Analysis of Criminal Procedure (Identification) Bill, 2022

Coverage of this Article

Key Takeaways

-Criminal Procedure (Identification) Bill, 2022 is supposed to replace the older Identification of Prisoner’s Act, 1920.

Introduction

-Criminal Procedure (Identification) Bill, 2022 [hereinafter referred to as “New Bill”] aims at repealing the Identification of Prisoner’s Act, 1920 [hereinafter referred to as “Old Act”]. 

Old Act vs. New Bill (Comparison of the two legislations)

-This New Bill has created a lot of controversy in the political sphere and the views on this piece of legislation are deeply divided. I had several options to approach this article. 

Definitions

-I will start the comparison with the definitions which are mentioned in Section 2 of the New Bill as well as the Old Act.

Measurements

This is one of the most important and controversial definitions in the New Bill, as it determines the scope of data/samples that can be collected from convicts or other persons.

The New Bill substantially widens the definition of the term "measurements". It now includes:

-behavioural attributes including signatures, handwriting, or any other examination referred to in section 53 (provides for examination of accused by medical practitioners on the request of a police officer) or section 53A (provides for the examination of rape accused by medical practitioners) of the Code of Criminal Procedure, 1973.

Police Officer

-The definition of the term “Police Officer” is crucial because he/she has the power to take the measurements of the convicts or other persons. In the Old Act, “police officer” meant:

Prison Officer

-In the New Bill, the definition of “prison officer” has been included, it means an officer of the prison not below the rank of a Head Warder. Prison Officer has also been given the power to take measurements.

Who has to give Measurements?

-After the ‘definitions part’, we will move on to the substantive part of the legislation. Sections 3 and 4 in the Old Act provided provisions for Taking of Measurements of Convicted and Non-Convicted Persons respectively.

According to Section 3 of the Old Act, the following persons were required to give measurements and photographs to a police officer:

-Persons convicted of any offence which is punishable with rigorous imprisonment of 1 year or upwards..

Section 4 of the Old Act provided that a person who has been arrested in relation to an offence which is punishable with rigorous imprisonment of 1 year or upwards, will need to provide his measurements.:

-Proviso to Section 3 of the New Bill states that if a person has been arrested for an offence, that is punishable with imprisonment of fewer than 7 years and the offence does not relate to women or children, then such arrested person may not be obliged to give his biological samples.

Magistrate can order/direct any person to give Measurements

-Section 5 of the Old Act provided that if a Judicial Magistrate of 1st Class (JMIC) was satisfied that for an investigation, measurements or photograph of a person is required,JMIC willmake an order requiring that person to give the measurements or photograph.

Resistance to Taking of Measurements

-Section 6 of the Old Act as well as the New Bill provides provisions in cases where the person (whose measurements are required to be taken) resists the taking of such measurements.

Collection, storage, preservation of measurements

-Section 4 of the New Bill gives wide-ranging powers to National Crime Records Bureau (“NCRB”) and provides detailed provisions for:

No such provision, authorising a Central Database for storage of measurements, was present in the Old Act.

-Furthermore, Section 4 (2) states that the record of measurements shall be retained in a Digital or electronic format for 75 years from the date of collection of the measurement.

Destruction of Measurements on Acquittal or Discharge

-Section 7 of the Old Act provides that if a Person (whose measurements were taken under that Act) is acquitted, discharged or released without trial, then the recorded measurements and photographs shall be destroyed unless otherwise directed by the Court. No such dedicated section is there in the New Bill, but the proviso to Section 4 (2) provides for the destruction of measurements if a person is released without trial, discharged or acquitted.

Bar to Suits

-Section 7 of the New Bill corresponds verbatim with Section 9 of the Old Act and provides that no suit or other proceeding shall lie against any person for anything done in good faith under this Act or rules made under it. This section aims to protect the persons involved in taking measurements.

Power to make Rules

-Section 8 of the Old Act as well as the New Bill provides the power to make Rules. The most substantial difference in this regard is that under the New Bill, the Central Government has been given the power to make rules. In the Old Act, only the State Government had such power.

Summary of the Comparison b/w Old Act and New Bill

-The scope of the definition of “measurements” has been widened to include several new datasets.

Analysis of the Criminal Procedure (Identification) Bill, 2022

-If you have properly read the article up until now, then I can safely say that you will know the basic differences and similarities between the Old Act and the New Bill, and hence you are ready to read the analysis part.

Increasing the Extent of Collection of Data

-Under the Old Act, fingerprint impressions, footprint impressions and photographs of the convicts and other persons could be taken. Under the New Bill, along with the aforementioned data, palm-print impression, retina and iris scan, physical, biological samples and their analysis, signatures, handwriting, etc. of the convicts and other persons can also be taken.

