Supreme Court’s judgment in Jacob Puliyel v Union of India on May 2 further brings the constitutional validity of the Act under a cloud.
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ON April 4 and 6, Lok Sabha and Rajya Sabha had respectively passed the Criminal Procedure(Identification) Bill, 2022. With the President giving his assent to the Bill on April 18, it was duly notified by the Government, bringing the Act into force. The Act seeks to authorise collection, analysis and storage of biometric and personal data of any person arrested by executive authorities including convicts. It is a modification of the Identification of Prisoners Act, 1920, which stands repealed through Section 10(1) of the 2022 Act.
The Act widens the power of State and its enforcement agencies during a criminal investigation, with regard to the taking of biometric and other biological data of any person arrested by the police, including persons detained under preventive detention laws. While the term ‘any person’ doesn’t specify exactly who are to come under the purview of this Act, it widens the scope of its application, leaving it to the whims and fancies of the State and its enforcement agencies.
When such coercive criminalisation of an individual is perpetuated without any consequences for the authorities, it robs the individual of a free and fair trial, taking away their right to life and liberty under Article 21 of the Constitution, as a result.
But what makes it dangerous is the criminalisation of an individual’s refusal to give such data, making it an offence under the Act. Such criminalisation is not only against individual autonomy, but directly impinges on an individual’s right to fair trial under Article 21 of the Constitution of India.
I argue here that the Act, in its essence, is not only antithetical to basic criminal law jurisprudence, but simultaneously violates various Constitutional mandates, with its vague and overarching provisions.
The 2022 Act allows police officers to collect fingerprints, footprints, biological samples, behavioural attributes including signatures, handwriting and examinations under Sections 53 and 53A of the Code of Criminal Procedure, of any arrested person, including convicts. Such data also includes blood, semen, hair samples, swabs and analyses such as DNA profiling.
While the refusal to share such data is an offence under this Act, an exception also states that any person arrested under any law will not be obliged to provide such data, except when they are arrested for any offence committed against women and children. Such criminalisation at first glance violates an individual’s right against self-incrimination under Article 20(3) of the Constitution, amounting to forcible extraction of testimonial response, which further impinges on the right to life and liberty under Article 21 of the Constitution. In fact, the exception becomes redundant in light of Section 6(1) of the Act, which states that, “If any person who is required to allow the measurements to be taken under this Act resists or refuses to allow taking of such measurements, it shall be lawful for the police officer or prison officer to take such measurements in such manner as maybe prescribed”, especially when Section 6(2) makes it an offence under Section 186 of the Indian Penal Code, while Section 7 absolves the authorities of any trial or proceeding for doing anything under the Act.
The Supreme Court, in Selvi versus State of Karnataka (2010) held that the protection against self-incrimination under Article 20(3) of the Constitution would include the right to a fair trial and substantive due process, and that this right would not only be confined to the courtroom, but in all cases where the charge may end in a prosecution. So, when such coercive criminalisation of an individual is perpetuated without any consequences for the authorities, it robs the individual of a free and fair trial, taking away their right to life and liberty under Article 21 of the Constitution, as a result.
Under this Act, a Magistrate has the power to order for the collection of personal data from any person not arrested, to aid in a prevailing investigation, making it discretionary on the part of the Magistrate to not provide any reason for the same. This is a contravention of Article 14 of the Constitution, which gives a person right against arbitrary and unreasonable State action.
Along with the Officer in charge of a police station or someone with the rank of a Head Constable or above, the Head Warder of a prison can also order for such collection of data, which puts them directly in the process of investigation and increases their power over the undertrials and convicted prisoners in the prison under their authority.
The Supreme Court, in Sunil Batra versus Delhi Administration (1979) explicitly stated that during a prisoner’s time in jail, the jail authorities do not have any right to punish, torture or in any way discriminate against them without the explicit permission or orders of the court, and that a convicted prisoner still has the right to life and liberty under Article 21 of the Constitution, even when inside of a jail. But when a provision provides a warder with the power to collect samples from convicts in the jail under their management, without adequately specifying the way in which they can do it, it gives them a free pass to do anything. Such a free pass makes the provision contrary to the very essence of the right to life and liberty jurisprudence upheld by Sunil Batra.
Basically, vague, unspecified coercive measures by the authorities are brought within the ambit of this Act by bringing them within the due procedure of law.
Administrative actions demand that nothing can be done on the part of the authorities without giving adequate reasons for the same. It is one of the essential rules of natural justice. However, under this Act, a Magistrate has the power to order for the collection of personal data from any person not arrested, to aid in a prevailing investigation, making it discretionary on the part of the Magistrate to not provide any reason for the same.
