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.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of AM Khanwilkar*, BR Gavai and Krishna Murari, JJ has held that the right to control one’s identity is a fundamental right and the Central Board of Secondary Education cannot deny such right by refusing to allow a person to change their name in the Certificates without giving them reasonable opportunity.

Issue

Whether an individual’s control over such cardinal element of identity could be denied to him/her by the Central Board of Secondary Education on the specious ground that its Examination Byelaws of 2007 must prevail over the claim of the candidate, which are merely intended to regulate such a claim and to delineate the procedure for correction/change in the contents of certificate(s) issued by it including regarding maintenance of its office records?

Analysis

Do you have the right to change your identity?

“What’s in a name? that which we call a rose by any other name would smell as sweet”, said Juliet. This quote from William Shakespeare’s “Romeo and Juliet” is unarguably one of the most iconic dialogues in classical literature.  It conveys that the natural characteristics of an individual are more important than his/her artificial/acquired characteristics.  A poetic statement as it certainly is, it does not go in tune with the significance of a name in marking the identity of an individual in his/her societal transactions. To put it differently, name is an intrinsic element of identity.”

Identity is an amalgam of various internal and external including acquired characteristics of an individual and name can be regarded as one of the foremost indicators of identity. And therefore, an individual must be in complete control of her name and law must enable her to retain as well as to exercise such control freely “for all times”. Such control would inevitably include the aspiration of an individual to be recognized by a different name for a just cause.

Any change in identity of an individual has to go through multiple steps and it cannot be regarded as complete without proper fulfilment of those steps. An individual may self¬identify oneself with any title or epithet at any point of time. But the change of identity would not be regarded as formally or legally complete until and unless the State and its agencies take note thereof in their records. Afterall, in social sphere, an individual is not only recognized by how an individual identifies oneself but also by how his/her official records identify him/her. For, in every public transaction of an individual, official records introduce the person by his/her name and other relevant particulars.

However, going by the very nature of rights under Article 19, the right to get changed name recorded in the official (public) records cannot be an absolute right and as a matter of public policy and larger public interest calls for certain reasonable restrictions to observe consistency and obviate confusion and deceptive attempt.

Byelaws violative of fundamental right to change one’s identity?

The concerned Byelaw has been framed on the assumption that there can be no situation wherein a legitimate need for change of name could arise for a student after publication of results. It is presumed that only typographical/factual errors could come in the certificates and they can be corrected using the provision for corrections.

“The presumption, we must note, is erroneous, absurd and distances itself from the social realities.”

There can be numerous circumstances wherein change of name could be a legitimate requirement and keeping the ultimate goal of preserving the standard of education in mind, the Board must provide for a reasonable opportunity to effect such changes.

Further, the balance of convenience would tilt in favour of students.  For, they stand to lose more due to inaccuracies in their certificates than the Board whose sole worry is increasing administrative burden.

“The obligation of Board to take additional administrative burden is no doubt onerous but the propensity of a student losing career opportunities due to inaccurate certificate is unparalleled.”

A Board dealing with maintenance of educational standards cannot arrogate to itself the power to impact identity of students who enrol with it. The right to control one’s identity must remain with the individual, subject, of course, to reasonable restrictions.

What kind of requests can be made?

Where the incumbent wants “correction” in the certificate issued by the CBSE:

  • There is no reason for the CBSE to turn down such request or attach any precondition except reasonable period of limitation and keeping in mind the period for which the CBSE has to maintain its record under the extant regulations.
  • While doing so, it can certainly insist for compliance of other conditions by the incumbent, such as, to file sworn affidavit making necessary declaration and to indemnify the CBSE from any claim against it by third party because of such correction.
  • The CBSE would be justified in insisting for surrender/return of the original certificate (or duplicate  original certificate, as the case may be) issued by it for replacing it with the fresh certificate to be issued after carrying out necessary corrections with  caption/annotation against the changes carried out and the date of such correction.
  • It may retain the original entries as it is except in respect of correction of name effected in exercise of right to be forgotten.
  • The fresh certificate may also contain disclaimer that the CBSE cannot be held responsible for the genuineness of the school records produced by the incumbent in support of the request to record correction in the original CBSE certificate.
  • The CBSE can also insist for reasonable prescribed fees to be paid by the incumbent in lieu of administrative expenses for issuing   fresh   certificate.
  • At the same time, the CBSE cannot impose precondition of applying for correction consistent with the school records only before publication of results. Such a condition, would be unreasonable and excessive.
  • If the application for recording correction is based on the school records as it obtained at the time of publication of results and issue of certificate by the CBSE, it will be open to CBSE to provide for reasonable limitation period within which the application for recording correction in certificate issued by it may be entertained by it.
  • However, if the request for recording change is based on changed school records post the publication of results and issue of certificate by the CBSE, the candidate would be entitled to apply for recording such a change within the reasonable limitation period prescribed by the CBSE. In this situation, the candidate cannot claim that she had no knowledge about the change recorded in the school records because such a change would occur obviously at her instance.
  • If she makes such application for correction of the school records, she is expected to apply to the CBSE immediately after the school records are modified and which ought to be done within a reasonable time.

