ANALYSIS ON THE RECENT CRIMINAL AMENDMNT (IDENTIFICATION)ACT, 2022
INTRODUCTION: The Identification of Prisoner’s Act, 1920, which permitted police officials to take measures of those who were convicted, detained, or were awaiting trial in criminal cases, was replaced by the Criminal Procedure (Identification) Act, 2022, which was approved by Parliament in April 2022.
The Criminal Procedure (Identification) Act of 2022 allows police personnel the legal authority to collect biological and bodily samples from both suspects and convicted criminals. The police may gather information under Sections 53 and 53A of the CrPc (Code of Criminal Procedure) 1973.
The information that can be gathered includes: photographs, iris and retina scans, physical and biological samples, behavioural characteristics, and imprints of the fingers, palms, and feet.
A police officer or a prison official is responsible for recording the measures. The officer in command of the police station or an officer with a level higher than Head Constable is referred to as a police officer. The officer whose rank is not lower than the Head Warder is known as a prison officer.In addition, there must be a record of the measurements, which must be kept digitally for 75 years after the measurements were taken.
It should be emphasised that if someone has been subjected to measurement collecting under this Act and is later found to have committed an offence for which there is no prior sentence of imprisonment:
Unless and until the court or a Magistrate provides written justifications not to do so, the records of measurements thus far collected of the concerned individual shall be destroyed. This applies whether the individual is a. released without conducting any trial, b. discharged, or c. acquitted by the court after using all available legal remedies.
The collection of measurements records from the state governments, union territory administration, and other law enforcement agencies shall be the responsibility of the National Crime Records Bureau for the time being in the interest of detention, investigation, detection, and prosecution of an offence under any law. The national measuring records must also be stored, preserved, and destroyed by NCRB. Additionally, it must process criminal and crime-related records and communicate and distribute those records to any of the aforementioned law enforcement agencies.The State Government and Union Territory Administration may advise a suitable agency to gather, store, and exchange the measurements in their respective areas of jurisdiction.
The Criminal Procedure (Identification) Act of 2022 states that a person is detained under any of the country’s preventive detention laws if they are arrested in connection with an offence that is punishable under any law that was in effect at the time of the arrest or if they are convicted of an offence that is punishable under any law that was in effect at the time of the offence.
Or, a person who is required to provide security under Section 117 of the Code of Criminal Procedure, 1973 because of his good behaviour or in order to keep the peace during any proceeding under Sections 107, 108, or 109 of the Code of Criminal Procedure, 1973 must consent to having his measurements taken by a police officer or a prison officer in accordance with the manner specified by the Central or State Governments.
The person in question may not be required to consent to the collection of his biological samples under the terms of this Act if the offence was not committed in violation of a law that was in effect at the time it was committed, or if the sentence for the offence was less than seven years in prison. Therefore, biological samples must be obtained for crimes against women, children, or those with sentences of seven years or longer.
Police officers are permitted by the Act under Section 6 sub-clause 1 to take measurements of people who resist or refuse to allow collection of their measurements in a manner that may be prescribed. It should be noted that Section 186 of the Indian Penal Code considers any act of defiance or opposition to the taking of measurements to be unlawful. There shall be no suit or other process against any person who in good faith does or intends to do anything under this Act or any other rule, according to Section 7 of The Criminal Procedure (Identification) Act, 2022. The manner of taking measurements is covered in Section 3 of the Act. The collecting, preservation, and storage of measures as well as their sharing, disseminating, disposal, and destruction of measurement data are all covered in sub-section (1) of section 4.
In contrast to the Identification of Prisoner’s Act of 1920
The Criminal Procedure (Identification) Act, 2022, a new Act, expands the range of actions taken to identify a criminal. The only measures permitted by the colonial statute, the Identification of Prisoners Act, were pictures and impressions of the finger and foot. But as mentioned, there are now a variety of ways to assess an individual, such as through iris and retina scans, handwriting analysis, signature analysis, and even physical and biological samples like blood, semen, and hair.
The Identification of Prisoner’s Act of 1920 mandated that only those arrested or convicted of crimes that carried a sentence of rigorous imprisonment of one year or more had their measurements taken. The new act modifies this requirement and now states that anyone arrested or convicted of an offence must provide their measurements.
There is one exception to this rule: biological samples may only be taken in cases of crimes against women or children or infractions that carry a minimum sentence of seven years in jail. The new Act also permits data collection from anyone held in accordance with any law governing preventative detention.
The Head Warder of a prison is now authorised to collect measurements and data on prisoners in addition to the previously mentioned authorities. Previously, only investigating officers, officers in charge of a police station, or officers with the rank of sub-inspector or above were permitted to do so. But a Magistrate was also authorised to gather data directly under “The Identification of Prisoners Act.”
