In Conversation With Advocate Pallavi Pratap On Criminal Procedure (Identification) Act 2022

The Criminal Procedure (Identification) Act, 2022 received President's assent on 18.04.2022. Key features of the Act are as follows^[1]:

Expands the type of data that may be collected. Now the new Act includes certain measurements including

(i) Impressions of fingerprints

(ii) Palm prints and footprints

(iii) Photos

(iv) Iris and retina scans

(v) Analysis of physical and biological samples

(vi) Behavioural attributes

(vii) Signature and Handwriting.

Also expands the persons from whom such data may be collected.

(i) As per the Act, biological samples may be collected forcibly from the persons arrested for offences against a woman or a child, or if the offence carries a minimum of seven years of imprisonment.

(ii) Data may also be collected from persons detained under any preventive detention law.

(iii) The Act has empowered the Magistrate, to order collection of data from any person (not just accused) to aid an investigation.

Also expands on the authorities which may authorize such collection.

Officer in charge of police station or of rank Head Constable or above. Additionally, a Head Warden of a prison.

Metropolitan Magistrate or Judicial Magistrate first class. In case of persons required to maintain good behaviour or peace, the Executive Magistrate.

Maintenance of records: The National Crime Records Bureau (NCRB) will be the central agency to maintain the records. It will share the data with the Law Enforcement agencies. Further states/UTs may notify agencies to collect, preserve and share data in their respective jurisdictions.

The data so collected will be retained in digital/electronic form for 75 years, which more or less means, for the lifetime and beyond of the person whose data is collected^[2].

It's an undeniable fact that modern-day crimes involve the use of new technologies. The Home Minister has said that the government has taken various steps to deal with it, including setting up a Modus Operandi Bureau in the Home Ministry and exploring avenues to improve the IPC and CrPC. Do you consider this a major step towards the reformation of criminal laws to tackle modern crimes?

Certainly, this is a promising scheme introduced by the Home Ministry. Currently, MOBs are kept at District/State levels that too mostly in physical form. This step by Government will enable the authorities to make a unified digital database of relevant research data which can be accessed across states by any authorities if need be. It has been suggested that the Centre is developing an Artificial Intelligence (AI) and Natural Language Processing (NLP) based database of modus operandi which various criminal gangs or individuals use to commit crimes^[3]. However, we don't see any strict timelines as to when such steps shall be taken by the Government. It only depends upon how much the Government allocates upon such new technologies and techniques since development of such databases would be quite expensive, especially when the economy is at one of its lowest phases in this post covid time. Moreover, it seems impossible to have an exhaustive list of modus operandi, which keeps changing with innovative methods of criminals. Hence, it is to be seen as to when a workable model of the MOB is introduced by the Government.

The Act permits forcibly taking biological samples of an accused, which is criticized as being violative of the right to privacy. What is your take on that?

There are certain conditions when biological samples of an arrested person may be taken by force. Proviso to section 3 states that

"Provided that any person arrested for an offence committed under any law for the time being in force (except for an offence committed against a woman or a child or for any offence punishable with imprisonment for a period not less than seven years) may not be obliged to allow taking of his biological samples under the provisions of this section.^[4]"

Therefore, the arrested persons who are accused of committing offences against a woman or a child or for any offense which is punishable with imprisonment for a period of not less than seven years. This provision, for obvious reasons, raises many questions as to the constitutional validity of such act, vis-à-vis right to privacy of an individual, even if it's an accused/prisoner. Within 3 days of receiving the President's assent, the Act was challenged before the Hon'ble High Court of Delhi citing that "these provisions constitute a clear attack on personal liberty and clearly fall foul of Article 21 of the Constitution and are thus liable to be struck down^[5]". The Hon'ble High Court issued Notice in the said PIL and the matter is sub-judice before the Hon'ble High Court^[6].

What are the anomalies and the key features of the Act according to you?

The Act though has been a major change from the century-old Identification of Prisoners Act, 1920, it certainly has some issues to address:

1. The Act now allows the collection of data not just from the prisoners but also from an arrested person. Moreover, the data from any person who is not even arrested may be collected if the Magistrate so directs. This is clearly in violation of the right to privacy which is a fundamental right as held in Justice KS Puttaswamy (Retd.) v. Union of India [WP(C) No. 494 of 2012]^[7].
2. Article 20(3) which provides for the fundamental right against self-incrimination might also be violated in case the person is forced to give his/her sample. The Act does not discussed about the same.
3. By creation of a central database which can be accessed from any place with a computer by the authorities, it need not be used only for the case in which it has been collected, but for any other purpose as well.
4. Even for a minor offence, say negligent driving, when signatures of a person are obtained by police, same may be stored and used for 75 years, i.e. most probably the whole life of the offender^[8].
5. The Act has lowered the levels of officials authorized to collect the data, which raises the chances of such confidential data to be misused at hands of private individuals as well who might get access to such data through illegal means^[9].
6. The forcefully taking of samples and measurements of the detainee, not only violates right to privacy of an individual but also right to bodily integrity and dignity which has again gone for a toss by virtue of the present Act.

7. The definition of "measurements^[10]" specifies behavioural attributes that include signatures, handwriting or any other examination referred to in Sections 53 or 53A of the CrPC^[11]. However, the scope of the term "behavioural attributes" has not been explained anywhere in the 2022 Act. In the absence of a properly crafted explanation, the result may be that such "measurements" may create evidence against the accused which can lead to self-incrimination in violation of Article 20(3) of the Constitution^[12].

8. No provision for appeal to a higher authority in case of any arbitrary exercise of power by an authorized entity to collect individuals' data.

The Act doesn't define the ambit of the collection of data, which includes even DNA samples. Do you think that the ambit of the collection of data must be defined according to the offence?

The mode of specimen which needs to be collected differs from crime to crime and hence, it is correct to suggest that the Act ought to have defined the ambit of collection of data as per the offence which is alleged to have been committed.

The Act states that the data will be stored for 75 years even for trivial offences. Isn't there a possibility of a data breach with serious consequences?

Yes, this issue needs to be dealt by the legislature and requisite amendments need to be made in the Act, excluding the offences which actually do not require collection of data from the offenders. Retaining of such data over the years might expose it to data breach. It is not only the problem of hacking which we should be concerned about, but also that of corruption in the authorities which might lead to selling off of the personal data to private agencies leading to all the more privacy and safety concerns of the individuals whose data has been collected.

What challenges are awaiting the government in the execution of this Act?

Though there was serious opposition, the bill now stands enacted already. However, the challenge remains as to its constitutionality which has been challenged recently before the Hon'ble Delhi High Court. The matter is bound to reach the Hon'ble Supreme Court sooner or later which would then decide the fate of the Act. We could also expect certain guidelines as to in what situations data should be collected, since not every case needs the personal data of an accused person to be collected. There is absolutely no explanation in the Act as to why a person arrested for a petty offence and another arrested for terrorism should both be treated at par, when collecting samples of their data. The Act will not be executed unless the aforesaid questions are satisfactorily answered by the legislature.

What is your opinion about the Act as a whole, and what are your suggestions and recommendations?

The biggest drawback of the present Act may be the lack of clarification about any of the provision. The Act barely runs into three pages, under which every provision strives to infringe the fundamental rights of not only accused persons but also the individuals who are not accused of any offence.

The Act does not provide any safeguards in favour of the individual whose data/sample/measurements are being taken. Hence, the Act needs to be revised to have exhaustive provisions for the safeguard of such individuals. The Act seems to have been passed in a hurry without much deliberations by either of the Houses and hence, reconsideration is essential for protecting the life and personal liberty of an individual.