to rely on identification by ear-witnesses as they are on identification by eye-witnesses and that the identification of a stranger’s voice is a very difficult task, even if the opportunity to listen to the voice was relatively good. Accordingly, in cases where the prosecution is permitted to adduce such evidence the jury must be given a direction analogous to that established for visual-identification evidence in  R v. Turnbull[57] .

Further, by analogy with the position for visual-identification evidence where the jury compares a photographic image of the offender with the accused, the jury should be given an appropriate warning when they are asked to compare a recording of the offender’s voice with the accused’s voice[58].

In an Indian case[59], where the witnesses were not closely acquainted with the accused, they claimed to have identified him from his short replies such evidence was held to be unreliable. In another case[60], in a charge of conspiracy for murder, the voice of the accused was recognised by the witness as he demanded money and he was already acquainted with the voice from earlier time. The evidence was held to be relevant.

Recently, the Supreme Court in Dola  v. State of Odisha,[61] observed that it is true that the evidence about the identification of a person by the timbre of his voice depending upon subtle variations in the overtones when the person recognising is not familiar with the person recognised may be somewhat risky in a criminal trial.

(vi) Previous Identification

Where, in criminal proceedings, a witness gives evidence identifying the accused as the person who committed the offence charged, evidence of a previous identification of the accused by that witness may be given, either by the witness himself or by any other person who witnessed the previous identification[62], for example a police officer who conducted a formal identification procedure such as a video identification or an identification parade, as evidence of consistency[63].

R v. Christie[64], is the leading authority that when a witness gives evidence identifying the defendant as the offender, evidence may also be given that he has previously identified the accused. In principle, the previous identification could fall foul of three exclusionary rules – the hearsay rule, the rule against self-serving statements and the rule against non-expert opinion evidence.

Till date, no case has fully examined and explained the reasons for the admissibility of evidence about previous identifications. The most comprehensive examination was in Christie, but that is authority only for the proposition that the credibility of a witness who identifies the accused in court may be supported by evidence that he has identified him previously. It does not allow evidence of the prior identification unless the identifier gives evidence identifying the accused[65].

The Indian Supreme Court[66] observed that identification evidence of accused cannot be relied upon, especially when identification in court is not corroborated either by previous identification in identification parade or any other evidence, conviction of accused cannot be based upon it.


A statement identifying someone as the offender may be admissible as a dying declaration, or as a part of the res gestae, or as a previous inconsistent statement, provided the conditions for admissibility of evidence under those principles are satisfied. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine[67].

In a recent judgment, the Court observed that test identification parade is not a substantive evidence. Its purpose is only to help the investigating agency ascertain as to whether the investigation in the case is heading in the right direction or not. There is no provision in CrPC which obliges the investigating agency to hold or confer a right on the accused to claim a test identification parade. Absence to hold it would not make inadmissible the evidence of identification in court[68].


Thus, where the prosecution case depends solely on the identification of a single witness, it is particularly important to give a general, clear and simple direction on burden and standard. However, concerning the admissibility of identification evidence, it has been found that although there may be rare occasions when it will be desirable to hold a voir dire (an investigation into the truth or admissibility of evidence), in general the  Judge should decide on the basis of the depositions, statements, and submissions of counsel. Finally, failure on the part of the police to observe the provisions may be taken into account by the court when deciding whether to exclude identification evidence when assessing the weight of such evidence.

* Assistant Professor, Law, KIIT School of Law, Prasanti Vihar, Patia, Bhubaneshwar – 751024; Email:  sarvesh.shahi@kls.ac.in

[1] R v. Donnini, [1973] VR 67.

[2]. Gary L. Wells & Nancy K. Steblay, “Eyewitness Identification Reforms: Are Suggestiveness -Induced Hits and Guesses True Hits?”, Journal of Applied Psychology, 799, 835–844 (2011).

[3]. Heather L. Price, “Judicial Discussion of Eyewitness Identification Evidence” 49 CJBS 209–220 (2017).

[4]. S v. Mdlongwa, 2010 (2) SACR 419 (SCA).

[5]. Chris Taylor, Law Express Evidence, (Pearson, Chennai, 4th Edn., 2009).

[6]. The Royal Commision on Criminal Justice Report (“The Runciman Report”) (1993 London: HMSO)

Cmnd 2263, 2.

[7]. S.R. Myneni, Law of Evidence 84 (Asia Law House, Hyderabad, 3rd  Edn., 2019).

