This blog is created by Shivani Sehrawat, A 2nd year law student at Faculty of Law, University of Delhi.
INTRODUCTION
The Criminal Procedure (Identification) Act, 2022 authorizes the collection of certain individuals for taking measurements of convicts and other persons for investigative and identification purposes in criminal matters and for preserving records of the collected information.
LEGISLATIVE HISTORY
The Act was introduced as the Criminal Procedure (Identification) Bill, 2022 in the House of the People/ Lok Sabha on March 28, 2022 by the Ministry of Home Affairs and passed by both the Houses on April 4, 2022 and April 6, 2022, respectively. The Bill received Presidential assent on April 18, 2022 and came into force on August 4, 2022.
- PREVIOUS ENACTMENT – The Identification of Prisoners Act, 1920 was the previous enactment which provided legal authority to Police Officers to take finger impressions, footprint impressions and photographs of convicts and other persons in criminal matters. Though the act was an advancement of its time yet with the passage of time it started proving futile to accommodate the changing dynamics of the investigation procedures which was noted in various judicial decisions and committee reports.
- COMMITTEE REPORTS – The 87th Law Commission Report on The Identification of Prisoners Act, 1920 headed by Justice P.V. Dixit was the first of its kind which provided that the Act needs to be revised to make it corresponding to the modern trend of criminal investigation as there has been an immense advancement in the technology which provides for scientific use of different types of biological evidence in the detection and prevention of crimes. Therefore, advanced and developed mechanisms should be provided to the investigative agencies to make them work more effectively.
Similarly, The Committee on Reforms of the Judicial System headed by Dr. Justice V. S. Malimath also suggested in its landmark report of 2003 that more powers should be given to authorities for collection of biological samples.
These reports and recommendations came specifically after the judgment of the Supreme Court in the State of U.P. v. Ram Babu Misra[1], that the law should be amended to enhance the powers of the Magistrate for giving orders to accused for providing evidence to speed up the investigative procedure. Also, these reports not only made suggestions in regard to expanding the scope of measurements and powers of investigative agencies but also strongly recommended that safeguards against the powers of authorities should be added as well to ensure the correct use of powers given for definite purposes and protection of constitutional guarantees.
Thus, it is evident that there was a need for amending the colonial law to make it suitable for the present conditions of the independent and modern India of the 21st century. Consequently, the new Act[2] was enacted in 2022 which repealed the 102 years old law.
OBJECT OF THE ACT
The Act seeks to authorise numerous designated persons for taking measurements of convicts and other persons for the purposes of identification and investigation in criminal matters and to preserve the records of the same in a central database.
PROVISIONS OF THE ACT
- PERSONS WHOSE MEASUREMENTS CAN BE TAKEN – According to Section 3 of the Act, the following persons shall be required to give their measurements –
- A person convicted of an offence punishable under any law for the time being in force.
- A person who has been ordered to give security for his good behaviour or maintaining peace under Section 117 of the Code of Criminal Procedure, 1973 for a proceeding under Sections 107, 108, 109 and 110 of the Code.
- A person who has been arrested in connection with an offence punishable under any law for the time being in force.
- A person who has been detained under any preventive detention law.
Exception – A person who has been arrested for an offence committed under any law for the time being in force may refuse to give his biological samples but the offence must not be committed against a woman or child or punishable with imprisonment for a period of not less than seven years.
- MEASUREMENTS TO BE TAKEN – According to the definition of measurements as given in Section 2(1)(b) of the Act, following samples of the person can be taken –
- Finger-impressions.
- Palm-print impressions.
- Foot-print impressions.
- Photographs.
- Iris and Retina Scan.
- Physical and Biological Samples and their analysis which includes blood, blood stains, semen, swabs, sputum and sweat, hair samples and fingernail clippings.
- Behavioural Attributes including Signatures and handwriting.
- And any relevant or important examination that need to be taken which is referred in Section 53[3] and 53A[4].
- PERSONS AUTHORISED TO TAKE MEASUREMENTS – According to Section 3 of the Act, these persons are authorised to collect the samples –
- A Police Officer who is either the Officer-in-charge of a Police Station or an Officer not below the rank of Head Constable.
- Prison Officer who is an Officer of a Prison but must not be below the rank of Head Warder.
- PROCEDURE FOR TAKING MEASUREMENTS – As per the provisions of the Act and the Criminal Procedure (Identification) Rules, 2022 a person who has been required to give his or her measurements under the Act must allow the authorised person to take such samples in accordance with the Standard Operating Procedures issued by the National Crime Records Bureau.
