Biological Samples Of Certain Accused & Convicts.
The Criminal Procedure (Identification) Bill, 2022 listed in the name of Union Home Minister Amit Shah, but introduced by Minister of State for Home Affairs, Ajay Mishra Teni in the Lok Sabha on Monday, has been tabled amid protests. The Bill authorises police to take “measurements” to tag those who have been convicted, arrested or detained — including impressions of fingerprints, palm prints and footprints; photos; iris and retina scans; analysis of physical and biological samples; and behavioural attributes, including signature and handwriting.
The Bill will also allow the police to collect behavioural attributes including signatures and handwriting, or any other examination referred under Sections 53 or 53A of the Code of Criminal Procedure, 1973. Furthermore, the tabled Bill had broadened the “ambit of persons” whose measurements can be taken to include any person directed by the Magistrate to give their measurements, and empowers police and prison officers to take measurements of any person who resists giving measurements. Refusal to provide these measurements would be considered an offence under Section 186 (obstructing public servant in discharge of public functions) of the Indian Penal Code (IPC). The law also seeks to replace the Identification of Prisoners Act, 1920 which applied to collection of “measurements” for mostly those who were convicted and who would serve a prison sentence. Measurements under the 1920 Act involved only finger impressions and footprint impressions.
Compared to the 1920 Act, the Bill expands the individuals 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. Additionally, the Bill states that except for those accused of offences committed against a woman or a child, or for any offence punishable with imprisonment for a period that is not less than seven years, a person accused of any other offence can refuse to allow taking of his biological samples under the Bill. The Bill says that even if such data is collected from the accused, it can be destroyed from the records unless a magistrate in writing directs otherwise, after the accused is released without trial or discharged or acquitted by a court.
The opposition has alleged that Bill violates fundamental right of citizens and infringes upon their Right to Privacy. It has contended that the Parliament cannot bring any law that violates the fundamental rights of citizens. The implied use of force to take measurements in the Bill violates the rights of the prisoners laid down in a catena of Supreme Court judgements, such as A.K. Gopalan (1950), Kharak Singh (1962), Charles Sobhraj (1978), Sheela Barse (1983) and Pramod Kumar Saxena (2008), and also violates the right to be forgotten guaranteed in the right to life under Article 21 of the Constitution, as interpreted in the Supreme Court’s Puttaswamy judgement of 2017.
While the Opposition failed to defeat the introduction of the Bill after seeking a division of votes, as the Bill receiving only 58 votes against and 120 votes in favour of its introduction. Since Section 29 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act prohibits sharing of the gathered biometric data for criminal investigation, a specific legal exception for the purpose of law enforcement will most likely be drafted and introduced.
The Criminal Procedure (Identification) Bill, 2022 has been introduced in the wake of further building and development of the NCRB database through methods such as the digitisation of fingerprints for integration into the Crime and Criminal Tracking Network System [CCTNS], with the goal of empowering authorities to acquire biometric data for law enforcement. In the event that the Bill comes into force, the CCTNS will further be integrated with detailed biometric measurements of not just convicts with sentences over seven years, but with all persons convicted, preventively detained and persons directed by the Magistrate for their ‘measurements’ to be taken, who will have no choice but to provide the authorities with their measurements.