Introduction
On
March 28, 2022, the Criminal Procedure (Identification) Bill was tabled in the
Lok Sabha. The bill's goal is to create a framework that allows police or jail
officials to collect specified "measurements." Finger, palm, and foot
imprints, iris and retina scans, biological samples, and behavioural features
have all been defined as "measurements." The bill allows for the
collection, storage, processing, and dissemination of measures and data with
the stated goal of criminal identification and investigation, as well as crime
prevention.[i]
Objective of the Bill
The Criminal Procedure (Identification)Bill , 2022[ii] passed by the Lok Sabha on 4th April, 2022 , that allowing investigating officers to acquire biometric information from convicts .
The bill’s preamble simply says “to authorize for taking measurements of convicts and other persons for the purposes of identification and investigation in criminal matters and to preserve records and for matters connected therewith and incidental thereto.”[iii]
What can be collected as
measurement ?
It
aims to collect "measurement," which includes "fingerprints,
palm print impressions, footprint impressions, photographs, iris and retina
scan, physical, biological samples and their analysis, behavioural attributes
including signatures, handwriting, or any other examination referred to in
section 53 or section 53A of the Code of Criminal Procedure, 1973."
The
criminal procedure code of 1973, section 53, defines examination of an accused
by a medical practitioner at the request of a police officer as "blood,
blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair
samples and finger nail clippings by the use of modern and scientific techniques
including DNA profiling...”.[iv]
Section 53A future mandates that a medical practitioner examines a person suspected of rape and records further information, such as the arrestee's age and any marks of harm on his person.
Power to compelled for
provide measurements :
- Clause 3 of the bill allows a police or prison officer to compel the following individuals to provide measurements:
- Any person who has been convicted of any crime under current law;
- Any person who has been ordered to provide security for maintaining peace or good behaviour in accordance with Section 117 of the CrPC. Sections 107-110 of the CrPC provide for the imposition of such security. It could be based on evidence that the person is likely to cause a breach of the peace or disrupt the public calm of an area, or it could be based on information that the individual disseminates seditious and other publications.
- Third, knowledge that the person is hiding his presence in the region in order to commit a cognizable offence; or fourth, information that the person is a habitual criminal;
- Anyone imprisoned under any preventive detention statute;
- Anyone arrested for an offence. All measures, with the exception of biological samples, can be compelled from such people. However, anyone who has been caught for a crime against a child or a woman, or for a crime punishable by seven years or more in jail, may be forced to produce biological samples. Therefore , anyone caught for a crime that does not include women or children and is punished by a sentence of less than seven years in jail cannot be forced to produce biological samples, although they can be forced to provide all other measurements.
Furthermore,
the bill's Clause 5 states that the Magistrate may order any individual to give
measurement for the purpose of an investigation or proceeding under the CrPC or
any other applicable legislation.
Under
the current system, only a small number of prisoners and non-convicts are allowed
to have their fingerprints and footprints taken.
People
who have not been convicted or arrested for crimes against women or children,
or who are in custody for a felony punishable by less than seven years in
prison, according to the government, have the right to decline to supply their
DNA samples.
According
to Section 4 of the bill, the National Crime Records Bureau has the authority
to collect, store, preserve, or destroy measurements of the database of
offenders in any law in force at the time, and the data must be in electronic
form and stored for seventy-five years from the date of collection.[v]
Current position of
collecting Forensic Evidence in India
Currently,
numerous sorts of biological and physical samples can be obtained under the
system of the Code of Criminal Procedure, 1973 (hereafter CrPC) and the Identification
of Prisoners Act, 1920 (the '1920 Act'). This 1920Act has a limited scope in
terms of taking measurements because it balances two considerations: collecting
information while protecting individuals' right to privacy and providing
necessary evidence for the purpose of an investigation in a case by providing
various procedural safeguards to prevent abuse of the process. However, the
bill creates a broader framework for collecting measurements, infringing on
people's right to privacy.
Code
of Criminal procedure , 1973
Sections
53, 53A, and 54 of the CrPC authorise the use of modern and scientific
techniques, such as DNA profiling and other tests, to examine blood, blood
stains, semen, swabs in cases of sexual offences, sputum and sweat, hair samples,
and finger nail clippings for the purpose of examining blood, blood stains,
semen, swabs in cases of sexual offences, sputum and sweat, hair samples, and
finger nail clippings. Section 311A also allows courts to acquire specimen
signatures and handwritten samples.
