The Bill allows executive officials to collect biometric measurements regardless of the refusal of the concerned person to give their samples, and expands the ambit of persons whose measurements can be taken, which is broad enough to include civil protestors, for identification and investigation.
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The Criminal Procedure (Identification) Bill, 2022, listed in the name of Union Home Minister Amit Shah, but introduced by Minister of State for Home Affairs, Ajay Mishra Teni in the Lok Sabha on Monday, has been tabled amid protests. The Bill seeks to authorise police or prison officers to take ‘measurements’ of those who have been convicted, arrested, detained, or any person directed by a Judicial or Executive Magistrate.
What is the Bill about?
The Criminal Procedure (Identification) Bill, 2022 redefines ‘measurements’ to allow the police to take iris and retina scans, photographs, finger impressions, palm-print impressions, footprint impressions, physical and biological samples, and their analysis. The Bill will also allow the police to collect behavioural attributes including signatures and handwriting, or any other examination referred under Sections 53 or 53A of the Code of Criminal Procedure, 1973.
Furthermore, the tabled Bill had broadened the “ambit of persons” whose measurements can be taken to include any person directed by the Magistrate to give their measurements, and empowers police and prison officers to take measurements of any person who resists giving measurements. Refusal to provide these measurements would be considered an offence under Section 186 (obstructing public servant in discharge of public functions) of the Indian Penal Code (IPC).
The Identification of Prisoners Act, 1920, which this Bill is to repeal and replace, only authorises police officers ranked sub-inspectors and above to take the prescribed ‘measurements’. The Bill seeks to amend this and authorise a police officer, not below the rank of a head constable and prison officer, not below the rank of a head warden, to take measurements.
The Bill redefines ‘measurements’ to allow the police to take iris and retina scans, photographs, finger impressions, palm-print impressions, footprint impressions, physical and biological samples, and their analysis. The Bill will also allow the police to collect behavioural attributes including signatures and handwriting. Further, it empowers police and prison officers to take measurements of any person who resists giving measurements.
The Bill provides for storing and preservation of measurements, along with the sharing, dissemination, destruction and disposal of records, to be done by the National Crime Records Bureau of India [NCRB]. These measurements can be retained for at least 75 years in NCRB’s database.
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Why was the Bill introduced by the government?
The Identification of Prisoners Act authorises recording only finger impressions and foot-print impressions of convicts and some other categories of persons on the orders of a magistrate, which is argued by the Centre to have provided access to a limited category of persons and a limited ambit of capturable data.
In the statement of objects of the Bill, it is reasoned that due to the development of technology and modern techniques, it is essential to provide for capturing and recording body measurements for the unique identification of a person involved in any crime, which will assist the investigating agencies in solving criminal cases. This will be at par with other “advanced countries”.
Teni argued in the Lok Sabha that the Bill would make identification of accused persons easier, and investigation would become more efficient and expeditious. He further stated that this would also increase prosecution and conviction rates in courts.
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What are the provisions of the Bill that are controversial?
Resistance to the Bill by opposition parties and civil society has been primarily regarding the provisions allowing officials to collect measurements regardless of the refusal of the concerned person to give their biometric samples, and the provision for expanding the ambit of persons whose ‘measurements’ can be taken, which is broad enough to include civil protestors, for identification and investigation.
Additionally, for the ‘measurements’ to be taken, the new Bill eliminates the requirement that the offence is penalised by at least one year of imprisonment.
The Bill is argued to be in violation of the fundamental right to privacy, especially in light of the lack of clarity as to how the administration intends to prevent any abuse of the collected data.
What are the views of the opponents of the Bill?
Opposition party members in the Lok Sabha have argued that the Bill to be unconstitutional as it violates the fundamental rights of citizens.
Manish Tewari of the Indian National Congress expressed that the Bill fails to comply with Article 20(3) of the Constitution, which explicitly states that no person accused of any offence shall be compelled to be a witness against himself, and that it goes beyond the House’s legislative “competence.”
He further added that the implied use of force to take measurements in the Bill violates the rights of the prisoners laid down in a catena of Supreme Court judgements, such as A.K. Gopalan (1950), Kharak Singh (1962), Charles Sobhraj (1978), Sheela Barse (1983) and Pramod Kumar Saxena (2008), and also violates the right to be forgotten guaranteed in the right to life under Article 21 of the Constitution, as interpreted in the Supreme Court’s Puttaswamy judgment of 2017.
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Tewari also expressed concern over the analysis of biological samples, claiming that they could lead to narco-analysis and brain mapping.
According to Lok Sabha MP Manish Tewari, the implied use of force to take measurements in the Bill violates the rights of the prisoners laid down in a catena of Supreme Court judgements.
The Bill, according to the leader of Congress in Lok Sabha, Adhir Ranjan Chowdhury, seeks to empower the police and courts to take measurements of people who are under investigation or are merely suspected of being involved in a case, infringing on Article 21, which guarantees the right to life and liberty.
Revolutionary Socialist Party’s N.K. Premachandran questioned the Bill granting the executive excessive powers to collect biological samples of a political protestor with genuine demand against whom a first information report may have been launched.
What lies ahead? What are the concerns if the Bill, in its present form, becomes an Act?
While the Opposition failed to defeat the introduction of the Bill after seeking a division of votes, as the Bill receiving only 58 votes against and 120 votes in favour of its introduction.
Since Section 29 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act prohibits sharing of the gathered biometric data for criminal investigation, a specific legal exception for the purpose of law enforcement will most likely be drafted and introduced.
Also read: Aadhar project and issue of privacy in India and worldwide
The Criminal Procedure (Identification) Bill, 2022 has been introduced in the wake of further building and development of the NCRB database through methods such as the digitisation of fingerprints for integration into the Crime and Criminal Tracking Network System [CCTNS], with the goal of empowering authorities to acquire biometric data for law enforcement.
In the event that the Bill comes into force, the CCTNS will further be integrated with detailed biometric measurements of not just convicts with sentences over seven years, but with all persons convicted, preventively detained and persons directed by the Magistrate for their ‘measurements’ to be taken, who will have no choice but to provide the authorities with their measurements.
Suha Raffi is a second year undergraduate law student at the Bangalore Institute of Legal Studies, an intern at The Leaflet, and the State Vice President, Karnataka Human Rights Council, Women's Indian Chamber of Commerce & Industry.