Indeed, it would be open to the CBSE to reject the application in the event the period for preservation of official records under the extant regulations had expired and no record of the candidate concerned is traceable or can be reconstructed.

In the case of subsequent amendment of school records, that may occur due to different reasons including because of choice exercised by the candidate regarding change of name. To put it differently, request for recording of correction in the certificate issued by the CBSE to bring it in line with the school records of the incumbent need not be limited to application made prior to publication of examination results of the CBSE.

“Change” of particulars in the certificate issued by the CBSE:

The request for “change” of particulars in the certificate issued by the CBSE,  presupposes that the particulars intended to be recorded in the CBSE certificate are not consistent with the school records.

When are such requests made?

(a) on the basis of public documents like Birth Certificate, Aadhaar Card/Election Card, etc. and to incorporate change in the CBSE certificate consistent therewith.

There is a legal presumption in relation to the public documents as envisaged in the 1872 Act. Such public documents, therefore, cannot be ignored by the CBSE. Taking note of those documents, the CBSE may entertain the request for recording change in the certificate issued by it. This, however, need not be unconditional, but subject to certain reasonable conditions to be fulfilled by the applicant as may be prescribed by the CBSE, such as, of furnishing sworn affidavit containing declaration and to indemnify the CBSE and upon payment of prescribed fees in lieu of administrative expenses.

The CBSE may also insist for issuing Public Notice and publication in the Official Gazette before recording the change in the fresh certificate to be issued by it upon surrender/return of the original certificate (or duplicate original certificate, as the case may be) by the applicant.

The fresh certificate may contain disclaimer and caption/annotation against the original entry (except in respect of change of name effected in exercise of right to be forgotten) indicating the date on which change has been recorded and the basis thereof.

“In other words, the fresh certificate may retain original particulars while recording the change along with caption/annotation referred to above (except in respect of change of name effected in exercise of right to be forgotten).”

(b) due to the acquired name by choice at a later point of time which need not be backed by public documents pertaining to the candidate:

Such a request may be entertained upon insisting for prior permission/declaration by a Court of law in that regard and publication in the Official Gazette including surrender/return of original certificate (or duplicate original certificate, as the case may be) issued by CBSE and upon payment of   prescribed fees.

The fresh certificate may retain the original entry (except in respect of change of name effected in exercise of right to be forgotten) and to insert caption/annotation indicating the date on which it has been recorded and other details including disclaimer of CBSE.  This is so because the CBSE is not required to adjudicate nor has the mechanism to verify the correctness of the claim of the applicant.

Directions

  • The CBSE to process the applications for correction or change, as the case may be, in the certificate issued by it in the respective cases under consideration.
  • Even other pending applications and future applications for such request be processed on the lines of the decision of the Court in the present case, as may be applicable, until amendment of relevant Byelaws.
  • Additionally, the CBSE shall take immediate steps to amend its relevant Byelaws so as to incorporate the stated mechanism for recording correction or change, as the case may be, in the certificates already issued or to be issued by it.

[Jigya Yadav v. CBSE, 2021 SCC OnLine SC 415, decided on 03.06.2021]


Judgment by: Justice AM Khanwilkar 

Know Thy Judge| Justice AM Khanwilkar

Hot Off The PressNews

As reported by the media, the three police officers who were dealing with Pollachi sexual assault case and had revealed the identity of the survivor of the barbarous crime during a press conference have been transferred with no postings at present.

The officers have been transferred with immediate effect.

Tamil Nadu Home Department issued the transfer orders to Coimbatore District Superintendent of Police R Pandiarajan, Pollachi Sub-Division DySP R Jayaram and Pollachi East Police Station Inspector A Natesan.

Madras High Court had stated that, “The irresponsible conduct of the police officer is highly condemnable by this court and it is appropriate to issue direction to the state government to take disciplinary action against the said police officer.”

