Vulnerable to Misuse by Police, the New Criminal Identification Act Can Create a Surveillance State

While the government continues to promote it as a tool to expedite investigations, the reality is that it is another tool at the disposal of the state to misuse the criminal justice system to harass whom it deems as dissenters.

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Both the Houses of parliament have passed the controversial Criminal Procedure (Identification) Act, 2022, which is set to replace the Identification of Prisoners Act, 1920. The Union government on August 3 notified that the Act will come into force on August 4.

The Act aims to induce robustness in the investigation procedure by using new-world technologies that will help courts in deciding the guilt of the accused and thereby increase the conviction rate. The Act seeks to broaden the horizon of ‘measurements’ that can be taken by law enforcement agencies for the purpose of expeditious and efficient investigation.

However, this legislation is marked with controversies as it has received vehement opposition across the board. Critics have argued that in the absence of a comprehensive data protection mechanism in India, this Act is a threat to citizens’ privacy and a violation of Article 21 of the constitution.

The Act lacks proper safeguards for the protection of the sensitive data of citizens and, thus, it is prone to misuse by law enforcement agencies, engendering fear of the creation of a surveillance state.

Photo: PTI/TheDigitalArtist

On the other hand, there is no corresponding discussion on reducing the number of days allowed in pre-charge detention for an accused, while the process of investigation is underway. If the new legislation seeks to quicken and streamline investigation, then as a corollary, it must reconsider and reduce the period that an accused may be kept in pre-charge detention, on grounds that he is still being investigated.

Also read: Criminal Identification Bill Follows Similar Unsuccessful, Discriminatory Laws Elsewhere

At this juncture, when the Act has already come into force, it is crucial to delve deeper into the provisions of this Act and discuss how it is different from the previous Act, how this new legislation is envisioned to achieve its stated purpose, what are the arguments in favour or against this legislation and how compliant it is to our constitution and judicial precedents.

Differences between present and previous laws

 Unlike the 1920 Act, which was limited to the collection of photographs, footprint and fingerprint impressions, the new Act seeks to expand the meaning of the term ‘measurement’ by redefining it to now also include iris and retina scans, behavioural attributes, including signatures, handwriting and physical as well as biological samples.

Since the term ‘biological samples’ is not defined in this Act, it may include narco-analysis, polygraph test, brain electrical activation profile test, etc., which are comparatively more intrusive than other measurements, including those mentioned in Section 53 and 53A of the Code of Criminal Procedure, 1973.

Therefore, it is open to interpretation whether these tests are part of ‘biological samples’ as intended by this Act. The Supreme Court in Selvi & Ors vs State of Karnataka & Anr opined that involuntary administration of the aforementioned intrusive tests is unconstitutional, as it is violative of the right against self-incrimination and right to privacy enshrined under Article 20(3) and Article 21, respectively.

Therefore, should the term ‘biological samples’ be interpreted to include narco-analysis, polygraph test, brain electrical activation profile test, etc, the Act will have the effect of overriding the Selvi judgement. Hence, it will be vulnerable to constitutional challenge.

The 1920 Act limited the scope of taking measurements only in cases where the person is convicted, out on bail, or charged with an offence punishable with rigorous imprisonment for one year or more. On the other hand, Section 3 of the new Act blurs the distinction between a convict, arrestee, detainee and undertrial by using the term “any person” whose measurements could be taken by investigating agencies in case of any offence punishable under any law enforced in the country.

Also read: Explainer: Why the Criminal Procedure (Identification) Act Is Being Challenged in Court

Significantly, it also includes preventive detainees as a category of the person whose measurements could be taken under the provisions of this Act. Importantly, Section 3 has a safeguard appended to it – it excuses any person convicted, arrested or detained in relation to any offence punishable under any law, except offence against a woman and a child, from mandatorily giving their measurements. It is at the discretion of the offender of such crime to provide measurements.

However, this proviso is said to be crudely drafted and, thus, prone to misuse for two reasons.

Firstly, it uses the word ‘may’ and not ‘shall’; therefore, it alludes to the discretion given to the officer that he may compel a person to give his measurement. Secondly, the proviso only provides that the person might not be obliged to give his ‘biological samples’, which effectively means that the proviso only extends its operation in the case of extraction of biological samples and no other measurements mentioned in this Act; hence, measurements other than biological samples could still be taken forcibly.

Section 5 of the Act sanctions powers upon the magistrate, judicial or executive, to direct any person to provide his or her measurements if he is satisfied that it is expedient to do so for the purpose of prevention, investigation or identification of the crime.

Data protection. Representative image. Photo: Flickr/ Blogtrepreneur CC BY 2.0

According to Section 6(2), if the person so directed refuses to comply with such order of the magistrate, then penal provisions under Section 186 of the Indian Penal Code (obstructing public servant in discharge of public functions) could be attracted. It has been argued that Section 5, read with Section 3, has a neutralising effect on the proviso appended to the latter. The people who were given immunity to excuse themselves of not giving biological samples under Section 3 of the new Act could be compelled by a magistrate under Section 5 to do so, rendering the safeguard provided in the former Section a nullity.

Furthermore, the Act aims to make a national repository of all the data collected, which is to be managed by the National Crime Records Bureau (NCRB). The NCRB is authorised to store, preserve, process, share, disseminate and destroy any record that it may possess in the interest of prevention and investigation of the crime for a period of 75 years.

However, unless a court or magistrate directs otherwise, it is mandated to destroy the records of any offender who, in the past, was not convicted of any offence and has been discharged or acquitted by the court after exhausting all legal remedies available to him.

