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Code Of Criminal Procedure (Amendment) Act, 2022

The Criminal Procedure (Identification) Bill, 2022 was introduced in the Lok Sabha on March 28, 2022.[1] The bill aims to repeal the Identification of Prisoners Act of 1920, which allows law enforcement to collect personally identifying information about certain people, such as criminals, in order to undertake criminal investigations. The Bill was submitted with the goal of authorising the taking of measures of convicts and other people for the purposes of identification and investigation in criminal cases, as well as the preservation of records.

This bill increases the number of people who can access such information. It gives the National Crime Records Bureau the authority to collect, store, and keep certain records. It had to be created so that modern technology could be used to collect and record accurate body measurements. The Bill's definition of "measurements" includes finger imprints, palm print and footprint impressions, pictures, iris and retina scans, physical, biological samples, and their analysis.

The Identification of Prisoners Act of 1920 authorises police personnel to gather personally identifiable information (fingerprints and footprints) from people who have been convicted or arrested. A Magistrate may also order the taking of measurements or images of a person to aid in the investigation of an offence. All materials must be deleted if the person is acquitted or released.

Other metrics can now be employed for criminal investigations because to technological advancements. The DNA Technology (Use and Application) Regulation Bill, 2019 [2](now before the Lok Sabha) establishes a framework for employing DNA technology for this purpose. When the Law Commission of India examined the 1920 Act in 1980, it remarked that it needed to be revised to keep up with modern trends in criminal investigation[3].

The Expert Committee on Criminal Justice System Reforms (chaired by Dr. Justice V. S. Malimath) suggested changing the 1920 Act in March 2003 to allow the Magistrate to authorise the collection of data such as blood samples for DNA, hair, saliva, and sperm[4]. On March 28, 2022, the Criminal Procedure (Identification) Bill was tabled in the Lok Sabha. The Identification of Prisoners Act of 1920 is being replaced by this bill.[5]

KEY FEATURES OF THE BILL
The bill broadens the types of data that can be collected, the people from whom it can be gathered, and the authority that can authorise such collection. It also stipulates that the information be stored in a central database. Resistance or refusal to provide data will be considered an act of impeding a public worker from performing his duties under both the 1920 Act and the 2022 Bill. The provisions of the 2022 Bill are compared to those of the 1920 Act in Table 1.
Table 1: Comparison of key provisions of the 1920 Act and the 2022 Bill
 
1920 Act Changes in the 2022 Bill

Data permitted to be collected

Fingerprints, foot-print impressions, photographs Adds: (i) biological samples, and their analysis,
(ii) behavioural attributes including signatures, handwriting, and
(iii) examinations under sections 53 and 53A of CrPC (includes blood, semen, hair samples, and swabs, and analyses such as DNA profiling)

Persons whose data may be collected

  • Convicted or arrested for offences punishable with rigorous imprisonment of one year or more
  • Persons ordered to give security for good behaviour or maintaining peace
  • Magistrate may order in other cases collection from any arrested person to aid criminal investigation
  • Convicted or arrested for any offence.  However, biological samples may be taken forcibly only from persons arrested for offences against a woman or a child, or if the offence carries a minimum of seven years imprisonment.
  • Persons detained under any preventive detention law
  • On the order of Magistrate, from any person (not just an arrested person) to aid investigation

Persons who may require/ direct collection of data

Investigating officer, officer in charge of a police station, or of rank Sub-Inspector or above Officer in charge of a police station, or of rank Head Constable or above.  In addition, a Head Warder of a prison
Magistrate Metropolitan Magistrate or Judicial Magistrate of first class.  In case of persons required to maintain good behaviour or peace, the Executive Magistrate


Note: CrPC - The Code of Criminal Procedure, 1973.
Sources: The Identification of Prisoners Act, 1920; The Criminal Procedure (Identification) Bill, 2022; PRS.
  • The National Crime Records Bureau (NCRB) will be in charge of keeping track of the data. It will share the information with law enforcement. Furthermore, states/UTs may alert agencies in their domains to collect, retain, and disseminate data.
  • The collected data will be kept for 75 years in digital or electronic form. If a person is acquitted after all appeals or freed without a trial, their records will be deleted. In such circumstances, a Court or Magistrate may order the details to be kept after noting the reasons in writing.

