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Indian government notifies Criminal Procedure (Identification) Rules despite petitions challenging Act’s constitutionality

The Criminal Procedure (Identification) Act, 2022 or CPIA, empowers the government to collect biometric data from convicts and undertrials

What’s the news: Ministry of Home Affairs notified the Criminal Procedure (Identification) Rules, 2022, on September 19 – the same day that a plea challenging the Act came before the Madras High Court.

In April, the Parliament passed with a voice vote the Criminal Procedure (Identification) Bill, 2022 (CPIA) that repealed the Identification of Prisoners Act and increased law enforcement agencies’ and courts’ powers to process biometrics, DNA samples, etc. of criminal offenders. According to LiveLaw, petitioner V. Adarsh challenged the constitutional validity of this law on Monday. A similar challenge is also pending at the Delhi High Court.

Now, the Internet Freedom Foundation (IFF), a digital rights advocacy group, has criticised the rules notified by the Centre for failing to provide sufficient safeguards for people’s privacy.

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Why it matters: Back when the Bill was presented by Union Home Minister Amit Shah, he claimed that the law will help “increase conviction rates.” However, there is no research to explain how these “measurements” that are essentially biometric data will improve the conviction rates. Moreover, in the absence of a data protection law, the sudden enforcement of such a law is a madness that has been contested by multiple MPs, journalists and experts alike. To make matters worse, the Data Protection Bill was recently withdrawn by the Parliament despite five years of discussions, while the CPIA was passed without prior public consultation.

Any skilled person can take data: Terming the various biometric data as “measurements” (finger-impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scan, physical, biological samples and their analysis, behavioural attributes including signatures, handwriting, etc.) the Rules said that an authorised user or any person skilled in taking measurements may take the measurements of a person for the purposes of the Act. (emphasis added). The rules fail to provide a criteria for said “skilled person” only stating that a “registered medical practitioner” may also take the measurements.

On top of failing to provide criteria for a ‘skilled’ person, it may be remembered that the CPIA does not differentiate between convicts or undertrials. As per its provisions, authorities can collect measurements from any arrested person.

A few CrPC sections exempted from measurements: The Rules only specified that people violating prohibitory orders issued under Section 144 or Section 145 or those arrested under Section 151 Code of Criminal Procedure (CrPC) do not have to take the details “unless such person is charged or arrested in connection with any other offence punishable under any other law.” Similarly, authorities cannot collect measurements of a person under Sections 107, 108, 109, 110 of the CrPC “unless such person has been ordered to give security for his good behaviour or maintaining peace.”

Further, in case of electoral or contempt-related offences, the measurements will require the approval of a Superintendent of Police or any higher official.

NCRB to draft the SoP for measurements: As per the Rules, the National Crime Records Bureau (NCRB) will issue the Standard Operating Procedures for taking the measurements, including the equipment required to collect and store the measurements, the method of handling the database, etc. This further gives the NCRB control over the preservation, processing, sharing and destruction of such data.

In fact, the Rules state that the, “the request for destruction of the record of measurements shall be recommended by the Nodal Officer to the Bureau [NCRB] after verifying that such record of measurements is not linked with any other criminal cases.”

Reacting to this news, the IFF challenged the rationale in placing such powers and duties with the NCRB when it is not a “statutory authority.” Further, it pointed out that the Rules failed to clarify penalties for misuse of this data or whether the NCRB can share this data with third parties.

During the Parliament session in April, TMC MP Mahua Moitra had pointed out that the CPIA allows the NCRB to retain measurement data for 75 years when the average life expectancy of Indians, as per Moitra’s sources is around 69 years. She had said that this violates data protection practices and the principle of purpose limitation.

Madras High Court plea argues violation of fundamental rights

LiveLaw on Monday said that the Madras High Court Bench of Acting Chief Justice M Duraiswamy and Justice Sunder Mohan heard the plea that challenged Sections 2 (1) (a) (iii), 2 (1) (b), 3, 4, 5, 6, 7 and 8 of the CPIA. According to the petition, these provisions are “unconstitutional, illegal and void” because they violated the rights to equality and free speech as well as a person’s right to not be a witness against themselves. The plea also argued violation of right to life and personal liberty and “promotion of international peace and security.”

Adarsh’s senior counsel N. R. Elango said that the collection of the measurements which was  supposed to be a “judicial function” has been transferred to the executive. The plea also takes issue with the “vagueness” on the kind of data included under the Act’s ‘measurements’ as well as the appointment of an “appropriate authority.” Overall, Adarsh argued that the CPIA violates the right to privacy.

This post is released under a CC-BY-SA 4.0 license. Please feel free to republish on your site, with attribution and a link. Adaptation and rewriting, though allowed, should be true to the original.

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I'm interested in the shaping and strengthening of rights in the digital space. I cover cybersecurity, platform regulation, gig worker economy. In my free time, I'm either binge-watching an anime or off on a hike.

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