According to the Criminal Procedure (Identification) Act of 2022, the same can be handled by a metropolitan or judicial magistrate of first class. An Executive Magistrate may also gather the information and measurements if the individual who was sentenced, arrested, or imprisoned is compelled to maintain good behaviour or peace. All measurements that were collected or recorded were required to be destroyed or given to the person acquitted under “The Identification of Prisoner’s Act, 1920,” unless the court, the District Magistrate, or the Sub-Divisional Officer did so for reasons that should be documented in writing (also in the case where a person is released without trial).
FEATURES OF THIS ACT
Taking measurements is one of the 2022 Rules’ main aspects. Under the Act, everyone who has been convicted, been arrested, or been placed in custody pursuant to a preventative detention statute may be forced to provide their measures. According to the Rules, some individuals will not have their measures taken until after they have been charged or detained in relation to another offence. These people include individuals who are detained under preventive detention under Section 151 of the Code of Criminal Procedure, 1973 (CrPC), or who violate prohibitory orders under Sections 144 or 145 of the Code of Criminal Procedure, 1973 (CrPC).
Persons authorised to take measurements: According to the Act, either a prison officer or a police officer will take measurements. The Rules state that such measurements may be taken by an authorised user, a person experienced in taking the measurements, a registered medical professional, or any other person authorised in this regard. A police officer or a jail official who has been given permission by the NCRB to access the database has been defined as an authorised user.
Storage of measurement records: According to the Rules, the NCRB is required to publish Standard Operating Procedures (SOPs) for taking measurements, which must include information on I the requirements and format of the measurements to be taken, (ii) the specifications of the instruments to be used for these measurements, and (iii) the handling and storage procedures. The SOPs may also specify I how each measurement should be transformed to a digital format before being uploaded to the database and (ii) the encryption technique.
Sharing of records: An authorised user will send the request to NCRB in order to match a person’s measurement record. Through a secure network, NCRB will use the record to check for matches before giving the authorised user a report. The SOPs will include instructions for how to process and match the records.
Destruction of records: Records will be destroyed, unless the Magistrate or court orders otherwise, in the event of individuals who: have not previously been convicted (of an offence with imprisonment), and (ii) are released without trial, discharged, or found not guilty. The NCRB will properly dispose of the records. The SOPs will outline the record disposal and destruction process in accordance with the Rules. A nodal officer will be designated by the state, the federal government, or the UT administration to whom requests for the deletion of measuring records will be made. After confirming that the records in question are unrelated to any other criminal matters, the nodal officer will propose their destruction to NCRB.
ESSENTIAL CONCERNS AND ANALYSIS
The Supreme Court’s interpretation of Article 21 of the Constitution’s right to privacy may be violated by a number of provisions in the Act. Additionally, a statute may not meet the requirements of Article 14 for equality of treatment and fairness.
Rules that go beyond what is allowed by the Act
The parent Act’s scope, provisions, and guiding principles cannot be changed by Rules, according to the Supreme Court. There are a number of circumstances in which these Rules may be modifying the application of the Act.
Restricting the circumstances under which measurements may be taken
All criminal defendants, those who have been arrested, and people who have been detained in accordance with any preventative detention law may be requested to provide their measurements under the Act. The Magistrate may also request measurements from anyone to help with the investigation. According to the Rules, some individuals will not have their measures taken until after they have been charged or detained in relation to another offence.
These people include those who have been arrested for violating preventive detention orders under Section 151 of the CrPC or violating prohibitory orders under Sections 144 or 145 of the CrPC. As a result, the Rules are limiting the legal justifications for collecting personal data. By doing this, they might be changing the grounds listed in the Act and thereby straying outside of its purview.
Increasing the number of people permitted to collect measurements
The Act stipulates that a police officer or prison officer will take the measures. According to the Rules, measurements may also be taken by anyone qualified to do so, a licenced medical professional, or another person with this authority. The Rules may be going outside the bounds of the Act by including these new groups of people that are not mentioned in the Act. Additionally, neither the Act nor the Rules specify what qualifies as a measurement expert.
limiting the people allowed to collect measurements
The Act allows either a jail officer (not below the rank of Head Warder) or a police officer to take measurements (in charge of a police station, or at least at the rank of a Head Constable). An authorised user is allowed to collect measurements under the Act, according to the Rules. A police officer or a jail official who has been given permission by the NCRB to access the database has been defined as an authorised user under the Rules. Consequently, the Rules are limiting the type of officers who are permitted to access the database and conduct measurements.
The NCRB or any other institution is prohibited by the Act from imposing these limitations. Additionally, it does not give the federal or state governments the authority to impose such limitations. Therefore, the Rules may be violating the Act’s intent by prescribing such limitations.
Excessive delegation
The Act gives the NCRB the authority to gather, keep, process, share, disseminate, and delete records of measurements as may be required by rules (from state governments, union territory (UT) administrations, or other law enforcement agencies). It gives the federal and state governments the authority to enact laws. According to the Rules, NCRB must outline the policies and procedures for I obtaining measurements, (ii) managing and storing these records, (iii) processing and matching the records, and (iv) destroying and discarding the records through SOPs. This prompts two inquiries.
