Jay Patel

Background

The Criminal Procedure (Identification) Act, 2022 (hereafter referred to as CPIA) replaces the century-old “The Identification of Prisoners Act, 1920” (hereafter referred to as IOPA). The reasons for the new law state the inadequacies of IOPA regarding the limited access to the types of measurement, lack of incorporation of modern scientific techniques, to increase the ambit of the people whose measurements can be taken, and argues that these would strengthen the case against the accused by bringing in new evidence (purportedly, to increase the conviction rate in turn) hitherto unavailable or difficult to get.

It is important to look at the implications of this new act in relation to the recognised rights of the individuals (not only limited to the privacy question) and also in relation to society, collectively.

Now let us look at three important definitions that CPIA provides us:

  1. Measurements: “measurements” includes finger-impressions, palm-print impressions, foot-print 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 53A of the Code of Criminal Procedure, 1973.”
  2. Police Officer: “police officer” means the officer-in-charge of a police station or an officer not below the rank of Head Constable.”
  3. Magistrate: “… (i) in relation to a metropolitan area, the Metropolitan Magistrate; (ii) in relation to any other area, the Judicial Magistrate of the first class; or (iii) in relation to ordering someone to give security for his good behaviour or maintaining peace, the Executive Magistrate.”

Key Points

  1. Just by reading these above-mentioned definitions, we find that the scope of the act has been substantially enlarged compared to IOPA. IOPA restricted itself to collect finger-impressions and foot-print impressions, and lastly, photographs, that too, only under the direction of the magistrate of the first class. The new act, reading the above definitions, clearly expands the horizon of state intervention in the lives of individuals. Now it includes finger-impressions, palm-print impressions, foot-print 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 53A of the Code of Criminal Procedure, 1973. It is important to note that physical and biological samples can be interpreted in broad ways to include even DNA, though not limited to it.
  2. The agencies that can collect or direct to collect the measurements have also been relaxed and increased, CPIA allows head constables onwards to collect the measurements and even prison officers can collect the same, while IOPA only allowed Sub-Inspector onwards to collect the measurements. Also, with regards to photographs (or any type of measurement in the case of CPIA), any of the three classes of magistrate can now order photographic measurement, while IOPA only allowed First Class Magistrate to order the collection of the same.
  3. Under CPIA, a person convicted of any offence, or arrested for any offence, or detained under any preventive detention law, can be asked to provide his measurements. The same can also be taken if the person is “ordered to give security for his good behaviour or maintaining peace.” IOPA only allowed the measurements to be taken if the conviction or arrest can lead to imprisonment of one year or more. The word “any” in CPIA reveals the expanded scope of the act.
  4. Under CPIA, a person may decline to provide his biological samples, “except for an offence committed against a woman or a child or for any offence punishable with imprisonment for a period not less than seven years”. By specifying biological samples, it does not preclude the agencies from taking other kinds of measurements. The refusal to provide the measurements under the act (CPIA) is a punishable offence under IPC 186.
  5. Under CPIA, National Crime Records Bureau (NCRB) is empowered to collect, store, and destroy the data of measurements. It can retain the data in the digital form for seventy-five years, although the measurements of the person, who has not been previously convicted of any offence which would lead to imprisonment, or has been released without trial or discharged or acquitted by the court, can be deleted, provided the court or magistrate does not ask to retain the same. NCRB can also share the data with any law enforcement agency.

Key Concerns

  1. Given the expanded scope under article 21 [Life and Personal Liberty], including privacy [Puttaswamy Judgement (2017)] under it, the new law raises the question of infringement and intrusion by the state in the lives of its citizens. But privacy question is only a part of it, the bigger question emerges regarding the possible misuse of the measurements by both the state and non-state actors. Once the information is passed from the top to the bottom, leaks can happen anywhere. A proper regulatory framework seems to be missing here. This is happening at a time when both the DNA Technology Bill and Personal Data Protection Bill are in limbo.
  2. With the emergence of AI and data sciences, it is possible that the information may be used to construct technologies for facial recognition, behavioural analysis, etc., which are reported to be flawed and at times discriminatory against minorities. Neither has the government provided any evidence as to the increase in conviction rates or reduction in crime rates due to the deployment of these modern technologies or the collection of such measurements. Some of these technologies (like iris, retina and facial recognition) have also been challenged regarding their claims of accuracy and authenticity.
  3. With the devolution of the powers to lower-level officials (not to say higher-level officials are less-corruptible) there can be greater misuse of force and torture, along with reduced accountability. This is clearly visible by giving power to executive magistrates to order for the measurements, or by relegating it to the head warder or head constable to collect the same.
  4. By increasing the range of people whose measurements can be collected, including detainees or even for minor offences, the state is increasingly becoming a surveillance state; it is well known that preventive detention laws are regularly misused by the state. The act also increases the possibility of the police overcharging the accused to collect their biological samples, since there is a higher threshold to get the biological samples.
  5. Suppose you are even once convicted of an offence, leading to a jail term of even three months or even if convicted of any offence without jail term (like not wearing a face mask), your measurements can still be stored for seventy-five years, unless discharged without a trail, or found innocent upon challenging in the higher courts, which many don’t have access to. Even then, the magistrate can ask to retain the same.
  6. The blanket sharing of the data between various agencies should be rationalised by an independent authority and the log should be recorded regarding when, where and with whom the data has been shared or accessed and the purpose or need for such request recorded in detail.

Conclusion

The present act raises more questions than it answers. Ignoring the doctrine of parity, it tries to make no difference between a detainee held for a protest and a person convicted of a more serious offence, for, in either case, the measurements can still be collected, with the caveat that in the former case the biological samples might not be collected but other measurements still cannot be refused.

It is also important to note that a person’s DNA can reveal many a thing about them, including their health issues, behavioural traits, blood relations and much more; it becomes essential to have strong safeguards to prevent its misuse and maintain accountability for the same.  There should be penal provisions to hold individuals and agencies accountable in case of any failure or misuse on their part.   To conclude, the fairness principle, the substantial idea of justice, and other constitutional provisions need to be considered in the act or in the rules yet to be framed, without which the potential for misuse remains high.

References

Check out more Policy Updates by the IMPRI Team here:

Five Years Down the Line: Real Estate (Regulation and Development) Act, 2016| 3 August 2022

The Model Tenancy Act 2021| 2 August 2022

Capital Support to National Bank for Financing Infrastructure and Development – Policy Update 2021| 27 December 2021

E-Shram: National Database of Unorganized Workers (NDUW) – Policy Update 2021| 12 December 2021

About the Contributor

WhatsApp Image 2022 08 02 at 9.06.18 PM

Jay PatelResearch Intern, IMPRI. He is presently pursuing his Master’s in Law, Politics and Society from Ambedkar University Delhi (AUD).