On April 6, India’s Parliament passed the Criminal Procedure (Identification) Bill, 2022, to replace the Identification of Prisoners Act of 1920. The new act gives police and investigating agencies powers to collect and store identifiable data of certain people such as their biometrics and biological samples. The bill, introduced on March 28, was passed in both the houses in quick succession. However, various sections of society have flagged concerns over the implications for privacy rights.
Opposition leaders expressed concern over certain provisions, but the BJP defended the bill as one required to bring Indian criminal procedures up to speed. Home minister Amit Shah sought to allay the concerns of the opposition and said the provisions of the bill would not violate anyone’s right to privacy.
Moneycontrol looks at the legislation.
Widened scope of data collection:
The new legislation gives powers to the police and prison authorities to legally collect samples such as fingerprints, palmprints, footprints, iris and retina scans, and other physical and biological samples, photographs, signatures, and handwriting samples from convicted and arrested persons.
This legal sanction vastly widens the scope of the power of the police to collect data in comparison with the old legislation, which now stands replaced. The 1920 law allowed for collecting and recording of footprint impressions and fingerprints of only a certain category of convicts, whereas the 2022 legislation expands the categories of people from whom such data can be collected.
The data can be collected from convicts, people arrested in connection with a crime punishable under the law, and those detained under preventive detention laws. Biological samples can be requisitioned only from people arrested for committing offences against women or children or for crimes entailing punishment of seven years imprisonment or more.
Measurements – a term used in the new law to define the data that is permitted to be collected for identification – can also be taken from “other persons” for aiding investigations, according to the new law. The definition and scope of “other persons” remains ambiguous and a cause for concern.
Notably, refusal to furnish this data is envisioned as an offence in the new legislation – a point on which both the old and the new laws are in consensus.
Who is authorised to collect and store data:
As opposed to the 1920 act, which gave powers to the magistrate to direct the collection of certain prints for aiding investigation, the new law gives the authority of taking measurements to police officers or prison authorities.
The data collected by state governments and administrations of Union Territories will be stored at the National Crime Records Bureau. The data will be stored for prevention, detention and identification purposes at the central level. The data can be processed with other relevant information and disseminated to the authorities concerned and agencies, as required.
The data collected in digital or electronic form can be stored for as long as 75 years.
The new law provides for destruction of collected data in certain circumstances. The data of a person who has no previous conviction record and who is acquitted, discharged or not tried for the offence for which they were arrested can be destroyed after all legal remedies have been exhausted. A magistrate may, however, direct against deletion of the records and will have to pass an order to this effect with reasons.
The government’s stand vs criticism of the law:
The government views this law as a means to strengthen criminal procedure by consolidating evidence and data at the central level to increase conviction rates. However, activists and opposition parties have criticised it for putting fundamental rights at risk.
While the home minister stressed that the government would ensure that the law is not misused, Congress leader Manish Tewari called the new law a step that goes against every person’s right against self-incrimination.
The law violates the right to privacy guaranteed as a fundamental right, Congress leader P Chidambaram said. Activists and opposition leaders raised concerns over the protection of the data collected because the country does not have any law for data protection. The data collected under the new law risks being misused or breached.
Tewari, during a debate on the bill in the Parliament, called the legislation violative of fundamental rights under Articles 14, 19, and 21 of the Constitution of India and against civil liberties.
Opposition leaders cited the loose drafting of the law, open ends, and lack of adequate safeguards for a sensitive issue such as private data collection. Some leaders touted the Criminal Procedures (Identification) Bill as a step in the direction of becoming a surveillance state.
