The new bill does not merely replace the 102-year-old Act;
it has been made more stringent in violation of the
fundamental rights guaranteed by the Constitution of India.
Though India became independent in 1947 our statute books are still full of laws that the British enacted from time to time to suppress and oppress us. The Identification of Prisoners Act. 1920 is one of several such laws. But instead of repealing the Act, the Lok Sabha on April 4 this year passed the Criminal Procedure (Identification) Bill 2022 to replace it.
The Lok Sabha passed the bill by voice vote in spite of the fact that the entire opposition demanded that the bill be referred to a parliamentary standing committee or a select committee for scrutiny. The new bill does not merely replace the 102 year old Act; it has been made more stringent in violation of the fundamental rights guaranteed by the Constitution of India. It is also contrary to the principles of data minimisation and storage limitation laid down in the Puttuswamy and Aadhar judgments of the Supreme Court of India.
The bill also violates Article 20 of the Indian Constitution, prohibition against self-incrimination: No person accused of any offence shall be compelled to be a witness against himself. It violates the principles of natural justice treating every arrested person as guilty even before trial or conviction.
It gives unbridled wide powers to the police and prison officials to gather every detail about the individual arrested or detained for any reason. The police can collect all details about any individual, physical, biological and social, including what one eats, drinks and wears. According to clause 26, measurements include “finger prints, palm print impressions, photographs, iris and retina scan, physical and biological samples and their analysis, behavioural attributes including signatures, handwriting or any other examination referred to in Section 53 or Section 53 A of the Code of Criminal Procedure 1973”.
Those who refuse to give these details will be proceeded against under Section 186 of the Indian Penal Code, obstructing public servant in discharge of public functions. In other words, once a person is arrested or detained he or she has no escape from the long arm of the draconian enactment.
Under the 1920 British Act only very limited data could be collected, that too on the orders of a magistrate and data collection could be carried out only by police officials of the rank of sub-inspector and above. The magistrate also had to specify what data is to be collected .In the bill passed by independent India’s Lok Sabha, the magistrate has no role whatsoever and data collection has been handed over to head constables and prison warders.
In this context the Law Commission, 1980 had suggested that the 1920 Act be amended to require the magistrate to record the reasons for giving the order to collect data. The bill does not have any such safeguard; on the contrary it gives wide powers to the head constables and prison warders.
Under the 2022 Bill, data of the following categories of people can be collected. Any person who has been: a) convicted of an offence punishable under any law for the time being in force or b) ordered to give security for his good behaviour or maintaining peace under section 117 of the Code of Criminal Procedure 1973 for proceeding under section 107, or section 108 or section 110 of the said Code or c) arrested in connection with an offence punishable under any law for the time being in force or detained under any preventive detention law, shall if so required allow his measurement to be taken by a police officer or a prison officer in such manner as may be prescribed by the Union Government or State Government.
“Provided that any person arrested for an offence committed under any law for the time being in force (except for an offence committed against a woman or child or for any offence punishable with imprisonment for a period not less than seven years) may not be obliged to allow the taking of his biological samples under the provisions of this section.
What takes the cake in the new Bill is the provision that the data collected will be stored with the Crime Records Bureau for 75 years, practically for the entire life of the individual whose data has been collected.
Under the 1920 Act, however, in case of acquittal or discharge all material had to be destroyed. May be in celebration of 75 years of India’s independence under the new bill data of arrested, detained or convicted individuals could be preserved for 75 years!
Whether the Bill is constitutional or not has to be examined from the angle of the States’ powers. Law and order, police and crime investigation come under the State list. The British Government in India was free to make arbitrary decisions. Can the Union government legislate on subjects reserved for the States even without consulting them?
In this context what Dayanidhi Maran (DMK) said in parliament is quite relevant. The Bill he said is anti-people and against the spirit of federalism. The bill, he added, is open ended and infringes on the privacy of individuals. He also accused the government of establishing a surveillance state.
