Apprehensions about Criminal Procedure (Identification) Act

• The Criminal Procedure (Identification) Act, 2022 is criticized as unconstitutional and may be subject to misuse.
• The Act seeks to repeal the Identification of Prisoners Act (IPA) of 1920, whose scope was limited to recording measurements which include finger impressions and footprint impressions of certain convicts and non-convict persons.

Provisions of the Bill

• Collection of Samples: It would allow the police and prison authorities to collect, store and analyse physical and biological samples, including retina and iris scans.
  • Resistance to or refusal to allow the taking of measurements under this Act shall be deemed to be an offence under section 186 of the Indian Penal Code.
  • It will also seek to apply these provisions to persons held under any preventive detention law.
  • It also authorises taking measurements of convicts and "other persons" for identification and investigation in criminal matters.
  • It doesn't define the "other persons" implying its ambit beyond convicts, arrested persons, or detainees.
• Power to Record Measurement: Police personnel up to the rank of Head Constable have been authorised to record the measurements.
  • The National Crime Records Bureau (NCRB) will be the repository of physical and biological samples, signature and handwriting data that can be preserved for at least 75 years.
  • NCRB has also been empowered to share the records with any other law enforcement agency.

Broader scope

• While the scope of the ‘measurements’ in the IPA was limited, the Act now includes physical measurements such as finger impressions, palm prints, footprint impressions, photographs, iris and retina scans; biological samples and their analysis; and behavioural attributes including signatures, handwriting; or any other examination referred to in Sections 53 or 53A of the Code of Criminal Procedure (CrPC), 1973.
• It is evident that enlarged scope of ‘measurements’ in the Act is a merger of the scope of ‘measurements’ in the IPA and provisions of the CrPC , with the addition of modern techniques of identification such as an iris and retina scan.
• Thus, the Act does not empower the enforcement agencies additionally but only explicitly provides for various measurements and includes the use of the latest scientific techniques.
• Code of Criminal Procedure, 1898, did not have the provision for medical examination of the accused.
• The Law Commission, in its 41st Report (1969), considered the necessity of physical examination of the arrested person for an effective investigation, without offending Article 20(3) of the Constitution.
• The recommendation was included in the CrPC (of 1973), as Section 53.
• Later, an amendment was made in the CrPC and an Explanation of ‘examination’ was added to Section 53 to provide legal backing to materials/biological samples on which the medical examination could be conducted.
• Similarly, Section 311A was added to facilitate providing a specimen signature or handwriting during investigation.

A settled constitutionality

• As early as 1961, SC in State of Bombay vs Kathi Kalu held that the person in custody giving his specimen handwriting or signature or impression of his thumb, finger, palm or foot, to the investigating officer, cannot be included in the expression “to be a witness” under Articles 20(3) of the Constitution.
• Similarly, it has been held that taking a blood sample for the purpose of a DNA test, taking a hair sample or voice sample will not amount to compelling an accused to become a witness against himself, as such samples by themselves are innocuous and do not convey information within personal knowledge of the accused.
• Thus, the constitutionality of collecting biological samples or other measurements for facilitating investigation has been settled for long.
• The only exceptions are scientific techniques, namely narcoanalysis, polygraphy and brain fingerprinting which the SC in Selvi vs State of Karnataka (2010) held to be testimonial compulsions (if conducted without consent), and thus prohibited under Article 20(3) of the Constitution.
• These tests do not fall under the scope of expression “such other tests” in Explanation of Section 53 of the CrPC. The Court also laid down certain guidelines for these tests.
• Since the Act does not lay down any specific scientific tests for the analysis of biological samples or otherwise, taking any sample or measurements for the sake of identification or comparison would not automatically violate any constitutional provision.
• The validity of any new scientific technique, to be applied in future, would need to be tested on the touchstone of permissible restrictions on fundamental rights.

No harm is likely

• Most offences punishable with imprisonment of up to one year are non-cognisable.
• Otherwise in a simple cognisable offence, though arrest may become necessary to clear the road and prevent a continuing offence, no biological samples would be required normally to facilitate investigation.
• Only physical measurements would be sufficient to record identity.
• Further, not only has the amended Section 41(1) of the CrPC put limitations on arrest in cognisable offences punishable with imprisonment up to seven years, but the Act also makes a non-obligatory provision for giving biological samples in such cases.
• Thus, by expanding the scope of measurements, no harm is likely to be done to an individual's privacy.

Records of juveniles

• Though the Act does not explicitly bar taking measurements of juveniles, the provisions of the (Special Act) Juvenile Justice Act, 2015 regarding destruction of records of conviction under the Act, shall apply.
• Since no disqualification can be attached to a conviction of an offence by a juvenile, no measurement (if taken) can be used for any future reference.
• The legislature has purposefully avoided the word “arrest” in the entire Juvenile Justice Act.
• A first information report is to be written only in heinous cases (offences punishable with imprisonment for seven years or more).
• In all other cases, delinquent juveniles are produced before the Juvenile Justice Board along with a general daily diary report and social background report.
• The power to apprehend is to be exercised only regarding heinous offences unless it is in the best interest of the child.
• However, it would have been prudent to add a provision in the Act for juveniles for clarity and allay any doubts.
• Similarly, since the records of juveniles are required to be erased, the period of storage of measurements of adults could have been conveniently reduced by 10 years, as the probability of committing a crime by any person after the age of 80 years is negligible.
• The Crime in India – 2020 statistics published by the National Crime Records Bureau (NCRB) show that the number of arrested persons over 60 years of age is less than 1.5%.

Records of the crime

• The Act does not mandate the compulsory recording of all measurements for all types of offences. The measurements shall be taken ‘if so required and as may be prescribed by governments.
• The purpose is to help the enforcement agencies in the prevention and detection of crime. The NCRB will store, process, and preserve whatever data is collected by the States and Union Territories.
• The Crime and Criminal Tracking Network & Systems (CCTNS) data have only helped enforcement agencies across States in matching missing persons with found persons and unidentified bodies, matching lost/stolen mobile phones and vehicles with the recovered ones, tracking habitual criminals and inter-State gangs, etc.
• The biological sample of an accused person is required during investigation for comparison with seized body fluids and blood from the scene of crime to establish linkage.
• Signature and handwriting specimens are taken for comparison with those on disputed or forged documents.
• Similarly, since fingerprints are unique in nature, latent chance finger impressions lifted from the scene of crime are admitted as clinching evidence in a court of law to establish the presence of the accused.

Significance of the Bill

• Making Use of Modern Techniques: The bill makes provisions for the use of modern techniques to capture and record appropriate body measurements.
• The existing law — the Identification of Prisoners Act — dated back to 1920 and allowed taking only fingerprint and footprint impressions of a limited category of convicted persons.
• Help Investing Agencies: The Bill seeks to expand the ‘‘ambit of persons’’ whose measurements can be taken as this will help the investigating agencies to gather sufficient legally admissible evidence and establish the crime of the accused person.
• Make the Investigation of Crime More Efficient: The bill provides legal sanction for taking appropriate body measurements of persons who are required to give such measurements and will make the investigation of crime more efficient and expeditious and will also help in increasing the conviction rate.

Exam Track

Prelims Takeaway

• Highlights of the act
• National Crime Records Bureau (NCRB)
• Preventive detention law
• Data protection law

Mains Track

Q. The recent Criminal Procedure (Identification) Act, 2022 may lead to a wide misuse of narco analysis and brain mapping. Critically comment.