The story so far: The Criminal Procedure (Identification) Act, 2022 provides legal sanction to law enforcement agencies for “taking measurements of convicts and other persons for the purposes of identification and investigation of criminal matters”. While the legislation was enacted earlier this year, the Ministry of Home Affairs notified it to come into effect from August 4, 2022. It also repeals the existing Identification of Prisoners Act, 1920.
What is the use of identification details in criminal trials?
Measurements and photographs for identification have three main purposes. First, to establish the identity of the culprit against the person being arrested, second, to identify suspected repetition of similar offences by the same person and third, to establish a previous conviction.
What was the previous Identification of Prisoners Act, 1920?
Even though the police has powers of arrest, mere arrest does not give them the right to search a person. The police requires legal sanction to search the person and collect evidence. These legal sanctions are designed so as to maintain a balance between the rights of an individual and the interests of society in prosecution and prevention of offences.
The Identification of Prisoners Act, 1920 became a necessity when the recording of newer forms of evidence such as fingerprints, footprints and measurements started becoming more accurate and reliable.
The Statement of Objectives and Reasons of the Identification of Prisoners Act, 1920 states that “the value of the scientific use of finger impressions and photographs as agents in the detection of crime and identification of criminals is well known”. It further goes on to state that although lack of legal sanction has not created problems before, there were increasing instances of prisoners refusing to allow their fingerprints or photographs to be recorded. Therefore, “to prevent such refusals in the future …[and] to place the taking of measurements etc which is a normal incident of police work in India, as elsewhere, on a regular footing” it was considered necessary to enact the Identification of Prisoners Act, 1920.
What was the need to replace this Act?
Over the years, the need to amend/update the Identification of Prisoners Act, 1920 has been voiced several times. In 1980, the 87th Report of the Law Commission of India undertook a review of this legislation and recommended several amendments. This was done in the backdrop of the State of UP vs Ram Babu Misra case, where the Supreme Court had highlighted the need for amending this law. The first set of recommendations laid out the need to amend the Act to expand the scope of measurements to include “palm impressions”, “specimen of signature or writing” and “specimen of voice”. The second set of recommendations raised the need of allowing measurements to be taken for proceedings other than those under the Code of Criminal Procedure (CrPC).
The Law Commission Report also notes that the need for an amendment is reflected by the numerous amendments made to the Act by several States. The Minister of Home Affairs, while laying the Criminal Procedure (Identification) Bill, 2022, in the Lok Sabha, observed that with advancements in forensics, there was a need to recognise more kinds of “measurements” that can be used by law enforcement agencies for investigation.
What are the main highlights and differences in both the legislations?
Like the Identification of Prisoners Act, 1920, the new Criminal Procedure (Identification) Act, 2022 provides for legal sanction to law enforcement agencies for the collection of measurements. The purpose is to create a useable database of these measurements. While at the State level, each State is required to notify an appropriate agency to collect and preserve this database of measurements, at the national level, the National Crime Records Bureau (NCRB) is the designated agency to manage, process, share and disseminate the records collected at the State level.
What are some of the concerns with the present legislation?
Since the Identification of Prisoners Act, 1920 was a colonial legislation, its duplication in the Criminal Procedure (Identification) Act, 2022, a post-independence legislation has raised some concerns related to the protection of fundamental rights.
The legislation comes in the backdrop of the right to privacy being recognised as a fundamental right. A fundamental facet of the right to privacy is protection from the invasion of one’s physical privacy. As per the Puttaswamy judgment, for a privacy intrusive measure to be constitutional, there is a need for the measure to be taken in pursuance of a legitimate aim of the state, be backed by the law and be “necessary and proportionate” to the aim being sought to be achieved. In this case, while the first two tests are satisfied, as “prevention and investigation of crime” is a legitimate aim of the state and “measurements” are being taken under a valid legislation, the satisfaction of the third test of necessity and proportionality has been challenged on multiple counts.
First, while the need for expansion of the “measurements” that can be taken is well justified, the inclusion of derivative data such as “analysis” and “behavioural attributes” have raised concerns that data processing may go beyond recording of core “measurements”. That is some of these measurements could be processed for predictive policing. While this is a legitimate concern, and purposes for which the “measurements” can be processed need to be better defined, merely recording core measurements without conducting the required forensics on them would severely limit the usability of these “measurements”.
Second, unlike the Identification of Prisoners Act, 1920 which provided that “measurements” will be taken for those either convicted or arrested for offences that entail imprisonment of one year or upwards, the current law allows for “measurements” to be taken if a person has been convicted/arrested for any offence, including petty offences. The necessity of taking measurements of such persons for investigation of offences is unclear, and such discretion is likely to result in abuse of the law at lower levels and overburdening of the systems used for collection and storage of these “measurements”. Given that these records will be stored for 75 years from the time of collection, the law has been criticised as being disproportionate.
It needs to be noted here that the new legislation allows that a person who has been arrested for an offence that is punishable by less than seven years of imprisonment, and is not an offence against women and children, “may not be obliged to allow taking of his biological samples”. This is definitely an improvement over the earlier law which did not allow for any such refusal. It also helps allay concerns of disproportionate collection. However, given the option to not submit for “measurements” is limited to biological samples and is available at the discretion of the police officer, this exception provides restricted relief.
Another worry expressed by experts is that such collection can also result in mass surveillance, with the database under this law being combined with other databases such as those of the Crime and Criminal Tracking Network and Systems (CCTNS).
Lastly, concerns are being raised that the present law violates the right against self-incrimination enshrined in Article 20(3) of the Constitution of India. However, this argument is nebulous since the Supreme Court has already settled this point. In the State of Bombay vs Kathi Kalu Oghad, the Supreme Court had conclusively held that “non-communicative” evidence i.e. evidence which does not convey information within the personal knowledge of the accused cannot be understood to be leading to self-incrimination. Therefore, no challenge lies to the law on this ground.
What is the way ahead?
The Opposition has raised objections to a law of such import not being submitted for public consultation or referred to parliamentary standing committees, as was done for the DNA Technology (Use and Application) Regulation Bill, 2019 which has benefited from such scrutiny.
The Central government has responded to the criticisms of the law stating that privacy and data protection related concerns will be addressed in the Rules formulated under the legislation and through model Prison Manuals that States can refer to.
The immediate future of this law is unclear. A writ petition has been filed challenging the constitutionality of the law before the Delhi High Court. The court has issued notice to the Central government for filing a reply.
Trishee Goyal is a research fellow at the Centre for Applied Law and Technology Research, Vidhi Centre for legal policy
The gist:
- The Criminal Procedure (Identification) Act, 2022 provides legal sanction to law enforcement agencies for “taking measurements of convicts and other persons for the purposes of identification and investigation of criminal matters”. It came into effect from August 4.
- Over the years, the need to amend/update the Identification of Prisoners Act, 1920 has been voiced several times. In 1980, the 87th Report of the Law Commission of India undertook a review of this legislation and recommended several amendments.
- One of the main concerns, out of many, is that unlike the Identification of Prisoners Act, 1920, the current law allows for “measurements” to be taken if a person has been convicted/arrested for any offence, including petty offences. The necessity of taking measurements of such persons for investigation of offences is unclear and will probably lead to overburdening of systems used for collection and storage of these “measurements”.
