Criminal Procedure (Identification) Bill Problematic : Project 39A Report

Project 39A's Forensics Team, led by Shreya Rastogi, has released a comprehensive report titled 'An Analysis of the Criminal Procedure (Identification) Bill, 2022' ('Report') that assesses the constitutional, regulatory, and scientific issues arising from the Bill as well as the administrative aspects of implementing the Bill. The Report also discusses the interaction with the current framework of laws occupying the field as well as with the DNA Technology (Use and Application) Regulation Bill, 2019 ('DNA Bill').

The DNA Bill, introduced in 2019 and currently pending discussion in the Parliament, also raises several constitutional and procedural concerns. However, even with significant issues with the DNA Bill, it still offers multiple safeguards that are completely absent in the present Bill.

Regulating Science

The Report highlights significant concerns that the scientific community has raised about the foundational validity and value of many of the measurements covered by the Bill, and the inadequacy of the legal standards used to assess them. For example, there is no scientific basis for attributing uniqueness to handwriting samples, which is one of the measurements covered under the Bill.

Of even greater concern is the need to conduct capacity building and training exercises for individuals who will be collecting the measurements – currently, no standardised norms for collection are prescribed, leading to important concerns of quality management. The Bill prescribes no limitations on the use of the data collected and the term "analysis" is left undefined. The Report argues that the lack of clarity in the collection and usage of the 'measurements' heightens the possibilities of misuse, particularly of biological samples and their analysis.

Constitutional Validity

In light of the scientific and regulatory examination of the Bill, the Report argues that the Bill falls foul of the fundamental right to equality, the right against self-incrimination, and the right to privacy enshrined in Articles 14, 20(3), and 21 of the Constitution.

The Bill presents significant concerns of excessive delegation of legislative authority to rule-making bodies as well as an excess delegation of power to functionaries under the Bill, in violation of Article 14 of the Constitution. These functionaries include police officers at the rank of Head Constables, Magistrates, as well as prison officers. In addition, the Bill creates an unreasonable classification between classes of arrestees that may be compelled to give biological samples and those who may not. Several other provisions fail to disclose any adequate determining principle at all and pose grave concerns of manifest arbitrariness.

There is also the issue of ambiguity and overbreadth in the definition of 'measurements'. For instance, the inclusion of 'behavioural attributes' in the definition raises concerns of including measurements of a testimonial nature, conflicting with the right against self-incrimination under Article 20(3) of the Constitution.

The Bill also fails to meet the fourfold requirement of the doctrine of proportionality laid down in Justice KS Puttaswamy v. Union of India (I). The absence of demonstrated rational nexus between the legitimate aims of the Bill, and its coverage of persons who may be compelled to provide their measurements renders the Bill an unsuitable means of achieving those aims. Regardless, the provisions of the Bill also constitute an unnecessary and disproportionate infringement of the right to privacy.

The Bill has wide-ranging implications for the right to privacy, equality, and for the integrity of investigative processes.

To know more, access the Report along with its executive summary here: https://www.project39a.com/identification-bill