[8]. Phipson, Phipson on Evidence (Sweet & Maxwell, Thomson Reuters, 17th  Edn. 2015).

[9]. Dr. Avtar Singh, Principles of The Law of Evidence  66 (Central Law Publications, Allahabad, 22nd  Edn., 2018).

[10]. (1981) 145 CLR 395 at 426.

[11]. Alan Taylor, Principles of Evidence, 139 (Cavendish Publishing Limited, London,  2nd  Edn,. 2007).

[12]. Visveswaran v. State,  (2003) 6 SCC 73

[13]. Shiv Murat Kol v. State of M.P.,  2018 SCC OnLine MP 336.

[14]. [1977] QB 224.

[15]. Monir, M. Textbook on the Law of Evidence 66 (Universal Law Publishing, Delhi, 11th Edn,. 2018).

[16]. Ram Babu v. State of Uttar Pradesh(2010) 5 SCC 63.

[17]. Batuk Lal, The Law of Evidence 73 (Central Law Agency, Allahabad) 19th Edn., 2012).

[18]. Ashok K. Jain, Law of Evidence 44 (Ascent Publications, New Delhi,  6th Edn,. 2015).

[19]. Deep Chand v. State of Rajasthan,  (1962) 1 SCR 662.

[20]. Vepa P. Sarathi, Law of Evidence 56 (Eastern Book Company, Lucknow, 6th Edn., 2008).

[21]. Gade Lakshmi Mangaraju v. State of A.P., (2001) 6 SCC 205.

[22](1978) 3 SCC 86 at page 96.

[23]. 2017 Cri LJ 5011.

[24]. Ibid.

[25]. Dana Yadav v. State of Bihar, (2002) 7 SCC 295.

[26].Ibid at page 301.

[27]. R. Shaji v. State of Kerala, (2013) 14 SCC 266.

[28].  (1970) 3 SCC 518.

[29].  (1999) 8 SCC 428.

[30]. Malkhan Singh v. State of M.P., (2003) 5 SCC 746.

[31]. Swati Mehta, “Cyber Forensics and Admissibility of Digital Evidence” (2011) 5 SCC J-54.

[32]. Amina Memon, “A Field Evaluation of the VIPER System: a New Technique for Eliciting Eyewitness Identification Evidence” 17 Psychology Crime & Law 711 (2011).

[33]. Jowett, Christian, 2002 NLJ 152: Current Law (Jan) 2003.

[34]. Vishnu Narayan Moger v. State of Karnataka, 1995 SCC OnLine Kar 291.

[35]. Glanville Williams, Proof of Guilt 630 (Harvard Law Review , 3rd Edn 1963).

[36]. Ashworth, A., The Criminal Process: An Evaluative Study (1994 Oxford: Clarendon), 32; see also

Zuckerman, A.A.S., The Principles of Criminal Evidence (1989, Oxford: Clarendon).

[37]. Meintjes van der Walt L ” Judicial Understanding of the Reliability of Eyewitness Evidence: A Tale of Two Cases” PER / PELJ 2016(19).

[38]. R v. Mattan (Deceased) (1998) The Times 5.3.98 (97/6415/S2) (CA) and R v. Ross [1960] Crim LR 127 (CCA).

[39]. Raymond Emson, Evidence 360 (Palgrave Macmillan, 2nd Edn., 2004).

[40].  (1993) 98 Cr App R 313 (CA).

[41]. Amy Luria, “Showup Identifications: A Comprehensive Overview of the Problems and a Discussion of Necessary Changes” 86 Neb. L. Rev. 515, 516 (2008).

[42].  Suzannah B. Gambell, Comment, The Need to Revisit the Neil v. Biggers

Factors: Suppressing Unreliable Eyewitness Identifications, 6 WYO. L. REV. 189 (2006), at 190-91 [discussing Elizabeth F. Loftus & James M. Doyle, Eyewitness Testimony: Civil and Criminal? 4-1 (3rd Edn., 1997)].

[43]. Keith A. Findley, “Toward a New Paradigm of Criminal Justice: How the Innocence Movement Merges Crime Control and Due Process” 41 Tex. Tech L. Rev. 133 (2008).

[44]. Suzannah B. Gambell, Comment, “The Need to Revisit the Neil v. Biggers Factors: Suppressing Unreliable Eyewitness Identifications” 6 Wyo. L. Rev. 189 (2006).

