Criminal Procedure (Identification) Act, 2022

The article 'Criminal Procedure (Identification) Act, 2022' by Snehil Sharma is all-encompassing research about the enactment of the Criminal Procedure (Identification) Act along with its comparison with the previous legislation. The Author felt that undoubtedly the recent enactment is praiseworthy but it also need certain modification for the present time period.

The article gives information about the need for the enactment of the aforesaid legislation and definitely, the law comes with the changing need of society. The Author has tried to cover significant information so that it can benefit the readers to a greater extent.

Introduction

The Criminal Procedure (Identification) Act, 2022, which was approved by the Parliament in April 2022, recently went into effect. It replaced the Identification of Prisoners Act of 1920, a colonial-era statute that allowed police to measure suspects who had been convicted, detained, or were awaiting trial. Under the Criminal Procedure (Identification) Act of 2022, police officers or prison guards are permitted to obtain from inmates or people who have been detained for an offence specific identifiable information (such as fingerprints or DNA samples). The NCRB has been given authority under the Rules to lay out procedures for collecting measurements and for managing, storing, processing, matching, destroying, and discarding these records.

The Criminal Procedure (Identification) Bill, 2022 aims to broaden the definition and applicability of the legal measures that may be used to identify a criminal suspect in order to further aid law enforcement in other criminal investigations. The bill specified measures to include pictures, iris, and retina scans, physical samples, biological samples, and their analysis. It also included fingers, palms, and footprints. The bill supported both increased prosecution and investigation agencies. A magistrate may also demand that measurements or pictures be taken of a person to help with an investigation. All materials must be destroyed in the event of acquittal or discharge of the defendant.

What is the use of identification details in criminal trials?

Identification is the demonstration in a court case that a person, document, or other object is the one that is claimed to be. Identity is proven via identification. There are three basic goals for measurements and identifying photos. Identifying the perpetrator against the person being detained is the first step, followed by identifying suspected repetition of similar offences by the same person and establishing a prior conviction. It aids in the distinctive identity of a criminal and aids investigative authorities in the resolution of criminal cases. When no one can identify the accused, crimes are frequently perpetrated in the shadows. In some situations, proving the accused's identity can help prove that the crime was committed.

Identification of Prisoners Act, 1920

The Identification of Prisoners Act, 1920 (the "1920 Act") allowed for the collection of fingerprints, footprint impressions, and photographs of individuals in India, including those who had been convicted of a crime that carries a sentence of one year of hard labour, and (ii) those who had been arrested in connection with such a crime.

On September 9, 1920, the Identification of Convicts Act, which outlines the legal principles controlling the police and prisoners, was enacted. That was the Act No. 33 of 1920. The Act gave permission to take pictures and measurements of prisoners and other people. It specified that any person who has been found guilty of a crime must provide the police chief with a photo and other physical information. According to Section 186 of the Indian Penal Code, 1860, any failure to comply is unlawful. It was requested that the Act be changed in 2018 to incorporate Aadhaar information as well as biometric information including iris scans, signatures, and voice samples.

Main Highlights and Differences in both the Legislations

The 2022 Act will allow for the gathering of biological samples, "behavioural attributes," and reports of any physical tests of the accused carried out in accordance with sections 53 and 53A of the Criminal Procedure Code ("CrPC"), which deal with cases involving rape among other things.

The 2022 Act, in contrast to the 1920 Act, proposes to authorize the collecting of data from criminal defendants, individuals imprisoned under preventive detention legislation, or those arrested for crimes punishable under any law. The 2022 Act restricts the compelled collection of biological samples to crimes against women, children, or other offences that carry sentences of at least seven years in jail.

The State Governments had been given authority under the 1920 Act to establish regulations governing criminal investigations; however, the 2022 Act aims to provide both the federal and state governments with this authority.

The 2022 Act aims to grant a magistrate the authority to order anyone to provide their measurements and data in accordance with the rules in order to assist in an inquiry or process under the CrPC. The 2022 Act expands the pool of those who are qualified or permitted to gather data and grants discretionary powers in this area to prison personnel, law enforcement, and magistrate's officers.

What are some of the concerns with the present legislation?

This Act has been in the discussion since its introduction and this is major because of the following concerns and challenges that it raises:

• It is compulsory by law for those who have been arrested for crimes against women, minors, or crimes carrying a seven-year or longer sentence to provide their biological samples. Moreover, all people who have been arrested may be asked to provide "measurements" and personal information other than biological samples. Such people will eventually still be able to access their information from the NCRB, which may include biological samples, eye and retina scans, and more, even if they are found innocent.
• The word "behavioural traits" has not been defined elsewhere in the 2022 Act, although it is implied from the definition of "measurements" that it includes signatures, handwriting, and any other test mentioned in sections 53 or 53A of the CrPC. Without a carefully thought-out justification, the outcome could be that these "measurements" inadvertently incriminate the accused, in violation of Article 20(3) of the Constitution, by producing evidence against them.
• Conflicts with state governments that also have this authority could result from giving the central government the authority to legislate and/or set rules under the 2022 Act.
• More significantly, the 2022 Act does not include any provisions for an appeal to a higher authority against any arbitrary use of authority by an institution that has been granted permission to collect a person's personal data. Therefore, the High Courts of the States or the Supreme Court will automatically be responsible for handling any remedy for abuse of power.
• The NCRB is not required by the 2022 Act to maintain records of "measurements" against security threats such as data breaches and cyber events in a secure location. Additionally, the 2022 Act does not prohibit or make provisions for data sharing, which might seriously jeopardize the privacy of an accused person who is found not guilty or even in other situations.

Way Forward

The 2022 Act is a good piece of legislation that aims to improve inquiry efficiency and prisoner identification methods. When the 2022 Act was passed, it was sharply criticized by opponents who saw it as excessive, disproportionate, a violation of the right to privacy, and a threat to data privacy. Modern prisoner identification techniques will be introduced by the Act, however, there are certain drawbacks, including the potential for power abuse by the authorities, the risk of self-incrimination by the accused, data privacy, overlaps or inconsistencies in state and federal laws, etc. Additionally, the 2022 Act needs several elements to be explained; otherwise, law-abiding individuals' fundamental rights are in jeopardy.

In order to create a strong data protection framework, the government has also been debating and examining Indian data protection and privacy laws. Once established, established data protection rules must be followed for the gathering and storage of "measurements" under the 2022 Act. There is unquestionably a big concern about data security and privacy. Only once a robust data protection law is in place with severe penalties for violations should policies involving the collection, storage, and disposal of essential personal facts be implemented. Denying law enforcement organizations access to the newest technologies would be extremely unfair to both the general public and crime victims.

Conclusion

Although the Criminal Procedure (Identification) Act, 2022 has a clear intention, it leaves some decisions up to the discretion of the authorities, which makes it ambiguous and has a wider scope. Such broader implications run the risk of making it an administrative target of impunity, which would be disproportional and dangerous for the general populace. The fact that this Act seeks to legitimize the State's and its enforcement agencies' violations of fundamental rights by undermining the right to life and liberty guaranteed by Article 21 of the Constitution makes it much riskier.

References

[1] Farnaaz Kharbari & Akriti Shikha, 'India: The Criminal Procedure (Identification) Act, 2022', Available Here

[2] Shaoni Das, 'The Criminal Procedure (Identification) Act, 2022 violates various constitutional mandates', Available Here

[3] PRS Legislative Research, 'Criminal Procedure (Identification) Rules, 2022',  Available Here 

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