Samples
can be taken from those who have previously been arrested under Sections 53,
53A, and 54, although only police officers above the rank of sub-inspector can
submit a request under these provisions. Only on the reasonable grounds that the
evidence obtained from medical examinations can corroborate in a specific
situation can a request be made. Under Sections 53 and 53A, the examination can
only be performed by a registered medical practitioner. Section 54 requires
that an examination be conducted shortly after a person is arrested to ensure
that the accused is not injured while in prison.
Identification
of Prisoners Act , 1920
The
1920 Act defines the phrase "measurements," which includes finger and
footprint impressions, as well as photography for the categories included. The 'measurement'
is taken under this Act for the purpose of collecting evidence for the
investigation and identification of violations under the Code of Criminal
Procedure, 1898. In the example of three groups of people, the measurements and
images are as follows:
1. Non-convicted
persons arrested in connection with an offence punishable by rigorous
imprisonment for a term of up to one year;
2. persons ordered to give security for his good behaviour;
The
DNA Technology (Use and Application ) Regulation Bill , 2019
The
DNA Bill stipulated the source and method of sample collection for DNA testing.
The sources can include body substances, evidence of crime, clothing, or other
objects. Intimate bodily substances include blood samples, sperm, fluid, urine,
pubic hair, or a swab from a person's orifice, or skin or tissue from a living
or deceased person.
Another
type of evidence stated is "non-intimate body material," which
include handprints, fingerprints, footprints, hair samples other than pubic
hair, nail samples, swabs from a person's mouth, saliva, or skin impression.
DNA databanks are used to preserve DNA samples from victims, offenders,
suspects, missing people, and unidentified deceased people.
Consent
Under
the Code of Criminal Procedure code , 1973 , consent is not required for
collecting the samples . the person can be compelled under Section 53 , 53A and
54 , 311A .
As
per The Identification of Prisoners Act , 1920 also consent is not required .
But Under the DNA Technology (use and Application) Regulation Bill , 2019 , Clause 21, it is required to
take consent from the arrested person for collecting the samples excluding
those arrested in relation to death punishment or offences more than 7 years .
In case of consent is refused , an application can be made behalf of the
investigation officer to the interested magistrate for giving order of
collection of samples , if there’s enough reasonable cause that the samples is
corroborate evidence and have enough probative value in a particular case .
Report on the proposed
bill
The
Forensics Team of Project 39A[vi] ,
led by Shreya Rastogi , has released a
detailed report titles” An Analysis of the Criminal Procedure
(Identification)Bill , 2022’(‘Report’)that evaluates the Bill’s constitutional
, regulatory and scientific issues as well as the administrative aspects of
implementing the bill . The interaction with the current legal framework in the
sector , as well as the DNA Technology (Use and Application)Regulation Bill,
2019 (’DNA Bill’), is also discussed in the report by the team led[vii]
.
Science and regulation
Scientific
validity and databasing
There
is no evidence to substantive the basic validity of some of the measurements
included by the bill. India currently lacks suitable scientific standards for
the assessment of such measurements for research purposes .The fact that
current legal standards for reviewing expert testimony do not allow for
rigorous evaluation of scientific evidence exacerbates these two concerns. As a
result , collecting and storing such a broad variety of measurements is a
needless step that may not make investigations more effective but rather complicate
them .[viii]
Collection
of measurements
Building capacity and training employees responsible for data collecting will be a massive administrative task . The excessive gathering of measurements will also raise the burden of forensic laboratories by a factor of ten . Currently , the bill offers no guidance to the federal government or state governments on how to frame guidelines for the gathering of measures. Because the bill makes no mention of the necessity for standardization or quality management , it permits for the deployment of random collection methods across the country [ix].
Collection and storage of
“biological samples and their analysis”
Since
the term “analysis” isn’t defined in the
bill , it broadens the breadth of data that can be collected to include an
individual’s phenotype (physical traits), genetic proclivity for particular
diseases , and ancestry . As a result , the information gathered and retained
may extend beyond the individual from whom the measurements is taken .The
storage of biological samples will be a significant infrastructural problem
.Given that these samples might be kept indefinitely , there are further
concerns about how this information could be missed .