Positives

-The new data will make the Criminal Identification Process easier and better. As the Government already has the Retina and Iris scan data at UIDAI, the databases can be synchronised and the criminals who have erased their fingerprints could also be identified.

Negatives

-The increase in the extent of the collection of data is scary if we look at it from a privacy perspective. Under the New Bill, along with the convicts, several other persons can also be required to provide measurements. So, considering the wide extent of measurements, if somehow the data gets leaked from the government database, then it could be a disaster for the individuals who are not even convicts..

Persons detained under Preventive Detention Laws

-Several times, Political Opponents and Activists are detained by the Government under the Preventive Detention Laws. For instance, the Modi Government had detained the opposition political leaders in Jammu and Kashmir in the built-up to the passing of the Jammu & Kashmir Reorganisation Act, 2019.

Destruction of Measurements on Acquittal or Discharge

-From the perusal of Proviso of Section 4 (2) of the New Bill, it seems that the measurements of persons detained under Preventive Detention Laws shall have to be destroyed if they are acquitted, discharged or released without trial. Though, the words “after exhausting all legal remedies” can cause hurdles in such a task of destruction.

Retention of Data for 75 Years

-This is also one of the provisions that have both positives and negatives. I think the basic logic behind the retention of data for 75 years is that it somewhat corresponds with the natural life of a human being. The government had to choose a time limit for data retention and it chose the farthest possible one.

Conclusion

-In this way, the Criminal Procedure (Identification Bill), 2022 has some positives as well as negatives.

Key Takeaways

• Criminal Procedure (Identification) Bill, 2022 is supposed to replace the older Identification of Prisoner’s Act, 1920.
• Under the provisions of this Bill, a person who has been detained under any Preventive Detention Law can also be made to give measurements.
• The scope of the definition of “measurements” has been widened to include several new datasets.
• The New Bill provides for the creation of a Central Database under NCRB for the storage of data relating to measurements. The collected data is supposed to stay in the NCRB database for 75 years from the date of collection unless the person (whose measurement has been taken) is discharged, acquitted or released without trial.
• Upon the perusal of the bare provisions of this Bill, it seems that the Bill has some positives as well as negatives and the Judiciary will have to play an active role to maintain a balance.

Introduction

Criminal Procedure (Identification) Bill, 2022 [hereinafter referred to as “New Bill”] aims at repealing the Identification of Prisoner’s Act, 1920 [hereinafter referred to as “Old Act”]. It must be noted at the beginning that this Old Act is already in force in our countryand governs the taking of measurement of convicts& other persons. The New Bill is largely based on this Old Act. The preamble of the New Bill says that its aim is“to authorise for taking measurements of convicts and other persons for identification and investigation in criminal matters and to preserve records and for matters connected therewith and incidental thereto”.

Old Act vs. New Bill (Comparison of the two legislations)

This New Bill has created a lot of controversy in the political sphere and the views on this piece of legislation are deeply divided. I had several options to approach this article. At last, I chose the one where I will first talk about the factual details of both the Old Act & the New Bill, and then move on to my Analysis. To adequately give an analysis, the comparison method seemed the best to me.So, in this section (Old Act vs. New Bill),I have listed down all the differences and similarities that are there in the Criminal Procedure (Identification) Bill, 2022, and the Identification of Prisoner’s Act, 1920.

Definitions

I will start the comparison with the definitions which are mentioned in Section 2 of the New Bill as well as the Old Act.

Measurements

This is one of the most important and controversial definitions in the New Bill, as it determines the scope of data/samples that can be collected from convicts or other persons. Definition of “measurements” in the Old Act included:

1. finger impressions, and
2. foot-print impressions.

The New Bill substantially widens the definition of the term "measurements". It now includes:

1. finger-impressions,
2. palm-print impressions,
3. foot-print impressions,
4. photographs,
5. iris and retina scan,
6. physical, biological samples, and their analysis,
7. behavioural attributes including signatures, handwriting, or any other examination referred to in section 53 (provides for examination of accused by medical practitioners on the request of a police officer) or section 53A (provides for the examination of rape accused by medical practitioners) of the Code of Criminal Procedure, 1973.

Police Officer

The definition of the term “Police Officer” is crucial because he/she has the power to take the measurements of the convicts or other persons. In the Old Act, “police officer” meant:

1. an officer-in-charge of a police station,
2. a police officer making an investigation under Chapter XIV of the CrPC, 1898, or
3. any other police officer not below the rank of Sub-Inspector.

In the New Bill, “police officer” means:

1. the officer-in-charge of a police station, or
2. an officer not below the rank of Head Constable.

Prison Officer

In the New Bill, the definition of “prison officer” has been included, it means an officer of the prison not below the rank of a Head Warder. Prison Officer has also been given the power to take measurements.

