(Picture courtesy: The Leaflet)
The Parliament of India passed the Criminal Procedure (Identification) Act 2022 which was notified on 18th April 2022. As the preamble of the Act suggests, the Act authorises the police officer or the prison officer to take measurements of convicts and other persons for the purposes of identification and investigation in criminal matters and to preserve records and for matters connected therewith. Section 2(1)(b) of the Act defines measurement and it includes finger impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scan, physical, and biological samples and their analysis, behavioural attributes including signatures, handwriting or any other examination referred to in section 53 or section 53A of the Code of Criminal Procedure, 1973. Section 4 of the Act authorises the NCRB to store, collect, preserve, process and destroy the measurements record at the national level. The NCRB is also empowered to share the data with the investigating agencies and shall store the data for a period of 75 years. The Act repeals The Identification of Prisoners Act, 1920.
Before the Bill was taken up by Parliament, Article 21 Trust collaborated with several organisations and citizens to prepare and submit a memorandum to MPs sharing their concerns on the Bill. We also undertook advocacy and wrote opinion pieces to express and share concerns on breach of privacy and possibilities of surveillance.
Here is the summary of the memorandum that we prepared and presented to MPs:
Main concerns with the Bill
The unchecked power of surveillance
The Bill accords a legal sanctity to the illegal data collection by the Government for surveillance through various modes such as photographs or videos captured by drones or smart policing initiatives as in the case of Hyderabad where people were stopped on roads by police and their pictures were taken.
The Bill has also expanded the scope and authority for surveillance, as it allows the authorities to retain the data for 75 years.
Violation of the right to privacy:
The Bill violates the triple test requirements of the Puttaswamy Judgment that made it clear that the law must be tested on the grounds of necessity and proportionality, purpose limitation, storage limitation etc. The Bill neither informs of the objective of the Bill nor is proportionate to the objectives that are sought to be achieved.
The purpose limitation has also not been provided under the Bill. Under the 1920 Act, the data would be stored at the local police station. But under the Bill, the data would travel across multiple databases. Furthermore, the NCRB is empowered to retain the data for 75 years. The reason for retention for such a long period has also been not elucidated.
Section 4 proviso speaks of the destruction of records but is silent on the timeline as to when such records would be destroyed.
Vague and broad provisions
Section 3 provides that any person who has been convicted of an offence punishable under any law for the time being in force to allow his measurement if so required by the police officer or prison officer. The section gives wide and broad powers to the police officer to take the measurement of even the convict of petty crimes.
Now, under the Bill, even the people who were detained under the preventive detention law will be treated as convicts. A political or social activist detained under a preventive detention law shall be treated as a convict and this is concerning.
The Bill has also been riddled with vague and unclear provisions and many of the important terms have not been defined. For example, Biological samples have not been defined. This will lead to excessive delegated legislation as they will be explained in future through rules. This should have been done through the bill.
Making habitual offenders
People who bear the brunt of criminalisation, come from migrant colonies, minorities and Dalit communities, the technology will lead to the prevailing bias that can be discriminatory. A new criminal tribe is going to be defined. Once marked, marked for the rest of life. This will encourage the practice of history sheeting.
With so many data points collected on an individual, access to an individual's entire history gives investigating agencies undue and unrestricted power over individuals which could lead to police excess, building of false cases, and the stifling of dissent.
Technological solutionism
Another problem with the Bill is the over reliance on technology. Instead of improving and investing in the existing criminal justice framework, the push without adequate safeguards lacks substance.
The existing technologies also need to be audited for biases. Technologies like Artificial Intelligence are known to perpetuate the biases of those coding and administering those technologies.
And unless such auditing for rights is undertaken, building multiple databases and linking of those databases cannot be permitted. This Bill amounts to giving legal backing to all kind of data collection and data sharing by the police agencies in present or future like CCTNS, ICJS, TSCOP, e-Prisons etc.
Right against self-incrimination
The Bill violates the Right against self-incrimination enshrined under Article 20(3) of the Constitution of India as a collection of data through various means and measurements would infringe upon this very right of the citizens.
