Criminal Procedure (Identification) Act, 2022

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    In Context

    • The recently passed Criminal Procedure (Identification) Act 2022 has come into force
      • It repeals the existing Identification of Prisoners Act, 1920.

    Criminal Procedure (Identification) Act

    • About:
      • The Act replaces the similar colonial-era Identification of Prisoners Act, 1920.
      • The new law allows investigators to collect certain identifiable information of convicts and other persons for purposes of identification and investigation in criminal matters.
    • Key provisions:
      • Legal sanction of data collection:
        • The new law provides a legal sanction to the police to take physical and biological samples of convicts as well as those accused of crimes. 
        • It empowers police to collect: 
          • Fingerprints
          • Palm prints and footprints
          • Photos
          • Iris and retina scans
          • Analysis of physical and biological samples
          • Behavioural attributes
          • Signature and handwriting
      • Measurements and photographs for identification have three main purposes: 
        • To establish the identity of the culprit against the person being arrested, 
        • To identify suspected repetition of similar offences by the same person and 
        • To establish a previous conviction.
      • Persons in preventive detention:
        • The Act also seeks to apply to persons detained under any preventive detention law. 
      • Role of National Crime Records Bureau (NCRB):
        • The law also empowers the National Crime Records Bureau (NCRB) to store, preserve, share with any law enforcement agency and destroy the record of measurements at the national level. 
        • The records can be stored up to a period of 75 years

    About the existing Identification of Prisoners Act, 1920

    • Police have powers of arrest. But, a mere arrest does not give them the right to search a person. 
    • Police require legal sanctions to search the person and collect evidence
    • These legal sanctions are designed so as to maintain a balance between the rights of an individual and the interests of society in the prosecution and prevention of offences.
    • The Identification of Prisoners Act, 1920 became a necessity when the recording of the then newer forms of evidence such as fingerprints, footprints and measurements started becoming more accurate and reliable
    • Requirement of new law:
      • With advancements in forensics, there was a need to recognise more kinds of “measurements” that can be used by law enforcement agencies for investigation.

    The old vs new law:

    • Legal sanction:
      • Like the Identification of Prisoners Act, 1920, the new Criminal Procedure (Identification) Act, 2022 provides for legal sanction to law enforcement agencies for the collection of measurements. 
    • Broad categorisation:
      • The old law allowed police authorities to take only fingerprint and footprint impressions of a limited category of convicted persons, 
      • Whereas the new law allows police to collect a range of physical and biological samples, not only of convicts but also of those arrested or even detained under any preventive detention law. 
      • While the old law was limited to serious offenders, the new one includes all categories of criminals and accused.
    • Improvements:
      • The new legislation allows that a person who has been arrested for an offence that is punishable by less than seven years of imprisonment, and is not an offence against women and children, “may not be obliged to allow taking of his biological samples”. 
      • This is definitely an improvement over the earlier law which did not allow for any such refusal. 
    • Punishment:
      • It also does away with the condition of an offence being punishable by at least one year or more of imprisonment for the “measurements” to be taken.
      • Exemptions:
        • 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 offence carrying a minimum punishment of seven years.
    • Powers of Magistrate: 
      • Under the act, a Magistrate may direct a person to give details for the purpose of an investigation or proceeding under the CrPC
      • Depending on certain factors (such as the area concerned), the Magistrate may be a Metropolitan Magistrate, a Judicial Magistrate of the first class, or an Executive Magistrate
    • Records of juveniles:
      • The Act does not explicitly bar taking measurements of juveniles.
      • The provisions of the (Special Act) Juvenile Justice Act, 2015 regarding the destruction of records of conviction under the Act, shall apply. 

    Concerns

    • In conflict with the Right to privacy:
      • The legislation comes in the backdrop of the right to privacy being recognised as a fundamental right
      • As per the Puttaswamy judgment, for a privacy intrusive measure to be constitutional, there is a need for 
        • The measure to be taken in pursuance of a legitimate aim of the state, 
        • To be backed by the law and 
        • To be “necessary and proportionate” to the aim being sought to be achieved. 
      • In this case, while the first two tests are satisfied, as “prevention and investigation of crime” is a legitimate aim of the state and “measurements” are being taken under a valid legislation. 
      • The satisfaction of the third test of necessity and proportionality has been challenged on multiple counts.
    • Going beyond collecting measurements:
      • The inclusion of derivative data such as “analysis” and “behavioural attributes” have raised concerns that data processing may go beyond recording of core “measurements”. 
      • That is some of these measurements could be processed for predictive policing.
    • Fear of mass surveillance:
      • Another worry expressed by experts is that such collection can also result in mass surveillance with the database under this law being combined with other databases such as those of the Crime and Criminal Tracking Network and Systems (CCTNS).
    •  Right against self-incrimination:
      • concerns are being raised that the present law violates the right against self-incrimination enshrined in Article 20(3) of the Constitution of India. 
        • However, this argument is nebulous since the Supreme Court in the State of Bombay vs Kathi Kalu Oghad held that 
        • “Non-communicative” evidence i.e. evidence which does not convey information within the personal knowledge of the accused cannot be understood to be leading to self-incrimination. 
        • Therefore, no challenge lies to the law on this ground.

    Way Ahead

    • Safeguard against misuse:
      • The government has assured that the rules would have safeguards against any misuse of the identification database and biological samples, by fixing accountability of those entrusted with the safety of data. 
    • Strengthening criminal procedure:
      • The government views this law as a means to strengthen criminal procedure by consolidating evidence and data at the central level to increase conviction rates
    • Recommendations:
      • To facilitate identification and investigation in criminal matters, Enforcement agencies must be allowed to use scientific methods to prevent and detect crime
        • Necessary training should be imparted to the investigating officers.
      • It should be ensured that Right to Privacy should be maintained along with keeping national security as the prime agenda

    Source: TH