“Provisions of the Act may facilitate the creation of a dangerous end-product, a breed which is typical of invariably all totalitarian regimes: an ‘ideal’ citizen who is obedient, who does not indulge in activities which the State labels and treats as criminal, who does not dissent and who in the records of the State is a ‘good’ and ‘innocent’ citizen,” reads the petition challenging the Criminal Procedure (Identification) Act, 2022, filed by advocate Harshit Goel on April 19. A two-judge bench of the Delhi High Court ordered the Centre to file a response within 6 weeks on April 21. This was despite the Centre’s counsel objecting that a law cannot be challenged through a PIL without the petitioner stating the grievances faced by them.
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Which sections does the petition seek action against?
The Criminal Procedure (Identification) Act 2022 increases the powers of law enforcement agencies and courts with regard to the collection, retention, sharing, and processing of biometrics, DNA samples, and other data of criminal offenders, dubbed as ‘measurements’ in the bill. The petition asked the HC to declare at least 6 different sections of the act, in part or entirely unconstitutional and void:
- Section 2(1) (a) (iii): Declares that the definition of magistrate in the bill also includes executive magistrates who can order individuals to give security for their good behaviour or for maintaining peace.
- Section 2(1) b: Lays down the definition of ‘measurements’, including fingerprints, iris and retina scans, biological samples, etc.
- Section 3: Lays down provisions for when a person’s measurements can be taken; such as, if they are convicted of an offence under any law, have to produce security for their good behaviour, etc.
- Section 4: Provides powers, and conditions for those powers, to the National Crime Records Bureau (NCRB) and any notified State-level agencies for storing, preserving, sharing, etc., of measurements and their records.
- Section 5: Authorises a magistrate to order the collection of measurements of any person, if they are satisfied that is needed for expediency in an investigation.
- Section 6: Empowers the police or a prison officer to forcefully collect a person’s measurements who refuses to provide them, but is required to do so under the law.
- Section 8: Delegates powers to the Central and state governments to create rules related to the law, which would then have to be tabled in the parliament or assemblies, respectively.
Why should these sections be declared unconstitutional?
Violation of Right to Equality Before Law or Article 14
Multiple provisions are arbitrary: Several provisions of the law (Sections 3, 2(1) b, 6, and 8) provide excessive discretionary powers to the government arbitrarily and fail the test of ‘reasonable classification’. The Supreme Court has earlier held that equality was antithetical to arbitrariness and that the principle of reasonableness was essential to equality.
Grounds for authorising collection of measurements unclear: Section 5 of the Act says that magistrates can authorise the collection of ‘measurements’ of a person if they are satisfied that it will expedite the investigation. However the purposes and circumstances in which such expediency can be determined is not mentioned in the Act, and thus it violates Article 14, the petition says.
Expands the scope of discretionary powers: The Act expands the scope of persons and the laws related to which measurements can be ordered to be collected by a magistrate. The petition says that while the older, Identification of Prisoners Act, 1920 allowed such collection of data for person imprisoned or under investigation for a crime under the Code of Criminal Procedure (CrPc), the Act now expands it to:
- ‘Any person’
- For the purpose of an investigation or proceeding
- Under the CrPC or any other law
“The inclusion of proceedings under ‘any other law’ makes it unclear if the assessment of expedience is linked to the proceeding in which the order is passed, or is future-looking, i.e., for the purpose of aiding future investigations by collecting measurements of ‘any persons’,” the petition says, adding that this increases the discretionary powers of the magistrate, contrary to rights guaranteed under Article 14.
Data of persons not involved in crime more at risk: Measurements collected of ‘any person’ whether an arrested individual or just a person of interest in a case may never be destroyed, the petition says. This is because the law only contains a provision for deletion of measurements for an individual who is cleared of their crimes, and has exhausted all legal recourse.
“Persons who are not involved in criminal proceedings in fact are subject to a greater degree of infringement of their right to privacy, than non-convicted suspects who were at some point arrested for an offence. This is manifestly arbitrary as it does not disclose a determining principle for such differentiation and thus is bad in law.” — Petition
No purpose limitation on sharing: While the Act lays down that ‘measurements’ and ‘records of measurements’ can be shared with different government agencies, it does not say for what purposes they can be shared and thus violates principles of Article 14.
“Specifically, it is unclear whether the NCRB or other agencies may only share ‘measurements’ or ‘records of measurements’ for use itself as evidence or to access other evidence, for instance, through the use of a person’s biometric information stored on the database, to access his/her devices that carry personal information.” — Petition
Violation of Right to Life and Liberty or Article 21
Forcible collection violates the Right to Life: Under Article 21, which pertains to Right to Life and Liberty, protection of bodily integrity and autonomy are extended to prisoners, under trials, detainees, etc. On those lines, the Act’s provision for forcibly collecting the aforementioned ‘measurements’ from convicts or even a person brought in for questioning, violates Article 21, the petition says.
Violation of both Articles 14 and 21
No provision to seek deletion of data: There is no provision to apply for deletion of data at the end of 75 years and further, the Act says that the ‘records of measurements’ must be retained until 75 years from the date of collection. Thus, the Act does not explicitly say that the ‘measurements’ collected have to be deleted after 75 years; this could mean that the data could be stored for perpetuity
No provision to ensure quality of data: “There are no safeguards currently in place to ensure that minimum standards (related to the quality of data) for collection are adhered to. This is especially problematic, when the collected ‘measurements’ will be stored in databases and shared for the purposes of identification and investigation,” the petition says, adding that there are also no guidelines on how such samples will be stored and preserved, especially given that biological samples are susceptible to degradation and contamination. It states that the police currently stores biological samples collected as part of criminal investigations, in their evidence rooms (malkhana), which often lack adequate infrastructure, which aren’t maintained at accurate ambient conditions to preserve biological samples, the subsequent degradation of which will impact investigations.