ISSUES TO CONSIDER
Bill may violate the Right to Privacy as well as Equality
The bill allows for the collecting of some personally identifiable information about persons in the course of criminal investigations. Individuals' personal data includes the information defined in the Bill, which is therefore protected under their right to privacy. The Supreme Court has declared the right to privacy to be a basic right (2017).[6]

The Court established principles that should be followed by any statute restricting this privilege. There must be a public purpose, a rational connection between the law and the aim, and that this is the least invasive means to achieve the goal. In other words, the invasion of privacy must be both essential and reasonable to the goal. Several parameters may cause the Bill to fail this test. It may also fail to meet Article 14's criteria for fairness and reasonableness in law, as well as equality under the law.[7]

The problem arises because: (a) data can be collected not only from convicted people, but also from people arrested for any crime and from anyone else to aid an investigation; (b) the data collected does not have to be related to the evidence required for the case; (c) the data is stored in a central database that can be accessed widely and not just in the case file; (d) the data is stored for 75 years (effectively, for life); and (e) the data is stored for 75 years (effective We'll go over these concerns and some of the repercussions in the next sections.

Persons whose data may be collected
The bill broadens the group of people whose data can be gathered to include everyone who has been convicted or arrested for any crime. This may include someone arrested for hasty and careless driving, which carries a maximum sentence of six months in prison. It also gives the Magistrate more power to mandate collection from anyone (rather than just those detained) to help with the investigation.

This is in contrast to the Law Commission's (1980) comment that the 1920 Act is based on the idea that the less serious the offence, the more limited the authority to adopt coercive measures should be. Note that the DNA Technology (Use and Application) Regulation Bill, 2019, waives the consent requirement for collecting DNA from people detained for crimes that carry a death penalty or a sentence of more than seven years in prison.

Persons who may order data to be collected
A Magistrate can require data to be collected to aid in the investigation of an infraction under the 1920 Act. The 1920 Act did not compel the Magistrate to offer reasons for his order, according to the Law Commission (1980). It noted that the law's scope was ("any person" arrested in connection with "any investigation"), and that disobedience might result in criminal penalties. The clause should be changed to compel the Magistrate to note the reasons for issuing the order. There is no such safeguard in the bill. Instead, it reduces the level of police officer who can take the measurement (from sub-inspector to head constable) and permits the prison's head warder to do so.

What data may be collected
Biometrics (fingerprints, palm prints, foot prints, iris and retina scan), physical and biological samples (not defined but might include blood, semen, saliva, etc. ), and behavioural traits are all included in the bill (signature, handwriting, and could include voice samples). It does not restrict the measures to those required for particular research. For example, the Bill allows a person caught for rash and irresponsible driving to have his or her handwriting sample taken. It also doesn't say anything about taking DNA samples (which may contain information other than just for determining identity). Note that biological samples and their analysis are only permitted under Section 53 of the Code of Criminal Procedure, 1973, if "there are reasonable grounds for believing that such examination will afford evidence as to the commission of an offence".[8]

Biological samples
In the event of biological material, the bill makes an exception. A person may decline to provide such samples unless he is arrested for one of the following crimes:
  1. assault on a woman or child, or
  2. a crime punishable by at least seven years in jail.

The first is a broad exemption. It could, for example, involve a theft case involving a woman. A rule like this would also contradict the equality of law between men and women who steal anything.

Retaining data
The bill allows for the data to be kept for 75 years. Only after a person arrested for a crime has been acquitted or discharged would the data be removed. The retention of data in a central database, as well as its potential future use for criminal investigations, may not meet the necessity and proportionality standards.