Rule 3 provides that the measurements can be taken either by the Police or Prison Officer themselves or by a person skilled in taking measurements or a registered medical practitioner or any other authorised person.
- RESISTANCE OR REFUSAL TO TAKING OF MEASUREMENTS – According to Section 6 of the Act if any person who has been called to make the measurements under the Act resists or refuses to allow taking of such measurements, then it shall be considered as an offence[5] l.
Rule 4 of the Rules, 2022 provides that the authorised person shall use such force as is reasonably necessary for taking such measurements.
Additionally, according to Section 6(2) any kind of resistance or refusal would be an offence punishable with three month imprisonment and fine under Section 186 of the Indian Penal Code, 1860.
- COLLECTION, PRESERVATION AND DISPOSAL OF RECORDED DATA – According to Section 4 of the Act it would be the duty of the National Crime Records Bureau to collect, process and disseminate the data recorded under this Act in digital or electronic from in the interest of prevention, detection, investigation and prosecution of any offence under any law for the time being in force for a period of 75 years from the date of retention.
Although it further provides that records of measurements taken of a person according to the provisions of the Act can be destroyed if the person has not been previously convicted of an offence punishable under any law and released without trial or discharged or acquitted by the Court after exhausting all legal remedies. However, a Court or Magistrate may direct the retention of details in such cases after recording reasons in writings.
DIFFERENTIATION BETWEEN THE ACTS OF 1920 & 2022
| S. NO. | THE IDENTIFICATION OF PRISONERS ACT, 1920 | THE CRIMINAL PROCEDURE IDENTIFICATION ACT, 2022 |
| Persons whose data may be collected only included those persons who were either convicted or arrested for offences punishable with rigorous imprisonment of one year or more. | Persons whose data may be collected includes all those persons who are either convicted or arrested under any law for the time being in force or detained under any preventive detention law. | |
| The Data that was permitted to be collected only included Fingerprints, Foot-prints impressions and Photographs. | The Data that is required to be collected includes Finger-impressions, Palm-print impressions, Foot-print impressions, Photographs, Iris and Retina Scan, Physical and Biological Samples and their analysis which includes blood, blood stains, semen, swabs, sputum and sweat, hair samples and fingernail clippings, and Behavioural Attributes including Signatures and handwriting. | |
| The officer who was empowered to take the measurements was only a Police Officer which meant an Officer-in-charge of a Police Station, Investigative Police Officer under Chapter XIV of the CrPC, 1973 or any other Police Officer not below the rank of Sub-Inspector. | The Officers who are authorised to collect the measurements includes a Police Officer who is either the Officer-in-charge of a Police Station or an Officer not below the rank of Head Constable and a Prison Officer who is an Officer of a Prison but must not be below the rank of Head Warder. | |
| The Magistrate from any class or category could have passed orders directing a person to allow taking of his or her measurements. | The Magistrate can either be a Metropolitan Magistrate or a Judicial Magistrate of first class and an Executive Magistrate in cases of persons required to give security for good behaviour and maintaining peace, to pass an order directing a person to allow taking of his or her measurements. |
NEED & SIGNIFICANCE OF THE ACT
It is evident from the bare provisions and comparison with the old legislation that the new statute has brought a drastic change in the criminal jurisprudence as the Act not only widely expands the ambit of investigation procedure but also increases the powers of the investigative machinery in criminal matters. And this kind of development cannot be termed as extraordinary because the advancement and innovation in technology has been extensively prevalent in the last couple of decades across the world which makes it necessary to be used in the judicial systems so that the criminal system works efficiently in the public interest and especially when the technological and scientific innovations has been used by the offenders to halt the system and escape punishments. Thus, the addition of technological and scientific methods to investigate and detect crimes to increase the conviction rate is an achievement and necessity in itself.
State of UP v Hari Charan Kumari (2007)[6], the case laid down guidelines for the admissibility of identification evidence, including the requirement that the identification procedure should be fair, impartial and reliable.Similarly, by enlarging the definition of measurements and amplifying the categories of persons who are required to give measurements, the Act basically provides ease to all the people involved in a particular matter to work collectively and effectively so that a balance between the conflicting interests of the society at one hand and the accused on the other hand can be achieved. Otherwise, there would be no end either of litigation or of investigation, as evidence is the most essential aspect in criminal matters to establish both the guilt and innocence of the accused. Therefore, collection of biological, physical and behavioural measurements is necessary to conclude the investigation and trial. Likewise, to resolve the cases of arrests and other matters expeditiously, the collection of required samples of persons arrested and detained is also necessary.