This provision is a direct contravention of Article 14 of the Constitution, which gives a person right against arbitrary and unreasonable State action. This unreasonable action further violates an individual’s right to fair trial, whether they are the main accused or not.
Right to privacy: information or dissemination of public data?
The Supreme Court, in Justice K.S. Puttaswamy (Retd.) versus Union of India (2017), declared the right to privacy as a fundamental right under Article 21, stating that measures which are against the privacy right of an individual have to be reasonable and proportionate to be legal. It expressly stated that autonomy over personal decisions, bodily integrity as well as personal information forms a part of this. In fact, then Justice S.A. Bobde observed that consent is essential for distribution of inherently personal data such as health records.
The 2022 Act provides for collection of finger impressions, palm- print impressions, foot-print impressions, photographs, iris and retina scans, and other biological samples for analysis and storage. This data will be stored by the National Crime Records Bureau for 75 years, and can be accessed by various law enforcement agencies. Without a proper mechanism to regulate such vast public data, this provision makes everyone vulnerable in this age of a widespread digital domain. Section 4 of the Act provides that a person who has no previous record of conviction and is released without trial or has been discharged or acquitted by the court, can have their records destroyed, which is again subject to the discretion of the Magistrate or court, after citing valid reasons.
The Supreme Court, in Common Cause versus Union of India (2018), ultimately upheld the right of an individual against forceful intrusion into one’s body, keeping intact bodily integrity and autonomy of the individual. In fact, in Selvi, it had held that compulsory neuroscientific tests amount to testimonial compulsion and violates the rule of self- incrimination as a result, and that such tests would have to meet the standard of ‘substantive due process’ for placing restraints on personal liberty. It further held that the main purpose of the right against self- incrimination is to ensure reliable testimony, since involuntary statements mostly turn out to be inaccurate, besides violating a person’s dignity and integrity. It even clarified that this right protects persons who have been formally accused, those who are examined as suspects in criminal cases, witnesses who apprehend that their answers could expose them to criminal charges in an ongoing investigation, or in cases other than the one being investigated.
The collection and analysis of data under the Act borders on executive arbitrariness, when an individual’s will to not share such data is explicitly criminalised. In fact, storing of such data has no reasonable justification, making it disproportional to the larger context of justice.
So, when the 2022 Act explicitly talks of collecting biological samples as well as analysing them, it violates this mandate, while a Magistrate’s power to call for investigating anyone for a case on their own whims and fancies certainly takes away from them the right of a fair trial. It is especially dangerous, when such data can be stored for 75 years and used by any of the state governments for their own use and purpose.
It even violates the three-fold test upheld by the Supreme Court earlier this month in Jacob Puliyel versus Union of India, after analysing K.S. Puttaswamy. While the first condition provides that to encroach upon anyone’s privacy, there has to be the existence of a valid law, the second condition provides that the nature and content of such law should fall within the sphere of reasonableness mandated by Article 14. Lastly, it provides that the means adopted by the legislature are to be proportional to the object and need sought to be pursued by it. In the present case, while one may argue that the collection of such data is in consonance with the protection of an individual’s privacy, it doesn’t change the fact that the collection and analysis of such data borders on executive arbitrariness, when an individual’s will to not share such data is explicitly criminalised. In fact, storing of such data has no reasonable justification, making it disproportional to the larger context of justice.
Furthers pre-conceived bias against individuals detained under the preventive detention laws
Preventive detention laws work at the whims and fancies of the executive in India. Without going into the rigours of the criminal law process, it entitles the police to detain anyone on a simple suspicion of them committing any act prejudicial to the State. The arrestees don’t enjoy the fundamental rights guaranteed under Article 22(1) and (2) of the Constitution. These Articles protect a person against arrest and detention in general.
When a society differentiates between different classes of offenders, taking away their basic rights which are in general available to others, it perpetuates a systemic indifference to their right to life and liberty, which allows for basic rights to be violated under the garb of protection of the State. So, when such a person, under a preventive detention law, is already alienated from a free and fair process, Act like this, which further impinges on a person’s right against self- incrimination, makes them even more vulnerable under the present process.
The Criminal Procedure (Identification) Act, 2022 is clear in its intent and yet leaves certain things to the imagination of the authorities, making it vague and wider in its scope. Such wider connotations can turn it an object of administrative impunity, which makes it disproportionate and dangerous in its wake for the people as a whole. What is more dangerous here is the fact that this Act is trying to make the violation of constitutional rights by the State and its enforcement agencies legal, by compromising a person’s right to life and liberty under Article 21 of the Constitution.