The Criminal Procedure (Identification) Bill, 2022 has been passed by the Indian Parliament on April 6, 2022. It is the replacement of Colonial Law, i.e., the Identification of Prisoners Act, 1920. The newly introduced Bill asks for collection of biometric data from convicted prisoners.
It allows police officers and prison officials to collect biometric data from prisoners. This will include fingerprint and footprint impressions, photographs, iris and retinal scans and other physical and biological samples. The Bill is more obtrusive in the personal life of the prisoners. Collection of personal data is in violation of Article 21 of the Indian Constitution. The bench of Justice A Bhushan, A Khanwilkar, A Sikri and D Misra decided in the case of Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors. (2017) that the right to privacy and personal dignity is considered as an intrinsic part of the right to life and as a part of freedom guaranteed under Part III of the Indian Constitution. The said Bill is not in consonance with the aforementioned judgment of the Supreme Court.
The Bill substantively permits authorities to collect signatures and handwriting, or any other examination as given under Section 53 or 53A of the Code of Criminal Procedure, 1973. This may result in power-centric rule of the sovereign. The plight of citizens in India is that it leaves no personal space for the people. Providing biometric data to public servant officials is violative of their privacy rights. Exercise of absolute power by the government can result in corrupt social and political systems
To elaborate further, the term “shall” in Section 3 of the Bill sheds light on the compulsion of convicted person to provide officials with their data. There is no option for voluntary consent to the prisoners. The absence of strict laws on data protection is the major problem for our society. This may even lead to loss of collected data and the repercussions of the same will cause several misuse of information. Society is the concoction of criminals, offenders and innocents. And all the people should have access to basic humanitarian law. This Bill is violative of fundamentals of life, including security and safeguards from executive operation. The legal system of a country must be for the people, of the people and by the people. The recently passed Bill neither aims to secure people nor does it help to provide them a basic dignity. Any legislation passed by the Parliament is for “all,” including the convicted offenders in criminal law. Even prisoners have the right to lead their lives. Constitutional values of liberty, equality, fraternity and justice are not exclusive of prisoners’ rights.
The insecurity of personal data loss may cause these people to suffer mental trauma and other disorders. As per the rule of law, it is the duty of the sovereign to protect each and every citizen from suffering any kind of human rights violation. People who are surviving in a democratic country elect their representatives with the mindset that they will be benefitted. This Bill may help the authorities in record-keeping or in making a history sheet of the chronic offenders. But the same may infringe upon the rights of prisoners who are accused under the criminal system and are not proved guilty under any law. The legislative body of the Republic of India must keep in mind that India is a signatory to the International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966 and is obliged under Article 2(2) to guarantee economic, social and cultural rights to every citizen irrespective of any basis for discrimination. Thereby, prisoners too must be given all the rights.
The amendment Bill of 2022 endangers the citizens by making the authoritarian power arbitrary. The case of E.P. Royappa v. State of Tamil Nadu AIR 1974 SC 555, held the concept of equality as dynamic and ruled that it cannot be confined, cabined and cribbed. The convicted persons must also be given rights by judicial pronouncements as precedence in the framework of legislation. This will let freedom come out of the traditional and doctrinaire limits.
Further, the Bill needs proper scrutiny by legislators, law academicians and jurists. The study of jurisprudential values and the teachings of John Austin, English Legal Theorist, must be given to all the law and policymakers. The concept of natural law and philosophy behind its origin is that law and morality are two different aspects. Legal positivism talks of analytical and reasonable approach to the science of legal origin. All the above-mentioned issues including privacy, personal dignity of individuals and the risk of rise in autocratic totalitarianism to the prisoners can be sorted if the origin behind nature and theory of law is taken care of.
Privacy rights, as discussed in the case of Maneka Gandhi v. Union of India AIR 1978 SC 597 are deliberately widened by the Court. The opinion was to expand the reach and ambit of the fundamental rights rather than to attenuate their meaning and content by a process of judicial construction. Law and policymakers should undergo empirical and extensive research of the judgments passed by the various High Courts and Supreme Courts. The CrPC Amendment Bill of 2022 must be drafted in accordance with the judgments, constitutional values and human rights. This will provide fundamental freedom to all the citizens, including convicted or the arrested prisoners. For the same, effective and efficient review of the Bill must be done for setting the ideals of liberty, equality and freedom.
Bhavya is a penultimate year student of B.A. LL.B. (FYIC) Programme at Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapith, Rajasthan, India. She is interested mostly on the issues related to Human Rights with special emphasis on Criminal and Constitutional laws. Currently, she is interning with the Chambers of Rebecca Mammen John, Senior Advocate, Supreme Court of India. Her articles have appeared in Mainstream Weekly, Outlook and Times of India.
Suggested citation: Bhavya Agarwal, The Right to Privacy and India’s Criminal Procedure (Identification) Bill, JURIST – Student Commentary, May 6, 2022, https://www.jurist.org/commentary/2022/05/bhavya-agarwal-india-criminal-procedure-identification/.
This article was prepared for publication by Katherine Gemmingen, Commentary Co-Managing Editor. Please direct any questions or comments to her at commentary@jurist.org