Possibility that private sector partners will gain access: “NCRB currently oversees the functioning of the Indian version of Automated Fingerprint Identification System (“AFIS”) known as FACTS and Crime and Criminal Tracking Network & Systems (“CCTNS”). The act provides no safeguards against sharing of information to third parties and could link data to other databases, like FACTS, CCTNS and Aadhar” the petition says, adding that the NCRB outsources the day-to-day management of such projects to private contractors.
Provision for forced collection can allow retention in perpetuity: Section 6, which allows police or prison officers to forcibly take measurements of a person if they refuse and also charge them under the Indian Penal Code (IPC) for obstructing a public servant from carrying out their duties, can allow retention of their ‘measurements’ for perpetuity, the petition says.
Violation of both Rights to Freedom of Speech; Life and liberty
Sharing, collection of measurements violates personal autonomy: The NALSA judgement of 2014, the petition says, had laid down that values of autonomy and personal integrity form a component of ‘expression’ protected under Article 19(1)(a), the petition says. Section 3 of the Act violates this because:
- It enables the sharing of iris or retina scans, which restricts their bodily autonomy. Such autonomy can only be restricted by a proportionate law, informed by due process. However, the Criminal Identification Act puts serious and minor offences on the same pedestal and thus, is not proportionate or reasonable.
- The definition of ‘measurements’, together with the conditions laid down under which such measurements can be taken, raises concerns about autonomy.
Violation of the Right to Fair Trial: Relying on results achieved after using coercive techniques, through the Act, would be in conflict with the Right to Fair Trial, the petition says.
Provision for deletion upon exhaustion of ‘all legal remedies’ unclear: “It is not clear whether it is the State or the concerned person who has to exhaust all legal remedies,” the petition says. According to the law, records of measurements taken have to be destroyed once a person, without any criminal antecedents, is released without trial, discharged, or acquitted after exhausting all legal remedies.
“To illustrate, if the State has an option to appeal against an order of acquittal but chooses not to do so, data of such person can continue to be retained because technically, the State would not have exhausted ‘all legal remedies’.”
Violation of Right to Privacy:
- The right to privacy extends to informational privacy, the petition says, and thus information stored by way of the law, such as biometrics and other information, constitutes a violation of this right to privacy.
- Fails the tests of proportionality as laid down in the Puttaswamy judgement
- Does not differentiate between the convicts, persons arrested or detained, and persons furnishing security under the Code, the seriousness of offence, and the investigative needs of a case while laying down the definitions of ‘measurements’ as well as their period of retention.
- Does not spell out how the NCRB, which is tasked with maintaining records of measurements, will collect information on court outcomes so it can delete records, as per the law. This could play into a scheme of indefinite or long retention which is disproportionate to the Act’s legitimate aim of aiding criminal investigation, the petition says.
Bill could include brain mapping; MHA’s promise means nothing
“As Section 2(1) (b) is phrased as an inclusive definition, it may be fair to assume that ‘biological samples’, ‘analysis’ or ‘behavioural attributes may also include practices such as narco-analysis test, polygraph examination and Brain Electrical Activation Profile (BEAP),” the petition says, adding that this would violate the constitutional right against self-incrimination.
Further, the petition says that the Union Home Minister’s statement in the Rajya Sabha that ‘biological samples’ will not include the practices of narco-analysis test, polygraph examination, etc., will not be enforceable in court.
Lack of guidelines for making rules under the Act
Referring to Section 8 of the Act, the petition raises the following issues:
- Extends power to create rules to central government: The law extends the power to make rules under the Act to the Central government, as opposed to the old Act which only gave these powers to the State governments. This provision, the petition says, violates the federal structure of the Constitution which has been recognised as a part of the basic structure of the Constitution.
- Delegation of legislative powers invalid without guidelines: The law does not have any legislative guidelines for rule-making and thus, violates the Constitution as the SC has previously noted that “delegation of legislative power is invalid in the absence of specific guidance in the parent statute as to the standards or criteria or principles in terms of which the rulemaking powers delegated to subordinate authorities are to be exercised”, the petition says. It also notes that the lack of guidelines or standards could lead to non-uniformity among practices of different states.
- Provides excessive powers to the executive: The law delegates excessive power to the State and Central governments to make wide-ranging rules without any guidelines, the petition says. This violates the Constitution as courts have earlier held that while delegating powers of the legislature, it must be ensured that the executive does not become a parallel legislature. Further, it states that in the absence of a data protection law, the Parliament should have created a skeletal framework for such rules to be based on.
Violation of international law and agreements
The petition also states that the law violates Article 7 of the International Covenant on Civil and Political Rights (ICCPR), the Universal Declaration of Human Rights, and the Geneva Convention relative to the Treatment of Prisoners of War, to which India is a signatory, saying that the Act runs contrary to India’s international obligations. It also says that it is in violation of Article 51, which pertains to the promotion of International Peace and Security.
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- Summary: Criminal Procedure (Identification) Bill, 2022
- How The Debate On Criminal Procedure (Identification) Bill Unfolded In Lok Sabha
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