[45]. Mian Sohail Ahmed v. State, (2019) SCC OnLine Pak SC 12.

[46]. Sir John Woodroff & Syed Amir Ali’s Law of Evidence 461. (Butterworths, Allahabad, 17 Edn., 2001).

[47]. Cynthia E. Jones, “The Right Remedy for the Wrongly Convicted: Judicial Sanctions for Destruction of DNA Evidence” 77 Fordham L. Rev. 2893 (2009). (Discussing how poor handling of evidence has resulted in premature destruction in thousands of cases, including in States in which laws have been enacted mandating evidence preservation.).

[48]. Barry Scheck, “Closing Remarks to Symposium, Thinking Outside the Box: Proposals for Change” 23 Cardozo L. Rev. 899 (2002).

[49]. State v. Dubose, 699 N.W.2d 582, 592 (Wis. 2005) (citing Gary L. Wells et al., “Eyewitness Identification Procedures: Recommendations for Lineups and Photo spreads” 22 Law & Hum. Behav. 603,605 (1998).

[50]. Calvin Ter Beek, “A Call for Precedential Heads: Why the Supreme Court’s Eyewitness Identification Jurisprudence is Anachronistic and Out-of-Step with Empirical Reality” 31 Law & Psychol. Rev. 21 (2007).

[51]. People v. Cress, 645 N.W.2d 669, 692 (Mich. Ct. App. 2002).

[52]. Bethany K. Dumas, “Voice Identification in a Criminal Law Context, American Speech”, 65 Duke University Press, 341-348 1990).

[53]. Ray Bull, “Earwitness Testimony” 39 Med. Sci. Law 120-127 (1999).

[54]. Supra note 3.

[55]. [1993] 2 NZLR 410.

[56].  [2000] Crim LR 183 (99/0458/X3).

[57]. [1976] 3 WLR 445 (R v. Hersey [1998] Crim LR 281 (CA), R v. Gummerson, [1999] Crim LR 680 (CA), R v. Chenia, [2003] 2 Cr App R 83 (CA)). .

[58]. Bulejcik v. R, (1996) 185 CLR 375 (HCA), R v.O’Doherty, [2003] 1 Cr App R 77 (NICA).

[59]. Inspector of Police v. Palanisamy,  (2008) 14 SCC 495.

[60]. Mohan Singh v. State of Bihar,  (2011) 9 SCC 272.

[61]. (2018) 18 SCC 695

[62]. For the difficulties which arise where the witness fails to identify the accused in court, having previously identified him outside court, see R v. Osbourne and R v. Virtue, [1973] QB 678, CA. 295 (See Ch 10).

[63]. R v. Burke and Kelly, (1847) 2 Cox CC.

[64]. [1914] AC 545.

[65]. Rosamund Reay, Evidence 311 (Old Bailey Press, 3rd Edn., 2001).

[66]. Dana Yadav v. State of Bihar, (2002) 7 SCC 295.

[67]. Malkhan Singh v. State of M.P., (2003) 5 SCC 746.

[68]. Raju Manjhi v. State of Bihar, (2019) 12 SCC 784.

Hot Off The PressNews

On day 30 of the Aadhaar Hearing, Senior Advocate Rakesh Dwivedi continued with his argument probabilistic method that he had begun on Day 29 of the hearing before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ.

Below are the highlights from Day 30 of the Aadhaar Hearing:

