The Criminal Procedure (Identification) Bill, 2022 was passed by voice vote in the Lok Sabha earlier this week. The bill repeals the Identification of Prisoners Act, 1920, and increases the powers of law enforcement agencies and courts with regard to the processing of biometrics, DNA samples, and other data of criminal offenders, dubbed as ‘measurements’ in the bill.
“If any person who is required to allow the measurements to be taken under this Act resists or refuses to allow taking of such measurements, it shall be lawful for the police officer or prison officer to take such measurements in such manner as may be prescribed,” as per the draft bill introduced by the Minister of State for Home Affairs Ajay Misra Teni.
Union Home Minister Amit Shah, while presenting the bill, said that the existing law is not relevant in today’s times because of various reasons. “Given the times we live in and the scientific developments we have seen [since 1920], there’s a need to replace the existing law to fulfil the requirement of gathering proper [and complete] evidence and strengthening our law enforcement agencies,” he said in his speech.
“It would also help us fix the loopholes [in the existing law] and would hopefully also increase the conviction rates […] if the conviction rates do not increase, it is nearly impossible to expect an improvement in [the condition of] the law and order system and internal security of this country,” Shah said.
The Lok Sabha has passed a criminally undemocratic law — Criminal Procedure (Idenitfication) Bill — without a thought for its dire impacts it has on India and its future. We are careening from being "partially free" to fully unfree – with help from brute BJP majority in Parl.
— pamela philipose (@pamelaphilipose) April 5, 2022
Shah’s claims about increasing conviction rates tread on thin ice as Maanvi Verma of Maadhyam explained to The Quint that there is no research that the government can cite to establish its claim that the low conviction rate is because of a lack of access to these ‘measurements’. Furthermore, India’s Data Protection Bill has been in the works for five years but has not been promulgated into law yet.
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Key takeaways from the Parliament debate on the bill
Law does not stand scrutiny: INC MP Manish Tewari
“The colonial government brought the 1920 bill to threaten and terrorise people participating in the Independence movement. It was their intention to weaken the movement. When the government planned to replace the old law with a new one after 100 years, it was expected that the law will be liberal and will take into account human rights and jurisprudence established around the world in how to treat criminals but the draft does not stand scrutiny unfortunately.” — MP Manish Tewari during the discussion.
Definitions are broad: “These definitions (under measurements) are ambiguous and nebulous. I would like the Home Minister to clarify what he means by brain mapping and narco analysis. It (the bill) violates the personal rights given to an individual when a magistrate can direct any individual to furnish details even if they choose to not part with it,” Tewari said.
Lack of consultation with civil society: “Governments have a culture of undertaking consultations with the civil society before coming out with legislation. I have not seen a single consultation (since 2014) with the civil society. Moreover, the legislative intent is not clear when the government writes that people who have been booked for crimes which carry punishment of less than seven years may not be obliged to provide their measurements. It should have been ‘shall’ instead of ‘may’,” Tewari suggested.
Acquitted people can’t have data erased: “In the absence of a proper data protection law, it will be impossible to extinguish all these records for people who have been acquitted as the data would have been disseminated all across the country by law enforcement agencies,” Tewari said. Under the Bill, the National Crime Records Bureau is allowed to collect, store, process, and share data with law enforcement agencies at the national or state level.
“This is a clear violation of the Puttaswamy judgement. This law is short but its implications are enormous on human rights and civil liberties,” he added.
This is anti-people and anti-federal: DMK MP Dayanidhi Maran
“This bill is against the fundamental right of privacy of citizens. I wonder sometimes whether the Home Minister or the Prime Minister forget being against the Union government taking over the rights of state governments. The moment you (HM) come and sit in the centre, you want all the powers to yourself.” — MP Dayanidhi Maran who also declared: “This is anti-people and anti-federal.“
Making of a police state: “The bill causes fear because it is the first step towards the infrastructure needed to create a police state. It will become a legal mess for the ordinary citizen to get this data removed from this database,” Maran cautioned. “The Data Protection Bill is yet to be tabled in (Lok Sabha); what is the rush for the Home Minister to come with this bill before the data protection bill is tabled? The bill’s measurements include a wide and loosely-defined set of data points about individuals. The bill is so broad that we fear it does not satisfy the two-fold check of necessity and proportionality,” he added.
The bill may lead to profiling: “We have already seen ordinary citizens being harassed in the name of religion, hatred, and pseudo-nationalism. So how can you be sure this will not be used to profile groups, small citizens who want to go and protest?” Maran asked. The Bill stipulates that data can be collected from a person arrested under any law in force or detained under any preventive detention law, among others.
