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Syllabus
- GS-2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
- GS-2: functions and responsibilities of various Constitutional Bodies (Parliament)
Context: The Criminal Procedure (Identification) Act, 2022, which was passed by the Parliament in April this year, came into force recently.
- The new law allows investigators to collect certain identifiable information of convicts and other persons for purposes of identification and investigation in criminal matters.
The Bill replaces the Identification of Prisoners Act, 1920.
What are the problems with India’s Criminal Justice System?
- Slow disposal of cases leading to huge backlogs. There are more than 4.4 crore cases pending before the judiciary. The tendency to over-criminalise conduct being one of the reason for high number of cases.
- Justice mechanisms is mostly inaccessible to marginalised classes of citizens. This is because the focus has been upon institution building rather than capacity building.
- Abuse of power by the police due to continuation of Colonial mindset in certain circles.
- Crime prevention has remained utopian goal of our criminal justice system. This is due to ineffective community policing mechanisms and situational crime prevention
- Rehabilitative form of justice has not been focused. Custodial punishments are seen by the governments as a more effective measure than non-custodial punishments (recommended by various Law Commission)
- Dearth of reliable state-sponsored data collection, maintenance and analysis mechanisms.
- Criminal justice system is yet to catch up with the Changing nature of crimes.
- Low Conviction rate due to inefficiencies in police & judicial system – which is being addressed by the new proposed bill.
What is the proposed law?
- Objective of the bill: The bill provides legal sanction for taking appropriate body measurements of persons who are required to give such measurements and will make the investigation of crime more efficient and expeditious and will also help in increasing the conviction rate.
- Details about convicts and other persons: Earlier act permitted collection of only finger impressions and footprint impressions. The new act expands the list to include iris and retina scans, palm-print impression, signature and handwriting, biological samples such as blood, semen, hair samples, and swabs, and their analysis.
- Coverage- It proposes that the law apply to three categories of individuals.
- All Convicted persons (earlier it was only for certain cases)
- Arrested Persons
- Suspected Criminals
- Persons held under any preventive detention law
- Retention of details: The law also empowers the National Crime Records Bureau (NCRB) to store, preserve, share with any law enforcement agency and destroy the record of measurements at national level. The records can be stored up to a period of 75 years.
- Removal of details: The record may be destroyed in case of persons who: (i) have not been previously convicted, and (ii) are released without trial, discharged, or acquitted by the court, after exhausting all legal remedies.
- Police personnel up to the rank of Head Constable have been authorised to record the measurements.
- Resistance to giving details: As per the Bill, resistance or refusal to give details will be considered an offence under the Indian Penal Code, 1860.
- Role of the National Crime Records Bureau (NCRB): Functions of NCRB under the Bill include:
- Collect the details about the persons covered under the Bill from state/UT governments, or other law enforcement agencies
- storing and destroying the details about specified persons at the national level
- processing the details with relevant criminal records, and
- disseminating the details to law enforcement agencies.
- Rule-making power: The Act vested rule-making power only in the state government. The Bill extends this power to the central government as well. The central or state government may make rules on various matters like the manner of collection, storage, preservation, destruction, dissemination, and disposal of details by NCRB.
How is the new law different from the old 1920 act?
| |
1920 Act |
Changes in the 2022 Bill |
| Data permitted to be collected |
- Fingerprints, foot-print impressions, photographs
|
- Adds: (i) biological samples, and their analysis, (ii) behavioural attributes including signatures, handwriting, and (iii) examinations under sections 53 and 53A of CrPC (includes blood, semen, hair samples, and swabs, and analyses such as DNA profiling)
|
| Persons whose data may be collected |
- Convicted or arrested for offences punishable with rigorous imprisonment of one year or more
- Persons ordered to give security for good behaviour or maintaining peace
- Magistrate may order in other cases collection from any arrested person to aid criminal investigation
|
- Convicted or arrested for any offence. However, biological samples may be taken forcibly only from persons arrested for offences against a woman or a child, or if the offence carries a minimum of seven years imprisonment
- Persons detained under any preventive detention law
- On the order of Magistrate, from any person (not just an arrested person) to aid investigation
|
| Persons who may require/ direct collection of data |
- Investigating officer, officer in charge of a police station, or of rank Sub-Inspector or above
|
- Officer in charge of a police station, or of rank Head Constable or above. In addition, a Head Warder of a prison
- Metropolitan Magistrate or Judicial Magistrate of first class. In case of persons required to maintain good behaviour or peace, the Executive Magistrate
|
What are the concerns expressed against the bill?
- Lack of Clarity: the statement of objects says it provides for collection of measurements for “convicts and other persons” but the expression “other persons” is not defined.
- Conflict with Fundamental Rights: The bill implied use of force in collection of biological information, that could lead to narco analysis and brain mapping, which is considered as violative of Article 20 (3) (right against self-incrimination). There are also concerns that it violates the right to privacy under Article 21.
- Possibility of Judicial Scrutiny: The Bill also states “increasing conviction rate” as one of its aims. The court may have to look into whether this can be a legitimate aim and if it can outweigh rights of citizens.
- Federal Challenges: Given that policing is still a state subject, it remains to be seen if any states refuse to share this information.
- Fear of Mass surveillance: The proposed Bill brings a legal framework for police surveillance using technology, experts fear that it could be expanded or misused. For ex: The bill empowers to collect samples even from protestors engaged in political protests.
What has been the government response to such criticisms?
- The government, however, assured that the rules would have safeguards against any misuse of the identification database and biological samples, by fixing accountability of those entrusted with the safety of data.
- Union Home Minister Amit Shah had defended the Bill saying that it had been introduced so that the police and law-enforcement agencies “are two steps ahead of the criminals and not two steps behind”.
- “I can assure you this much that this Bill has not been brought in for any misuse,” Mr. Shah had said, asking “those worrying about the human rights of prisoners to worry about the human rights of those who are harassed by criminals”.
What should be the way ahead?
- Need for exercising restraint: The sensitive personal information collected, stored, preserved and shared under the Bill must be relevant and limited to the purpose for which such information is collected and stored.
- Need for Data Protection law: Provisions such as these that rely upon the collection, storage, preservation, sharing, and dissemination of sensitive personal information must be introduced only after a data protection law is in place to deal with potential breaches. It is the responsibility of each organ of the government to protect the autonomy of every individual.
Mains Practice Question – To what extent does the new Criminal Procedure (Identification) Act 2022 address the lacunae present in India’s Criminal Justice system? Critically Analyse.
Note: Write answers to this question in the comment section.
