The Delhi High Court on Thursday said the Criminal Procedure (Identification) Act, 2022, that allows police to forcibly take ‘measurements’ of an arrested person or convict “requires consideration”.
A Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla issued notice to the Centre through the Ministry of Home Affairs and the Law Ministry on a public interest litigation (PIL) filed by advocate Harshit Goel who asserted that the Act fall foul of Article 21 of the Constitution.
The Centre’s counsel argued that the plea was not maintainable as the validity of a law cannot be challenged in a PIL.
The Criminal Procedure (Identification) Act, 2022, received the President’s assent on April 18. It was passed by both Houses of the Parliament earlier this month, amid heated protests by the Opposition. It replaces the Identification of Prisoners Act, 1920.
Mr. Goel, in his petition filed through advocates Harshit Anand, Yashwant Singh and Aman Naqvi, stated that the provisions of the Act makes it lawful for the police to forcibly take ‘measurements’ of convicts, arrestees, detainees, undertrials and any person who may be remotely connected with an offence without first establishing their involvement or the evidentiary value of such ‘measurements’.
The “measurements” includes finger-impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scan, physical, biological samples and their analysis, behavioural attributes including signatures, handwriting. They can be taken forcibly in case of resistance or refusal.
Resistance to or refusal to allow the taking of measurements are also termed an an offence under the Act with punishment upto three months in jail.
Mr. Goel contended that ‘measurements’, such as ‘biological samples’, their ‘analysis’ and ‘behavioural attributes’ are open to interpretation.
“Specifically, these terms are open to interpretation to include ‘measurements’ of a testimonial nature taken by way of a compelled psychiatric evaluation. Such evaluation, when it leads to any incriminating admission, would constitute a ‘testimonial compulsion’,” the petition stated.
It said that this coercive provision transgresses the right against self-incrimination, a well-established principle of the criminal justice system and mandated under the Constitution.
“Forcing an individual to part with his ‘measurements’ under the provisions of Act violates the standard of ‘substantive due process’ which is required for restraining personal liberty,” the petition added.
Mr. Goel argue that the Act, in flagrant violation of the laws laid down by the Supreme Court, allows excessive, coercive and arbitrary intrusion into the dignity of a convict as well as of an individual who may be called in for simple questioning, or who is involved in the pettiest of offences.
He said the Act also have “grave consequences” for every citizen of India as they aid citizen profiling and creation of a surveillance state. “These provisions constitute a clear attack on ‘personal liberty’ and clearly fall foul of Article 21 of the Constitution and are thus liable to be struck down,” he said.
The High Court will hear the case again on November 15.