Further, the state governments are given the discretion to establish their own data repositories and a state-level institution like NCRB to preserve and store data.

Widening of power with limited safeguards? 

 This Act is an example of the expansion of powers to give a tough hand to law enforcement agencies for the identification and prosecution of crime. However, in a democracy, expansion of power must be accompanied by augmentation of safeguards for protecting the rights of the citizens.

This Act sought to include ‘biological samples’ in the definition of measurements. At the same time, it is unclear whether it includes DNA, polygraph test, narco-analysis, etc., which, until now, could not be extracted from a person without his consent and free will. However, under the provisions (Sections 5 and 6, specifically) of this Act, a person may now be compelled to provide such measurements to law enforcement agencies.

The refusal to give the same will attract penal provisions against the accused. Such forcible seizure of a person’s sensitive data amounts to ‘testimonial compulsion’, which is in violation of a person’s fundamental right against self-incrimination under Article 20(3) of the constitution.

Apart from the Act’s upfront challenge to Article 20(3) of the constitution, it could also emerge as a threat to a person’s freedom of speech and expression under Article 19(1)(a) of the constitution. Since this Act gives vast powers to law enforcement agencies without providing adequate safeguards, it has a reasonable potential to be misused to suppress the voice of dissent against the government.

This effectively means that even the slightest inconvenience caused to the government via acts of non-violent protest or through any forms of dissent by various individuals or organisations like trade unionists, social activists, government critics, etc., could attract the wrath of provisions of this Act.

Representative image. Photo: Flickr

Due to the reason that this legislation has widened the class of persons whose measurement could be taken for ‘any offence’ committed under ‘any law’, even the person accused of committing a petty offence punishable by not more than one month could be compelled to give his measurement to law enforcement agencies.

Earlier, the 1920 Act only authorised an officer at the rank of sub-inspector of police or above to collect measurements. However, the new legislation amends this provision to authorise even the police officer and prison officer not below the rank of head constable and head warden, respectively, to take measurements.

Despite being aware of the prevalence of custodial violence in the country, the Act, in practice, would allow police officers of lower ranks to brazenly use their coercive powers without adequate safeguards being provided to the alleged offenders.

It generates apprehension of misuse of powers by the authorities coupled with the fact that even a person engaged in trivial crimes could now be forced to provide its measurements. This contradicts Article 21 of the constitution, which is enshrined for protecting the person’s bodily integrity and dignity.

By mandating forcible seizure of measurements of a person, this Act goes against the essence of this shield provided by the constitution and hence falls foul of a person’s right to privacy, which is an inherent part of Article 21 of the constitution as declaimed in the Puttaswamy judgement.

The 87th Law Commission of India believed that the scope of Section 5 of the 1920 Act was broad enough, and since it sanctions coercive powers upon the magistrate, it is prone to be misused. As a matter of protection of a person’s bodily integrity, the commission recommended that the amendment must be brought in this provision whereby mandating the magistrate to record in writing the reasons that led to the person’s arrest under that Section.

The report added a caveat: “An all-embracing and pervasive provision might unintentionally have the effect of authorising many practices, which may not be desirable.” The report further recommended, “In formulating such proposals the law must try to strike balance between social needs and individual privacy.”

The new legislation is plainly disregarding the concerns flagged by the Law Commission. Therefore, the position that the government now seeks is comparatively far regressive than it was in the past and utterly indifferent to the recommendation made by the 87th Law Commission of India.

A relook needed

In many cases, prosecution indeed fails to proceed further due to a lack of evidence leading to a low rate of conviction. With the emergence of new technologies, it has become essential to evolve the mechanisms of investigation and identification of criminals prescribed in earlier legislation.

Although this Act goes with the spirit of inculcating the use of modern technologies to facilitate the investigation procedure of our criminal justice system, it fails to consider that unbridled powers granted to law enforcement agencies under this Act are vulnerable to abuse; especially when the country lacks any effective data protection law that is currently wandering over the bureaucratic tables.

One of the primary apprehensions surrounding this legislation is the lack of clarity regarding the period of pre-charge detention when the scientific investigation is underway. While the stated objective of the Act is to streamline investigation, it is illusory in the absence of a provision regulating the time of detention during the period of investigation.

If the Act truly wants to streamline investigations, it must also set a time period beyond which a person can’t be detained without being charged, at the conclusion of investigations. The solution to this quandary would be to either charge the individual within hours of the sample collection or to let them off and conduct an independent scientific investigation.

Furthermore, adequate safeguards must be brought into this statute to prevent blatant misuse of the provisions of this Act. Currently, the Act lacks adequate safeguards and the safeguards like the one appended to Section 3 of the Act are poorly drafted, which may lead to confusion in its execution, and a whole new set of litigation concerning this will overflow into courts across the country.

There is significant scope for amending this legislation to make it more justice-oriented, devoid of any apprehension attached to it, to meet its objective of robust investigation for the identification and prosecution of criminals.

The Indian data protection mechanism is in the developing stage, with no particular law catering to it available. Considering the size of the data of its populace, India requires a robust and extraordinary data protection mechanism governed holistically by a statute which will provide protection to people’s sensitive data from leakages.

At the same time, such a data protection mechanism will assist the government in using that data safely to serve justice expediently. The Criminal Procedure (Identification) Act, 2022 seeks to collect deeply sensitive data. Therefore, for its protection from misuse, it is necessary to have a matured data protection infrastructure and adequate laws at work to govern the same.

Goyam Pitalia is a student at NALSAR University of Law, Hyderabad.