CRIMINAL PROCEDURE (IDENTIFICATION) ACT 2022 BY - ARCHANA CHARAK
CRIMINAL
PROCEDURE (IDENTIFICATION) ACT 2022
AUTHORED BY
- ARCHANA CHARAK
CRIMINAL PROCEDURE (IDENTIFICATION) ACT 2022
The “Criminal Procedure
(Identification) Act, 2022” grants law enforcement agencies the authority to
take physical and biological samples from convicts and other individuals for
storage and analysis in order to identify and look into criminal offences. “The
Identification of Prisoners Act, 1920, which permitted the police to take
pictures and record fingerprint and footprint imprints, is repealed, giving the
police the legal authority to collect physical and biological samples from
suspects and criminal defendants on an equal basis.”
When the Statute
Commission analysed this statute for its 87th Report in 1980 and provided a
number of reform proposals, it became evident that this law needs to be
revised. The “State of UP v. Ram Babu Misra” case, in which the Supreme Court
emphasised the need to modify this statute, served as background for this
action. “The term ‘measurements’ is defined in Section 2(b) of the said Act.
Sections 53 and 53A of the Code of Criminal Procedure, 1973 list a variety of
measurements as examples, including fingerprints, palm prints, foot prints,
photos, iris and retina scans, physical examinations, biological samples and
analyses, behavioural traits like signatures and handwriting, and any other
examinations.”
The police may collect information
under Sections 53 or 53A of the Code of Criminal Procedure (CrPC), 1973. “Fingerprints,
palm prints, footprints, photographs, iris and retina scans, physical
examinations, biological samples and their analysis, behavioral qualities like
signatures and handwriting, as well as any other sort of assessment, are a few
examples of the data that can be gathered.” The CrPC is the main piece of
legislation that controls how criminal law is applied procedurally.
Any person who is found guilty,
imprisoned, or detained under a preventative detention act is required to
provide ‘measurements’ to a police officer or a prison official. Any law
enforcement agency may access, share, and erase the national record of
measurements with the National Crime Records Bureau (NCRB). It intends to
support investigating authorities in cases and ensure the distinct
identification of people who are involved in crime. The retention period for
records is 75 years.
KEY
FEATURES
The “Criminal Procedure
(Identification) Act, 2022,” gives police officers and prison staff the
authority to ask suspects who have been arrested for a crime or who have been
convicted of a crime for specific identifiable information. Fingerprints,
pictures, iris and retina scans, biological samples and their analysis, and behavioral
characteristics might all be included in this information. “The National Crime
Records Bureau (NCRB) is authorized by the Act to gather, store, process,
communicate, disseminate, and, as may be required by laws, delete records of
measurements from state governments, union territory (UT) administrations, or
other law enforcement authorities.” These specifics are outlined in the
Criminal Procedure (Identification) Rules, 2022. The Ministry of Home Affairs
announced these Rules on September 19, 2022.
The main components of the rules are
as follows:
·
Taking measurements: According to the Act, it may be necessary for all prisoners, those who
have been arrested, and those who are being held as a result of a preventive
detention order to provide their measures. According to the Rules, some
individuals will not have their measures taken until after they have been
charged or detained in relation to another offence. These people include
individuals who are detained under preventive detention under “Section 151 of
the Code of Criminal Procedure, 1973 (CrPC), or who violate prohibitory orders
under Sections 144 or 145 of the Code of Criminal Procedure, 1973 (CrPC).”
·
Persons authorized to take measurements: A prison officer or a police officer
must collect measurements in accordance with the Act. According to the Rules,
these measurements may be taken by any person who is authorized in this regard,
including registered medical professionals, experienced measurement takers, authorized
users, and people with similar qualifications. An authorized user is a police
officer or a correctional official who has been granted access to the database
by the NCRB.
