Privacy is not something I am entitled to…it’s an absolute prerequisite. In today’s world, where holding on to one’s personal data and keeping one’s personal life has become an issue thanks to the advent of the electronic age, the biggest concern before a person is how to keep his identity safe. This much needed safety is not only needed from the other not so well-meaning individuals, but also from improper governmental intrusion. As Justice William J. Brennan has said, “If the right to privacy means anything it is the right to the individual, married or single, to be free from unwarranted governmental intrusion.”
Everything and anything that gives an individual his unique identity should be private and he must have the right and the power to keep it safe from public consumption. The right to privacy is infact so intrinsic to an individual that it has also been included within the Art 21 of the Constitution of India and is an inherent part of the Right to Life and Personal Liberty. Coming now to a long debated matter- does the right to privacy also extend to a prisoner? Furthermore, can a prisoner even be termed as an individual or is he just a wrongdoer who has no rights including his basic fundamental rights?
The Hon’ble Supreme Court asserted in D.B.M Patnaik Vs. State of Andhra Pradesh that a mere detention does not deprive a convict of all the fundamental rights enshrined in the Constitution of India.
The latest addition in the already ongoing debate is -The Criminal Procedure (Identification) Bill, 2022 – which seeks to expand the powers of investigating officers to collect biometric details of prisoners . The Act will allow the police to collect a host of biometric data from prisoners, including fingerprint impressions, palm print impressions, footprint impressions, photographs, iris and retinal scans and other physical and biological samples.
Moreover, it also proposes that police personnel be allowed to collect behavioural attributes of prisoners, including handwriting samples and signatures. The Bill, introduced by the Government on March 28 in Lok Sabha, got cleared on April 4 and on April 6 in Rajya Sabha after facing heated protests and criticism by the opposition and is currently the talk of the town.
In simple terms The Criminal Procedure (Identification) Bill, 2022 repeals, replaces and is a newer and an advanced version of The Identification of Prisoners Act, 1920. It has consolidated and updated the law relating to measurements of individuals covered under the Bill, bearing in mind the scientific and technological advancements.
Earlier, foot prints, hand prints and photographs were the only data that was collected as “measurements” of a limited category of convicts and non- convicts, under The Identification of Prisoners Act, 1920. The Criminal (Identification) Bill, 2022 however proposes to allow the Police to collect finger impressions, palm prints impressions, footprint impressions, photographs, iris and retina scans, physical and biological samples. It also enables the Police to collect behavioral samples like signatures, handwriting along with any other examination referred u/s 53A of The Criminal Procedure Code.The National Crime Record Bureau is the authorized body to collect, store and preserve this data.
Which convicts / non- convicts are covered in this Act?
1. Persons convicted of certain offences (such as offences punishable with a minimum of one year of rigorous imprisonment).
2. Persons ordered to give security for good behaviour or maintaining peace under the Code of Criminal Procedure, 1973 (CrPC), and
3. Persons arrested in connection with an offence punishable with at least one year of rigorous imprisonment.
The Bill widens the ambit of such persons to include all convicts, arrested persons, as well as persons detained under any preventive detention law. Arrested persons will not be obliged to give their biological samples unless they have committed an offence against a woman or a child, or an offence punishable with a minimum of seven years of imprisonment.
How would the data be retained?
The data would be retained in digital or electronic form for 75 years from the date of collection. The record may be destroyed in case of persons who have not been previously convicted or are released without trial, discharged, or acquitted by the court, after exhausting all legal remedies. A Court or a Magistrate may direct the retention of details in case of such persons after recording reasons in writing.
Can a person deny/ refuse to give samples?
As per the Bill, resistance or refusal to give details will be considered as an offence under the Indian Penal Code, 1860. In case of such resistance or refusal, police officers or prison officers may collect details in the manner prescribed under Rules made by the state government or the central government.
Another major change in the act is that while previously the Act gave the rule making power related to collection of samples to the State Government only, now the Bill extends the power to Central Government as well.
The main area of concern and the points of contention that arose in the Parliament during the discussion on the said Bill were that it may coerce an individual (whether convicted or otherwise) to give measurements in a criminal investigation and/ or trial thereby resulting in the violation of the individual’s right against self-incrimination as per under Article 20(3) of the Constitution of India.
Salient features of this Bill that are different from the previous Act:
• Unlike the old Act, the Bill imposes an obligation to share measurements with a police officer for grave offences committed against a woman or a child or for any offence punishable with imprisonment for a period not less than 7 years. Under the Act, convicted persons and persons who had been arrested for offences punishable with rigorous imprisonment for a term of 1 year or upwards were required to give their measurements to police officers.
• The law as it stands under the Act, does not provide the manner of collecting the measurements by police officers. It merely provides that measurements are to be collected by police officers in the “prescribed manner.” Several judicial decisions have discussed the import of “prescribed manner” and whether it entails the requirement of an executive rule for implementation. However, necessary safeguards have been provided for the same in the Bill, which provides that police or prison officers can take measurements as may be prescribed by the central government or state government, thereby mandatorily requiring executive checks and balances.
• The measurements collected by police officers are not considered as gospel truth either under the Act or Bill. A police officer can either collect the measurements on his own or approach a Magistrate to pass necessary orders for taking of measurements. In the event police officers take the measurements on their own, they bear the burden to dispel doubts as to its bonafide and to rule out fabrication. Hence, the Bill continues to encourage police officers to take measurements by approaching a Magistrate.
The opposition however is opposing the bill on various counts, one of the major one being that without adequate safeguards, it has the potential to provide inordinately wide discretionary powers to the government. They have also requested that the Bill be sent to a Standing Committee.
Another objection is that the bill gives draconian powers to the government. Many say that the original bill was passed in the year 1920 by our colonisers, the British Government, in a desperate attempt to control nationalist forces by expanding the scope of surveillance. It authorised the then authorities to take photographs, fingerprints and footprint impressions of convicted (and, in certain cases, non-convicted) persons and store them.
Those in the favour of the bill however claim it to be an attempt to update the law by taking into account new techniques of “measurement” and identification that have evolved over the last century.
The biggest concern of the people opposing the new bill is that there is not a strong data protection law in place in India as a result of which with every advance in technology, the State will have even greater powers of surveillance over its citizens. While the old Act was only photographs and fingerprints, now when you add retina scans, biological samples and even “behavioural attributes” such as handwriting, we are signing off on much greater powers of the state so we need to put in place rock-solid safeguards. Which this Bill is totally lacking.
Another problem with the bill is that while it permits the retention of records for 75 years, the life expectancy of an Indian citizen is 69.6 years. This Bill also allows the National Crime Records Bureau to share and disseminate personal data with “any law enforcement agency.” This violates the best practices of data protection, including the principle of “purpose limitation”: i.e., even where the collection of data is legitimate, data that is collected for a specific purpose should be used only for that limited purpose, and not for anything else. Extremely vague terms have been used in this Bill: “Investigation and prosecution of crime.”
It cannot be ignored that with the advent of the technological and scientific changes, crime and its trend have increased. Collection of only finger prints and foot prints is not sufficient to identify criminals. The Bill will not only help our investigation agencies but also increase prosecution. There is also a chance of an increase in conviction rates in courts through this.
The advanced countries across the globe are relying on new "measurement" techniques for reliable results. The Identification of Prisoners Act 1920 does not provide for taking these body measurements as many of the techniques and technologies had not been developed at that point in time.
It is, therefore, essential to make provisions for modern techniques to capture and record appropriate body measurements in place of existing limited measurements.