Table the Data Protection Bill: “The data protection bill has to be tabled. We have to know what data can be protected. Moreover, you have to clearly provide how you are going to protect this data,” Maran advised. “How sure are you of the privacy of an individual when this data is going to be given to multiple agencies? How sure that my data will not be misused or given or sold to anyone? We see our own government web pages being hacked right now. Please do not be in a hurry. Please send the bill to the Standing Committee,” he concluded.
The Bill draws no distinction between undertrials and convicts: TMC MP Mahua Moitra
“You are bringing in a law that is more intrusive and collects more data than the original (1920) law and has fewer checks and balances than even the British law. It is very ironic.” — MP Mahua Moitra
“You are saying that there has been technological advancement in the last decade which is why we need to repeal (the old law) but with the advance of technology, there is a flip side. The state has even greater powers of surveillance. So when we in (Lok Sabha) authorise any legal expansion of the ambit of these powers, we need to ensure that these powers can be regulated. We need to put in solid safeguards. This bill has no such safeguards. The malafides of this bill are apparent. It seeks to blur out all distinction between an undertrial, a detainee, a suspect, and a convict,” Moitra informed the Lok Sabha.
Retention period, NCRB’s powers violate best practices of data protection: “The average life expectancy of Indians is 69.6 years. You are permitting the retention of records for 75 years, and you’re allowing the National Crime Records Bureau (NCRB) to disseminate personal data with any law enforcement agency. This violates the best practices of data protection which is the principle of purpose limitation. It means that you can collect data legitimately for one purpose but it must be used for that purpose. It cannot be used for another purpose. You can have agencies all over the country with no purpose limitation,” Moitra said.
A free pass for police to collect data: “It (the bill) gives virtual carte blanche to the police for sample collection. This new bill is letting police officers not below the rank of a Head Constable and prison officers not below the rank of a Head Warden to take measurements. It has lowered the threshold,” she added.
No appeal mechanism to contest magistrate’s orders: “There’s no appeal mechanism against the decision of the Magistrate. The most dangerous and insidious aspect of this proposed law is the grouping of those booked for preventive detention. We can be arrested or detained even before the commission of any act of criminality. You may think we will do something. You may think we will say something and we could be put under preventive detention,” Moitra said. As per the Bill, a magistrate can issue an order for an individual to submit their measurements if they think it is needed under any section of The Code of Criminal Procedure.
“Therefore, the privacy of individuals who are not convicted of any wrongdoing is being put at the mercy of the state.” — MP Mahua Moitra
The bill puts us on par with advanced countries: YSRCP MP P.V. Midhun Reddy
“This bill has been brought in for us to be in line with the global standards, for our investigation agencies to be on par with other advanced countries. It (the bill) can protect innocent people; it can save the government’s money, resources and time in investigations because we have seen cases not solved for years.” — MP P.V. Midhun Reddy.
It will deter serial offenders: Reddy said that nearly 70 countries around the world have a central DNA database and it is not something that is only for India. “We should go ahead with this central DNA database. We should collect samples because it will deter serial offenders from committing more heinous crimes and it will solve cases faster,” he said. “This bill should not be used as a means for a political witch hunt. The DNA profiling, which is a sensitive thing, should be purely used for serious crimes and counterterrorism purposes only,” Reddy added.
How did the Home Minister respond to the debate?
“People who are worried about the human rights of convicts should also be concerned about the human rights of victims. You are worried about the perpetrator. This government is concerned about the human rights of law-abiding citizens. Human rights cannot be viewed from a singular lens.” — Home Minister Amit Shah
In his response, Shah assured the House that “there is no scope for any data to be misused” in the bill.
The Criminal Procedure (Identification) Bill passed in the Lok Sabha on Monday poses many risks to human rights. It gives too much power to the authorities and has the scope of being misused against peaceful protesters and discriminated minorities.
— Amnesty India (@AIIndia) April 5, 2022
“This bill has been brought to reduce the crime rate in the country. It is the sole objective of the law. The police are usually the first responders and they manage to catch the accused but cannot prove their guilt in the courts rendering their investigation ineffective,” Shah said. He also pointed out that the example of the national database of sexual offenders, which he revealed has faced no data leakage. “Moreover, it has no record of any complaint of misuse in courts.”
Tewari and Shah’s remarks in Parliament were translated from Hindi.
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