·
Storage of measurement records: The NCRB must publish Standard Operating Procedures (SOPs)
for taking measurements in accordance with the Rules. These SOPs must contain
details on (i) the specifications and format of the measurements to be taken,
(ii) the specifications of the instruments to be used for these measurements,
and (iii) the handling and storage procedures. The SOPs may additionally
outline (i) the process for converting each measurement to a digital format
before uploading it to the database and (ii) the method for encrypting the
data.
·
Sharing of records: In order to check whether a person's measurement record matches, an authorized
user will submit the request to NCRB. Before providing the authorized user with
a report, NCRB will use the record to look for matches across a secure network.
The SOPs will contain guidance on how to match and process the records.
·
According to the Act, unless the
Magistrate or court determines otherwise, records will be erased when people: (i) have not previously been
convicted (of an offence with imprisonment), and (ii) are released without
trial, discharged, or acquitted by the court. The NCRB will properly dispose of
the records. The SOPs will outline the record disposal and destruction process
in accordance with the Rules. A nodal officer will be designated by the state,
the federal government, or the UT administration to who requests for the
deletion of measuring records will be made. After confirming that the records in
question are unrelated to any other criminal matters, the nodal officer will
propose their destruction to NCRB.
NEED FOR REPLACEMENT OF THE CURRENT ACT
Supreme Court’s interpretation of Article
21 of the Indian Constitution .i.e. Right
to privacy may be violated by a number of provisions in the Act. Additionally,
a statute may not meet the requirements of Article 14 for equality of treatment
and fairness. The parent Act's scope, provisions, and guiding principles cannot
be changed by Rules, according to the Supreme Court.
These Rules may be modifying the
Act's scope in a number of situations. These are covered below.
·
Limiting the circumstances under which measurements may be taken
All criminal defendants, those who
have been arrested, and people who have been detained in accordance with any
preventative detention law may be requested to provide their measurements under
the Act. The Magistrate may also request measurements from anyone to help with
the investigation. According to the Rules, some individuals will not have their
measures taken until after they have been charged or detained in relation to
another offence. “These people include those who have been arrested for
violating preventive detention orders under Section 151 of the CrPC or
violating prohibitory orders under Sections 144 or 145 of the CrPC. As a
result, the Rules are limiting the legal justifications for collecting personal
data.” By doing this, they might be changing the grounds listed in the Act and
thereby straying outside of its purview.
·
Increasing the number of people permitted to collect measurements
The Act stipulates that a police
officer or prison officer will take the measures. According to the Rules,
measurements may also be taken by someone qualified to do so, a licensed
medical professional, or another person with this authority. The Rules may be
going outside the bounds by including these new groups of people that are not
mentioned in the Act. Additionally, neither the Act nor the Rules specify what
qualifies as a measuring expert.
·
Limiting the people allowed to collect measurements
The Act permits measures to be
taken by either a police officer or a jail officer who is not below the rank of
Head Warder (in charge of a police station, or at least at the rank of a Head
Constable).An authorized user is allowed to collect measurements under the Act,
according to the Rules. A police officer or a jail official who has been given
permission by the NCRB to access the database has been defined as an authorized
user under the Rules. As a result, the category of officers who may take
measures and access the database is limited by the Rules. The NCRB or any other
institution is prohibited by the Act from imposing these limitations.
Additionally, it does not give the federal or state governments the authority
to impose such limitations. Therefore, the Rules may be violating the Act's
intent by prescribing such limitations.
·
A lot of delegation
According to the Act, the NCRB is authorized
to collect, maintain, process, share, distribute, and destroy measurement
records as needed to comply with regulations issued by state governments, UT
administrations, or other law enforcement organizations. It confers legislative
power on the federal and state governments. In accordance with the Rules, NCRB
is required to specify through SOPs the policies and procedures for (i)
collecting measurements, (ii) keeping and preserving these records, (iii)
processing and matching the records, and (iv) destroying and discarding the
records. This raises two questions.