Constitutional perspectives
As
per the report contends that the
bill violates the fundamental rights to equality , self-incrimination , and privacy
entrenched in Articles 14, 20(3), and 21 of the Constitution , based on the
scientific and regulatory evaluation of the bill [x].
The
bill raises serious concerns about an overabundance of legislative authority delegated
to rule-making bodies, as well as an excessive of power delegated to
functionaries , in contravention of Article 14 of the Constitution.
Police
personnel ,section 2(c) with the rank head constable , Magistrates , under
section 2(a) and prison officers , section 2(e) are among these officials .
Furthermore, the bill makes an arbitrary distinction between arrestees who may
be forced to provide biological samples and those who may not . Several other
sections lack any suitable determining principle and raise serious concerns about obvious arbitrariness [xi].
In
the definition of “measurements” given under Section 2(b)of the bill , there is
also the issue of ambiguity and overbreadth as the report says . For example,
the presence of ‘behavioural traits’ in the definition raise worries about
including testimonials measurements , which would violate Article 20(3) of the Constitution’s right to
Self-incrimination[xii]
.
This
bill providing a wide-ranging of delegating power by giving the functionaries
or interested authorities excessive discretion to compel any person to provide
measurement in any circumstance . This law may be ultra vires the constitution on the ground of its delegating powers
that is excessive limits . In Subramanian Swamy v. Union of India , it was held
that addition to excessive delegation of legislative powers , the conferment of
authority to pass administrative orders would be violation of Article 14 of the
Constitution , if such conferment is without any guidance , control or checks”
.
The bill delegates unguided legislative power under Clauses 4 and 8 and also provides excessive and overbroad discretion to the police and the Magistrate under Clauses 3 and 5 on making administrative decisions and pass orders, respectively .
Conclusion
The
bill failed to fulfill the four requirements of doctrine of proportionality ,
given in the case of Justice
KS Puttaswamy v. Union of India[xiii].
The bill is an inadequate means of attaining such ends since there is no
demonstrated rational nexus between the legitimate foals of the bill and the
people who may be forced to provide their measurements as per the bill .
Nonetheless,
the bill’s provisions violates the right to
privacy in unnecessary and
disproportionate manner as the record of
measurements is going to in the database of the police system provided under
Section 4(1) that The National Crime Records Bureau[xiv]
shall, have the cognizance of f prevention, detection, investigation and
prosecution of any offence in any law under the time being in force , of collect
the record of measurements from State Government or Union territory
Administration or any other law enforcement agencies under sub-clause (a) ,
store, preserve and destroy the record of measurements at national level ,
under sub-clause(b) , process such records with relevant crime and criminal
records; and (d) share and disseminate such records with any law enforcement
agency under sub-clause (c) and (d) respectively , that
extensively violates the right to privacy[xv] .
The Bill has far-reaching ramifications for the right to privacy, equality and the integrity of criminal investigations because evidence in criminal investigation should be collected and analyzed based on their probative value.[xvi]
References
[i]
PROJECT 39A, AN ANALYSIS OF THE CRIMINAL
PROCEDURE (IDENTIFICATION) BILL, 2022
NATIONAL LAW UNIVERSITY, DELHI, Published in April 2022, retrieved from
: https://www.project39a.com/identification-bill. retrieved on 5th April , 2022.
[ii]
Supra note i.
[iii]
Supra note i.
[iv]
The Criminal Procedure Code 1973
[v]
Section 4 sub-section (1) ,(2),(3) of of
Bill No. 93 of 2022, THE CRIMINAL
PROCEDURE (IDENTIFICATION) BILL, 2022
[vi]
Supra note iii
[vii]
Supra note vi .
[viii]
Supra note iii
[ix]
Supra note iii.
[x]
Article 14 , 20(3) and 21 of the Indian Constitution .
[xi]
Section 2 of of Bill No. 93 of 2022, THE
CRIMINAL PROCEDURE (IDENTIFICATION) BILL, 2022.
[xii]
Article 20(3) of the Indian Constitution .
[xiii]
Justice K.S.Puttaswamy (Retd.) &Anr. Vs. Union of India &Ors. , (2017) 10
SCC 1 ,AIR 2017 SC 4161
[xiv]
Supra note v.
[xv]
Article 14 of the Indian Constitution .
[xvi] Supra note vi .
About the Author: This post is prepared by Sayani Pal, Law Student from Faculty of Law, Uttaranchal University. She can be reached at sayanipal190@gmail.com
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