Unraveling newly-introduced ‘The Criminal Procedure (Identification) Bill, 2022’: The constitutional lens/critical analysis

T he Ministry of Home Affairs tabled ‘The Criminal Procedure (Identification) Bill, 2022’ in the Lok Sabha on Monday the 28th of March 2022. The bill, which intends to make the investigation of crime more efficient and expeditious has been termed as ‘Unconstitutional and Draconian’ by the opposition. If the statement of objects of the proposed law is to be believed, it is most likely to aid the investigating agencies in solving the criminal cases by allowing the unique identification of persons involved in crimes and thereupon to increase the rate of conviction. Facets of the Bill: The newly introduced bill has proposed to repeal the prevailing ‘Identification of Prisoners Act, 1920’ which authorizes the taking of “ limited measurements” namely finger impressions and foot-print impressions of limited category of convicted and non-convicted persons and photographs on the order of a Magistrate. Since the legislation was enacted 102 years ago, it only covered those limited measurements that the then technology allowed. In the present era, India has multiple means of collecting evidence and several technological advancements in forensics have been made over the years. Considering the fact that the New ‘‘measurement’’ techniques being used in developed countries are giving credible and reliable results and are recognized world over, there is a need for expanding the scope and ambit of the ‘‘measurements’’ in India. Thus in accordance with the modern techniques and technologies, the new bill allows the capturing and recording of appropriate body measurements which shall include finger-impressions, palmprint impressions, footprint impressions, photographs, iris and retina scan, physical, biological samples (blood samples and DNA samples) and their analysis, behavioral attributes including signatures, handwriting or any other examination referred to in section 53 or section 53A of the Code of Criminal Procedure (Examination of accused by medical practitioner). Under the aegis of The National Crime Records Bureau, these records will be preserved for future references and criminal investigations and shall be retained in digital or electronic form for a period of seventy-five years from the date of collection of such measurement. But a person who has not been previously convicted and is released without trial or discharged or acquitted by the court, all his records of measurements so taken shall be destroyed from records. Persons whose details may be taken: As per the bill, the power to take the measurements has been classified in two categories: By police or prison officer : A person who has been convicted or arrested in connection of an offence punishable under any law or detained under any preventive detention law, if required, shall allow his measurement to be taken by a police officer or a prison officer. There is an exception in the form of a proviso of section 3 of the bill which states that the arrested persons will not be obliged to give their biological samples unless they have committed an offence against women or children or have committed any other heinous offence. As the existing act of 1920 doesn’t allows taking the measurements of persons detained under preventive detention law, this Bill widens the ambit by including such detainees in the list of persons whose measurements can be taken by the police. By Magistrate: Further, section 5 of the said bill empowers a Judicial Magistrate of the first class wherein on her satisfaction for the purpose of any investigation or proceeding under the CRPC or any other law, it is necessary to direct any person to give measurements; she may order the person to give his body measurements. It is significant to consider a silent twist made through this provision. Whereas the existing law empowered the Magistrate to issue an order concerning measurements ‘only against the persons who have been arrested at some point in connection with such investigation or proceeding’, the new Bill authorizes the Magistrates to issue such orders against ‘any person’ even if he has not been arrested previously. It is certainly not an easy escape to negate the liability of giving the measurements as both, the existing law and the proposed bill declares the ‘refusal to give the measurements’ as an offence of ‘Obstructing public servant in discharge of public functions’ under section 186 of the Indian Penal Code and also empowers the police officers to take such measurements in such manner as may be prescribed and necessary to secure the taking of measurements. The government has left no stone unturned to enhance the scope of ‘Criminal Identification’ both in terms of substantive as well as the procedural aspects. Why are these reforms necessary? The digitalization of finger prints and such other data started in the year 2009 when Indian Government started ‘The Crime and Criminal Tracking Networks and Systems’ (CCTNS) for creating a comprehensive and integrated system for effective policing through e-Governance as an aftermath of the 2008 Mumbai terror attacks. This system connects all the police stations in the country through one central data base. For instance, if the Chhattisgarh Police registers an FIR against an accused at 4 PM, by the virtue of this database, it can be duly accessed and brought into the notice of Delhi Police instantly. It facilitates the police across India to search and identify the entire criminal record of arrested person. The absence of an integrated database and lack of coordination led to a very unfortunate incident taking the lives of hundreds of Indians. In the year 2009 when the Kolkata Police arrested Yasin Bhatkal for the minor offence of carrying fake currency notes and due to the lack of data of his criminal identification, he was released on bail and went absconding. He turned out to be the most wanted dreaded terrorist of Indian Mujahideen who was actively involved in several serial bomb blasts in India. Later, in 2013 he was arrested by the undercover Indian Police near the Nepal Borders and has been sentenced to death in 2016. On that account, it is essential to have an integrated system for tracking the criminals and the present bill indicates towards the development of such system. The Test of Constitutionality: The opposition particularly has raised several concerns and has termed the bill to be draconian and unconstitutional as it is against the fundamental rights of ‘Prohibition Against Selfincrimination’ and ‘Right to Privacy’. It has been alleged that the bill empowers to take on record and preserve the measures such as prints, biological samples, etc. and thus, it is violative of the fundamental right of prohibition against self-incrimination guaranteed through Article 20(3) of the Indian Constitution. It is significant to discuss and believe upon the stand of the Supreme Court in the case of State of Bombay v Kathi Kalu Oghad [1962 (3) SCR 10]. The 11 judges bench in this case held that the evidences such as blood samples and handwriting samples are physical evidences which are unchangeable in nature. Thus collection of such samples of ‘physical evidence’ is necessary to maintain a balance between the crime control vs. due process. The bill has also been held to be in derogation of Article 21 as it violates ‘Right to Privacy’. The 9 judges bench of the Supreme Court in Justice K.S Puttaswamy (Retd.) v. Union of India and Ors. (2017) held that right to privacy is not an absolute right and is subject to reasonable restrictions “in view of the social, moral and compelling public interest that the state is entitled to impose by law and statutory restrictions on privacy would prevail if it is found that the ‘social or public interest and the reasonableness of the restrictions outweighs the particular aspect of privacy claimed. The Criminal Procedure (Identification) Bill 2022 certainly contains the provisions concerning larger public interest as the objectives intend to redefine the measurements and the procedures for the purpose of strengthening the investigation and prosecution. In view of the comfortable majority in both the Houses of Parliament, the Government will most likely get it enacted and considering the hue and cry, it is likely to be challenged in the apex court. The prima facie observation and analysis indicates that this new legislation will withstand and pass the test of constitutionality.

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