Recently,the Criminal Procedure (Identification) Bill, 2022 was introduced in the Lok Sabha which strives to create a legal framework to enable the investigative agencies to use technology and modern techniques in solving crimes. This Bill empowers the agencies by facilitating collection of biological and sensitive personal data by police and the subsequent creation and retention of information for up to 75 years.
According to the provisions introduced in the Bill, the police officials, right from a head constable, can collect and process such data. As a result, the inviolable right to privacy of the individual might get infringed as the line between the personal space of an individual and the legitimate state interest will be difficult to be identified and both things might get mixed up and might also clash. It seems that in the Bill, the right against self-incrimination and the right to privacy are positioned against each other and several terms in the Bill are either too broad or too vague.
The proposed law replaces the 1920 Identification of Prisoners Act and seeks to expand its scope and outreach. First, it has considerably expanded the data points, far beyond what is provided in the1920 law as under the new law the list of things that can be collected from an individual has gone from finger impressions, foot-print impressions and photographs to include palm-print impressions, foot-print impressions, iris and retina scans and other physical, biological samples. And apart from this, their analysis, behavioural attributes, signatures, handwriting or any other examination prescribed in the Code of Criminal Procedure can now be recorded and kept in database.
The phrase ‘biological samples’ finds no further description in the new law but could possibly include bodily invasions like drawing of hair and blood and collection of DNA samples. Such things under the present legal regime governing the field require the written sanction of a magistrate.
Second, the Bill provides for a very large category of persons from whom data can be collected. Under the Bill, i.e., the proviso (exception to law) in Section 3, police can now collect data from any person, however, only convicts, those under preventive detention and those who require to submit a surety bond can be compelled by the police.
The Bill has left ambiguities on many aspects of collection of data from minors between 16 to 18 years, especially juvenile offenders as they cannot give consent to collection of personal data but can be tried for serious offences.
It is a fact that the data protection framework is pending due consideration since long. Under such circumstances, serious questions are raised regarding protection of rights of the data principal and the about the risks of profiling. On August 24, 2022, it will be the fourth anniversary of Puttaswamy Vs Union of India, in which the Supreme Court held that the right to privacy is a fundamental right under the Indian Constitution and which reminds us that any encroachment by the state on personal space mustn’t be allowed to pass the muster unless it qualifies the test of constitutionality laid down by the Supreme Court in the Puttaswamy case.
The Supreme Court has clarified that the fundamental right to privacy will be subject to reasonable restrictions and is therefore not absolute. The court has laid down that the State can impose restrictions on the right to privacy so as to protect legitimate State interests but it can only do so by following a three pronged test, i.e., (i) There should be an existing law that justifies the need to encroach on privacy; (ii) There must be a legitimate State need ensuring that the content and character of this law falls within the zone of reasonableness which shall operate to protect against arbitrary State action; and (iii) Besides, the modus operandi and means adopted by the State are proportional to the objects sought to be fulfilled by the law.
Therefore, it is important that the unnecessarily too broad and vague provisions within the proposed legislation, i.e., the Criminal Procedure (Identification) Bill, 2022, should be excluded and it should be ensured that new law qualifies the test of constitutionality.
(The writer is an Additional Central Government Standing Counsel, Central Administrative Tribunal, Cuttack Bench and a Distinguished Adjunct Professor of Law and Media Studies, School of Mass Communication, KIIT University. Views are personal)