The case was transferred from the local police to the state’s CB-CID on 12-03-2019.

[Source: NDTV]

Conference/Seminars/LecturesLaw School News

Indian Journal of Law and Public Policy & Ayyubi Law Practices, Alumni Association of Jamia Millia Islamia; New Delhi conducted a National Conference on Identity, Citizenship, and National Register of Citizens, Assam on February 2nd, 2019 at Auditorium, Faculty of Engineering and Technology.
The event was held in two sessions:
The first session dealt with National Register of Citizens, Legal Framework and Implementation and D-Voters: Abundance Precaution or Legal Persecution and was joined by very esteemed panelists, namely:
  1. Prof. Anupama Roy (Centre for Political Studies, School of Social Sciences-II, Jawaharlal Nehru University)
  2. Prof. Sanjoy Hazarika (International Director, Commonwealth Human Rights Initiative)
  3. Mr. Venkitesh Ramakrishnan (Chief of Bureau, The Frontline)
  4. Dr. Ghulam Yazdani (Academic Advisor, IJLPP)
  5. Mr. Fuzail Ayyubi (Advocate on Record, Supreme Court of India)
The panelist heard a number of research papers which were presented by students and independent writers all over India.
Professor Anupama Roy addressed the gathering by stating that “Statelessness is an issue which we need to look at whether our Constitution allows it within the ambit of Constitutional morality”.
The second session dealt with Citizenship Laws in India: Leaning towards Political Rhetoric or Constitutional Morality and Post NRC Regime and Issues regarding Illegal Migrants and Detention Camps. The session was joined by esteemed panelists, namely:
  1. Prof. Mahendra P. Lama (Professor of South Asian Economies, School of International Studies, Jawaharlal Nehru University)
  2. Mr. Mohan Katarki (Advocate, Supreme Court of India)
  3. Ms. Jayshree Satpute (Co-founder, Nazdeek and Human Rights Lawyer)
  4. Mr. Mohammad Nizam Pasha (Advocate, Supreme Court of India)

On several papers, Prof. Lama commented, “The entire discourse we’ve lost the major discourse of how, close to 40 lakh people are illegal and as to who brought them and the role played by paramilitary forces in this. This issue should be looked at from an inter-disciplinary aspect, for instance, the impact on relations of India with its neighbors due to this issue, the shape of the borderline to be considered, etc. Further, it becomes necessary to go beyond legal interpretations and to examine this issue in the context of public interest.”
The valedictory speech was attended by Mr. Salman Khurshid (Advocate, Supreme Court of India) as a Chief Guest. He spoke about the big problem of lack of communication existing in Indian politics with the Congress Party in Assam being unaware of the issue and having never been consulted on this issue. Further, he pointed out that the apex court is incompetent to find a solution to this issue and that it is doubtful whether the people involved in the entire NRC exercise have been given the appropriate training to conduct this exercise. NRC has no mitigating factors and no law can be without its mitigating factors.
For more information, please visit: http://ijlpp.com/conference-proceedings/
Case BriefsSupreme Court

Every attempt should be made by all the courts not to disclose the identity of the rape victim in terms of Section 228-A IPC

Supreme Court: The Bench comprising of Abhay Manohar Sapre and Uday Umesh Lalit JJ. while addressing the petition of a convict under Sections 376 and Section 342 IPC and affirming the sentence granted to him by the High Court, took notice of a very essential point of concern, that the name of the ‘rape’ victim has been stated in both the judgments of the Trial Court as well as that of the High Court.

The present order dealt with, the appeal of a rape convict under Sections 376 and 342 IPC with a sentence of 7 and 1 year respectively. The Supreme Court found no merits in intervening with the High Court’s conviction and sentence, therefore, the appeal was dismissed.

The point to be addressed was that of victim’s name being mentioned in the judgments of the Trial Court and High Court, which was inconsistent with Section 228-A of IPC. The Supreme Court while stating that the courts should make every attempt in not disclosing the identity of the victim, relied on the case State of Punjab v. Ramdev Singh (2004) 1 SCC 421.

Therefore, while dismissing the present appeal, the bench focussed on the point regarding the mentioning of rape victim’s name and further directed the Registry of the High Court to place the record of the appeal in the High Court for making appropriate changes in the record and passing of appropriate directions so that the trial courts comply and understand the essence of Section 228-A IPC. [Lalit Yadav v. State of Chhattisgarh, 2018 SCC OnLine SC 680, order dated 05-07-2018]