THE CRIMINAL PROCEDURE (IDENTIFICATION) ACT, 2022: CRITICAL ANALYSIS
Author: Sumit Kumar Verma, III year of B.A.,LL.B(Hons.) From Jagran Lakecity University, School of Law, Bhopal (M.P.).
The Criminal Procedure Identification Act, 2022, rescind the older Act i.e., The Identification of Prisoners Act, 1920. The new Act was passed by Lok Sabha and Rajya Sabha on 4th and 6th April, 2022, respectively and got the presidential assent on 18th of April, 2022, thus became the law. The main objective of the Act is to increase the conviction rate in the nation and it is also to aid the investigation process by allowing the authorities to garner, store and analyse physical as well as the biological samples of certain individuals. In the opinion of the many experts the legislation affects some fundamental rights of certain persons.
About the legislation
The new legislation broadens the ambit of collection of identifiable data that can be garnered from any convicted person, any arrested person as well as the person who’s detained under preventive detention law.
As per the Act 2022, the person who repudiate to give information shall be held liable under Section 186 of Indian Penal Code, 1860. However, furnishing of information is not mandatory until & unless the person has been arrested or convicted for an offence against women or children or an offence punishable with imprisonment of more than seven years.
The 2022 Act adds various new kind of details that can be garnered by the authorities. These are:
finger-impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scan.
Behavioural attributes such as signature and handwriting.
Any other examination under section 53 and 53A of Code of Criminal Procedure, 1973.
Physical as well as the biological samples and their analysis.
The 2022 Act has empowered either a police officer or a prison officer to garner the personal data. It also empowers a metropolitan magistrate or a judicial magistrate first class or in some cases an executive magistrate to give direction to garner the details.
Central Government agency i.e., National Crime Record Bureau (NCRB) is entrusted with the task of maintaining the records of data garnered, including the collection, storage, preservation, sharing, dissemination, destruction, and disposal of such records.
The data or details of a individuals are required to be retained for 75 years from the date of collection. If the person has been discharged, acquitted or released without trial then such collected data will be devastated.
Significance of the Act
The new 2022 Act will assist investigation authorities as the Act enable the use of modern techniques to capture and record appropriate details which result in faster completion of investigation process.
The new legislation will help investigation authorities to garner sufficient legally admissible evidence as the Act broaden the ambit of persons whose identifiable data can be collected.
The new legislation will help in increasing the conviction rate in the country by collecting physical as well as biological samples of individuals. This will also help in making investigation process more efficient and expeditious.
Cybercriminals, terrorists etc who are expert in identity theft and identity fraud, the new legislation reduces the possibility of threat from such criminals.
The new legislation will help in reinforcing cooperative federalism between the central and the states governments as the Act gives rule making power to union as well as state government.
Issues with the Act
There are number of concerns or issues associated with the new 2022 legislation. These are as follows:
The legislation violates the Article 14 of the Indian Constitution. The motive of the legislation is to make criminal justice system more reliable by using modern techniques to record the details of certain individuals. The persons who have been arrested for committing offenses against women and children or the persons who have been accused of the offences which are punishable with imprisonment for seven year or more, will be obliged to give their biological samples. On the other hand, all arrested persons will be obliged to give their measurements or personal information other than biological samples. Thus, two categories have been created as to when the giving of biological sample will be mandatory, however there seem no reasonable nexus between such classification. It is therefore violating the test of reasonable classification under Article 14.
The legislation directly attacks the fundamental right i.e., (right to privacy) conferred under Article 21 of the Indian constitution. Prima facie the 2022 legislation fails to satisfy doctrine of proportionality laid down by the Hon’ble Supreme Court of Indian in one of its leading judgements that is Justice K.S. Puttaswamy v. Union of India.
The new Identification Act, 2022 has broadened the ambit of collection of identifiable data that can be garnered. Such sensitive personal information like biometric and biological samples for the purpose of identification of certain individuals do not satisfy the test of proportionality.
The legislation has conferred the power to police officer as well as prison officer to garner the data or details. Often these officers are not properly trained, this may result in rampant corruption and misuse of data.
The legislation has no provision which mandate the National Crime Record Bureau (NCRB) to provide for the safe keeping of sensitive data or details against the security threats such as data breaches, cyber incidents and many more.
The legislation has no provision regarding an appeal to higher authority against any despotic exercise of power by an authorised entity who have power to garner the personal data of an individuals. Therefore, High Courts and Supreme Court are the only options available against such arbitrary power which are very costly to common persons.
The collection of modalities, storage or uses of data are not mentioned in the legislation. This should be duly formulated by the government through rules.
For the better implementation of law, the proper training shall be given to investigation officers and forensic staff.
The government should enact comprehensive data protection law for purpose of safeguarding the data collected under the Act.
It should be ensured that right to privacy including other fundamental rights of an individuals is not be violated.
In the background of the interest of the society, the rights of the prisoners will have to be considered.
The Criminal Procedure (Identification) Act, 2022, is a significant move in modernizing the investigation and data collection of the offenders. The Act, no doubt is important and need of the hour, however, there are certain concerns which cannot be overlooked. In a democratic society security and safety of the public is of paramount importance but at the same time the issues like privacy cannot be neglected as well. There are certain terms like “biological samples” etc which need more clarification otherwise it will lead to misuse of powers by the concerned authorities. There has to be a balance between the nexus which the law is trying to achieve & the conflicting data protection issues.