The Criminal Procedure (Identification) Act, 2022; A Constitutional Critique

The Criminal Procedure (Identification) Bill, 2022, which generated significant controversy, is the main focus of this article. Deliberations in the Indian Parliament took many twists and turns and took all day and night. With the aid of this study, we will look at the numerous aspects of the history and growth of a colonial deed that attempted to keep up with "Badalta Bharat."

1.History

Identification Of Prisoners’ Act, 1920

The Criminal Procedure (Identification) Act, 2022 allows collection of identifiable information from individuals for investigation of crime. It replaced the Identification of Prisoners Act, 1920, and expanded the ambit of people from whom information can be collected, and the categories of information that will be collected. On September 9, 1920, the Identification of Prisoners Act, which outlines the legal principles controlling the police and prisoners, was enacted. The Act No. 33 of 1920 was it. The act gave permission to take pictures and measurements of prisoners and other people. According to Section 186 of the Indian Penal Code, 1860, any failure to comply is unlawful. It was requested that the Act be changed in 2018 to incorporate Aadhaar information and biometric information including iris scans, signatures, and voice samples.

Definitions- In this Act, unless there is anything repugnant in the subject or context-

• “measurements” include finger impressions and foot-print impressions;
• “police officer” means an officer in-charge of a police-station, a police officer making an investigation under Chapter XIV of the Code of Criminal Procedure, 1898 (5 of 1898), or any other police officer not below the rank of Sub-Inspector; and
• “prescribed” means prescribed by rules made under this Act^[1]
  

• Earlier Reformation Procedures

This statute was examined in 1980 for the first time by the 87th Report of the Law Commission of India, which made various recommendations for changes. The State of UP v. Ram Babu Misra case, in which the Supreme Court emphasised the need for this law's amendment, served as the backdrop for this action.^[2]

The first set of suggestions outlined the necessity of amending the Act to include "palm imprints," "specimen of signature or writing," and "specimen of voice" as measurements. The need to permit measures to be taken for procedures other than those governed by the Code of Criminal Procedure was brought up in the second set of suggestions (CrPC).

2. But What Modifications Does The New Law Makes?

The Criminal Procedure (Identification) Act, 2022, empowers police officers or prison officers to collect certain identifiable information from convicts or those who have been arrested for an offence. This information could include fingerprints, photographs, iris and retina scan, biological samples and their analysis, and behavioural attributes. The Act empowers the National Crime Records Bureau (NCRB) to collect (from state governments, union territory (UT) administrations, or other law enforcement agencies), store, process, share, disseminate and destroy records of measurements, as may be prescribed by rules. If a person resists or refuses to allow the taking of measurements, it shall be considered an offence under Section 186 of IPC.^[3]

a) Key features

Taking measurements: Under the Act, all convicts, arrested persons, as well as persons detained under any preventive detention law may be required to give their measurements. The Rules specify that for certain persons measurements will not be taken unless they have been charged or arrested in connection with any other offence. These persons include those violating prohibitory orders under Sections 144 or 145 of the Code of Criminal Procedure, 1973 (CrPC), or arrested under preventive detention under Section 151 of CrPC.

Persons authorised to take measurements: The Act provides that measurements will be taken by a police officer or prison officer. The Rules specify that an authorised user, or any person skilled in taking the measurements, or a registered medical practitioner, or any person authorised in this behalf may take such measurements. An authorised user has been defined as a police officer or a prison officer, who has been authorised by the NCRB to access the database.

Storage of measurement records: The Rules specify that the NCRB will issue the Standard Operating Procedures (SOPs) for taking measurements including: (i) specifications and the format of the measurements to be taken, (ii) specifications of the devices to be used for taking these measurements, and (iii) the method of handling and storing these measurements.

Destruction of records: The Act provides that the records will be destroyed in case of persons who: (i) have not been previously convicted (of an offence with imprisonment), and (ii) are released without trial, discharged, or acquitted by the court, unless directed otherwise by the Magistrate or court. The NCRB will destroy the records as prescribed. As per the Rules, the SOPs will provide the procedure for the destruction and disposal of records. The state or central government or UT administration will nominate a nodal officer to whom requests for the destruction of records of measurements will be made.

3. In-Vogue Reflections About The Act

a) Claims of being “Draconian” by the Opposition

The NCRB is permitted under this statute to distribute and share personal data with any law enforcement agency. This goes against the principle of purpose limitation, which states that data can be legitimately collected for one purpose but can only be used for that purpose and cannot be used for any other purpose. As a result, organisations across the nation may have access to your personal information without following this rule. This action essentially provides police personnel free rein to collect samples. The previous 1920 act gave sub-inspector-level and higher police officials permission to gather the information. This new act allows the police officers not below the rank of a head constable and prison officers not below the rank of a head warden to take the measurements.

The expansion of this ambit of the law’s operation to people who have been arrested for any offence includes people under preventive detention laws so the privacy of individuals who are not convicted of any wrongdoing is being put at the mercy of the state, which is breaching their right under Article 21 of the Indian constitution. The 1920 law enabled the taking of measurements from convicts sentenced to a present term of at least one year. This bill includes all convicts and anyone arrested under any law or detained under even preventive detention, it is increasing the offences from a minimum of 1 year to 7 years imprisonment under section 3, but the proviso to section 3 has been very poorly drafted, if it is intended to mean that a person who has been arrested with a connection with an offence punishable with less than 7 years it is a good thing however the usage of word ‘may’ in that section is in itself an escape route because when you use it with the power of the magistrate to order the taking of measurements, it is nullifying the beneficial aspect of this proviso. So, if section 3 read with section 5 and the introduction of preventive detention has made it far more draconian than the previous law.

b) Thoughts & Opinions

In accordance with the "Doctrine of Eclipse," any existing law that conflicts with fundamental rights is not entirely invalid, but rather is shaded by them and remains inactive but not dead. If a situation calls for evaluating the rights and duties that would have been assumed prior to the constitution's implementation as well as for those individuals who have not been granted the fundamental rights, it would be valid. Till the time, the law violates the fundamental right, it remains dormant, but if by an amendment such law no more violates the fundamental rights, then the law becomes alive and operative.

Which thereby further interprets, that the Identification of Prisoners Act of 1920 could have been subjected to formal debates and deliberations in order to reach a decisive conclusion regarding an official amendment subject to change or modify the concerned regulations as under the colonial rule. But this was surpassed with an action of formulating an altogether different and highly-modified law which claims to be the utmost precise form of modern law concerning the fields of investigative research with respect to criminals in India.

Vaishnavi Singh is a student Dr Ram Manohar Lohia National Law University, Lucknow & Abhijeet Raj is a student at Guru Gobind Singh Indraprastha University, New Delhi. Views are personal.