Explained | How does the new Criminal Procedure (Identification) Bill, 2022 propose to collect sensitive data? 

What is the legislation about? What are the major changes proposed?

The story so far: On March 28, Minister of State for Home Ajay Kumar Mishra introduced The Criminal Procedure (Identification) Bill, 2022 in Lok Sabha. If passed, it will allow police and prison authorities to collect, store and analyse physical and biological samples including retina and iris scans of convicted, arrested and detained persons. At the introduction stage, Opposition members opposed the Bill terming it “unconstitutional” and an attack on privacy.

The Bill seeks to repeal The Identification of Prisoners Act, 1920. The over 100-year-old Act’s scope was limited to capturing of finger impression, foot-print impressions and photographs of convicted prisoners and certain category of arrested and non-convicted persons on the order of a Magistrate. The Statement of Objects and Reasons of the 2022 Bill said that new ‘‘measurement’’ techniques being used in advanced countries are giving credible and reliable results and are recognised the world over. It said that the 1920 Act does not provide for taking these body measurements as many of the techniques and technologies had not been developed then.

It proposes four major changes. First, it would define ‘‘measurements’’ to include “signature, handwriting, iris and retina scan, physical, biological samples and their analysis, etc.” It does not specify what analysis means, implying that it may also include storing DNA samples. The “etc.” mentioned in the text of the Bill could give unfettered powers to law enforcement agencies to interpret the law as per their convenience, sometimes to the disadvantage of the accused.

Second, it empowers the National Crime Records Bureau of India (NCRB), under the Union Home Ministry, to collect, store and preserve the record of measurements for at least 75 years. The NCRB will be able to share the data with other law enforcement agencies as well. Police is a State subject and NCRB works under the Union government, and experts contend this provision may impinge on federalism.

Third, it empowers a Magistrate to direct any person to give vital details, which till now was reserved for convicts and those involved in heinous crimes. Fourth, it empowers police or prison officers up to the rank of a Head Constable to take details of any person who resists or refuses to do so.

The Bill also seeks to apply to persons detained under any preventive detention law. The Bill also authorises taking vital details of “other persons” for identification and investigation in criminal matters. It doesn't define the “other persons”, implying its ambit extends beyond convicts, arrested persons, or detainees. The Bill’s stated objective is it provides legal sanction for taking such details and will make the investigation of crime more efficient and expeditious, and help in increasing the conviction rate. Congress member Manish Tewari pointed out in the Lok Sabha that Article 20(3) of the Constitution states that “no person accused of any offence shall be compelled to be a witness against himself.” BSP member Ritesh Pandey opposed the Bill saying it proposes to collect samples even from those engaged in political protests.

Editorial | Identity and privacy: On Prisoners’ identification Bill