State of Maharashtra V. Suresh (2000)[7] SC held that the identification of the accused by the eyewitness must be based on his/her memory and not influenced by any external factors. The court also emphasized the importance of prompt and accurate identification procedures in criminal investigation.
Further, the processing of the data recorded under the Act in a central database would be a revolution not only for the present times but also for the upcoming generations as it would be a critical and crucial source of information which would help tremendously in speeding the investigation, concluding the trials fairly and assisting the authorities in making limited arrests. Thus, the collection, storage and sharing of the information and records by and among the law enforcement authorities would be a cumulative development for the entire law and order machinery.
Zahira Habibullah Sheikh and Anr v. State of Gujarat and Ors. (2004)[8], the SC criticised the use of unreliable identification evidence and emphasised the need for proper safeguards to prevent mistaken identification.
Overall, the Criminal Procedure (Identification) Act represents an important step towards enhancing the accuracy and reliability of identification evidence in criminal proceedings and is expected to improve the overall efficiency and effectiveness of the Indian Criminal Justice System. Henceforth, the Act is a necessary development of the present IT driven world and criminal justice system of the country as it provides hope to the people in the democratic values and remarks deterrence to the offenders against the consequences.
CRITICISM & LIMITATIONS OF THE ACT
The Act was in demand for a long period of time and has the power to influence each and every section of the society therefore when it was introduced it received a lot of attention across the country which simultaneously led to its severe appreciation and backlash as well. Thus, there is a need to consider the Act from a critical perspective to ensure that the object for which it was enacted does not become obsolete because of its flaws. Therefore, constructive criticism is necessary to strike a balance between the conflicting interests for securing larger public interest.
- VIOLATION OF RIGHT TO PRIVACY – K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. (2017)[9] In this landmark case, the Supreme Court of India recognized the right to privacy as a fundamental right under the Indian Constitution. The court held that privacy is an integral part of personal liberty and dignity, and that any infringement of privacy must be narrowly tailored and proportionate to a legitimate state interest. While the court did not specifically address the Criminal Procedure (Identification of Prisoners) Act,2020 in this case, it did note that the collection and use of personal data must be done in a manner that is consistent with the right to privacy, and that any infringement of privacy must be subject to appropriate safeguards and limitations.
- The very first argument of critics is that the Act violates the privacy and dignity of the person whose measurements are taken under its provisions as it permits collection of certain identifiable information about individuals which contains personal data and that is protected under the Right to Privacy of individuals within the ambit of Article 21 of the Constitution of India.
Although, the arguments of the critics cannot stand as the Supreme Court itself provided the three fold test in its landmark judgment wherein the Right to Privacy was recognized that if a law seeks to restrict the right in any way then it can be constitutionally valid only if it has a public purpose, a rational nexus between the object and the need of the law, and the means used to achieve the said purpose should be the least intrusive way to do so. It means that infringement of privacy must be necessary for and proportionate to the object for which it is violated. Thereby, the present act stands on constitutional validity as it has a public purpose which needs to be achieved for securing the life, dignity and property of the masses at large and that can only be done by providing justice to the victim and punishment to the culprit which requires effective and speedy investigation and trial procedure. Henceforth, privacy of an individual can be infringed to protect the privacy, dignity and life of others.
- VIOLATION OF RIGHT TO EQUALITY – The second and most prominent critic of all times is that the Act violates the Right to Equality of persons who are required to give measurements under its provisions as the data would be collected equally from convicted, arrested and any other person to aid the investigation, thus, it treats different types of people equally without any fair and reasonable classification between them which is protected under Article 14 of the Constitution of India.
- VIOLATION OF RIGHT AGAINST SELF INCRIMINATION – The Act requires the persons to allow taking of their measurements which means that they are providing the evidences or proofs against themselves which is violative of the Right against Self Incrimination as enshrined in Article 20(3) of the Constitution of India. Thus, when the Constitution of the Country itself protects the accused person from giving any kind of evidence against himself or herself then the law should not make any contradiction to this notion an offence because the Act makes any kind of refusal or resistance to taking of measurements a punishable offence.
Though the argument that a person is becoming a witness against himself cannot stand as the person is not incriminating himself or herself rather just complying with the provisions of a statute by merely undergoing an examination as held by the apex court in Anil A. Lokhande v. State of Maharashtra[10].
