Introduction

The Parliament has in the year 2022 enacted the Criminal Procedure (Identification) Act, 2022, ('the Act') which seeks to authorize collection, storage, processing and dissemination of sensitive data such as fingerprints, retinal scans, biological samples, amongst others.[1] The Act replaces the erstwhile Identification of Prisoners Act, 1920.[2] Generally, it has been argued that the Act expands the type of data that can be collected, the category of persons from whom it can be collected, and the authority that can authorize such collection.[3]

One of the earliest colonial legislations that is still in effect in India is the Prisons Act of 1894.[4] These laws are directives that address institutional, operational, and managerial instructions in prisons, placing an emphasis on administration rather than on the reformation and rehabilitation of the inmates.[5]Prisons emerged to maintain social order and safeguard the populace from the individual who upended the crisis. Perhaps, the similar catastrophe that convicts experience in jail receives the least amount of attention. Due to a lack of enacting appropriate laws and regulations to bring comprehensive rehabilitation, prisoners in India are forced to endure terrible conditions. Thereby listing the Prison laws as one of the forgotten laws of India. Gandhi also stated, “hate the crimes, not the criminals,” referring to them as fellow people who equally deserve to live in dignity with a civilized existence. According to a study on India’s overcrowded jails,[6] which was reported in The Hindu, 5.54 lakh inmates are currently incarcerated, indeed the original capacity is 4.25 lakh which reflects the forsaken attitude of the government towards the prisoners.[7] Though a person is imprisoned, he still has vested rights which cannot be curtailed except the one lost as an incident of confinement.[8] However, these rights are not absolute but restricted to an extent, among which Article 21 which is the right to life plays a pivotal role.

On August 4^th 2022, the Criminal Procedure (Identification) Act came into force repealing the Identification of Prisoner act, of 1920. This is the camouflage of bringing technological and modern forms of identifying criminals and increasing conviction rates of criminals.[9] In addition, it aims to lay down an effective and feasible criminal procedure for convicting criminals. Consequently, focusing on the prison administration in lieu of working on the rights of the inmates and subsequently, exaggerating the hardships of prisoners by worsening their condition.

The Criminal Procedure (Identification) Act, 2022

The Criminal Procedure (Identification) act was framed on the 87^th report of the law commission of India, in 1980. This act brought major changes in the 1920 Act by expanding its provisions. Firstly, it has expanded the definition of ‘measurement’. Secondly, it dilates the number of persons from whom the data shall be collected; thirdly, it widens the number of authorities who can order the collection of data. And lastly, it allows the National Crime Record Bureau (NCRB) agency to be the sole agency to maintain the records of the data collected, thereby vesting the state power on the Centre and thereby questioning its federalism.

Earlier by the 1920 act only fingerprints, foot-print impressions and photographs were taken from the regarded person. However, it has expanded the definition of measurements including biological samples, and behavioral attributes including signatures and handwriting.[10] Moreover, the examinations under sections 53 and 53A of CrPC will now include blood, semen, hair sample, swabs and DNA profiling. This technological transition will help the authorities to identify criminals accurately. Moreover, data shall be collected not only from the convicted or arrested person but also from ‘any’ person on a written order of the magistrate.[11] However, the biological samples shall be taken only from the person arrested for the offences against a woman or a child, or if the offence carries a minimum of seven years imprisonment.[12] Taking biological samples from convicts involved in crimes against women and children not only aids the investigation but also moderates the act as it does not mandate other convicts arrested for crimes bearing a punishment below seven years. Furthermore, the act also authorizes the officer in charge of the police station, or of rank head constable or above and a head warder of the prison to collect the data.[13] It also empowers a Metropolitan Magistrate or a Judicial Magistrate of the first class to order the collection of data.[14] Additionally, an Executive Magistrate is also empowered in cases where a person is required to maintain good behavior or peace.[15] The data so collected shall be stored by NCRB for 75 years in digital and electronic form. Consequently, authorizing the central government to make laws in this regard is indeed a state subject.[16]

