Analysis of Criminal Procedure Identification Bill 2022

 

Name – Sanskriti Srivastava

College - ICFAI University Dehradun

INTRODUCTION

On 28 March 2022, the Criminal Procedure (Identification) Bill, 2022 was introduced in the

Lok Sabha, which, if passed, would replace the Prisoners Identification Act, 1920. The

constitutionality of this bill violates the right to equality under Article 14, the right to self-

incrimination under Article 20 (3) and the right to privacy under Article 21 of the

Constitution. Many provisions of this bill stand contradictory to the Constitution. This bill

does not significantly contribute to the achievement of the goal of increasing the

effectiveness and efficiency of research, but increases the administrative burden, while

violating fundamental rights.

WHAT IS PRISONERS IDENTIFICATION ACT,1920?

A 102 years old act was passed by the British Government with the purpose of taking

measurements of convicted and non-convicted persons by police officers.

The term ‘measurements’ in this act includes fingerprint/footprint impressions. Also,

photographs of convicted and non-convicted persons are also covered under this.

Under this act :

· Convicted persons – Every person who is convicted of any offence punishable with

rigorous imprisonment for a term of 1 year or more. Also, those persons who are asked to

give the security for good behaviour under Section 118 of CrPC,1898.

· Non-convicted persons – Persons who are not arrested but are related to the offences.

Police officers – All the police officers ranked above or equal to Sub-Inspector are authorised

to take ‘measurements’.

Authorization:

Page | 3

Both Judicial Magistrate and Executive Magistrate (District Magistrate and Sub-District

Magistrate) have comprehensive powers to issue orders asking people to come and provide

measurements at any time and any place to the police officers.

Resistance/Refusal to cooperate – If any person under this Act is required to give

measurements and he/she refuses to do so, shall be punished under Section 186 of The Indian

Penal Code with imprisonment not less than 3 months or fine up to Rs.500/-

Destruction of Records- Under this act, records shall only be discarded under following

circumstances:

· Acquittal

· Discharge

· Release without trial

Except in cases where Judicial Magistrates or Executive Magistrates give in writing the

reasons to keep such records.

State government to make rules under this act.

NEED FOR THE NEW ACT

Amit Shah, the home minister tabled this bill in Lok Sabha giving contentions that in

advanced countries, new methods of measurement are being incorporated which are

giving good results and higher convention rates. In our country, existing law has two

problems –

1) Limited Measurements

2) Limited category of persons

WHAT THE NEW BILL SAYS?

IT’S PURPOSE – Authorise for taking measurements of convicts and other persons

for the purposes of identification and investigation in criminal matters and to preserve records

Page | 4

Wide ambit of term “measurement” – As per this new bill, the term measurement would now

include Finger-impressions, Palm-print impressions, Foot-print impressions, Photographs,

Iris and retina scan, Physical, Biological samples and their analysis, Behavioural attributes

including signatures, handwriting and other examination.

Change of definition of “convicted persons” – Now every person who is arrested for any

offence for any period of term shall come under this category.

Change in rank of “POLICE OFFICERS” – By the new bill proposed, the rank of the police

officers who can collect measurements has been lowered to Head Constables and Head

Wardens.

Now, the storage of data shall be collected and stored by the National Crime Records

Bureau and maintained in a digital/electronic form for 75 long years.

Magistrate’s Power – Under this Bill, the Magistrates have the power to ask ‘any person’ to

give measurements even if he/she is not related to the case.

The manner in which measurements can be taken shall be prescribed by Central/State

governments under this bill.

Exceptions –

Biological samples can be refused – Any person can refuse to give their biological samples to

the police officials. However, a person is compelled to give his/her biological samples if

he/she is involved in a crime whose punishment is at least 7 years or the crime involves

women and children.

ISSUES WITH THE BILL

Analysis of physical and biological samples – No categorical definition has been provided for

‘physical’ and ‘biological’ samples. This gives an arbitrary power to the government.

Analysis of these samples may include - (1) Narco analysis (2) brain morphing (3) polygraph

test. This results in violation of Article 20(3) of the Constitution that deals with ‘right against

self-incrimination’.

In the case Smt. Selvi and Ors. v. State of Karnataka[1], the Supreme Court said that the

accused cannot be forced to be a victim against himself. Scientific techniques like NARCO,

Page | 5

BEAP, etc though fastens the investigation process but considering the fact that there is no

consent involved in this procedure, we can deduce that the accused is being forced and

compelled to give testimony against himself.

And under this bill, nowhere it is mentioned that the consent of the person is required to

take measurements. Hence, the bill violates the judgement given in Selvi case and also

violates Article 20(3).[2]

“Any person” – Data can be collected from any person for any offence without stating the

reasons. This is a clear violation of right to privacy i.e Article 21.

Category of offences not defined – The bill has not defined the nature of offences. This Bill

provides for the taking of measurements by police and prison officers, their collection,

preservation, and sharing by state-notified agencies, as well as the collection, storing,

destruction, processing and dissemination of the records of such measurements by the NCRB

in the interest of “prevention, detection, investigation, and prosecution” of offences under the

law. At numerous places, the Bill delegates excessive powers to the executive. It does so first,

by delegating legislative functions to the executive by providing wide-ranging rule-making

powers with virtually no guidance; and second, by giving functionaries under the Bill

(police/prison officers and Magistrates) excessive discretion to decide who they may compel

to provide measurements, in what circumstances, and for what purposes.

CONFLICT WITH OTHER LAWS

1) Section 53 CrPC’73 - Under this bill, the measurements can be collected by police

officials of rank Head Constables and Head Wardens without stating reasons, clearly

violating this section.

2) DNA Technology Regulation Bill,2019 – Consent required for collecting DNA but

by this bill, consent of the convicts who have committed a crime whose punishment is at

least 7 years or the crime involves women and children, they are forced to give DNA,

violating the above-mentioned bill.

Page | 6

CONCLUSION

This bill, if passed, would take away from the people “right to be forgotten”. It would keep

the data for 75 years long even for petty offences committed. “Right to be forgotten” though

not applicable in India yet on moral grounds, every human being deserves a second chance.

Moreover, keeping a record of petty offences for such a prolonged period of time makes no

sense. Considering the Bill, it violates fundamental rights of the citizens and anything which

is contradictory to the Constitution must be either modified or struck down. The Bill has also

authorized the Central government to take any step required till 2025 for removing

difficulties that would come in enforcement of this Act. It seems that the government has

made up its mind completely to enforce this new law neglecting the fact that it violates basic

fundamental rights. The bill has been passed by Houses of Parliament but still awaits the

assent of the President.

REFERENCES

https://byjus.com/current-affairs/criminal-procedure-identification-bill-2022/

https://www.project39a.com/identification-bill

ENDNOTES

[1] Selvi and Ors. v. State of Karnataka, A.I.R 2010 S.C. 1974

[2] Supra note 1