What the bill is all about
The brave and ever-evolving “digital world” is transforming our lives today. As a corollary, biometric technology is regarded as an effective, accurate, and dependable way for flawless identification, verification, and authentication of a person.
In the same parlance, the Criminal Procedure (Identification) Bill, 2022 (“the Bill”), has received a nod from both houses of the Indian Parliament and has enthralled a lot of protest amongst the constitutional scholars and human rights activists. The government enacted the impugned Bill to make criminal investigation “easier” and “to increase conviction rates.” However, creating a digitized collection of data jeopardizes the privacy of the people. The Bill replaced the Identification of Prisoners Act, 1920 ( “the Act”), which only allowed for the collection of fingerprints and footprints.
However, the present Bill massively expands such data collection to photographs, palm-print impressions, retina scan, iris scan, and biological samples and their analysis along with behavioral attributes such as handwriting and signatures. Not only this, it also extends to tests as defined under Sections 53 and 53(A) of the Code of Criminal Procedure. The National Crime Records Bureau of India (NCRB) will be in charge of storing and preserving the data, as well as sharing, disseminating, destroying, and disposing of records. Such information can be stored for at least 75 years in the NCRB’s database.
Constitutional and human rights
Privacy is a basic human right enshrined and protected by varied international human rights conventions as well as the Indian law, which also extends to a détenu (prisoner or detainee), under trial or a convict. The Indian Supreme Court in State of AP v. Challa Ramkrishna Reddy recognized the human rights of a détenu, under trial, or a convict under Article 21 of the Constitution of India, and stated that, “even when a person is in jail, he continues to enjoy all his fundamental rights including the right to life guaranteed under the constitution.”
In an era where privacy has gained prominence, the passing of such a bill impedes the boundaries of fundamental as well as human rights of a person. Any law which restricts a fundamental right would need to pass the test of necessity and proportionality. The test stipulates that there must be a necessary state-purpose linked to the proportionate invasion of an individual’s privacy. The purpose of the Bill is to expand the scope of investigation and increase the conviction rates. However, the provisions of the Bill do not demonstrate any reasonable nexus with the aim espoused, which will be further elaborated on by the authors in this article.
The Bill, by authorizing the data collection of “any person,” has blurred the distinction between a detainee, suspect, under trial and a convict. The previous Act provided that data may be collected from any person convicted or arrested for offenses punishable with minimum one year of imprisonment. The impugned Bill, however, removes this threshold of one-year minimum imprisonment. It would mean that any person who has been arrested for any crime would be obligated to provide their biometrics, be it the mere violation of an order requiring them to wear a face mask or a more serious offense. Authorizing such data collection gives police officials a carte blanche to collect data at their whim.
The Bill also sidelines the notion of consent, as it authorizes collection of data regardless of the consent of the accused, and the refusal by any person to comply would be an offense under Section 186 of the IPC. Furthermore, following the Puttaswamy decision, the “right to be forgotten” has been regarded as an integral part of Article 21. Section 4(2) of the Bill, which provides for retaining people’s measurements for 75 years, is in clear violation of the right to be forgotten, thereby violating the human rights of the concerned individual.
Moreover, the Bill fails to indicate the possible use of the measurements collected. The Bill raises concerns regarding the usage and protection of such data, including the unauthorized processing and disclosure which raises concerns of privacy, thereby resulting in a human rights violation. This bill puts people’s privacy at the mercy of the government and allows for the preservation of personal data without any safeguards in place.
Furthermore, the inclusion of the terms “physical and biological samples” might lead to narco-analysis and brain mapping, which would jeopardize the accused’s right against self-incrimination and right to life under Articles 20(3) and 21 of the Constitution as held in Selvi and Ors. v. State of Karnataka.
The Constitution strives for creation of a state that respects both individual liberty and freedom. The loosely drafted provisions empower the state to exercise its discretionary power over the individual freedom guaranteed under the right to privacy. Hence, under the pretext of expanding the scope of investigation, the Bill is more of an attempt to infringe human rights along with constitutional rights.
