Towards a Police State: Criminal Procedure (Identification) Act, 2023

How the proposed Act could enable the State and its actors to abuse power

Criminal Procedure (Identification) Act, 2023
Image courtesy: Lok Sabha

The Criminal Procedure (Identification) Bill, 2022, intends to link demographic and biometric information with the identification of citizens in an attempt to make all the natural citizens of India to be looked at as ‘suspects.’ The law is draconian and against the principle of civil liberties, human rights and against the tenets of Indian Constitution. It is apparent that with such an Act a permanent Emergency architecture is being constructed in the country.   

The Lok Sabha on April 4, 2022, passed the Criminal Procedure (Identification) Bill, in 2022 with a voice vote. The Bill was strongly opposed by the Opposition members in the Parliament and their demand for sending the Bill to the Parliamentary Standing Committee was not given any consideration by the members of the treasury bench.

What is the Act all about?

The Criminal Procedure (Identification) Bill, 2022 seeks to empower the National Crime Records Bureau (NCRB) of India to collect, store and preserve the record of ‘measurements’ and for sharing, dissemination, destruction, and disposal of records. It empowers a Magistrate to order any person to give the ‘measurements’ for the purpose of investigation. 

The Act empowers a head constable of a police station or a head warden of jail to take ‘measurements’ of convicts as well as those in preventive detention. If the said person resists, he can be charged under the Indian Penal Code.

The Bill aims to authorise taking ‘measurements’ of convicts and other persons for the purposes of identification and investigation in criminal matters. It is to preserve records and for matters connected therewith. The definition of ‘measurement’ indicates that it is likely linked to DNA Technology (Use and Application) Regulation Bill, 2019 as well. 

According to Section 2 (b), ‘measurements’ includes finger-impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scan, physical, biological samples and their analysis, behavioral attributes including signatures, handwriting or any other examination referred to in section 53 or section 53A of the Code of Criminal Procedure, 1973. 

The biometric-based measurement identification is an attempt to create unique identification numbers for each citizen of the country. The idea is to have unauthorized control over citizens by the use of these technologies. In sum the Criminal Procedure (Identification) Act, 2022 is an attempt to make India a police state. 

Why the Act is opposed? 

The Act is opposed by civil rights groups and activists for being unconstitutional.  It is seen as an assault on the privacy of the citizens. The bill is a direct violation of Fundamental Rights. It is an open-ended provision that infringes on the liberties of an individual. It is an attempt to make India, a surveillance state.

The words ‘biological samples and their analysis’ in the Bill could extend to narco-analysis and brain mapping and DNA tests. This is clearly violative of Article 20 (3) of the Constitution.

The provision in the Bill for retaining the ‘measurements’ for 75 years from the date of collection of data is contrary to the principles of data minimization and storage limitation, laid down in the Puttaswamy and Aadhaar judgment. The provisions of the Bill are in violation of the Right to be Forgotten enshrined in the Right to Life under Article 21 of the Constitution. It is in opposition to the spirit of human rights and civil liberties enshrined in Articles 14, 19, and 21 of the Constitution.  

The main opposition to the Bill is the concern about the misuse of the legislation by police and prison authorities. The information gathered in the name of the safety of the nation is an attempt to breach the elementary rights of the citizens assured by the Constitution of India.

The Criminal Procedure (Identification) Bill, 2022 repeals the legislation enacted by the British in 1920 has fewer safeguards than the colonial law. The proposed measure in the bill lacks safeguards on the issue of the data collected and protected properly. It could lead to a violation of the privacy of a person who is not even been convicted. As such there are not sufficient safeguards in the Act.

According to some civil rights activists, the objective of the Act is not to establish the prisoner’s identity but to establish the crime of the accused. This probably makes the bill susceptible to being misused.  

Even more problematic is the increase in the power of the State, by facilitating invasive biometric measurements for all arrested, convicted, and detained persons, regardless of the gravity of the offense.

Another concern is that the powers of the police and jail officers are being widened by this Act. Under the new legislation, ‘measurements’ may be taken by the police to gather samples not solely from convicts but also from those arrested and even detained under any preventive detention legislation. 

This may be expanded to all persons who are placed under arrest in any case. This is worrisome indeed because it is a blatant curtailment of fundamental rights.

The new Act can be applied to petty crimes such as violating a prohibitory order for not wearing a mask or a traffic violation even peaceful Satyagraha. A more worrying feature of the Bill is, that a person, who has never been arrested in connection with an ongoing investigation, can be ordered by a magistrate to collect the samples of ‘measurements.’

The Criminal Procedure (Identification) Act, 2022 if taken to its logical conclusion is an attempt to create a comprehensive profile of all the citizens in this country. And that amounts to making the fundamental rights redundant.   

The ramifications of the Criminal Procedure (Identification) Act, of 2022 are quite lethal to the country. Unless the Supreme Court becomes alive to the impending danger posed by this Act to the country, the writing on the wall is clear; India has become a police state.  

*The author is a journalist based in Chennai.


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