Author Details :-

Srimathi Srinivasan
III Year, B.A.,LL.B.,
CHENNAI Dr. AMBEDKAR GOVERNMENT LAW COLLEGE, PUDUPAKKAM.

(IDENTIFICATION) ACT, 2022

ABSTRACT:

India’s approach to convicts’ identification began with the enactment of “The IDENTIFICATION OF PRISONERS ACT, of 1920 (hereinafter referred to as the Act of 1920”. The utilisation of fingerprints is common in criminal investigations worldwide. Considering this, the Act of 1920 inculcates fingerprints, photographs and measurement as inherent components. The practice of utilising fingerprints is well established by ancient Egyptians after the mid-nineteenth century^[1]. In a leading Australian case, the High Court asserted that fingerprint is an unforgeable signature that corrugates the individuality of mankind. This practice has been updated and expanded through an updated legislation known as “THE CRIMINAL PROCEDURE (IDENTIFICATION ACT of 2022 (hereinafter referred to as the Act)”. The new legislation is an attempt to supersede the colonial Act and has many salient key features. This paper is an endeavour into the new legislation that aims to collect and take measurements of convicts. Further analysis of how the legislation becomes a subject matter of controversies in various aspects such as privacy, equality etc., investigates the scientific and legal validity of certain measurements under the Act of 2022. The international regime has no such measurement or identification framework. At the same time, Indian measurements and identification mechanisms are on par with international scientific standards.

KEYWORDS: Criminal Identification, Privacy, Features, Shortcomings, prisoners.

INTRODUCTION:

The Criminal Procedure (Identification) Bill was first introduced in Lok Sabha, by Sri Ajay Kumar (Minister of State in the Ministry of Home Affairs) on March 28, 2022, and passed in Lok Sabha on April 04, 2022, in Rajya Sabha on April 06, 2022. The bill received the president’s assent and was published in the Official Gazette on April 18, 2022^[2]. The Act consists of 10 Sections and Part II was notified on August 03, 2022. Subsequently, the rules were notified by the Ministry of Home Affairs on September 19, 2022^[3]. The Act of 2022 is construed about DNA Technology (Use and Application) Regulation Bill, 2019 which helps in DNA profiling in criminal cases and references to the Code of Criminal Procedure, 1973. The Act repealed the Identification of Prisoners Act, of 1920^[4] as it is outdated and obsolete.

SCOPE AND OBJECTIVES OF THE ACT:

The Act aims to authorise taking measurements of convicts and other persons for identification and investigation in criminal antecedents and aims to preserve connected records and matters. The Act further allows the processing, storage, preservation, dissemination, and destruction of the measurements taken. The Act also aims to enhance modernisation by incorporating advanced technology such as forensic science. The ultimate objective behind this framework is to identify and investigate the convicts in criminal matters for the prevention of crime. The Act further aims to improve the power of the enforcement agencies in collecting measurements and data during the investigation.

OUTLINE AND OVERVIEW OF THE CRIMINAL PROCEDURE (IDENTIFICATION) ACT, 2022

1. Short Ttile & Commencement of the Act: The Act is called as the Criminal Procedure Identification Act, 2022 and commenced from date specified by the Central Government in the official gazette^[5].
2. Definition of measurement: Section 2(1)(b) defines measurement as “includes finger-impressions, palm-print impressions, foot-print 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^[6]”
3. Whose measurement can be taken: Section 3 grants the criteria on whose measurements can be taken. The criteria are as follows:
4. Convict of an offence punishable by law in force of time being,
5. A person for whom it is ordered to give security for his good behaviour,
6. A person who has been ordered to give security for maintaining peace under section 117 of the Cr.P.C., 1973,
7. Accused of an offence punishable by law in force of time being under preventive detention law^[7].
8. Who takes measurements: The measurements are taken by a police officer^[8] or a prison officer^[9] prescribed by the central government or the state government^[10].
9. Power of the National Crime Records Bureau: The power of the NCRB has been listed in Section 4 of the Act. The NCRB is vested with the power to collect the records of measurements, and store, preserve, and destroy the records. The power also includes the processing of such data from criminal records, and the power to share and disseminate such records with any law agencies. These powers are to ensure the interests of prevention, detection, investigation and prosecution of any offence^[11]. The NCRB also has the privilege to store such for seventy-five years in digital or electronic form^[12].
10. Power of the Magistrate: The magistrate^[13] if satisfied can direct and order any person to give measurements, if satisfied for investigation or proceeding under the Code of Criminal Procedure, 1973^[14].
11. Punishment for refusing to give measurements: Section 6 of the Act states that the resistance or refusal to allow taking measurements is deemed to be an offence undersection 186 of the Indian Penal Code^[15] (Obstructing public servants in the discharge of public function).
12. Power to make rules: The central government and the state government have the power to make rules for carrying out the purpose of the Act specifically in matters of taking measurements, manner of collection, storing, preservation of measurements and sharing, dissemination, destruction and disposal of records, and any other manners if required^[16].
13. Repealment: The Act repeals the Identification of Prisoners Act, of 1920.