Challenges concerning regulations and science
A lot of uncertainty looms around the term “biological samples” because the term has not been defined further under the Bill. The question naturally then arises, whether such samples include the collection of DNA, given that the usage of DNA in criminal investigation is still under debate under a separate bill viz the DNA Technology (Use and Application) Regulation Bill, 2019. It may also be argued that the Bill provides for an exception under Section 3, for the collection of biological data, providing the ability to refuse the collection of measurements in certain cases. Nonetheless, by using the word “may,” it can be inferred that the power conferred is subject to discretion of the police officer, and thus is not truly voluntary.
The Bill seeks to assist the investigating agencies, through this biometric technology as a solution to meticulously record and maintain the data of the prisoners and “other people.” In a webinar in 2020, the NHRC emphasised on the issue of India’s paucity of forensic facilities and manpower, resulting in a large backlog of cases and delays in dispensing justice. Therefore, the collection of multiple databases of every person, whether convicted, arrested, or detained, would neither improve the conviction rate, nor would it contribute to the investigation process.
The Bill requires huge infrastructure development and resource allocation, along with the combined efforts of both, the union and the states. The dearth of experts and equipped forensic labs in the country is the elephant in the room which needs to be addressed. There will be a glaring need for more equipment, appointment of experts for the collection of data, training of the investigation officers, judicial officers, prosecutors, and cooperative efforts of both doctors and forensic experts, to achieve the desired efficiencies in the investigation.
The objective justification of the Bill is primarily based on the measurement techniques being used by developed nations, providing reliable and effective results. However, even developed nations like the US face certain backlash and criticism for their inefficacious technology centers, due to low accuracy. In a study conducted by the American Civil Liberties Union, it was found that inaccurate facial recognition system caused several cases of false arrest due to erroneous matches of people from the data being collected and stored.
Conclusion and suggestions
Along with easing out the investigation procedure, the Bill also poses some challenges to the individual freedom and liberty. There is no denial that the impugned Bill will enable the State agencies to maintain a coherent database of special offenders, which would ease out the investigation process. However, if not used cautiously, it can lead to repressive consequences.
As a result of its lack of transparency, the Bill may become a tool for taming individuals and suppressing dissenting voices. This necessitates the need for a competent appellant authority to regulate and preclude the scope of any ambiguity and arbitrariness. The appellant authority could be approached in case of any confusion, abuse or coercive measures taken by the investigating agencies, be it the magistrate, NCRB, or police officials.
The appellant authority can also review the usage of technology for the collection of data, in a quarterly or annual report submitted to them, which will also set out the standards and regulations for the functioning of face biometric technology. This system of checks and balances would bring uniformity and scrutiny, which would thereby increase transparency, harmonizing the interest of the people associated with it.
The onus to safeguard the collected information through these biometrics lies upon the state, and under no circumstances should the exchange of such information be allowed. The investigating agencies should be forbidden from possessing, acquiring, accessing, using and assisting with the system. The NCRB is empowered by the Bill to collect data on such “measurements” acquired by state law enforcement authorities for the purposes of keeping, conserving, processing, and disseminating that data. This appears to follow the same pattern as the NAFIS database. Such centralization of data was not envisaged in the 1920, Act nor in the Law Commission report, and its utility to people is still dubious.
It is imperative for the state to iron out the looseness of the system, and avoid any unregulated surveillance technology by striking a balance between the rights and power of the state, and protecting the private rights of the individuals.
Rajnandini Singh Shaktawat and Harshal Sareen are penultimate year law students at the Institute of Law, Nirma University, in Ahmedabad.
Suggested citation: Rajnandini Singh Shaktawat and Harshal Sareen, India’s Criminal Procedure Identification Bill: A Reasoned Emperor in a Weak Cloak, JURIST – Student Commentary, April 18, 2022, https://www.jurist.org/commentary/2022/04/rajnandini-singh-shaktawat-harshal-sareen-privacy-human-rights-india/.
This article was prepared for publication by Sukrut Khandekar, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org