·
Additional delegating of rulemaking authority to NCRB
The Rules may be further
transferring the government's ability to make rules to the NCRB by allowing it
to establish these rules. “The Supreme Court stated in 2014 that Subordinate legislation,
which is generally in the realm of Rules and Regulations dealing with the
procedure on implementation of plenary legislation, is generally a task
entrusted to a specified authority.” This was in reference to a case involving
excessive delegation. The Legislature has decided that it is appropriate to
delegate the aforementioned responsibility to an agency since it does not need
to spend its time thinking out the specifics of how the law will be
implemented. Such a responsibility cannot be delegated by that agency to its
staff members because doing so would be a betrayal of the trust placed in the
delegate.[1]
This also begs the question of
whether these SOPs would be presented to the State Legislatures or the
Parliament. According to the Act, the respective governments must present the
Rules to the state or national legislatures. For instance, the Rules we are
talking about ought to be tabled. It is unclear, though, if the NCRB's SOPs
will come under such scrutiny.
·
Conflict in NCRB's own guidelines prescription
The NCRB will be setting standards
for the collection, storage, and processing of measurements for it by
publishing these SOPs. The separation of the functions between the entity that
provides guidelines and the entity that must abide by them may be broken down
in this situation.
·
On request, records will be destroyed
As required by the Act, NCRB will
maintain, keep, and eventually destroy the documents. If a person (i) has never
been convicted before, (ii) is found not guilty after all appeals, or (iii) is
released without a trial, the records will be erased. The SOPs will outline the
record disposal and destruction process in accordance with the Rules. A request
must be made to a nodal officer in order to destroy any records (appointed by
the state or central government or UT administration). After confirming that
the records in question are unrelated to any other criminal matters, the nodal
officer will propose their destruction to NCRB. Although the Act mandates
record destruction in these circumstances, the Rules place the onus on the
individual to make the request.
IMPORTANCE OF THE ACT
Ø Modern
Techniques:
The Act allows for the use of contemporary methods for taking and documenting
accurate body measurements.
A small group of convicted individuals
were the only ones whose fingerprints and
footprints may be taken under the current law.
Ø Helping
Investigating Agencies:
It attempts to increase the “ambit of persons” that can be measured in order to
help the investigative authorities amass sufficient legally admissible proof of
the accused's guilt.
Ø Making
Investigations More Efficient: It offers legal
authorization for taking relevant body measurements of those who are needed to
submit such measurements, which will speed up and improve the efficiency of
criminal investigations while also raising the percentage of guilty verdicts.
LEGAL PROBLEMS
·
Privacy
Violation: Despite appearing technical, the legislative proposal impairs the
right to privacy of every Indian citizen, not just those who have been
convicted of a crime.
·
It
offers provisions for obtaining samples from protesters participating in
political demonstrations.
·
Ambiguous
Provisions: The proposed law replaces the Identification of Prisoners Act of
1920 and significantly broadens its scope and application.
·
Since
"biological samples" is not defined further, it could be interpreted
to mean invasive bodily operations like obtaining DNA samples or drawing blood.
·
These
are actions that currently call for a magistrate's written approval.
·
Enables
coercive sample collection and may constitute a violation of Article 20(3),
which safeguards the right to self-incrimination.
·
According
to the Bill, brain mapping and narco-analysis could result from using force to
get biological data.
·
The
records will be kept for 75 years, but handling the data involves thinking
about how the information will be shared, discarded, and maintained.
·
Mass
surveillance may also occur from collection, as the database created by this
law may be integrated with those of “the Crime and Criminal Tracking Network
and Systems” and other databases.
·
“The
Crime and Criminal Tracking Network & Systems (CCTNS)” is a plan scheme
that was developed in response to the Common Integrated Police Application's
experience (CIPA).
·
Even
though it says that someone who is detained but isn't accused of a crime
against a woman or a child can refuse to have a biological sample collected,
not all people who are being held in jail are aware of this alternative.
·
The
police may find it simple to reject such a refusal and then subsequently assert
that they had the detainee's permission.