Examples
The examples below illustrate some of the consequences of the provisions of this Bill.

Illustration 1. Person W is determined to have driven erratically and negligently (and fined Rs 1,000). His signature might be recorded and preserved in a central database for up to 75 years. This is permitted by the bill.

Illustration 2. Person X has been arrested for a crime. He will not hand over his fingerprints. He is accused of interfering with the performance of a public servant's duties (Section 186 of the Indian Penal Code, 1860). In both circumstances, his fingerprints are obtained against his will. He is eventually released from the original case. In the second case, however, because he is guilty under Section 186 of the Indian Penal Code, his fingerprints can be kept for 75 years.[9] This means that anyone caught for any crime and refuses to provide measurements will have their data retained for 75 years, even if they are acquitted in the primary case.

Illustration 3. Person Z is detained for violating Section 144 of the Code of Criminal Procedure, 1973 (unlawful assembly). His fingerprints are being collected (the Bill does not require a connection between the measurement and the evidence needed for investigation)[10]. He was found guilty of defying a public servant's direction under Section 188 of the Indian Penal Code[11] and fined Rs 200. His fingerprints will be stored for 75 years on the database.

NECESSITY OF THE BILL
The bill was submitted to allow for the use of current technology to capture and record appropriate body proportions, as the existing law, the "Identification of Prisoners Act, 1920," only allowed for the acquisition of fingerprint and footprint impressions of a limited number of convicted offenders.

Furthermore, the Bill wants to widen the "ambit of persons" who can be measured, which will enable investigators in gathering sufficient legally admissible evidence and demonstrating the accused person's crime.

Furthermore, the Bill establishes legal authorization for taking correct body measures of those who are compelled to do so, which would improve the efficiency and timeliness of criminal investigations while also increasing the conviction rate.

CONSTITUTIONAL VALIDITY OF THE BILL WITH RESPECT TO PRIVACY
The Identification of Prisoners Act of 1920's jargons have been broadened by changing the Act's scope and repealing it. Section 2(1)(b) of the Bill defines measurements as finger impressions, palm impressions, foot impressions, photographs, iris and retina scans, physical, biological samples and their analysis, behavioural attributes such as signatures, handwriting, or any other examination referred to in Section 53 or Section 53-A of the Code of Criminal Procedure, 1973.

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

No individual accused of a crime may be forced to testify against himself, according to Article 20(3) of the Indian Constitution. It has become a source of concern for individuals' privacy, which is in peril.
  • It should be highlighted that it also violates the Human Rights provisions of the United Nations Charter. Privacy is a fundamental human right, and different aspects of privacy, such as privacy of space, privacy of body, privacy of information, and privacy of choice, have evolved over time through a series of Supreme Court decisions, beginning with A.K. Gopalan v. State of Madras[12], Kharak Singh v. State of Uttar Pradesh,[13] Charles Sobraj v. Supt. Central Jail[14], Sheela Barse v. State of Maharashtra,[15] and Pramod Kumar Saxena V. Union of India.[16]
  • Furthermore, Clause 4(2) of the Bill allows for the retention of measurement records for 75 years, which is a clear violation of the right to be forgotten, as recognised by the Supreme Court in K.S. Puttaswamy v. Union of India[17]; and it contradicts the core concept of criminal law that no one is guilty until proven guilty in a court of law.
  • Furthermore, in Narayan Dutt Tiwari Rohit Shekhar[18], the Court stated that no one should be forced to undergo any of the techniques in question under any circumstances, even when it is part of a criminal inquiry. Such actions would be an unjustifiable infringement on an individual's right to privacy.
  • In Kharak Singh State of U.P,[19] the Court held that "life" encompasses more than animal existence. Its removal causes resistance in all of our limbs and faculties, allowing us to enjoy life. It might be claimed that the right to life does not exclusively pertain to animals. It encompasses more than a person's physical health.
  • In Maneka Gandhi v. Union of India[20], the Supreme Court added a new dimension to Article 21, saying that the "right to life or live" includes not only bodily existence but also the right to live with dignity. This bill puts a person's life on wait, and he will be constantly monitored by the government, which is a significant infringement of privacy.
  • In State of A.P. Challa Ramakrishna Reddy[21], the Supreme Court decided that one of the basic human rights guaranteed to everyone is the right to life. It is so fundamental that no one has the authority to violate it, including the government. Even when incarcerated, a person's humanity is preserved. He keeps his human status and consequently has access to all fundamental rights, including the right to life
     
