EXAMINING THE CONSTITUTIONALITY OF THE CRIMINAL PROCEDURE (IDENTIFICATION) ACT, 2022

EXAMINING THE CONSTITUTIONALITY OF THE CRIMINAL PROCEDURE (IDENTIFICATION) ACT, 2022

WRITTEN BY: MANUSHI UPADHYAYA
2^ND YEAR B.A. LL. B HONS.
MAHARASHTRA NATIONAL LAW UNIVERSITY, MUMBAI

EDITED BY:VAISHNAVI PARATE
3^RD YEAR, LL.B
SHRI NATHMAL GOENKA LAW COLLEGE, AKOLA

On 18^th April 2022, the Parliament of India passed Criminal Procedure (Identification) Act, 2022[1]with the goal of authorizing the collection and preservation of measurements of convicts and other individuals for the purposes of identification and criminal investigation. This Act replaced the Identification of Prisoners Act, of 1920[2] in turn expanding the scope of data that can be collected, the persons who are authorized to collect such data, as well as the persons whose data can be collected.

Section 2(1)(b) defines the term “Measurements” as something that includes finger impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scans, physical, and biological samples and their analysis of attributes including signatures, handwriting or any other examination referred to in section 53 or section 53A of the Code of Criminal Procedure, 1973.[3] It further goes on to state whose data can be collected i.e. convicts, a person ordered to give security for his good behavior/maintaining peace under the relevant sections of the Code of Criminal Procedure, and a person detained under preventive detention laws of the country. [4]The Act empowers the National Crime Records Bureau with the duty to collect, store, share, and destroy the record of measurements.

The Government while proposing the Act, stated that apart from the usage of modern techniques, the new Act was necessary to expand the “ambit of persons” [5]whose measurements can be taken, which would help in the unique identification of people as well as help in gathering sufficient legal evidence. It also stated that the new Act would not only help to create a measurement database but also increase the conviction rate which would in turn lead to a more effective criminal investigation. While the government intends to use new technology and modern techniques to improve criminal investigation, the Act consists of Sections that are vague, extensive, and inconsistent with the provisions of the Constitution of India.

ISSUES WITH THE ACT

The Act has several terms like “measurements”, “biological samples” and “behavioral attributes” whose meaning is unclear and ambiguous which leaves room for misuse by the authorities. The police and the Magistrate have also been given unguided powers to collect data where the refusal to provide measurements has been considered a criminal offence. By including people detained under preventive detention laws, the Act fails to provide differential treatment for people committing serious and petty offences. Hence, it can be said that excessive powers have been delegated to authorities under this Act, including the power of the legislature to make rules for this Act. There is also an absence of a provision of appeal to a higher authority in case the authorities arbitrarily collect data.

The Act mainly violates Articles 14, 20(3), and 21 of the Constitution of India. The forcible collection of physical and biological samples by the Magistrate, without any justification, is in its essence arbitrary. The proviso of Section 3 of the Act also creates an unreasonable classification based on offences committed against a certain gender, age group, and period of punishment. This is a clear violation of Article 14.

Article 20(3) protects a person’s right against self-incrimination ‘no person accused of an offence can be compelled to be a witness against himself.’[6] The Act’s hazily drafted sections could be misused to conduct investigative techniques like narco-analysis, brain mapping, and polygraph tests which have clearly been considered a violation under Article 20(3) in the judgment of Selvi v. State of Karnataka (2010)[7].

The right to privacy was established as a fundamental right under Article 21 in Justice K.S. Puttaswamy v. Union of India (2017)[8]. The judgment also provided for informational privacy as an important aspect of the right to privacy. Forcible extraction and retention of testimonial evidence for a period of 75 years is a gross violation of the right to liberty and privacy.

The retention of data for a period of 75 years without a clearly established method to get it deleted violates the right to be forgotten. Also, infrastructural, scientific, regulative, and operational difficulties could leave room for data leakages which could lead to the misuse of data in cyberspace.

Right to privacy, personal liberty as well as dignity are intrinsic rights available to us by the Constitution of India and every person has the right to exercise them. Any law that contravenes these basic rights, is unconstitutional.

CONCLUSION

While the Act was passed with the aim of modernizing criminal investigation procedures, it has failed to safeguard the people from potential abuse of the law. The Act is contrary to the provisions of the Indian Constitution and hence unconstitutional on multiple levels. The need of the hour is to find a more balanced approach to ensure effective criminal investigation as well as the protection of our rights.

REFERENCES

1. https://egazette.nic.in/WriteReadData/2022/235184.pdf

2. https://www.scconline.com/blog/post/2022/04/01/the-criminal-procedure-identification-bill-2022-and-the-right-to-privacy/

3. https://theleaflet.in/the-criminal-procedure-identification-act-2022-violates-various-constitutional-mandates/

4. https://scroll.in/article/1020747/explainer-why-a-new-bill-to-collect-data-from-convicts-is-raising-civil-rights-concerns

5. https://legislative.gov.in/sites/default/files/A1920-33.pdf

6. https://www.mondaq.com/india/privacy-protection/1184618/the-criminal-procedure-identification-bill-2022-caging-freedom-in-henhouse

7. https://prsindia.org/billtrack/the-criminal-procedure-identification-bill-2022

8. https://static1.squarespace.com/static/5a843a9a9f07f5ccd61685f3/t/6246bd9d8ccac84dd8c11f3e/1648803256217/P39A+Brief+-+Criminal+Procedure+%28Identification%29+Bill%2C+2022.pdf

[1]Criminal Procedure (Identification) Act, 2022, No. 8, Acts of Parliament, 2022(India)

[2]Identification of Prisoners Act, 1920, No. 33, Acts of Parliament, 1920 (India)

[3]Section 2(1)(b), Criminal Procedure (Identification) Act, 2022