ANALYSIS OF THE CRIMINAL PROCEDURE (IDENTIFICATION) ACT, 2022

The Act is criticised for the violation of fundamental rights, the right to equality under Article 14, the right against self-discrimination under Article 20(3) and the right to privacy under Article 21 is guaranteed by the constitution of India.

CONSTITUTIONAL VALIDITY

• Article 14

The Act delegates excessive power to the central and state governments in matters of making rules. The Act also grants excessive discretionary power to the police officers, prison officers, the magistrate, and the NCRB. As a result, the unreasonable, manifested arbitrariness may increase. Additionally, the definition of measurement is exhaustive without peculiar criteria which may result in ambiguity, arbitrariness, and misuse of the delegated power. The classification of the convicts based on the severity of punishment does not align with the objective and does not establish reasonable nexus with the aim of the Act amounting to unreasonable classification.

• Article 20(3)

The term biological samples is not defined in the Act and thus leads to arbitrary compulsion to give samples, which violates Article 20(3). It is also opposite to the ruling of Selvi v. State of Karnataka^[17] i.e., compulsory administration of violated the right against Self-incrimination (opposite to testimonial compulsion).

• Article 21

The Act amounts to a violation of the right to privacy. Specifically, the Act failed to pass
the fourfold test proposed in Justice K S Puttaswamy v. Union of India^[18]. The fourfold tests include a) legality, b) necessity, c) proportionality, and d) procedural safeguard^[19]. The objective of the Act is to promote proper criminal investigation and to prevent crime. Thus, passes the first test of legality with the enactment of the Act. However, the Act failed to pass the other tests. The mechanism established in the Act even without classifying the convicts based on the severity of the offence and the absence of classification on adult and juvenile convicts weakens the compelled necessity of the Act. The Act failed to pass the test of necessity and proportionality. Thus, the Act violates the fundamental right to privacy under Article 21^[20].

SCIENTIFIC AND LEGAL VALIDITY OF MEASUREMENTS UNDER THE ACT

• • FINGERPRINT IMPRESSION: Fingerprint prevails as an important aspect of evidence and criminal investigations. Courts also rely on fingerprint evidence in cases of exclusion. With this legal validity, the actual complexion begins with the scientific reliability of fingerprints. Scientific research establishes that the fingerprint of an individual differs in different circumstances. Additionally, there is also the probability of false positive error to an extent of 15% in the case of latent fingerprints. This led to an impractical bridge between the scientific and legal validity of fingerprints which this Act promotes.
  • PALM PRINT IMPRESSION & IRIS, RETINA SCANS: Similar to fingerprint impressions, palm print impressions are also inclined to miscalculation. The same status also exists in the case of the iris and retina scans, as there are remarkable failures in scanning.
  • FORENSIC DNA PROFILING: The reality of DNA available at a crime scene is usually mixed in nature. A recent study shows that the foundational validity of DNA mixture interpretation has concluded that currently there exists no public data to assess the reliability of this method. The definition of biological samples is defined under Section 2(1)(b) and is construed to be broader than forensic biological analysis such as DNA profiling, and serological examination etc., Notwithstanding, these intricacies, the legal framework and the scientific standards we have now in India is not to par of international standards.