Who has to give Measurements?

After the ‘definitions part’, we will move on to the substantive part of the legislation. Sections 3 and 4 in the Old Act provided provisions for Taking of Measurements of Convicted and Non-Convicted Persons respectively.

According to Section 3 of the Old Act, the following persons were required to give measurements and photographs to a police officer:

1. Persons convicted of any offence which is punishable with rigorous imprisonment of 1 year or upwards.
2. Persons ordered to give security for good behaviour under Section 118 of the CrPC, 1898.

Section 4 of the Old Act provided that a person who has been arrested in relation to an offence which is punishable with rigorous imprisonment of 1 year or upwards, will need to provide his measurements.

In the New Bill, Section 3 alone specifies the persons who need to give measurements to a police officer or a prison officer. Those include:

1. Any person who has been convicted under any law;
2. Any person who has been ordered to give security for good behaviour or maintaining peace under Section 117 of the CrPC, 1973.
3. Any person who has been arrested in connection with any offence.
4. Any person who has been detained under any preventive detention law.

Proviso to Section 3 of the New Bill states that if a person has been arrested for an offence, that is punishable with imprisonment of fewer than 7 years and the offence does not relate to women or children, then such arrested person may not be obliged to give his biological samples.

Magistrate can order/direct any person to give Measurements

Section 5 of the Old Act provided that if a Judicial Magistrate of 1st Class (JMIC) was satisfied that for an investigation, measurements or photograph of a person is required,JMIC willmake an order requiring that person to give the measurements or photograph.

There was a very important proviso to this Section of the Old Act, which provided that no such order (to give Measurements) could be passed unless & until the person (against whom the order is to be passed) had been arrested at some time in connection with the investigation or proceeding in question.

Section 5 of the New Bill inherits (from the Old Act) the provision relating to the order that can be made by the Magistrate, but it leaves the proviso which barred such order from being issued against a person who has never been arrested in relation to the concerned investigation or proceeding.

Resistance to Taking of Measurements

Section 6 of the Old Act as well as the New Bill provides provisions in cases where the person (whose measurements are required to be taken) resists the taking of such measurements.

Old Act provided that “all means necessary” could be used for taking measurements in such cases, whereas, the New Bill states that the measurements in such cases (where resistance is offered) shall be taken by following the rules (which will be prescribed later on). So, the New Bill has omitted the part containing the phrase - “all means necessary” in the Old Act.

In addition, Both the Old Act as well as the New Bill provide that the rejection or refusal to allow the taking of measurements shall be deemed to be an offence under Section 186 of the Indian Penal Code.

Collection, storage, preservation of measurements

Section 4 of the New Bill gives wide-ranging powers to National Crime Records Bureau (“NCRB”) and provides detailed provisions for:

1. Collection of records of measurements from State Government or Union Territories Administration.
2. Storage, preservation and destroying of the records of measurements at the national level.
3. Sharing and Dissemination of measurement records with any law-enforcement agency.

No such provision, authorising a Central Database for storage of measurements, was present in the Old Act.

Furthermore, Section 4 (2) states that the record of measurements shall be retained in a Digital or electronic format for 75 years from the date of collection of the measurement.

Destruction of Measurements on Acquittal or Discharge

Section 7 of the Old Act provides that if a Person (whose measurements were taken under that Act) is acquitted, discharged or released without trial, then the recorded measurements and photographs shall be destroyed unless otherwise directed by the Court. No such dedicated section is there in the New Bill, but the proviso to Section 4 (2) provides for the destruction of measurements if a person is released without trial, discharged or acquitted.

Bar to Suits

Section 7 of the New Bill corresponds verbatim with Section 9 of the Old Act and provides that no suit or other proceeding shall lie against any person for anything done in good faith under this Act or rules made under it. This section aims to protect the persons involved in taking measurements.

Power to make Rules

Section 8 of the Old Act as well as the New Bill provides the power to make Rules. The most substantial difference in this regard is that under the New Bill, the Central Government has been given the power to make rules. In the Old Act, only the State Government had such power.