WHO IS REEQUIRED TO GIVE MEASUREMENTS?
The
individuals who will be required to provide the said measures are covered in
Section 3 of the Act. Convicts, those required to provide security for good
behavior and keeping peace, people detained under the law on preventative
detention, and people who have been arrested in connection with any crime are
examples of such people. This list of individuals also specifies an exception,
which states that if a person is detained for any crime that is not against a
woman or child or that carries a sentence of at least seven years in jail, he
may not be required to produce his biological samples. A violation of Section
186 of the Indian Penal Code is any resistance to or unwillingness to permit
the collection of measurements.
The Act also gives
the National Crime Records Bureau permission to gather measurement records,
keep, maintain, and delete them, combine them with pertinent criminal and crime
data, and exchange and distribute such data with any law enforcement
organization. The retention of these records in digital form is required to
last 75 years. However, all records of measurements obtained must be erased in
cases when a person, who has not yet been found guilty of an offence, is
released without a trial, discharged, or found not guilty by the court after
exhausting all available legal remedies. It should be noted that Section 5 of
the Act gives a Magistrate the authority to order someone to provide measures
for any inquiry or process under the Code of Criminal Procedure, 1973, or under
any other legislation.
RELEVANCE OF ACT IN CONTEMPORARY
INDIA
The Act provides for
use of technology record appropriate body measurements of convicts, accused
persons etc. In this modern age of technology it is essential for a governance
to be as updated as the persons in conflict with laws and the rest of the
world. Today, Artificial Intelligence is surpassing itself and evolving on an
enormous speed; in such an age it becomes essential for the executive to be
able to lay its hands on malefactors with speed and accuracy. The new law makes
investigation more efficient and expeditious. This law also helps the
investigating agencies to increase the ambit of persons and gather evidences
which are legally admissible in the court of law. It is also to be noted that
with time, the entire world is shrinking in context of access and
communication. It has become far easier to escape and hide from the law and in
such a scenario it becomes pertinent to modernize the investigations as well.
CONCLUSION
There is no denying that data
security and privacy are significant challenges. Policies regarding the
collecting, storage, and disposal of crucial personal information should only
be put into place if a strong data protection law is in place with harsh penalties
for infractions. Denying law enforcement organisations access to the newest
technologies would be incredibly unjust to both crime victims and the broader
public. Along with stricter inspection and the data privacy law, actions must
be taken to enhance the law's execution. To analyse data gathered at the scene
of a crime and identify prospective suspects in a criminal case, more forensic
labs, specialists, and techniques are needed. Since they are significant, the
worries about privacy invasion and equality should be treated seriously. The
act is significant because it makes it possible to use contemporary technology
to solve crimes, which is essential to providing justice to crime victims. The
process for acquiring evidence should be carried out by experts who follow
strict guidelines to avoid breaking any laws. When storing data for an extended
period of time, strict data protection guidelines must be followed.
In accordance with several other
laws, it is the responsibility of the entity maintaining the data to delete
personal information when it is no longer needed, or the courts may order the
entity to do so. “The Juvenile Justice (Care and Protection of Children) Act,
2015, for instance, mandates that records of a kid who has been found guilty
and dealt with by the law be erased (except for heinous offences).”[2]
The Juvenile Justice Board instructs the police, the court, or its own registry
to erase the records in these situations. The Rules under the Act additionally
state that the person in charge, the Board, or the Children's Court must
destroy such records after the appeal period has passed.[3]
Records of a person who has been exonerated must be deleted, according to the “Identification
of Prisoners Act, 1920 (which was replaced by the 2022 Act).”[4]
[1] Siddharth
Sarawagi vs Board of Trustees for the Port of Kolkata and others, SPECIAL LEAVE PETITION (CIVIL)
NO.18347/2013, Supreme Court of India, April 16, 2014.
[3] The Juvenile
Justice (Care and Protection of Children) Model Rules, 2016, Ministry of
Women and Child Development, September 21, 2016.