The Criminal Procedure (Identification) Bill 2022 passed the Lok Sabha on Monday with a voice vote, with 21 MPs from all parties taking part in the debate.
The opposition criticized the bill for giving police officers excessive powers to collect sensitive personal information about individuals.
The bill is short, but it will have a huge and lasting impact on civil liberties and human rights, Congressman Manish Tewari said.
A similar view was echoed by TMC’s Mahua Moitra.
The government has defended the law saying it aims to improve the investigative process and increase conviction rates.
The short seven-page bill proposes to replace the Identification of Prisoners Act 1920, which empowers police to collect information on convicts and those who have been arrested for offenses punishable by imprisonment over a year.
The bill expands the scope of measurements that can be collected by a police officer and a prison officer. The debate saw criticism of the bill on three main points:
The definition of “measures” in the bill that explains what can be collected by officers.
The power and conditions for the collection of measurements by police and prison officers.
Allowing the National Crime Records Bureau to store data for 75 years and share it with law enforcement.
The 1920 law allows the police to take the fingerprints and footprints of convicts. The bill expands it to include palm prints, photographs, iris and retina scans, physical and biological samples and their analysis, behavioral attributes including signatures and handwriting.
Even before the bill was introduced in parliament, critics had called the definition “broad” and “ambiguous”.
For example, “behavioral attributes” as measures can be coercively taken from a person using a forced psychiatric assessment. Such an assessment, when it results in an incriminating confession, would constitute “compulsion to testify”, the National Law University of Delhi had said in a report.
BJD MP Bhartruhari Mahtab stressed that “measurements” include not only collection but also analysis. The inclusion of physical biological samples unquestionably extends to the collection of DNA samples, he pointed out.
In response, Union Home Secretary Amit Shah clarified that the term “measures” would not include brain mapping or narco-analysis and that the government had no intention of including these. tests in the definition. “I’m officially saying it won’t happen and we’ll make it clear in the rules.”
Here, the concern is twofold.
Lowering the rank of police officers who can collect data. And the ambiguity around who the data may be collected from.
The law of 1920 allows an officer who does not have the rank of sub-inspector to collect data. The bill lowers that threshold to say that an officer who is not below the rank of chief of police can collect action.
The Union Home Secretary has defended the threshold and argued that a police chief is appointed to his post after years of service. Arrangements will be made to ensure proper training in data collection, Shah said.
The second concern relates to the ambiguity as to who the data may be collected from.
The law of 1920 allows the collection of the measurements of an individual convicted or arrested for offenses resulting in a rigorous sentence of one year or more. Magistrates, to facilitate a criminal investigation, have the power to order collection from anyone who has been arrested in the case.
The bill proposes several dilutions here:
First, measurements can be collected from anyone who has been convicted of an offence; even for offenses punishable by less than one year.
Second, persons detained under any preventive detention law may be asked to give measures.
Third, magistrates can order the collection of data from any person, arrested or not, to facilitate an investigation.
The only guarantee in the bill is that these people can refuse to give biological samples. This exception will not apply if the offense is against a woman, a child or carries a sentence of at least seven years.
Concerns have been expressed about the potential chilling effect on people exercising their constitutional rights. DMK MP Dayanidhi Maran argued that the provisions of the law may even allow the collection of metrics from people who are going to participate in a protest.
The Union Home Secretary has clarified that people in pre-trial detention can refuse to give biological samples. Because, as long as it is not an offense punishable by a sentence of at least seven years, an individual can say no.
“If there is a need to add certain restrictions through rules framed by law, we will also explore that option,” Shah said.
The bill allows the National Crime Records Bureau to collect, store, retain, process as well as share and disseminate the measurements to any law enforcement agency. The NCRB may perform these acts for the purposes of prevention, detection, investigation and prosecution of any offence.
The office may retain the data in digital or electronic form for a period of 75 years. But he must remove it when the person is acquitted of an offense and has no previous conviction.
Some MPs are questioning the possibility of sharing the measures with other agencies at a time when the data protection bill aimed at protecting the privacy of individuals has yet to see the light of day.
The fact that samples can be collected and released with other agencies could mean there will be multiple copies of these recordings, Tewari said.
Dayanidhi Maran pointed out that the bill allows a magistrate to order the retention of a person’s data even when they have been acquitted by the courts.
The Union Home Secretary has assured the House that there will be adequate protection mechanisms.
The government further argued that the law passes the test set by the Supreme Court in the right to judgment of privacy.
Ensuring that criminals are punished is a legitimate state interest and the bill has been passed by a legislature competent to pass the law, the Home Secretary said.
The bill will now go to the Rajya Sabha who could consider and debate the bill this week.