Criminal Procedure (Identification) Act, 2022: Piercing Into The Fundamental Right Against Self-incrimination Enshrined Under Article 20(3) Constitution Of India

Vishal Garg Narwana, Advocate
Punjab and Haryana High Court, Chandigarh
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Date : 26/03/2024
Location : Kothi No. 2024, Sector 21-C, Chandigarh
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Criminal Procedure (Identification) Act, 2022: Piercing Into The Fundamental Right Against Self-incrimination Enshrined Under Article 20(3) Constitution Of India

On April 18, 2022, the Criminal Procedure (Identification) Act, 2022, became law and repealed the Identification of Prisoners Act, 1920 and expanded the ambit of people from whom information can be collected and the categories of information that will be collected. This information could include fingerprints, photographs, iris and retina scan, biological samples and their analysis, and behavioural attributes. The phrase `biological samples' is not described further, hence, it could involve bodily invasions such as drawing of blood and hair, collection of DNA samples, narco analysis and brain mapping. This Act authorises the Judicial and Executive Magistrate, police officer not below the rank of head constable and prison officer not below the rank of head warder, for taking measurements of convicts and other persons for the purpose of identification and investigation in criminal matters and to preserve the record. According to Section 186 IPC, 1860, any failure on part of the convict or accused to comply, is unlawful and shall be punished with imprisonment of either description for a term which may extend to three months or with fine up to five hundred rupees or with both. It provides legal sanction to the police to take physical and biological samples of convicts as well as those accused of crimes. The police as per section 53 or section 53-A Cr.P.C., 1973 , can collect data by using modern techniques to capture and record body measurements. An authorised user, or any person skilled in taking the measurements, or a registered medical practitioner, or any person authorised in this behalf may take such measurements. It provides legal sanction for taking appropriate body measurements of persons who are required to give such measurements and will make the investigation of crime more efficient and expeditious and will also help in increasing the conviction rate. The Act provides that the records will be destroyed in case of persons who: (i) have not been previously convicted (of an offence with imprisonment), and (ii) are released without trial, discharged, or acquitted by the court, unless directed otherwise by the Magistrate or court. National Crime Records Bureau will store, preserve, share with any law enforcement agency and destroy the record of measurements at national level. The records can be stored up to a period of 75 years. It aims to ensure the unique identification of those involved with crime and to help investigating agencies solve cases.

National Crime Records Bureau is permitted under this statute to distribute and share personal data with any law enforcement agency. This goes against the principle of purpose limitation, which states that data can be legitimately collected for one purpose but can only be used for that purpose and cannot be used for any other purpose. As a result, organisations across the nation may have access to your personal information without following this rule. The expansion of this ambit of the law's operation to people who have been arrested for any offence includes people under preventive detention laws so the privacy of individuals who are not convicted of any wrongdoing is being put at the mercy of the State, which is breaching their right under Article 21 of the Indian Constitution.

The Hon'ble Supreme Court has held that the fundamental right to privacy cannot be construed as absolute and must bow down to compelling public interest. The magistrate is given the power to order for collection of voice sample for the purpose of investigation of a crime until explicit provisions are engrafted in the Cr.P.C. by Parliament. Such direction was issued by invoking powers under Article 142 of the Constitution of India. The Act empowers the National Crime Records Bureau to collect data from State governments, Union territory Administrations, or other law enforcement agencies. It is against the right against self-incrimination under Article 20(3) and right to privacy under Article 21 of the Constitution. Due to excessive power delegation to police, prison authorities or Magistrates, they may compel people to provide their measurements and even rejection of giving the measurements is also a crime.

Such excessive and uncontrolled powers may lead to discriminatory use of powers, which intrudes on the right to equality as enshrined in Constitution of India. So, even the people who got arrested are compelled to give measurements, which intrude on their right to privacy. It not only intrudes on the right to privacy of the convicted persons but also of every citizen of India, as the biological samples being collected make it easier to know the family genealogical conditions. India is a democratic country and that doesn't mean we should intrude on someone's right to privacy. The efficiency of investigations and collection of evidence cannot be improved at the cost of causing dent on the fundamental rights of the citizens of the country.

Judgments referred :-

1. Pravinsinh Nrupatsinh Chauhan v. State of Gujarat : Special Leave to Appeal (cri.) No. 4693 of 2023.

2. Ritesh Sinha v. State of U.P. : (2019) 8 SCC 1.

3. K.S. Puttaswamy v. Union of India : 2019 (1) SCC 1.

4. CBI v. Abdul Karim Ladsab Telgi and Ors. : 2005 Cr.L.J. 2868 (Bom.).

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