The Criminal Procedure (Identification) Bill, 2022

The Criminal Procedure (Identification) Bill, 2022 ("the Bill") was passed in the Lok Sabha on 4th April, 2022 and in the Rajya Sabha on 6th April, 2022. An opposition proposal to refer the Bill to a select committee was defeated in vote at the Rajya Sabha. The President of India gave his assent on 18th April, 2022. The Ministry of Home Affairs will notify the date on which the Act will come into force and will also notify the rules under the Act.

This Bill is the first amendment made to the Identification of Prisoners Act, 1920, in over a century, which does so by repealing it and introducing the Criminal Procedure (Identification) Act, 2022. The Bill proposes to tackle new-generation crimes thereby enhancing the conviction rate.

Under the current laws, excluding sexual offences, the police officers are permitted to take only photographs, finger and footprint impressions of a limited category of persons who have been arrested and convicts.

The Bill now requires the following persons to oblige and allow for his or her measurements to be taken:-

  1. A person who has been convicted of an offence under any law.
  2. A person who has been ordered to give security for his good behaviour or to maintain peace under Section 117 of the CrPC.
  3. A person who has been arrested in connection with an offence punishable under any law or detained under any preventive detention law.

With respect to persons who have been arrested, the obligation to provide biological samples is only cast upon those arrested for an offence committed against a woman or a child or for any offence punishable with imprisonment for a period of 7 years and above. Having said that, the Bill also empowers the Magistrate to direct any person to give his or her measurements, even if they do not fall in the category mentioned under the Bill.

Any resistance to allowing such measurements to be taken will be an offence under Section 186 of the Indian Penal Code, 1860 which is obstructing a public servant in the discharge of his public functions. However, the Bill adds some ambiguity as to how the measurements will be procured if a person resists giving his or her measurements and simply states that the Central or State Governments may prescribe rules for the manner in which the measurement will be procured.

The records of these measurements will be stored in a digital or electronic form at a national level with the National Crime Records Bureau and destroyed after a period of 75 years. However, if a person who has not been previously convicted, is released without a trial or discharged or acquitted by the Court, after exhausting all legal remedies, his or her record of measurements will be destroyed.

There are various elements of this Bill that are ambiguous and vague. The Bill allows the National Crime Records Bureau to share and disseminate the measurements with “any law enforcement agency.” The reason to share such measurements can be as simple as “for investigation purposes” which means even if a person is merely a suspect and if he or she had been previously detained under any preventive detention law or called upon to sign a simple bond to maintain peace in the society, the National Crime Records Bureau can share and disseminate this personal data with any law enforcement agency and no parameters and guidelines for the same have been provided for under the Bill.

There is no mention of where the measurements will be stored and whether they would be encrypted, thus possibly making the record susceptible to hacking and being misused. The provisions seem to be arbitrary as there is no distinction between the categories where the collection of measurements may be absolutely necessary for investigating a crime and where it is not required. Not all crimes require measurements to be collected for the purpose of investigations and the same is arbitrarily left in the hands of the police officer or prison officer with no procedure in place to appeal.

There is no inclusive definition of “behavioural attributes” and the same is not a defined term under forensic science. The Bill under Section 5 states that a Magistrate can direct any person to give measurements including behavioural attributes for the purpose of investigation. Therefore, in accordance with this Bill, can such person be coerced into taking a psychiatric evaluation for obtaining “behavioural attributes” which could even potentially be understood to include narco-analysis, polygraph tests, or brain mapping, which were prohibited expressly by the Hon’ble Supreme Court as these diagnostic techniques would amount to 'testimonial compulsion' which triggers the protection against self-incrimination under Article 20(3) of the Constitution of India, 1950. The most important part of law is the legislation and how the statues are worded and therefore drafting of any Bill under any subject must be done with utmost responsibility. What now needs to be seen is how the rules, which will be prescribed by the Central and State Governments to give effect to this Bill, are laid down.

By - Lakshmi Raman

The views expressed herein are solely the author's and do not necessarily reflect the opinions and beliefs of Numen Law Offices.