"The dreaded thanedar v/s empowerment of police" debate

• The Criminal Procedure (Identification) Bill, 2022, was passed by both Houses of Parliament this week, amid heated protests by the Opposition.
• Introduced by the government on March 28, it cleared the Lok Sabha on April 4 and the Rajya Sabha on April 6.
• The government turned down demands that the Bill be referred to a Standing Committee for consideration.

Key Highlights:

• The Bill seeks to widen the scope of the existing law — The Identification of Prisoners Act, 1920 under which “measurements” of only “finger impressions” and “footprint impressions” are allowed.
• It authorises the police to take “measurements” to tag those who have been convicted, arrested or detained . * Section 2(1)(b) - defines “measurements” to include finger impressions, palm-print impressions, footprint impressions, photographs, iris and retina scans, physical and biological samples and their analysis, behavioural attributes including signatures and handwriting, or any other examination referred to in Section 53 or Section 53A of the Code of Criminal Procedure (CrPC), 1973. * Section 53 - medical examination of a person arrested.

Punishment:

• It also does away with the condition of an offence being punishable by at least one year or more of imprisonment for “measurements” to be taken.
• It only grants an exemption in the form of mandatory consent for “biological samples”, except in cases where the accused is arrested for sexual abuse of women and children or for an offence carrying a minimum punishment of seven years.

Scope:

• It expands the “ambit of persons” it seeks to cover. It proposes that the law apply to three categories of individuals:
  • Those convicted of an offence punishable under any law for the time being in force.
  • Those ordered to give security for good behaviour or maintaining peace under Section 117 of the CrPC for a proceeding under Section 107, 108, 109 or 110 of the Code. These are provisions involving “suspected criminals” or “habitual offenders” with a view to preventing crime.
  • Those arrested in connection with an offence punishable under any law in force or detained under any preventive detention law. This would include the National Security Act or the Public Safety Act.

Storage of data:

• The Bill authorised officers in charge of police stations or those not below Head Constable rank to take the “measurements” — records of these measurements shall be retained for 75 years from the date of collection.
• The present law covers officers in charge of stations, those conducting an investigation, or others not below the rank of Sub-Inspector.
• The National Crime Records Bureau (NCRB) will be the repository of physical and biological samples, signature and handwriting data .

Issues / Concerns

Ambiguous Provisions:

• The phrase ‘biological samples’ is not described further, hence, it could involve bodily invasions such as drawing of blood and hair, collection of DNA samples.
• These acts currently require the written sanction of a magistrate.

Against Right to Privacy:

• It also undermines the right to privacy of not only persons convicted of crime but also every ordinary Indian citizen.
• The Bill proposes to collect samples even from protestors engaged in political protests.

Violation of Article 20:

• Apprehensions have been raised that the Bill enabled coercive drawing of samples and possibly involved a violation of Article 20(3), which protects the right against self-incrimination.
• The Bill implied use of force in collection of biological information, could also lead to narco analysis and brain mapping.

Handling Data:

• It allows the records to be preserved for 75 years, the other concerns include the means by which the data collected will be preserved, shared, disseminated, and destroyed.

Unawareness among Detainees:

• Although the bill provides that an arrested person (not accused of an offence against a woman or a child) may refuse the taking of samples, not all detainees may know that they can indeed decline to let biological samples be taken.
• And it may be easy for the police to ignore such refusal and later claim that they did get the detainee’s consent.

Way Forward

Ensuring Data Protection:

• The concern over privacy and the safety of the data is undoubtedly significant. Such practices that involve the collection, storage and destruction of vital details of a personal nature ought to be introduced only after a strong data protection law, with stringent punishment for breaches, is in place.
• Any encroachment on personal space must pass the test of constitutionality as laid down by the Supreme Court.

Parliament Scrutiny:

• The Bill was neither put up for pre-legislative consultation nor indicated in the session’s legislative agenda in Parliament.
• However, it would be in the fitness of things if the bill is referred to a Standing Committee for deeper scrutiny before it is enacted into law.

Better Implementation:

• Depriving law enforcement agencies of the use of the latest technologies would be a grave disservice to victims of crimes, and the nation at large. * Besides better scrutiny and data protection law, measures need to be taken for better implementation of the law as well.
• The need is to have more experts to collect measurements from the scene of crime, more forensic labs, and equipment to analyse them to identify possible accused involved in a criminal case.
• The training of the investigation officers, prosecutors, judicial officers and collaboration with doctors and forensic experts need to be prioritised too.

Conclusion:

• Government must “very seriously” consider whether it is in the “legislative competence of the Treasury” to sponsor legislation that affects fundamental rights and whether the House should take up “such illegal legislation”

Exam track

Prelims Takeaway

• Major provisions of the bill
• Section 2(1)(b), Section 53 A
• National Security Act or the Public Safety Act.

Mains track

Q. The passing of Criminal Procedure(Identification) Bill, 2022 has ignited the debate over “dreaded thanedar vs empowerment of police”. Comment.