REFORMATIVE OR NEBULOUS? - CRIMINAL PROCEDURE (IDENTIFICATION) ACT, 2022

On 6th April 2022, Parliament passed the Criminal Procedure (Identification) Act, 2022, which replaced the Identification of Prisoners Act, 1920, which has put the central government on a collision course with its critics. ‘Unconstitutional’, ‘invasive’, and ‘violative of privacy’ were some of the words heard through the din.

Controversial Provisions

Section 2(1)(b) of the Act allows the police and the prison authorities to take measurements. The word 'measurement' is defined to include biological samples and their analysis, behavioral attributes, or any other examination under Sections 53, 53A, and 54 of the Criminal Procedure Code, which refers to "such other tests". This loophole has been interpreted by people in various ways. The uncertain and open-ended terminology used in this particular provision provides an expansive power to the executive to collect measurements that are not even mentioned in the act. 

Moreover, the act fails to specify a timeframe for deletion of records of measurements for convicted persons, detainees, as well as those compelled. Further, the act does not provide at all for destruction of samples taken from any persons under the act. The act contains no procedural safeguards to minimize the infringement on the right to privacy, including specifying the purposes for which data may be used or shared, or the circumstances under which the Magistrate may decline the deletion of a person’s data. 

Central Government states that it had become essential to expand the “ambit of persons” whose measurements can be taken as this will help investigating agencies gather sufficient legally admissible evidence and establish the crime of the accused person. Moreover, the government elucidated that since the world has undergone technological and scientific changes, crime and its trend have increased, it was necessary to introduce an act governing advanced identification methods for criminal matters. 

One of the major lacunae in the impugned act is that it does not specify the Authority which shall have the duties and powers to execute the act. This loophole can create chaos in these situations where it can be easily misinterpreted that any law enforcement agency may ask for an accused/convict's measurements in case of violation of the law. The question of credibility and consent hovers around the minds of many. 

 What do Rajya Sabha members have to point out?

Shri P. Chidambaram (Former Minister of Finance of India) in the Rajya Sabha session on 06.04.2022, elucidated that there are a plethora of Legislations existing in India that govern the subject matter of identification and investigation of prisoners such as the Criminal Procedure Code (Section 53, Section 53A, and Section 54) and one of them that is lingering to be passed- DNA Technology (Use and Application) Regulation Bill, 2019. He raised the question of unnecessarily introducing a new act, on the contrary where existing acts and pending bills are in line to be worked upon.

Moreover, he elucidated that section 3 of the impugned act necessitates "any person" to provide access to their measurements if required under this act in case of a criminal matter. Mr. Chidambaram emphasized the fact that irrespective of the severity of the violation of law, the accused does not have an option to refuse to provide his/her measurements. He means to say that this legislation does not differentiate between a convict who has committed a murder and on the other hand an accused who has been convicted of an offence where the punishment is a fine of Rs. 100.

On the contrary, Shri Mahesh Jethmalani (Member of Rajya Sabha) elucidated that the conviction rates in this country have suffered as a result of not bringing in technological advancements in biometrics which help in detecting crime. Further, he clarified that nowhere in the definition of measurements has it been stated that it includes prohibited forms of tests such as the narco-analysis brain mapping and lie detector test. Mr. Jethmalani agreed to the fact that the controversial section 3 of the act requires a revision that undertakes any person accused or convicted in a criminal matter. Lastly, he highlighted section 4 of the act which states that once an accused is acquitted the measurements recorded at the time of his/her arrest, shall cease and will be deleted thereafter.  

Apex Court on Prisoner's Rights

The Supreme Court in Selvi v. State of Karnataka (2010) 7 SCC 263 considered the constitutionality of various evidence-gathering techniques including narcoanalysis, BEAP (Brain Electrical Activation Profile) or ‘brain mapping’, and polygraph tests. The Court ruled that the use of such neuroscientific investigative techniques constituted testimonial compulsion and violated an accused person’s right against self-incrimination under Article 20(3), and their right to life and personal liberty under Article 21 of the Constitution. 

In this case, the Supreme Court allowed the special leave petition in the context of cases where objections were raised and where the accused, suspects, and witnesses in the investigation were subjected to neuro-scientific tests without their consent. The polygraph test measures the physiological responses including respiration, blood pressure, pulse, and galvanic skin resistance to measure lying or deception. The narcoanalysis test involves the intravenous administration of the drug sodium pentothal, which causes a hypnotic trance allowing a subject to become less inhibited. The BEAP measures activity in the brain in response to selected stimuli, to determine if the subject is familiar with certain information. 

The Apex Court held that the protection against self-incrimination under Article 20(3) of the Constitution would have to be read considering the multiple dimensions of personal liberty under Article 21 such as the right to a fair trial and substantive due process. It also held that this would be applicable to the accused, suspects, and witnesses, and would not be confined to the courtroom, but would be applicable in all cases where the charge may end in a prosecution. 

In numerous places, the act delegates excessive powers to the executive. It does so first, by delegating legislative functions to the executive by providing wide-ranging rule-making powers with virtually no guidance; and second, by giving functionaries under the act (police/prison officers and Magistrates) excessive discretion to decide who they may compel to provide measurements, in what circumstances, and for what purposes.

A law may be found to be ultra vires the Constitution, on the ground that in delegating powers, it has transgressed the permissible limits. In re Delhi Laws Act et, (AIR 1951 SC 332) it was held that the legislature cannot abdicate its legislative functions, and when delegating its powers, it must ensure that the executive does not become a parallel legislature. Choosing and determining the legislative policy behind a legislation as well as formally enacting the same into binding law is an essential legislative function. It is possible for the working out of details to be delegated to the executive, as long as the broad policy is laid down and standards are established, such that the executive can operate within prescribed limits.

Conclusion

The Criminal Procedure (Identification) Act, 2022 has been introduced to discard legislations based on colonial mindset and to establish provisions that are technologically advanced to keep up with the pace of society. Moreover, it is essential for investigating and law enforcement agencies to have access to records that will help them to track down crimes in India. However, the legislation drafters should bear in mind the repercussions that ordinary citizens might have to face due to the uncertain and vague provisions. It is now and then emphasized by the courts all over the globe that whether we talk about legislations or judgments published by the respective organs of the government, shall be crystal clear and understandable, so as to avoid confusion amongst the masses.