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The Criminal Procedure (Identification) Act, 2022: Constitutional Validity

Privacy is a cherished fundamental right under the Indian Constitution, safeguarding the personal liberties of citizens. However, the enactment of "The Criminal Procedure (Identification) Act, 2022",(1) has sparked concerns about potential infringements on these rights.

The act allows for the collection, storage, processing, and dissemination of sensitive data such as fingerprints, retinal scans, and biological samples, surpassing the scope of the previous "Identification of Prisoners Act, 1920". (2)

The legislature's objective behind this act is to bolster conviction rates and expedite fair trials in the criminal justice system. This article examines the implications of the Criminal Procedure (Identification) Act, 2022, on Articles 14, 20(3), and the right to privacy under Article 21 of the Constitution, asserting that the implementation of this act directly compromises citizens' privacy rights.

Infringement of Privacy Rights and Equality Concerns
The Criminal Procedure (Identification) Act, 2022, raises significant concerns regarding the infringement of the right to privacy and the doctrine of proportionality under Article 21 of the Indian Constitution which was laid down in Justice KS Puttaswamy v Union of India. (3)

The Act's provisions lack suitability, as there is no demonstrated rational nexus between the Act's broad scope and the class of persons it covers, which includes convicts, detainees, arrestees, and those ordered to give security for maintaining peace and good behaviour as mentioned in Section 3. Additionally, the Act's overbroad coverage fails to satisfy the necessity requirement, as it includes individuals without considering the nature and severity of the offense or their relevance to an ongoing investigation.

The Act's extensive data collection and storage provisions could result in individuals being under constant government observation, effectively putting their lives on hold and impacting their right to live with dignity, as established by the Supreme Court in Maneka Gandhi v. Union of India. (4) The Act's implementation also risks weakening safeguards by assigning data collection to lower-level officials, leading to possible abuses of power. Furthermore, the Act's provisions could result in constant government observation, impacting an individual's right to privacy and personal liberty.

These constitutional concerns necessitate careful scrutiny and revision of the Act to align with fundamental rights and principles of proportionality to ensure a balanced and constitutionally sound implementation.

Potential Violation of the Right Against Self-Incrimination
The Criminal Procedure (Identification) Act, 2022, may potentially violate the right against self-incrimination protected under Article 20(3) of the Indian Constitution. Section 2 of the Act defines 'measurements' to include "behavioural attributes" without providing a clear and specific definition of this term. The lack of precision raises concerns about its overbroad and vague scope, potentially encompassing measurements of a testimonial nature.

For instance, if "behavioural attributes" are interpreted to include measurements obtained through compelled psychiatric evaluations, it could lead to incriminating admissions, amounting to a form of testimonial compulsion. Moreover, an expansive interpretation may encompass practices like narco-analysis, polygraph tests, or brain mapping, which were expressly ruled out by the Supreme Court in the case of "Selvi v. State of Karnataka". (5)

The Right to Be Forgotten and Proportionality
The Supreme Court's Puttaswamy judgment introduced the doctrine of proportionality, requiring any law that restricts fundamental rights to fulfil three conditions: existence of a law, a legitimate purpose, and proportionality between the restriction and the state's objective. This Act fulfils the first condition as it restricts the RTBF through an enacted law.

However, the retention period of seventy-five years requires closer scrutiny to determine whether it satisfies the test of proportionality. The retention period exceeds the average life expectancy in India, and The Act compels the NCRB to destroy records under certain conditions. However, the Rules framed under the Act shift the burden to the individual, requiring them to request data erasure.
This dilutes the compliance burden on data collectors and compromises the RTBF. (6) To pass the test of proportionality, the retention period must be commensurate with the legitimate purposes it aims to achieve, and the State must consider less restrictive measures for data storage to safeguard individual privacy rights.

Violations of Protections Against Arbitrariness and Excessive Delegation Under Article 14
Firstly, the Act suffers from excessive delegation of legislative powers as it grants the Central and State Governments wide-ranging rule-making authority without providing sufficient guidance for its exercise. This lack of clarity leads to potential abuses of power and raises constitutional issues.

Secondly, the Act grants excessive discretion to police, prison officers, and Magistrates to compel individuals to allow the taking of their measurements, which can result in arbitrary and discriminatory exercise of these powers.

The provision allowing Magistrates to collect personal data from any non-arrested person without providing reasons contradicts the principles of natural justice and infringes upon the right to a fair trial. Such provisions violate Article 14 of the Constitution, which protects individuals from arbitrary and unreasonable State action.

This undermines the guarantee of a fair trial, regardless of whether the person is the main accused or not. Such a discretionary provision demands careful scrutiny to ensure alignment with constitutional principles and safeguarding individual rights.

"The Criminal Procedure (Identification) Act, 2022", aims to modernize prisoner identification and bolster conviction rates in the criminal justice system. While it fills the gaps left by the outdated Identification of Prisoners Act, 1920, a comprehensive analysis highlights certain provisions that appear arbitrary, excessive, and in violation of fundamental rights enshrined in the Constitution.

The Act significantly impacts the fundamental rights of every Indian citizen, especially those under trial, arrest, or detention. While it enables the collection of identifiable information for crime investigations, it also raises concerns about the potential abuse of power, self-incrimination of accused individuals, data privacy, and potential conflicts between state and central laws. (7)

These issues require careful consideration and addressing to ensure a balanced and constitutionally sound implementation of the Act, upholding both privacy rights and law enforcement objectives in India. Striking the right balance between the two is essential to preserve the essence of a just and democratic society.

End Note:
  • The Criminal Procedure (Identification) Act 2022. Pdf accessed 1 November 2023.
  • The Identification of Prisoners Act 1920.
  • Puttaswamy v Union of India [2017] 10 SCC 1.
  • Maneka Gandhi v Union of India [1978] AIR SC 597.
  • Selvi v State of Karnataka [2010] 7 SCC 263.
  • Gautam Bhatia, The State Can't Remember to Forget You: An Analysis of the Criminal Procedure Identification Act and Rules' IndConLawPhil Blog (26 July 2023) accessed on 6 November 2023.
  • Project 39A- An Analysis of The Criminal Procedure (Identification) Bill, 2022 (Project 39A) accessed on 6 November 2023.

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