Lacks Conformity Test with Fundamental Rights

The 2022 Act further allows measurements to be taken of all convicts, arrested persons, as well as persons detained under any preventive detention law irrespective of any quantum of punishment awarded. Despite having a focus on technological advancements in the investigation of crime, the 2022 Act suffers from four major fundamental concerns that are strong grounds to challenge its validity. Firstly, the 2022 Act does not define the process and definite framework as to how the measurements taken would be used for analysis and further utilized in a criminal investigation. The word “analysis” used in the context of measurement is vague and undefined which is an issue of concern because there is no certainty in regard to how much these measurements collected can be analyzed and further what all data can be generated through the analysis of such measurements. The scope of the 2022 Act is limited to the collection of measurements for identification and investigation purposes and thus, the analysis of these measurements is a black hole that travels beyond the permissible scope of the law. The second issue concerns the structural capacity to collect and maintain the record of measurements making it an issue of feasibility. The 2022 Act states that National Crime Records Bureau (NCRB) shall be responsible for the collection and administration of records of measurements in consonance with the State Government or Union Territory Administration or any other law enforcement agencies. It is to be understood that NCRB was set up to function as a repository of information on crime and criminals and does not have any wing which can collect the measurements including biological samples. To collect such records, the Central and State Forensic Science Laboratories which are very limited in number would be required to play a substantial role. Moreover, seeing the enlarged scope of persons covered under the 2022 Act, there is an operational difficulty in collecting such measurements followed by its analysis and preservation of records for 75 years in form of data where we do not have any legal framework for data protection in India. The Bombay High Court in Jitendra v. State of Maharashtra[17] has observed that it is necessary for the laboratories to ensure proper quality control and quality assurance when dealing with the collection of biological samples and their analysis and the same should be of the highest standard. Thus, the question arises as to who would in actuality be responsible for collecting such measurements which are sensitive in nature, deals with body fluids and is at higher risk of quality being dented due to lack of care and caution. The third area of concern is the nature of these measurements taken which may complicate the investigation and identification. In K.S. Puttaswamy v. Union of India,[18] it was observed that biometrics technology does not guarantee 100% accuracy and is only 99.76% accurate. The Court held that even though the percentage of error is very less but when such a failure rate is seen from the viewpoint of the total population, such failure rate itself would be a phenomenal figure. Moreover, the Court also took notice of the changing nature of biological patterns like failing of iris test due to blindness of person or changing of formation of fingerprints due to an individual getting old. However, when these measurements including biological samples are kept after analysis for such a long time, there is a probability that the measurements might change in some cases causing unnecessary victimization of an innocent person. Therefore, the manner of collection of these measurements can lead to a disadvantage for criminal investigation. Fourthly, the 2022 Act has permitted intrusion in the physical autonomy of the person by making refusal or resistance to give measurements as a criminal offence. There are suitable declarations regarding the non-interference in physical autonomy of a person over his own body to which India is also a signatory. Although the 1920 Act also criminalizes resistance or refusal, the current 2022 Act aggravates the problem by including all types of prisoners within its scope. Further, the same is in direct violation of the Supreme Court's decision as given in Selvi v. State of Karnataka[19] where the Supreme Court held that Article 20(3) of the Constitution aims to prevent the forcible “conveyance of personal knowledge that is relevant to the facts in issue”. Through this 2022 Act, a suspect who has been arrested for an offence of petty thief or for pick pocketing can be forced to give any measurements that he may be directed to. Thus, such intrusion conflicts with physical autonomy and further violates the right to privacy of an individual which is a fundamental right under Article 21 as laid down in K.S. Puttaswamy v. Union of India.[20]Per se, the intent of the 2022 Act is in line with the modernization of criminal investigation. A strong case backed up by solid evidence is necessary to secure criminal convictions. However, the moot point is whether India can permit to be governed by such a law when there are not adequate safeguards present to tackle the potential abuse of this law. The road to modernization is a soaring exercise that one should undertake but with a caveat that it should not travel beyond State administration so as to make it functional in a complete sense. At present, the 2022 Act fails to inspire the confidence of people and requires overhauling to make it implementable.[21]

Advocate Umar Bashir

B.A.,LLB, LLM, PGDCL

Advocate J&K&L High Court