Summary of the Comparison b/w Old Act and New Bill

• The scope of the definition of “measurements” has been widened to include several new datasets.
• Now, a police officer of the rank of a Head Constable (or higher) can take measurements. Earlier, only a police officer of the rank of a Sub-Inspector (or higher) could do so.
• Along with the police officer, now the Prison Officer (of the rank of Head Warder or higher) can take measurements.
• In the New Bill, a person who has been detained under any Preventive Detention Law can be made to give measurements.
• A person who has been arrested for an offence, punishable with less than 7 years of imprisonment and not related to women or children, may not be obliged to give biological samples.
• The second Proviso to Section 5 of the Old Act has not been omitted in the New Bill. That was an important safeguard protecting anyone (who has never been arrested in respect of a proceeding) from being made to give measurements.
• Authority to use “All means necessary” has not been given under the New Bill to take measurements if resistance is offered during the process.
• Section 4 of the New Bill provides for the creation of a Central Database under NCRB for the storage of data relating to measurements. The collected data is supposed to stay in the NCRB database for 75 years from the date of collection unless the person (whose measurement has been taken) is discharged, acquitted or released without trial.
• Under the New Bill, the State, as well as the Central Government, can make rules.
• Provisions relating to the Destruction of Measurements on Acquittal or Discharge are largely the same in the Old Act as well as the New Bill.

Analysis of the Criminal Procedure (Identification) Bill, 2022

If you have properly read the article up until now, then I can safely say that you will know the basic differences and similarities between the Old Act and the New Bill, and hence you are ready to read the analysis part.

Increasing the Extent of Collection of Data

Under the Old Act, fingerprint impressions, footprint impressions and photographs of the convicts and other persons could be taken. Under the New Bill, along with the aforementioned data, palm-print impression, retina and iris scan, physical, biological samples and their analysis, signatures, handwriting, etc. of the convicts and other persons can also be taken.

In my opinion, the increase in the extent of the collection of data has positives as well as negatives.

Positives

The new data will make the Criminal Identification Process easier and better. As the Government already has the Retina and Iris scan data at UIDAI, the databases can be synchronised and the criminals who have erased their fingerprints could also be identified.

Biological Samples would include Blood Samples, from which DNA could be extracted. So, if the Government has a central database containing the information about the DNA of convicts, then it can be a boon for forensic teams, as they might be able to find matches from the blood available at crime scenes.

Negatives

The increase in the extent of the collection of data is scary if we look at it from a privacy perspective. Under the New Bill, along with the convicts, several other persons can also be required to provide measurements. So, considering the wide extent of measurements, if somehow the data gets leaked from the government database, then it could be a disaster for the individuals who are not even convicts.

Furthermore, considering the sensitive nature of ‘measurements’, the Government can use the collected data against its Political Opponents.

Persons detained under Preventive Detention Laws

Several times, Political Opponents and Activists are detained by the Government under the Preventive Detention Laws. For instance, the Modi Government had detained the opposition political leaders in Jammu and Kashmir in the built-up to the passing of the Jammu & Kashmir Reorganisation Act, 2019.

The New Bill allows the Police Officers and Prison Officers to take “measurements” of such political prisoners, detained under Preventive Detention Laws. This prima facie seems to be against the spirit of democracy and violative of the fundamental right to privacy, as was laid down in the case of K.S. Puttaswamy and Another v. Union of India and Others (2017 AIR SC 4161).

Destruction of Measurements on Acquittal or Discharge

From the perusal of Proviso of Section 4 (2) of the New Bill, it seems that the measurements of persons detained under Preventive Detention Laws shall have to be destroyed if they are acquitted, discharged or released without trial. Though, the words “after exhausting all legal remedies” can cause hurdles in such a task of destruction.

For instance, suppose that the Government detains a political opponent, takes his/her measurements under the New Bill, and then releases him after a while, without exhausting all legal remedies. Now, even though the person has been acquitted, discharged or released without trial, still, if he requests for getting the data related to his measurements destroyed, the government can claim that it has not yet exhausted all the legal remedies, and hence it can deny destroying the recorded measurements.

Retention of Data for 75 Years

This is also one of the provisions that have both positives and negatives. I think the basic logic behind the retention of data for 75 years is that it somewhat corresponds with the natural life of a human being. The government had to choose a time limit for data retention and it chose the farthest possible one.

On the positive side, a repository of data on convicts will be created which can be useful for the identification of repeat offenders, as the data will be retained for virtually the entire lives of those convicts. But, on the negative side, retention of data for so long goes against the principle of ‘Right to be Forgotten’. It has been seen that the Public Availability of Criminal Records creates a serious hindrance in the resumption of normal lives for the criminals/accused persons after they have served their sentences. So, since the measurement data collected under this New Bill is being stored for 75 years, and in that period if it somehow gets leaked, then it might create severe problems in the life of a person who might have got a conviction for a petty offence way back in the past.

Conclusion

In this way, the Criminal Procedure (Identification Bill), 2022 has some positives as well as negatives. With this New Bill, the Government aims to harness the power of new methods and technologies that have become available in the field of criminal investigation due to technological development. But, some of the provisions surely raise serious doubts regarding the violation of the right to privacy and the right to be forgotten.The Judicial System of our country will have to play an active role to ensure that the provisions of this Act are not misused.