The Criminal Procedure (Identification) Act, 2022 compromises constitutional rights

The Criminal Procedure (Identification) Act, 2022 leaves too much to the imagination of authorities, and appears to legalize the violation of constitutional rights by the State and its enforcement agencies, including the rights to privacy, life and liberty. 

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Why is the Act in the news?

ON August 3, after nearly three years of deliberation, the much anticipated Personal Data Protection Bill, 2019, which aimed to regulate the use of digital data of citizens by companies and government, was withdrawn.

Co-incidentally, the Criminal Procedure (Identification) Act, 2022, which was passed by the Parliament in April, came into force on August 4.

The Criminal Procedure (Identification) Act replaces the Identification of Prisoners Act, 1920 by repealing the same in lieu of the new enactment (Section 10(1) of the 2022 Act).

The 2022 Act grants immense powers and legal sanction to authorities for collection, analysis and storage of biometric and personal data of any person, including persons arrested by executive authorities, and convicts. These powers are much wider than the powers under the 1920 Act.

Also read: Decoding the Criminal Procedure (Identification) Bill, 2022

What is the scope of the Act?

Notwithstanding the fundamental right to privacy guaranteed under the Constitution, the 2022 Act casts an arbitrary, unconditional obligation on any person/ citizen (whether accused of an offence, convicted, or any other person, if so deemed necessary by a Magistrate) to allow their measurement to be taken by a police or prison officer in such manner as may be prescribed by the Union Government or a state government.

The term 'measurement' is used in a wide context. 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 Sections 53 (examination of accused by medical practitioner at the request of police officer) or 53A (examination of person accused of rape by medical practitioner) of the Code of Criminal Procedure, 1973 ('CrPC').

Thus, the power to collect measurements is not limited to those of accused or convicted persons. It extends and applies to any other person as may be directed by the Magistrate for the purpose of any investigation or proceeding under the CrPC. Section 3 of the 2022 Act, however, carves out an exception for person(s) arrested (except for an offence committed against a woman or a child, or for any offence punishable with imprisonment for a period of seven years or more), from allowing the taking of their biological samples.

It is important to draw a reference to the 1920 Act here and examine the extensive scope of the 2022 Act. While under the 1920 Act, only data like fingerprints, footprint impressions and photographs could be collected, the 2022 Act is much more intrusive. Further, as per the 1920 Act, data could be collected of persons convicted or arrested for offences punishable with rigorous imprisonment of one year or more. However, the new Act delves into wider aspects without any embargo, barring the exception mentioned above.

Also read: Unravelling concerns over the Criminal Procedure (Identification) Bill, 2022

Why are the provisions of the Act controversial?

It must be highlighted here that the above provisions are in contravention of the fundamental rights guaranteed under the Constitution, more particularly rights under Articles 19 to 21 of the Constitution. It is well settled that the right to life includes the right to privacy, the right to live with dignity, and the right to remain silent. While no person can be compelled to adduce self-incriminating evidence, the right to privacy also recognises the power of an individual to control the dissemination of personal information. The 2022 Act does not seem to be synchronised with this existing and conclusively asserted position of law.

To add to the above deprivation of the right to privacy, the 2022 Act attaches criminal liability for resistance or refusal by any person to allow taking measurements. As per Section 6 of the Act, resistance or refusal shall be deemed to be an offence under Section 186 of the Indian Penal Code, 1860 ('IPC'), which provides punishment for obstructing public servant in discharge of public functions, wherein the person may be imprisoned for a term which may extend to three months or with fine which may extend to rupees five hundred or both.

Why is the Act seen as inconsistent with the right to privacy and other Supreme Court judgments?

The Supreme Court has time and again upheld and reiterated that the right to privacy is inhering in every individual, and has conclusively echoed its position as a constitutionally protected right. It is relevant to note that at this juncture that the Supreme Court, in the matter of Justice K.S. Puttaswamy (Retd.) versus Union of India (2017), highlighting the varied facets of the right to privacy, has affirmed three aspects of the fundamental right to privacy, namely: (i) intrusion with an individual's physical body; (ii) informational privacy; and (iii) privacy of choice.

It goes without saying that no legal right can be absolute, and every right has limitations. Puttaswamy clarifies that the right to privacy cannot be impinged without a just, fair and reasonable law. The judgment lays down the following threefold test to be fulfilled in case of invasion of life or personal liberty:

(i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State aim; and (iii) proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them.

Thus, any encroachment on a person's right to privacy can be justified only and only if the same passes the above trinity test.

While the 2022 Act casts a mandatory obligation on any person to allow taking measurements, it is noteworthy that the rights of the police or other authorities are unfettered and do not attach any responsibility or accountability, as the Act bars any suit or legal proceeding to be filed against any person for anything done or intended to be done under the Act or rules made thereunder, through its Section 7. This way, the Act arbitrarily intrudes upon the right to privacy. What needs to be examined is whether the same satisfies the threefold test laid down in Puttaswamy.