Additional delegating of rulemaking authority to NCRB
The Rules may be further transferring the government’s ability to make rules to the NCRB by allowing it to establish these rules. The Supreme Court stated in 2014 that “Subordinate legislation, which is generally in the realm of Rules and Regulations dealing with the procedure on implementation of plenary legislation, is generally a task entrusted to a specified authority.” This was in reference to a case involving excessive delegation. Since the Legislature does not have to spend its time figuring out how to implement the law, it has determined that it is appropriate to delegate the relevant responsibility to an agency.
Such a duty cannot be given by that agency’s subordinates since doing so would be a betrayal of the delegate’s trust. This also begs the question of whether these SOPs would be presented to the State Legislatures or the Parliament. According to the Act, the respective governments must present the Rules to the state or national legislatures. For instance, the Rules we are talking about ought to be tabled. It is unclear, though, if the NCRB’s SOPs will come under such scrutiny.
Conflict in NCRB’s own guidelines prescription
The NCRB will be setting standards for the collection, storage, and processing of measurements for itself by publishing these SOPs. The separation of the roles between the body that issues guidelines and the entity that must adhere to those standards may be violated in this situation.
On request, records will be destroyed
As required by the Act, NCRB will maintain, keep, and eventually destroy the documents. If a person I has never been convicted before, (ii) is found not guilty after all appeals, or (iii) is released without a trial, the records will be erased. The SOPs will outline the record disposal and destruction process in accordance with the Rules. A request must be made to a nodal officer in order to destroy any records. After confirming that the records in question are unrelated to any other criminal matters, the nodal officer will propose their destruction to NCRB. Although the Act mandates record destruction in these circumstances, the Rules place the onus on the individual to make the request.
In accordance with several other laws, it is the responsibility of the entity maintaining the data to delete personal information when it is no longer needed, or the courts may order the entity to do so. The Juvenile Justice (Care and Protection of Children) Act, 2015, for instance, mandates that records of a kid who has been found guilty and dealt with by the law be erased (except for heinous offences). The Juvenile Justice Board instructs the police, the court, and its own registry to erase the records under these circumstances.
According to the Act’s Rules, these documents must likewise be destroyed by the person in charge, the Board, or the Children’s Court after the appeal period has passed. Records of a person who has been acquitted must be destroyed, according to the Identification of Prisoners Act, 1920 (which was replaced by the 2022 Act).
CONCLUSION:
The “Identification of Prisoner’s Act,1920” was replaced by the Criminal Procedure (Identification) Act, 2022, which was passed by Parliament earlier in 2022. The Act authorised the collecting of measurements for the purpose of identification on those who have been convicted, who have been arrested, who are in custody, or who are currently involved in criminal proceedings.
The range of measurements, which was previously limited to finger and foot prints and images, has now been expanded to encompass physical and biological samples, finger, palm, and footprint impressions, iris, and retina scans, as well as behavioural characteristics, which may include handwriting. Act further expanded the “ambit of persons” who are permitted to collect measures.
For 75 years following the date of collection, the measurements must be kept in a database. The Act is a much-needed reformation for Indian society since it will elevate India to the top of the world for criminal identification thanks to the usage of contemporary technologies. It makes sense for a developing nation like India to introduce a law that aims for the same cause because many developed countries use modern technology for the identification of convicts or the persons accused because they offer reliable and accurate results that make the investigative process easier and quicker.
Despite this, there are several issues with the Act that must be resolved in order to safeguard the rights of the average person. The Act ignores the requirement for appropriate protections and processes for the preservation of measurement records, which can be considered to contain sensitive information given that they would likely include physical and biological samples of those who are charged, convicted, or otherwise held.
The government should concentrate on introducing a Data Protection Bill that protects the sensitive information of the general public in order to address the problems with the Act. The government should make an effort to clarify any unclear terms in the Act. Additionally, there is a need to raise knowledge among the authorities working in rural and underdeveloped areas about how to handle and apply current technologies on a daily basis when taking measurements.
In order to ensure consistency across the nation’s databases, the government should also publish a set of guidelines and protocols to direct the investigating officers in establishing a standard for measurements obtained.
As private sensitive information on the public cannot be shared with any private entity because this could impede the state’s capacity to provide justice, the government also needs to address the issue of delegating state power to private entities. The Criminal Procedure (Identification) Act, 2022 is a commendable effort by the government to update the criminal laws of the nation, but it needs to be revised to ensure that it doesn’t jeopardise the interests of the general public or infringe upon their fundamental rights. If the problems are rectified, the Act will undoubtedly contribute to boosting both the efficacy and efficiency of the investigating agencies.