The Bill also states that “behavioural attributes” can be collected which is a term broad enough to include testimonial compulsion which has been held to be violative of the right against self-incrimination
Lack of effective remedy
The Bill also lacks an effective remedy. It says that under some situations, individuals may not be obliged to allow the taking of their biological samples. However, it is not clear why this has been restricted to biological samples and not to the other measurements. What if the accused is compelled by the police to give a sample despite resistance, would that police personnel be liable has not been provided.
The Bill has been passed in complete violation of the provisions of part 3rd of the Constitution of India. It has empowered the state to have greater control over the citizens to curb, stifle and strangulate any form of dissent, or opposition.
Media coverage of the issue
Speaking to the Quint, Maansi Verma, Trustee to Article 21 Trust said that the Puttaswamy judgement says that any law which might infringe upon the right to privacy, has to follow certain principles. What's the necessity of such a law? Is it proportional to the kind of infringement that will happen to the right to privacy or is it proportional to the objectives that are sought to be achieved, were the question that Verma raised. She added that looking from that perspective then it appears that those requirements have not been met.
She also added that the bill leaves a lot of aspects open ended, which perhaps, will be clarified later in the rules and this amounts to excessive delegated legislation.
Please click here to read the full story.
Opinion in Indian Express
Writing for Indian Express, Praavita Kashyap, Lawyer and Trustee of Article 21 Trust, Nikita Sonavane and Mrinalini Ravindranath Lawyers with the Criminal Justice and Police Accountability Project on Criminal Procedure (Identification) Bill, 2022, argued that it violates the right against self-incrimination and turns the presumption of innocence in an investigation on its head. It will fundamentally alter the scope of criminal investigation by giving unchecked powers to investigating agencies as well as the central government. They noted that while the databasing of convicted persons was not new, the new piece of legislation also mandates the NCRB to store, preserve and destroy the record of measurements at the national level as well as process and share them with any law enforcement agency. Another concern that they raised was that the Criminal Tribes Act, 1871 had labelled many nomadic and semi nomadic communities as hereditary criminals. However, the law was repealed in 1952 but the practice remained in vogue and they were continued to be discriminated against as criminals by birth. This has allowed unchecked abuse of power by the police to harass Vimukta children, men and women, extract bribes from them, and as a consequence, deny them access to education, formal employment, and healthcare services. It condemns a section of the country’s population to several cycles of arrest, bail, and acquittal.
To read the complete Article, please click on the link
Opinion in Quint
Writing on the Criminal Procedure (Identification) Bill, 2022 for the Quint, Maansi Verma noted that the stated objective of the Bill is to ‘make investigation of crime more efficient and expeditious and help increase the conviction rate.’ However, the real motive behind the Bill is to have greater surveillance and curb dissent. She highlighted that in 2020 National Human Right Commission raised the issue of India lacking adequate number of forensic labs and manpower leading to the huge pendency of the cases. This was followed by a question in Rajya Sabha where the Government was asked about the delay in disposal of the cases. It was replied by the Government that disposal depends on varies of factors such as category of cases, complexity of facts, nature of evidence etc. The Government reiterated the same in response to another similar question in Lok sabha. Verma argued that discussion indicated that simply building more databases with multiple measurements of people convicted, arrested or detained is not going to improve conviction rate unless sufficient investments are made in improving the forensic capabilities of the country.
To read the full opinion, please click here
Column in LiveLaw.in titled, “The New Act to Collect Measurments Raises Concerns For Juveniles In India”
Writing for LiveLaw.in on the issue of Criminal (Identification) Bill, 2022 and its conflict with the Juvenile Justice Act, 2015, Maansi Verma, lawyer and Trustee with Article 21 Trust and Krishna Aruna Sharma argued that the former has been passed in possible conflict with the later. They noted that there is a settled legal position that a special law overrides the general law and there is no presumption that later general law will repeal the earlier special law- and the JJ Act being a special law, applicable only to the Children in Conflict with the Law (CCL) can not be overridden by the Identification Bill that is general in nature as it is applied to the collection of the measurements from any person convicted, arrested, or detained. They stressed that though no exception is created for CCL in the Identification Bill, the JJ Act will override it where a harmonious interpretation of the conflicting provisions is not possible.
To read further, please click on this link.