The Union Government of India recently enacted the Criminal (Procedure) Identification Act, 2022 (‘the Act’). This law seeks to collect and evaluate the biological and biometric data of any person detained or convicted under any penal law of India. Despite the government’s justifications for its passage, the Act allows excessive administrative discretion and provides a shield to the non-observance and potential violation of basic human rights of life and liberty.
Conflict with fundamental and human rights
The objective of the Act is to create a database of prisoners, to assist the enforcement and security agencies in maintaining ‘law and order,’ and to ease and expedite criminal investigations. It was passed by the Indian Parliament in April 2022 and came into force in early August.
However, the Act potentially contradicts Articles 20 and 21 of the Indian Constitution by mandating that any detained person must submit personal data. With the withdrawal of the Personal Data Protection Bill by the central government, the position of data privacy has become even more dubious.
Refusal to comply with the orders of the police and to resist furnishing personal data has been made an offence under Section 186 of the Indian Penal Code. Section 6 of the Act also empowers the police to take discretionary decisions to effectuate any such requirement. This restricts an individual’s autonomy as well as interferes with the right to life and personal liberty guaranteed by Article 21 of the Constitution.
The implementation of this Act faces a blend of possible human rights and fundamental rights violations by compelling anyone to provide details that might be exploited against them. This contradicts the right against self-incrimination stipulated under Article 20(3) of the Constitution.
The Act stipulates that if deemed necessary, the police can collect biological samples as per the prescribed procedure mentioned in sections 53 and 53A of the Code of Criminal Procedure, 1973. At this juncture, it is concerning that Section 7 of the Act absolves any liability for the officers involved in this process. Since this section bars initiating any type of suit against any person ‘for anything done, or intended to be done in good faith,’ it again confers a wide scope of unbridled exercise of discretionary powers to the police without any judicial scrutiny. Upon the ‘satisfaction’ of the magistrate, it directs any person to provide their personal data. Though the ‘satisfaction’ of the magistrate may be quite stern, the Act fails to provide necessary safeguards against its misuse. The decisional practice of the Supreme Court has consistently clarified that rationality, reasonability, and non-arbitrariness are the pillars of individual autonomy.
In this respect, certain provisions of the Act, particularly Sections 6 and 7 as discussed above, may contradict these essential elements of natural justice that safeguard citizens from administrative high-handedness. Therefore, these provisions may attract malicious application, thereby contravening Article 14 of the Constitution which provides that due process of law must be followed and provides a safeguard against unreasonable state action.
Judicial outlook
The Supreme Court in Selvi v. State of Karnataka held that any coercive step taken to ensure self-incrimination breaches the right to a fair trial of a person and encroaches upon the right of personal liberty. An important ingredient of this Act is that it empowers investigating authorities to exercise wide discretions to ensure legislative compliance.
In Sunil Batra v. Delhi Administration, the Court ruled that even a prisoner is entitled to life and personal liberty and any interference in them without the explicit permission of the Court is a violation of Articles 14 and 21 of the Constitution. It was affirmed in Common Cause v. Union of India that bodily autonomy was declared to be an integral part of personal liberty. Therefore, the legislative guidelines approving executive authority to collect biological samples of prisoners cannot purport to satisfy the tests laid down under Article 14. They can be seen as an infringement of the basic human right assigned to that individual.
An executive overreach of this kind may be a violation of the Supreme Court’s ruling in E.P Royappa v. State of Tamil Nadu, wherein abuse of administrative discretion and its malafide application was prohibited by the Court. This precedent also implies that the constitutionality of this Act might be heavily scrutinised as it gives unbridled powers to the executive authorities without any clear redressal mechanism against its arbitrary application. Moreover, it contravenes the ‘due process’ doctrine that was affirmed by the Supreme Court in Maneka Gandhi v. Union of India, which mandated the law to be just and fair.
The Act also nullifies the right to privacy guaranteed by the Supreme Court in K.S Puttaswamy (Retd.) v. Union of India. Any step that may have an adversarial effect on individual privacy must be just and reasonable. However, provisions in the Act defy this judicial mandate. Trespassing privacy must be reasonable and proportional, but storing the collected data for 75 years and its usage and destruction present a contrast with the doctrine of proportionality and reasonableness. Additionally, the above provisions of the Act do not consider international human rights conventions such as Article 12 of the Universal Declaration of Human Rights which prohibits arbitrary interference with individual privacy sufficiently.
Balancing state interest and individual rights
While the objective of the Act is to create a database of the biometric data of convicts to ease the process of criminal investigation, there are a host of human rights concerns in the Act that dilute the very purpose of its enactment. Therefore, it is necessary to strike a balance between the legitimate state interest and the basic individual interest.
We need the ‘Doctrine of the fruit of the poisonous tree’ from the US judicial system propounded in Nardone v. United States which stipulates that any evidence taken coercively is inadmissible in courts. Lastly, the executive branch needs to apply the Doctrine of Parity to differentiate between minor and grave offences, as in its present form there is no distinction in the way of collecting samples from different classes of offenders. Otherwise, the law would be subject to the whims and fancies of investigating officers.
Ayush Raj is an undergraduate student of law at National Law University, Nagpur, India.