Jhe Criminal Procedure (Identification) Act 2022, which received President Ram Nath Kovind’s assent on April 19, aims to make the criminal justice system “more efficient” by connecting it to technology. The “big” vision at play here is that the intersection of the two will ensure that police and investigators stay one step ahead of criminals. Under this law, the convict, as well as other people involved in the case, will be required to provide their personal data, including fingerprints and palm prints, photographs, iris and retina scans, physical and biological samples and their analyses, behavioral attributes such as signatures, handwriting or any other examination referred to in Section 53A of the Code of Criminal Procedure 1973.
The collection of personal data, as contemplated by law, clearly raises concerns about the violation of the right to privacy. In the Supreme Court decision that affirmed the right as a facet of the fundamental right to life, Justice DY Chandrachud said, “Privacy, in its simplest sense, allows every human being to be left alone in an inviolable core. However, the collection of personal data of these too broad categories, which would allow the identification throughout the life of the person and the retention of the information for 75 years, violates this conception of privacy. Curiously, even the average life expectancy in India is less than that! The data could end up being retained even after the death of the person.
Blur the lines between guilty and innocent
Historically, police have been in possession of fingerprints, footprints, body marks and other measurements of communities classified as ‘criminals by birth’ under the old Criminal Tribes Act ( CTA), 1871 and subsequently through the Post-Independence Repeat Offenders Act. , 1952. These provisions enabled the criminalization of dozens of nomadic and semi-nomadic tribes across India. The vast discretionary powers of the police are therefore exercised to the detriment of oppressed caste communities. The data collected so far has been transmitted by local police stations and stored locally. The storage of this data by the National Crime Records Bureau (NCRB) has the potential to produce 360-degree profiles on a pan-national level of those considered “repeat offenders”.
The collection of data mandated by the Act also violates the thresholds of necessity and proportionality upheld by the Supreme Court in the decision on the right to privacy. In the statement of the objects and reasons of the Act, it is indicated that such an exercise will make criminal investigations more effective and faster and will increase the conviction rate. We argue that even if the conviction rate increases, it will likely do so at the expense of individuals without social and economic capital who are vulnerable in a country subject to myriad hierarchies and power dynamics. Such indisputable and discriminatory powers of the police over the citizens of the country will certainly make the Narendra Modi government call the law “successful” by showing how it has managed to increase the conviction rate. However, a higher conviction rate would not only exacerbate but also encourage the existing casteist policing habits of the Indian police.
It is also important to note here that, in line with the Modi government’s response to Rajya Sabha on whether a delay in collecting evidence leads to an increase in the pending of cases, the “dismissal of the case depends on several factors such as the category of the case (civil or criminal), complexity of the facts in question, nature of the evidence and cooperation of the party involved. Therefore, by its own admission, the government is also telling you that increased evidence gathering would not necessarily result in an increased conviction rate. Thus, the law does not fulfill the very purpose for which it was put in place.
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The retention of personal data and its alleged use for crime prevention purposes casts a net of suspicion over an extremely wide section of society, as the law permits the collection of data from anyone involved in any matter . So someone arrested for a minor offense like smoking in public, an action that would violate Arnesh Kumar’s guidelines, could hypothetically end up giving up their biometrics and DNA. It is undeniable that such an exercise would go far beyond its purpose and would therefore be disproportionate. In its decision on the constitutionality of Aadhaar, the Supreme Court had also rejected the notion of collecting and retaining data from a wide range of people to fight crime, because it would target “any resident of the country as a suspicious person” and would establish a presumption of criminality.
The value of “being acquitted” will now also be questioned. Regardless of the acquittal, the data will remain with the police without any means of accessing it to verify its quality and without any guarantee against abuse. Linking it to the provision of the Habitual Offenders Act 1952, state acquittal offers no safeguards on the issue of double criminality due to the length of time the data is stored. It will also leave the individual without a right to privacy and lead to increased surveillance and policing.
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Unchecked power and what to do about it
In summary, the hidden purpose of the Criminal Procedure (Identification) Act 2022 appears to be to increase the unchecked powers of the police. As the law does not assess an individual’s consent to provide such personal data, it empowers the police to take criminal action against them if they refuse. In order to address these issues, it is imperative that the Act be amended to ensure that these unchecked powers are kept in check.
The collection of evidence should be limited to only the categories of data relevant to the investigation and should only be retained for the purposes of the investigation and the trial. It should only be collected from suspects in cases where identification would be necessary, such as personal crime, terrorism or drug-related incidents. In summary, data collection should be necessary and proportionate to achieve the purpose of the criminal investigation and conviction.
Currently, data under the Act will be obtained by non-informed consent and transferred between agencies without any liability. There are also no provisions that limit the sharing of data with third parties. These actions run counter to internationally established best practices such as Chapter 3 (Rights of the Data Subject) of the European Union’s General Data Protection Regulation (GDPR), which ensures the legality, fairness and transparency in data processing and includes safeguards such as the principles of data minimization, storage limitation and purpose limitation.
The Criminal Procedure (Identification) Act 2022 will therefore directly affect a person’s fundamental right to privacy, the right to be forgotten, the right to move freely within the country and the right to access, correction and deletion of personal data. In the absence of data protection laws in India, what recourse will be available to the person whose data is misused? That remains to be seen.
Sanjana Meshram is a lawyer and research associate at the Criminal Justice & Police Accountability Project and Anouchka Jain is an Associate Policy Advisor at the Internet Freedom Foundation. Views are personal.
(Edited by Humra Laeeq)