Criminal Procedure (Identification) Bill, 2022
What is the Need for Reforms?
Colonial Era Laws: The criminal justice system is a replica of the British colonial jurisprudence, which was designed to rule the nation and not serve the citizens.
Ineffectiveness: The purpose of the criminal justice system was to protect the rights of the innocents and punish the guilty, but nowadays the system has become a tool for harassing common people.
Pendency of Cases: According to Economic Survey 2018-19, about 3.5 crore cases are pending in the judicial system, especially in the district and subordinate courts, which leads to the actualization of the maxim “Justice delayed is justice denied.”
Huge Undertrials: India has one of the world’s largest numbers of undertrial prisoners. According to National Crime Records Bureau (NCRB)-Prison Statistics India (2015), 67.2% of our total prison population comprises undertrial prisoners.
Investigation: Corruption, huge workload, and accountability of police a major hurdles to speedy and transparent delivery of justice.
Criminal Laws in India:
Indian criminal laws are divided into three major acts:
1. Indian Penal Code, 1860: It is a comprehensive code intended to cover all substantive aspects of criminal law.
2. Code of Criminal Procedure, 1973: CrPC defines the rules with which substantive laws can be enforced.
3. Indian Evidence Act, 1872: It contains a set of rules and allied issues governing the admissibility of evidence in the Indian courts of law.
4. Other laws: Besides these major acts, Special Criminal Laws are also passed by the Indian Parliament which include: The Narcotic Drugs and Psychotropic Substances Act, Prevention of Corruption Act, Food Adulteration Act, The Dowry Prohibition Act, The Defence of India Act, etc.
Major Highlights of the Criminal Procedure (Identification) Bill, 2022:
1. The Bill seeks to widen the scope of the existing law: The Identification of Prisoners Act, 1920 under which “measurements” of only “finger impressions” and “footprint impressions” are allowed. Now, It authorizes the police to take “measurements” to tag those who have been convicted, arrested, or detained. The Bill defines “measurements” to include finger impressions, palm-print impressions, footprint impressions, photographs, iris and retina scans, physical and biological samples and their analysis, behavioral attributes including signatures and handwriting, or any other examination referred to in Section 53 or Section 53A of the Code of Criminal Procedure (CrPC), 1973. Section 53 relates to the medical examination of a person arrested.
2. Punishment: It does away with the condition of an offense being punishable by at least one year or more of imprisonment for the “measurements” to be taken. It only grants an exemption in the form of mandatory consent for “biological samples”, except in cases where the accused is arrested for sexual abuse of women and children or for an offense carrying a minimum punishment of seven years.
3. Scope: Compared to the 1920 Act, the Bill expands the individuals it seeks to cover. It proposes that the law applies to three categories of individuals:
- Those convicted of an offense are punishable under any law for the time being in force.
- Those ordered to give security for good behavior or maintaining peace under Section 117 of the CrPC for a proceeding under Section 107, 108, 109, or 110 of the Code. These are provisions involving “suspected criminals” or “habitual offenders” to prevent crime.
- Those arrested in connection with an offense are punishable under any law in force or detained under any preventive detention law. This would include the National Security Act or the Public Safety Act.
4. Storage of data: The Bill authorized officers in charge of police stations or those not below Head Constable rank to take the “measurements”, records of these measurements shall be retained for 75 years from the date of collection. The present law covers officers in charge of stations, those conducting an investigation, or others not below the rank of Sub-Inspector. The National Crime Records Bureau (NCRB) will be the repository of physical and biological samples, signatures, and handwriting data.
Significance of the bill:
1. The bill makes provisions for the use of modern techniques to capture and record appropriate body measurements. The existing law - Identification of Prisoners Act,1920 allowed taking only fingerprint and footprint impressions of a limited category of convicted persons.
2. Expanding the ‘‘ambit of persons’’ whose measurements can be taken will help the investigating agencies to gather sufficient legally admissible evidence and establish the crime of the accused person.
3. More accurate physical and biological samples will make the investigation of crime more efficient and expeditious and will also help in increasing the conviction rate.
4. It is expected to minimize the threat from organized crime, cyber criminals, and terrorists who are proficient in identity theft and identity fraud. The bill will help to check serious national and global threats posed by them.
5. We have to empower our police with requisite powers and instruments. There is an undeniable need to strike a balance between protecting an individual’s privacy and giving police the tools they need to keep us safe.
6. The bill is in line with global standards and for our investigation agencies to be on a par with other advanced countries. It can save the government money and government resources. It will also save time spent on investigations.
Criticism of the bill:
1. Ambiguous Provisions: The phrase ‘biological samples’ is not described further, hence, it could involve bodily invasions such as drawing of blood and hair, and collection of DNA samples. These are acts that currently require the written sanction of a magistrate.
2. Undermines the Right to Privacy: Seemingly technical, the legislative proposal undermines the right to privacy of not only persons convicted of a crime but also every ordinary Indian citizen. The Bill proposes to collect samples even from protestors engaged in political protests.
3. Violation of Article 20: Apprehensions have been raised that the Bill enabled coercive drawing of samples and possibly involved a violation of Article 20(3), which protects the right against self-incrimination. The Bill implied the use of force in the collection of biological information, could also lead to narco analysis and brain mapping.
4. Handling Data: The Bill allows the records to be preserved for 75 years, the other concerns include how the data collected will be preserved, shared, disseminated, and destroyed.
5. Unawareness among Detainees: Although the bill provides that an arrested person (not accused of an offense against a woman or a child) may refuse the taking of samples, not all detainees may know that they can indeed decline to let biological samples be taken And it may be easy for the police to ignore such refusal and later claim that they did get the detainee’s consent.
6. The Bill offers complete freedom to police officials to collect samples according to their whims and fancies. There is a danger of serious infringement upon the territory of freedom, individual rights, and civil liberties.
7. The Bill is a classic case of the Executive giving itself more powers. There is no assurance that this Bill will not be abused, and that is the central question.
8. The central gov is already being criticized for misusing Central agencies and spying on people with the Pegasus software which the government has not yet addressed.
9. Vital questions not mentioned: Under what circumstances can a cop be allowed or denied access to this database? What are the permissible uses of this database? What punishment happens if a police officer uses this database in violation of extant law?
My opinion:
All reforms will be in vain unless simultaneous improvements are made in the police, prosecution, judiciary, and prisons. Our policymakers need to focus on reformative justice to bring all-around peace to society. Guiding principles need to be developed after sufficient debate before criminalizing an act as a crime. Unprincipled criminalization not only leads to the creation of new offenses on unscientific grounds but also arbitrariness in the criminal justice system. The concern over privacy and the safety of the data are undoubtedly significant. Such practices that involve the collection, storage, and destruction of vital details of a personal nature ought to be introduced only after a strong data protection law, with stringent punishment for breaches. Any encroachment on personal space must pass the test of constitutionality as laid down by the Supreme Court. It would be in the fitness of things if the bill is referred to a Standing Committee for deeper scrutiny before it is enacted into law. Depriving law enforcement agencies of the use of the latest technologies would be a grave disservice to victims of crimes, and the nation at large. Besides better scrutiny and data protection law, measures need to be taken for better implementation of the law as well. The need is to have more experts to collect measurements from the scene of crime, more forensic labs, and equipment to analyze them to identify possible accused involved in a criminal case. The training of the investigation officers, prosecutors, and judicial officers, and collaboration with doctors and forensic experts need to be prioritized too.
