Interrogating the Criminal Procedure (Identification) Bill and its Major Implications

The Criminal Procedure (Identification) Bill, 2022 which was recently introduced in the Lok Sabha has sparked a major debate concerning the potential implications of this law. Armed by this proposed piece of legislation the police and prison authorities would be empowered to collect, store and analyze a plethora of physical and biological samples including retina and iris scans. Any kind of resistance or refusal to give measurements under this law would warrant the invocation of section 186 of the Indian Penal Code (IPC). It is also important to note that these provisions would also be applicable to any person held under any preventive detention law. The proposed legislation also empowers authorities to take measurements of ‘other persons’ for the expeditious identification and investigation in criminal cases. However, it does not define the ‘other persons’ which implies its reach beyond convicts, arrested persons or detainees.

Under this bill police personnel up to the rank of Head Constable have been empowered to record these myriad measurements. The National Crime Records Bureau (NCRB) is to function as the nodal repository of these physical and biological samples alongside signature and handwriting data which can be preserved for a maximum of 75 years. The proposed legislation also empowers the NCRB to share these records with other law enforcement agencies. This bill is a part of a broader project undertaken by the government named Crime and Criminal Tracking Network and Systems (CCTNS) to create an integrated and comprehensive database to spearhead effective policing through e-Governance. The Home Ministry is also working towards the expeditious integration of the fingerprint database of the Central Finger Print Bureau (CFPB). It is also making use of the technology named NIFS Fingerprint Imaging Software which is used by the Federal Bureau of Investigation (FBI) for the purpose of matching fingerprints.

Under the existing law the Identification of Prisoner’s Act which dates back to 1920 only the fingerprint and footprint samples pertaining to a limited category of convicts is allowed to be taken. It has been argued that while seeking to make use of modern techniques and by expanding the ‘ambit of persons’ whose measurements can be taken the bill will help investigating agencies to gather sufficient legally admissible evidence. As a corollary it will provide speed and efficiency to the investigation of criminal cases which in turn would help in increasing the conviction rate.

However, opposition parties, academics, legal professionals as well as several non-governmental organizations have flagged several concerns regarding the potential implications of this bill which are as follows-

Firstly, the scientific community has put forth a major concern regarding the foundational validity and value of many of these measurements alongside the glaring inadequacy of legal standards which are there to asses them. For instance, there is no universal scientific criterion for attributing uniqueness to handwriting samples which also happens to be one of the major measurements covered under this bill. There is also a glaring need of augmenting capacity building and training exercises for individuals who would be collecting the measurements. Currently, there are no standardized norms for collection purposes which leaves the question of ‘quality management’ undefined. Another major concern lies in the fact that the bill does not prescribe any limitation on the use of such data. The term ‘analysis’ also remains undefined which raises several concerns regarding the misuse of biological samples in particular.

Secondly, the bill also fails the test of legislative competence since it is inimical to the Fundamental Rights enshrined in Article 14 (Right to Equality), Article 20(3) (Right against Self-incrimination) as well as Article 21 (Right to Privacy) as enshrined in the Indian Constitution. Many scholars have pointed out that this bill represents an excessive delegation of legislative authority to rule-making bodies as also excessive delegation of powers to the functionaries. It also seeks to create an unreasonable classification among various classes of arrestees who are compelled to give biological samples and those who are not. Various other provisions as are present in this bill fails to provide any adequate determining principle at all which forebears grave consequences of manifest arbitrariness.

There also remains a major ambiguity with reference to the overbreadth as is present in the definition of ‘measurements.’ The inclusion of ‘behavioral attributes’ under this broad definition raises the prospect of recording measurements of a testimonial nature. Many legal professionals have also pointed out that this bill fails to uphold the fourfold criterion of the doctrine of proportionality as laid down in Justice K.S. Puttaswamy v. Union of India. It states that administrative action should not be more drastic in its orientation than it ought to be for securing the desired outcome. Thus, this bill fails to strike a balance between the means and ends of legislation. It must be remembered in this instance that the DNA Technology (Use and Application) Regulation Bill, 2019 or the ‘DNA Bill’ which was introduced in 2019 and is currently pending discussion in the Parliament also raises a plethora of such constitutional and procedural concerns. However, according to many scholars despite its many setbacks the bill still provides multiple safeguards which remain completely absent in the present piece of legislation.

In conclusion it must be reiterated that despite several progressive aims as avowed in this bill there is an emergent need to rectify some of its most glaring concerns. Making use of emerging technological solutions to spearhead governance is the need of the hour. But the prior experience of such retrograde pieces of legislation like Section 120B (criminal conspiracy) and Section 124A (Sedition) makes such novel endeavors truly suspect. Taking cognizance of the presence of a plethora of central investigative agencies with regards to a particular case which leads to the manipulation of evidence and framing of innocents the Chief Justice of India N.V. Ramana has rightly pointed out the need to establish an umbrella body to oversee the activities of these investigative bodies. Adding a piece of vaguely defined legislation to this existing confusion will further problematize the situation. Carrying forth the legacy of colonial criminal jurisprudence individuals belonging to certain marginalized communities still continue to be labelled as ‘habitual offenders’ who need to make their presence felt at periodic intervals at the local police stations alongside the mandatory seeding of their Aadhar details.

The problems of overreliance on Artificial Intelligence (AI) for the purposes of effective policing is widely evident. In many of these applications pre-set algorithms tend to disproportionately target members of economically impoverished and immigrant communities. In New York for instance an AI-based application which was meant to check the menace of illegal parking was found to disproportionately target Blacks and Hispanics for instance.  As is the case with the Personal Data Protection Bill (2019) or the Digital Media Ethics Code (2021) this tussle between the government entering new areas of legislation as also executive accountability will be a defining feature of the governance paradigm pertaining to the 21^st century. However, amidst all this confusion the words of Michel Foucault ring true. Power itself is neutral but it takes upon either destructive or constructive implications based on its actual implementation.

Debayan Ghatak

(The author has interned with Asia in Global Affairs.)

The views, thoughts, and opinions expressed in the text belong solely to the author, in his personal capacity. It does not reflect the policies and perspectives of Asia in Global Affairs.

References

1. Vijaita Singh, “How does the new Criminal Procedure (Identification) Bill, 2022 propose to collect sensitive data?”, The Hindu, April 3, 2022, https://www.thehindu.com/news/national/explained-how-does-the-new-criminal-procedure-identification-bill-2022-propose-to-collect-sensitive-data/article65284506.ece
2. Apurva Vishwanath, “Why govt wants to collect bio samples for crime files, and concerns it raises,” The Indian Express, March 30, 2022, https://indianexpress.com/article/explained/explained-bio-samples-for-crime-files-7841719/