CONCLUSION
As a result, the Bill was introduced with the intention of authorising the taking of measures of convicts and other persons for the purposes of identification and investigation in criminal cases, as well as the preservation of records, among other things. By allowing the State broad powers to maintain prisoner records and conduct physical and biological tests with the implied force of law, the Bill has infringed on citizens' fundamental rights, which is opposed to the rule of law and arbitrary in nature.

While incarcerated, people do not lose their humanity.
In a number of cases, the Supreme Court of India, as well as many other Indian courts, have reinforced this view in order to prevent inmates from becoming victims. The legislature has failed to qualify the intangible differentia and reasonable connection requirements since then. As a result, it is a flagrant violation of citizens' fundamental rights as set forth in Sections 14, 19, 20(3), and 21 of the Indian Constitution.

End-Notes:
  1. Legislative.gov.in, https://legislative.gov.in/sites/default/files/A1920-33.pdf, 9th MAY 2022.
  2. PRSINDIA.ORG, https://prsindia.org/files/bills_acts/bills_parliament/2019/The%20DNA%20Technology%20(Use%20and%20Application)%20Regulation%20Bill,%202019%20Bill%20Text.pdf, 9TH MAY 2022
  3. Law Commission of India, https://lawcommissionofindia.nic.in/51-100/report87.pdf, 9th MAY 2022.
  4. Committee on Reforms of Criminal Justice System Report (Volume 1), Ministry of Home Affairs, March 2003, https://www.mha.gov.in/sites/default/files/criminal_justice_system.pdf, 9th MAY 2022.
  5. The Criminal Procedure (Identification) Bill, 2022, https://prsindia.org/files/bills_acts/bills_parliament/2022/The%20Criminal%20Procedure%20(Identification)%20Bill,%202022%20Bill%20Text.pdf, 9TH MAY 2022.
  6. Justice K.S. Puttaswamy (Retd) vs. Union of India, W.P. (Civil) No 494 of 2012, Supreme Court of India, August 24, 2017.
  7. Article 14, The Constitution of India.
  8. Section 53, The Code of Criminal Procedure, 1973.
  9. Section 186, The Indian Penal Code, 1860
  10. Section 144, The Code of Criminal Procedure, 1973
  11. Section 188, The Indian Penal Code, 1860
  12. A K Gopalan In Re Versus The State Of Madras Union Of India - Lnind 1950 Sc 22 2
  13. Kharak Singh Versus The State Of U P & Others - Lnind 1962 Sc 436 6
  14. Charles Sobraj Through Marie Andre?O Versus The Superintendent, Central Jail, Tihar, New Delhi - Lnind 1978 Sc 218 8
  15. Sheela Barse Versus State Of Maharashtra - Lnind 1983 Sc 57 7
  16. Pramod Kumar Saxena Versus Union Of India And Others - Lnind 2008 Sc 1877 7
  17. Justice K S Puttaswamy (Retd.), And Anr Versus Union Of India And Ors. - Lnind 2017 Sc 420 0
  18. Narayan Dutt Tiwari Versus Rohit Shekhar & Anr - Lnindord 2012 Sc 469 9
  19. Kharak Singh Versus The State Of U P & Others - Lnind 1962 Sc 436 6
  20. Mrs. Maneka Gandhi V. Union Of India And Another - Lnind 1978 Sc 25 5
  21. State Of Andhra Pradesh V Challa Ramkrishna Reddy & Ors - Lnind 2000 Sc 741 1

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