The other practical difficulties in enforcing the provisions of the Act are as follows:

• The measurements collected by virtue of the Act failed to fulfil its scope as evidence before the judiciary. The Indian Evidence Act makes clear that such evidence is secondary and subject to the question of admissibility. Even though the Bharatiya Sakshiya Adhiniyam imparts the scope into primary admissibility, the Indian jurisprudence still refuses to rely on it because of the ambiguous authenticity of forensic evidence.
• The officials collecting the measurements lack the skills, training or bare qualifications for collecting these measurements. The training programmes conducted by the officials are often inadequate with poor skill sets.
• No government in and around the world has databases that use retina scans.
• Another practical aspect to be noted down is the detection. This is because the data collected under the purview of the Act are sensitive to any breach, it will amount to irreparable damage to an individual’s privacy. Currently, we have the Digital Personal Data Protection Act for data protection, however, the impact and influence are required to be considered. The sensitivity of data of children in conflict of law and the children in need of protection (Juvenile data) is not addressed to a specific concern.
• Finally, the issue of privatisation in data collection and sharing. This ambit remains unnoticed and unregulated^[21].

JUDICIAL INTERPRETATION:

• Faizal K.V v. State of Kerala:

Facts: The petitioner was a teacher in a school and was accused of forged documents. The magistrate court ordered him to give his handwriting to prove and compare the suspected forged document for investigation purposes. The petitioner claims the violation of the right to privacy guaranteed under Article 21, and the right against self-incrimination under Article 20 of the constitution. The state argued that such a requirement was based on untenable law^[22].

Issues:

1. Is the Magistrate court’s order to furnish the handwriting lawful under the Act of 2022?
2. Whether compelling an individual to provide voice samples violates the fundamental rights under Article 20(3) of the constitution?

Held: The Hon’ble High Court of Kerala upheld the order of the Magistrate Court, reasoning the explicit provisions of the Code of Criminal Procedure. Concerning the provision of the Criminal Procedure (Identification) Act, 2022, the Magistrate Court has the power & authority to order voice samples and handwriting for investigation purposes. The judgement also emphasized the super-ceding effect of public interest over the right to privacy of an individual. The ruling of the State of Uttar Pradesh v. Ram Babu Misra was referred for providing handwriting and other specimens.

• Tarak Nath Gupta & Another v. State of Delhi & Another^[23]:

Facts: The petitioner of this case alleged that his daughter committed suicide due to harassment by the respondent, who married the petitioner’s daughter. The petitioner was questioned about a telephone conversation between them and their daughter. However, the petitioner denied identifying the voice during the cross-examination of the trial.

Issues:

1. Whether the tape-recorded conversation is admissible?
2. Whether a person can be compelled to give voice samples for the identification and investigation process?
3. Whether the trail court failed its part trial to take a participatory role in the trial?

Held: The Hon’ble High Court of Delhi held that the Judicial Magistrate has the power to order an individual to give his voice samples for identification purposes. The court also emphasized the accused’s right to a fair trial. The Court underlined the requirement of flexibility in the judiciary to facilitate hindrance-free procedural technicalities.

The judgments of the Hon’ble Courts re-establish the power exercised by Magistrates in ordering to give measurements of convicts. Additionally, it ensures that the right to privacy is subjected to restriction in the matter of public interest and welfare. Also, provide the legal insights of the Act.

CONCLUSION/ WAY FORWARD:

The Digital Personal Data Protection Act, 2023 becomes a troubleshooter to the privacy concerns that arose in the Act. DPDP Act helps in controlling the data that have been collected and processed i.e., limiting the mandatory data to be measured. The DPDP Act, ensure the rights of the convicts as they were construed as data principal vested with the right to give consent as data principal, and other rights include the right to erasure, access of the data, and to retrieve the consent if required. However, the exercise of the right to erasure is again a question because the Criminal Procedure (Identification) Act, 2022 grants power to NCRB to store the measurements for seventy-five years. Apart from this, the DPDP Act ensures transparency throughout the entire procedure from taking measurements to protecting the same. The grievance redressal mechanism for the aggrieved convict under the Act of 2022 is directed to approach the Digital Personal Data Protection Board established by the DPDP Act, 2023. Thus, the key issues of data protection under the Act of 2022 are addressed to an extent by the DPDP Act.