- VIOLATION OF RIGHT TO LIFE AND PERSONAL LIBERTY – Every person in India has a Right to Life and Personal Liberty which includes protection of bodily integrity and autonomy and it extends to prisoners, under trails, detainees, arrested and convicted persons as well therefore use of force for taking measurements is violative of their right as secured under Article 21 of the Constitution. Also, use of coercive techniques would be contrary to fair trial which is an essential aspect of this right and an extremely crucial factor for an accused. And further use of such permitted force as reasonably necessary for the purpose of taking measurements might lead to narco-analysis and brain mapping which would be a blunt violation of all the constitutional guarantees.
- INCREASE IN THE POWERS OF AUTHORITIES – The Act empowers the Magistrate to order any person to give his measurements for the purpose of any investigation or proceedings under the Code of Criminal Procedure, 1973 or any other law for the time being. This type of unrestricted power has the potential to be abused arbitrarily as there is no safeguard against it such as the Magistrate is not even required to record his reasons for making the order. Similarly, the Magistrate can order any person no matter whether he or she has any connection with the investigation or not.
Correspondingly, the Act has lowered the level of the Police Officers who may take the measurements from Sub-Inspector to Head Constable and also allows the Head Warder of a prison to take the measurements.
Further, the Act has given the power of describing further procedures and rules without any guidelines on how it should be exercised to the governments which is arbitrary and excessive in nature.
- RETENTION OF DATA FOR A LIFETIME – The Act provides that if data has been collected under its provisions, then it needs to be processed and stored for 75 years which is almost a lifetime of a person. And even if the person is acquitted or discharged then as well the records of his measurements would be kept in the system during the entire duration of his or her case. Further, the Act also makes any kind of refusal or resistance to taking of measurements by an authorised person an offence. Both these provisions create a problematic situation because if a person who have been detained or arrested requires to give measurements under this Act and resists or refuses then even if he or she is acquitted or discharged from the original case, their data would be stored for 75 years if they are found guilty under Section 186 of the Indian Penal Code, 1860.
- PROCESSING AND SECURITY OF THE DATA – There is a long list of measurements which are taken under the Act but it does not provide any specification, henceforth, there is no connection between the measurements taken and evidence required. Further, the Act casts a huge responsibility on the National Crime Record Bureau to collect, store and share the data with other law enforcement agencies in the country in the absence of any strong data protection mechanism in the country. Therefore, it is going to be a substantial issue of data security as the information is collected on a national level which might endanger the national security of the country.
CONCLUDING REMARKS
The Criminal Procedure (Identification) Act, 2022 is a crucial and progressive legislation in the criminal jurisprudence of the country as it provides for all those mechanisms, powers, methods and techniques which are necessary for the effective functioning of the criminal machinery of the state to achieve the ends of justice. The Act seeks to strike a balance between the conflicting interests of the society at large on the one hand which demands speedy investigation and high rate of conviction and individual liberty on the other hand which requires respect of bodily integrity, privacy and autonomy of the accused person during investigation and trial so this his or her right of fair trial is not affected because it is the duty of the state to ensure that its agencies does not conflict with each other and work collectively to maintain harmony in the society.
On the one hand, the act provides law enforcement authorities with modern and effective tools to identify suspects and solve crimes, which can lead to faster and more efficient investigation and prosecution of criminal cases. This can help in maintaining law and order, improving public safety, and deterring criminal activities.
On the other hand, the act also raises concerns about potential violations of individual rights, such as the right to privacy and bodily integrity. There is a need to ensure that the collection and retention of identification evidence by law enforcement authorities are done in a transparent and accountable manner, with adequate safeguards to prevent abuse or misuse of such information.
Therefore, a balanced approach would require striking a delicate balance between the need for law enforcement authorities to investigate and prosecute crimes, and the protection of individual rights and liberties. This can be achieved by incorporating adequate safeguards, such as judicial oversight, data protection regulations, and strict rules for the collection and use of identification evidence, to prevent abuse and protect the rights of the accused.
[1] 1980 AIR 791
[2] The Criminal Procedure (Identification) Act, 2022
[3] The Code of Criminal Procedure, 1973
[4] ibid.
[5] Section 40 of Indian Penal Code, 1860
[6] 9 SCC 106
[7] 1 SCC 471
[8] 4 SCC 158
[9] 10 SCC 1
[10] 1981 CriLJ 125
