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Explained: Why govt wants to collect bio samples for crime files, and concerns it raises

A Bill tabled in Lok Sabha proposes to allow police and prison authorities to collect and store biological samples of certain accused and convicts. What are the government’s objectives, and what concerns does this raise?

Written by Apurva Vishwanath | New Delhi |
Updated: March 30, 2022 10:34:56 am
Minister of State for Home Affairs Ajay Mishra in Lok Sabha, where he introduced the Bill on Monday. (SANSAD TV/PTI Photo)

The government introduced the Criminal Procedure (Identification) Bill, 2022 in Lok Sabha on Monday amid strong protests from the Opposition. The Bill proposes to allow the police and prison authorities to collect, store and analyse physical and biological samples including retina and iris scans.

What is the proposed law?

The Criminal Procedure (Identification) Bill, 2022, introduced by Minister of State for Home Affairs Ajay Mishra in Lok Sabha, compels certain individuals, convicted and accused of offences, to share biological personal data. This has raised concerns about excess state surveillance and violation of privacy. According to the text of the Bill, it is “to authorise for taking measurements of convicts and other persons for the purposes of identification and investigation in criminal matters and to preserve records and for matters connected therewith and incidental thereto”.

Section 2(1)(b) of the Bill defines “measurements” to include finger impressions, palm-print impressions, footprint impressions, photographs, iris and retina scans, physical and biological samples and their analysis, behavioural attributes including signatures and handwriting, or any other examination referred to in Section 53 or Section 53A of the Code of Criminal Procedure (CrPC), 1973. Section 53 relates to medical examination of a person arrested.

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The law also seeks to replace the Identification of Prisoners Act, 1920 which applied to collection of “measurements” for mostly those who were convicted and who would serve a prison sentence. Measurements under the 1920 Act involved only finger impressions and footprint impressions.

Who does the law apply to?

Compared to the 1920 Act, the Bill expands the individuals it seeks to cover. It proposes that the law apply to three categories of individuals:

– Those convicted of an offence punishable under any law for the time being in force.

– Those ordered to give security for good behaviour or maintaining peace under Section 117 of the CrPC for a proceeding under Section 107, 108, 109 or 110 of the Code. These are provisions involving “suspected criminals” or “habitual offenders” with a view to preventing crime.

– Those arrested in connection with an offence punishable under any law in force or detained under any preventive detention law. This would include the National Security Act or the Public Safety Act.

Additionally, the Bill states that except for those accused of offences committed against a woman or a child, or for any offence punishable with imprisonment for a period that is not less than seven years, a person accused of any other offence can refuse to allow taking of his biological samples under the Bill.

The Bill says that even if such data is collected from the accused, it can be destroyed from the records unless a magistrate in writing directs otherwise, after the accused is released without trial or discharged or acquitted by a court.

How will this data be stored?

The Bill states that the National Crime Records Bureau (NCRB) shall be entrusted with the biological data collected, “in the interest of prevention, detection, investigation and prosecution of any offence under any law for the time being in force”.

The NCRB can collect the record of measurements from the state government or Union Territory Administration concerned, or any other law-enforcement agencies, and will have the power to store, preserve and destroy the record of measurements at national level and share and disseminate such records with any law enforcement agency. Given that policing is still a state subject, it remains to be seen if any states refuse to share this information. But the Bill provides a legal framework for police to carry out surveillance using technology.

The modalities of collection, storage or use of this data will be prescribed in rules by the government and are not outlined in the Bill, except that the record of measurements shall be retained in digital or electronic form for a period of 75 years from the date of collection.

However, the Bill states that the rules will necessarily be placed before state legislatures or Parliament.

What are the issues being raised about the Bill?

LACK OF CLARITY: Several provisions are not defined in the Bill itself. For a law that impacts fundamental rights, this can raise concerns. For instance, the statement of objects says it provides for collection of measurements for “convicts and other persons” but the expression “other persons” is not defined. It does include those accused of certain offences, but it can be argued that the police could use the law to expand it to others.

The Bill allows those “ordered to give security for his good behaviour or maintaining peace under section 117 of the Code of Criminal Procedure, 1973 for a proceeding under section 107 or section 108 or section 109 or section 110 of the said Code” to be compelled to share biometic data. These provisions cast a wide net on range of individuals — even those who are not booked for any offence but are simply “suspected” of committing one or “likely” to commit one.

CONFLICT WITH FUNDAMENTAL RIGHTS: Opposition members argued that the Bill was beyond the legislative competence of Parliament as it violated fundamental rights of citizens including the right to privacy — the Constitution states that Parliament can bring no law that violates the fundamental rights of citizens.

The proposed law will be debated against Article 20(3) of the Constitution, which is a fundamental right that guarantees the right against self-incrimination. It states that “no person accused of any offence shall be compelled to be a witness against himself”.

The Supreme Court’s landmark ruling in Puttaswamy v Union of India, which recognised the right to privacy as a fundamental right, made it clear that any state action infringing on the right needs to be backed by legislation. It also laid down a three-fold test to allow such laws. First, the activity must be backed by a law. Second, the state must have a legitimate interest in the subject to bring such a law that collides with fundamental rights. Third, the state’s infringement must be proportional to its aim.

The government could argue that the proposed Bill helps in maintaining law and order, which is a legitimate state interest. However, the Bill also states “increasing conviction rate” as one of its aims. If the law is passed and challenged, the court will have to look into whether “increasing conviction rate” can be a legitimate aim and if it can outweigh rights of citizens.

To the extent that the proposed Bill brings a legal framework for police surveillance using technology, experts fear that it could be expanded or misused.

 

OTHER CONCERNS: The Bill also brings to focus rights of prisoners and the right to be forgotten since biometric data can be stored for 75 years. While the jurisprudence around the right to be forgotten is still in an early stage in India, the Puttaswamy judgment discusses it as a facet of the fundamental right to privacy.

In the Puttaswamy II case in 2018, the Supreme Court upheld the Aadhaar scheme and allowed the state to collect fingerprints and iris scan for welfare schemes.

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