Context:
Recently, the Ministry of Home Affairs (MHA) notified the rules governing The Criminal Procedure (Identification) Act, 2022.
Relevance:
GS II: Polity and Governance
Dimensions of the Article:
- About Criminal Procedure (Identification) Act, 2022
- What is the use of identification details in criminal trials?
- Identification of Prisoners Act, 1920:
- Main highlights and differences in both the legislations
- What are some of the concerns with the present legislation?
About Criminal Procedure (Identification) Act, 2022
- The Act seeks to repeal the Identification of Prisoners Act, 1920, which is over 100-years-old.
- The old Act’s scope was limited to capturing of finger impression, foot-print impressions and photographs of convicted prisoners and certain category of arrested and non-convicted persons on the orders of a Magistrate.
- The legislation would enable police and central investigating agencies to collect, store and analyse physical and biological samples including retina and iris scan of arrested persons.
- The Statement of Objects and Reasons of the bill when it was introduced in Parliament said that new ‘‘measurement’’ techniques being used in advanced countries are giving credible and reliable results and are recognised world over.
- It said that the 1920 Act does not provide for taking these body measurements as many of the techniques and technologies had not been developed then.
- The Act empowers a Magistrate to direct any person to give measurements, which till now was reserved for convicts and those involved in heinous crimes.
- It also enables the police upto the rank of a Head Constable to take measurements of any person who resists or refuses to give measurements.
- As per the rules, “measurements” include finger-impressions, palm-print, footprint, photographs, iris and retina scan, physical, biological samples and their analysis, behavioural attributes including signatures, handwriting or any other examination referred to in Section 53 or Section 53A of the Code of Criminal Procedure, 1973 (2 of 1974).
- Though it has not been specified, analysis of biological samples could also include DNA profiling.
What is the use of identification details in criminal trials?
Measurements and photographs for identification have three main purposes.
- To establish the identity of the culprit against the person being arrested
- To identify suspected repetition of similar offences by the same person
- To establish a previous conviction.
Identification of Prisoners Act, 1920:
- Even though the police has powers of arrest, mere arrest does not give them the right to search a person.
- The police requires legal sanction to search the person and collect evidence.
- These legal sanctions are designed so as to maintain a balance between the rights of an individual and the interests of society in prosecution and prevention of offences.
- The Identification of Prisoners Act, 1920 became a necessity when the recording of newer forms of evidence such as fingerprints, footprints and measurements started becoming more accurate and reliable.
- The Statement of Objectives and Reasons of the Identification of Prisoners Act, 1920 states that “the value of the scientific use of finger impressions and photographs as agents in the detection of crime and identification of criminals is well known”.
- It further goes on to state that although lack of legal sanction has not created problems before, there were increasing instances of prisoners refusing to allow their fingerprints or photographs to be recorded.
- Therefore, “to prevent such refusals in the future …[and] to place the taking of measurements etc which is a normal incident of police work in India, as elsewhere, on a regular footing” it was considered necessary to enact the Identification of Prisoners Act, 1920.
Main highlights and differences in both the legislations
- Like the Identification of Prisoners Act, 1920, the new Criminal Procedure (Identification) Act, 2022 provides for legal sanction to law enforcement agencies for the collection of measurements.
- The purpose is to create a useable database of these measurements.
- While at the State level, each State is required to notify an appropriate agency to collect and preserve this database of measurements, at the national level, the National Crime Records Bureau (NCRB) is the designated agency to manage, process, share and disseminate the records collected at the State level.
What are some of the concerns with the present legislation?
Since the Identification of Prisoners Act, 1920 was a colonial legislation, its duplication in the Criminal Procedure (Identification) Act, 2022, a post-independence legislation has raised some concerns related to the protection of fundamental rights.
Right to privacy:
- The legislation comes in the backdrop of the right to privacy being recognised as a fundamental right.
- A fundamental facet of the right to privacy is protection from the invasion of one’s physical privacy.
- As per the Puttaswamy judgment, for a privacy intrusive measure to be constitutional, there is a need for the measure to be taken in pursuance of a legitimate aim of the state, be backed by the law and be “necessary and proportionate” to the aim being sought to be achieved.
- In this case, while the first two tests are satisfied, as “prevention and investigation of crime” is a legitimate aim of the state and “measurements” are being taken under a valid legislation, the satisfaction of the third test of necessity and proportionality has been challenged on multiple counts.
Crime and Criminal Tracking Network and Systems (CCTNS):
- Such collection can also result in mass surveillance, with the database under this law being combined with other databases such as those of the Crime and Criminal Tracking Network and Systems (CCTNS).
Right against self-incrimination:
- Concerns are being raised that the present law violates the right against self-incrimination enshrined in Article 20(3) of the Constitution of India.
- However, this argument is nebulous since the Supreme Court has already settled this point.
- In the State of Bombay vs Kathi Kalu Oghad, the Supreme Court had conclusively held that “non-communicative” evidence i.e. evidence which does not convey information within the personal knowledge of the accused cannot be understood to be leading to self-incrimination.
- Therefore, no challenge lies to the law on this ground.
-Source: The Hindu