  • Dwivedi: The algorithms which are probabilistic are not all identical. Parliament was conscious of the exclusion that could happen. It was also aware of the digital divide. Hence, provided three alternatives under section 7 of the Aadhaar Act. 2016. There can’t be denial of service. Option to furnish proof of possession of Aadhaar number under section 7 if authentication can’t be done.
  • Chandrachud, J: Does proviso to section 7 apply to third alternative?
  • Dwivedi:
    • Yes, it is applicable in case an individual has applied but has not been assigned Aadhaar number.
    • There is no question of denial. Denial is something that should not happen, ought not to happen. Though some more actions would be required to ensure this.
    • For limited purpose, ration cards are also included. If for some reason, one member of the family is unable to authenticate, any other member of family can come for authentication.
  • Chandrachud, J: Is there is any isolated pocket in country where Aadhaar services have not been able to reach?
  • Dwivedi:
    • In such a case, alternative methods will apply.
    • As of now-pending the judgment, even if someone has not enrolled for Aadhaar, there’s no compulsion under section 7. There’s still time. The third alternative under S. 7 can apply only if the enrolment process has begun.
    • In case of PDS scheme, the central govt. is competent to replace the identification card with which benefit is to be obtained if it thinks that the latter is more reliable. Thus, it can replace the ration card with Aadhaar card.
    • Every institution will have some kind of identification procedures and we will have to follow them. These are regulatory processes.
    • When you identify, it is a matter of dignity. Because you are recognised. We all strive to get recognised. It is a matter of pride.
    • No right is absolute. Regulations are permissible.
  • Chandrachud, J: There should be a choice of identity. If the choice is not there, it is not proportional.
  • Dwivedi: If you have to get benefits from an institution,you should comply with the requirements prescribed by it. Aadhaar is unique and universally applicable. No language barrier like other ID cards.
  • Chandrachud, J: If my biometric are attached to every transaction I undertake, it ceases to be just an identification mark.
  • Dwivedi: Only one finger or one iris is used for authentication. It discloses no information.
  • Chandrachud, J: Fingerprint by itself doesn’t disclose any info. But, when it attaches with all the other information, it forms a wealth of information. There comes the need of data protection.
  • Dwivedi: Data is disaggregated between different REs.
  • Chandrachud, J: In such a case, aggregation of data is all the more possible.
  • Dwivedi: In most cases, authentication is done only once. Eg. PAN. It is for lifetime. For sim cards, it is done only at the time of obtaining it. So, where is this multiplication of authentication from morning to evening coming from? Realistically speaking, there’s no trail of authentication from morning to evening. No real time tracking is done.
  • Shyam Divan interjects: The demo of withdrawing Rs 100 using a thumbprint was shown in the court. That’s tracking.
  • Dwivedi: Where is it provided in law that you need to give thumbprint every time you transact? You only have to link it with your bank account.
  • Shyam Divan: I am asked for my thumb impressions everytime I need to open a Fixed Deposit.
  • Dwivedi: Not everybody is capable of opening FD everyday. It is done only once or twice in a year generally.
  • Dwivedi (On dignity): There are two parts of preamble.
    • “To secure to all its citizens…” and
    • “to promote among them all…”
    • Securing justice is a part of the basic feature of the Constitution. Minimum requirements to enable a man to survive to live is a position duty of the State. And it is for these minimum requirements that the Acts like NFSA, etc. are there.
  • Chandrachud, J: Constitution protects dignity in all its forms.
  • Sikri, J: Food is a part of dignity and so is privacy. When there’s a conflict between the two, it has to be considered which should prevail. But, why can’t we say that there’s no conflict. Both are to be ensured.
  • CJI: The point is when you take fingerprints for Aadhaar, it gets stored in Aadhaar. This is an invasion of right to privacy.
  • Dwivedi: Any system which involves biometrics will require storage of biometrics- either at single point or multiple.
  • CJI: Minimal intrusion with legitimate interests have to be ensured.
  • Dwivedi: Providing services and benefits is to ensure dignity and liberty of individuals. Which is a legitimate interest.


To read the highlights from the submissions of Senior Advocate Rakesh Dwivedi, click here and here.

To read the highlights from the submissions by ASG Tushar Mehta, click here and here.

To read the highlights from the submissions by the Attorney General, click here, here , here and here.

To read the highlights from the PowerPoint Presentation made by the CEO of UIDAI, click here.

To read the highlights from submissions of Senior Advocates Meenakshi Arora, Sajan Poovayya, CU Singh, Sanjay Hegde and Counsel Jayna Kothari, click here.

To read the highlights from submissions of Senior Advocates KV Viswanathan and Anand Grover, click here.

To read the highlights from Senior Advocate Arvind Datar’s submissions, click here, here and here.

To read the highlights from Senior Advocate Gopal Subramanium’s submissions, click herehere and here.

To read the highlights from Senior Advocate Kapil Sibal’s arguments, click here, here and here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source:  twitter.com/SFLCin

Hot Off The PressNews

The University Grants Commission (UGC) vide its letter dated 21-03-2017 has requested all the Universities to introduce identification mechanisms like photograph and Unique ID/Aadhaar number in students’ certificates. Such features are useful for the purposes of verification and curbing duplication. At the same time, they help in introducing uniformity and transparency within and across the system of higher education in the Country. UGC has also requested all the Universities to inscribe the name of institution in which a student is enrolled for a program of study as well as the mode of delivery (regular, part-time or distance).

[Press Release no. 1527337]

Ministry of Human Resource Development