Additionally, it becomes imperative to ascertain the position of the enactment in light of Maneka Gandhi verus Union of India (1978), wherein the Supreme Court observed: "What is fundamental is life and liberty. What is procedural is the manner of its exercise."

Also read: The Criminal Procedure (Identification) Bill flies in the face of legal precedents

What is the role of the National Crime Records Bureau under the Act, and what concerns has it led to?

Under Section 4 of the 2022 Act, the National Crime Records Bureau ('NCRB') is empowered to collect, store, preserve, process, share, disseminate, destroy and dispose of the records of measurement. The NCRB shall maintain and retain the records of measurement in digital or electronic form for a period of 75 years from the date of collection of such measurement.

Provided, however, when an accused person is released without a trial or discharged or acquitted by the court, after exhausting all legal remedies, all records of measurements taken of such an accused person, shall be destroyed from the records, unless the court for reasons to be recorded in writing, directs otherwise.

The Act provides that a state government or union territory administration, too, may notify an appropriate agency to collect, preserve and share the measurements in their respective jurisdictions.

As already discussed above, the Act does not grant the right to control the dissemination of information to the person whose information/ data is in question.

It is interesting to note that the Act does not make any distinction between the categories of accused persons on the basis of the nature of offences. Thus, a person accused of making the atmosphere obnoxious to health, for which the punishment is fine which may extend to Rs. 500, or rash driving, where the punishment extends to imprisonment for a term which may extend to six months or fine which may extend to Rs. 1,000 or with both, for the purposes of this Act, is treated at par with a person accused of theft or forgery or other heinous crimes.

Similarly, a pick-pocketer and a kidnapper are subjected to the same treatment/ obligations under the Act. Measurements of all these categories of the accused persons without any distinction shall be available in the database of the concerned agency for 75 years.

Further, the Act does not take into account overlapping or incidental proceedings for maintenance or destruction of records of measurement. For instance, if a person accused of an offence resists the taking of their measurements, it attracts arraignment under section 186 of IPC (as per Section 6 of the Act). If the person is discharged of the original offence, they are entitled to have their records destroyed from the NCRB records. However, owing to the subsequent imposition of section 186, the records cannot be wiped off until the said subsequent matter is dealt with and disposed of. 

The Act, as it stands, does not categorically provide for any measures to be undertaken to ensure security of the information, nor does it lay down any security obligations on NCRB or guidelines for security/maintenance of confidentiality of the data, restrictions on sharing of the data, or consequences of misuse of the data.

The above implication is questionable and precarious per se; however, the trembling plight of persons not even accused/arrested for any offence being subjected to the obligations and repercussions under this Act, is far from fathomable. As such, a person's right to fair trial is jeopardised by the Act.

Also read: The Criminal Procedure (Identification) Act, 2022 violates various constitutional mandates

Is the Act in violation of international conventions on human rights? Does it have inherent scope for misuse?

The 2022 Act attacks and impinges the personal liberty of individuals guaranteed under the Constitution, and is in violation of a catena of Supreme Court judgments upholding the rights of privacy of individuals, including prisoners.

The Act has also been critiqued for being in violation of international conventions and regulations on human and political rights, the right to a person's honour, reputation and self-respect. For instance, Article 12 of the Universal Declaration of Human Rights, 1948 and Article 17 of the International Covenant on Civil and Political Rights, 1966 legally protect persons against "arbitrary interference" with their privacy, family, home, correspondence, honour and reputation.

The purpose and object of the Act seeks to secure the larger interest of the nation and individuals. However, the jurisprudence, as it stands, entails, or certainly speculates, arbitrary impingement of persons' right to life and liberty. Such wide and disproportionate powers in the hands of executive authorities with little accountability, with no robust mechanism to regulate the storage, processing and protection of data presently in place, leaves unimaginable scope of misuse, and puts the rights of the individuals in jeopardy.

The Union Government or a state government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act, in particular the manner of taking, collecting, storing, preserving, sharing, disseminating, destroying, disposing measurements and records of measurements, as per Section 8 of the Act.

The Act is clear in its intent but leaves certain things to the imagination of authorities, making it vague and overly wide in its scope. Such wide connotations can turn it into an object of administrative impunity, which makes it disproportionate and dangerous for people on the whole. It is undeniably more dangerous that the Act attempts to legalize the violation of constitutional rights by the State, and its enforcement agencies, by compromising a person's right to life and liberty under Article 21 of the Constitution.

Now that the Act has come into force, we may soon get to witness its practical implications, and whether it leads to a judicial review.