The Criminal Procedure (Identification) Act, 2022 (2022
Act) was enacted with the intention of authorizing regulation
enforcement businesses to take measurements of convicts and different
individuals for the needs of identification and investigation in
felony issues. The 2022 Act, which acquired the President’s
assent on April 18, 2022, got here into drive on August 04, 2022. The
2022 Act repealed the Identification of Prisoners Act, 1920
(1920 Act), which is a colonial regulation that permitted
the gathering of fingerprints, footprint impressions, and
pictures of convicts and others. In this observe, we summarize and
analyze the important thing options and challenges to the 2022 Act.

Key options of the 2022 Act

• Definition of measurements

  • The 2022 Act has redefined and broadened the scope of
    ‘measurements’ to incorporate finger-impressions, palm-print
    impressions, foot-print impressions, pictures, iris and retina
    scan, bodily, organic samples and their evaluation, behavioral
    attributes together with signatures, handwriting or another
    examination referred to in part 53 or part 53A of the Code of
    Criminal Procedure, 1973 (CRPC).

  
  

  • The 1920 Act solely allowed measurements of finger and foot-print
    impressions.




• Taking of measurement

  • The 2022 Act covers the gathering of measurements not solely
    from convicted individuals but additionally individuals beneath preventive detention
    or arrested for any punishable offence.

  
  

  • The 2022 Act authorizes the police or jail officers to
    compel an individual to offer measurements.

  
  

  • In order to help in an investigation or continuing beneath the
    CRPC, the 2022 Act empowers a Magistrate to go an order directing
    any particular person to offer measurements.

  
  

  • However, Section 3 of the 2022 Act carves out an exception for
    particular person(s) arrested (aside from an offence dedicated in opposition to a lady
    or a baby, or for any offence punishable with imprisonment for a
    interval of seven years or extra), from permitting the taking of their
    organic samples.




• Collection, storing, preservation of measurements and storing,
  sharing, dissemination, destruction and disposal of data

  • The 2022 Act empowers the National Crime Records Bureau
    (NCRB) to gather, retailer, protect and destroy the
    data of measurements at a nationwide degree. The NCRB can be
    authorised to share such data with any regulation enforcement
    company.

  
  

  • The knowledge collected will likely be retained in digital or digital
    type for 75 years. The data will likely be destroyed in case of individuals
    who’re acquitted or launched with out trial; nevertheless, in such
    circumstances, a Court or Magistrate might direct the retention of particulars
    after recording causes in writing.




• Resistance to permit taking of measurements

  • The 2022 Act attaches felony legal responsibility for resistance or
    refusal by any particular person to permit taking measurements. As per Section
    6 of the 2022 Act, resistance or refusal shall be deemed to be an
    offence beneath Section 186 of the Indian Penal Code, 1860 which
    offers punishment for obstructing public servant in discharge of
    public capabilities, whereby the particular person could also be imprisoned for a time period
    which can lengthen to three months or with fantastic which can lengthen to INR
    500 or each.




• Power to make guidelines

  • Under the 1920 Act, the ability to make guidelines referring to
    felony investigations was entrusted with the State governments;
    nevertheless, the 2022 Act vests the rule making energy within the Central
    authorities and the State authorities.

Key challenges of the 2022 Act

• The phrases akin to ‘evaluation’, ‘organic
  samples’ and ‘behavioral attributes’ used beneath the
  definition of ‘measurements’, would not have a set threshold,
  leaving them open to vast interpretation and thus, resulting in
  transgressing the suitable in opposition to self-incrimination supplied beneath
  Article 20(3) of the Constitution of India.




• The blanket mandate to gather measurements beneath the 2022 Act
  restricts the elemental proper of privateness with out proving
  proportionality of the Act regardless of the landmark determination in
  Ok.S. Puttaswamy v. Union of India¹ that
  laid down a four-fold take a look at of proportionality to fulfill the
  infringement of the suitable to privateness.




• The 2022 Act attaches felony legal responsibility beneath Section 186 of
  the Indian Penal Code, 1860 for resistance or refusal by any particular person
  to permit taking measurements, thereby amounting to forcible
  extraction of testimonial response. Such criminalization is in
  violation of a person’s proper in opposition to self-incrimination
  beneath Article 20(3) of the Constitution of India and additional
  impinges on the suitable to life and liberty beneath Article 21 of the
  Constitution of India.




• By empowering a Magistrate to go an order directing any
  particular person to offer measurements, the 2022 Act makes it discretionary on
  the a part of such Magistrate to supply any purpose for it. The identical
  is in contravention of Article 14 of the Constitution of India,
  which supplies an individual proper in opposition to arbitrary and unreasonable State
  motion.




• The 2022 Act doesn’t make any distinction between the
  classes of accused individuals primarily based on the character of offences and
  thus, it makes an individual accused of any petty offence to be handled
  at par with an individual accused of heinous crimes.




• The 2022 Act envisages record-keeping by the NCRB however doesn’t
  specify how they might be created and managed. Similarly, there’s
  distinct lack of readability relating to the technique of securing the info
  and the way by which the data are to be shared.




• The 2022 Act leaves the door open for abuse of powers by
  offering discretionary powers to the police or jail officers to
  take measurements ‘if that’s the case required’.




• By extending the ability to legislate and/or make guidelines beneath the
  2022 Act to the Central authorities, it could give rise to conflicts
  with State authorities who’re additionally empowered beneath the 2022
  Act.




• The 2022 Act neither offers any particular pointers nor
  elucidates any procedural safeguards for assortment, storage,
  processing, sharing and destruction of measurements.




• The 2022 Act can be in violation of proper to privateness beneath
  Article 12 of the Universal Declaration of Human Rights, 1948 and
  Article 17 of the International Covenant on Civil and Political
  Rights, 1966 which offers safety to individuals in opposition to arbitrary
  interference with their privateness, household, house, correspondence,
  honor and status.

Conclusion

The 2022 Act is a welcome piece of laws which is focused
in direction of superior prisoner identification strategies and a extra
environment friendly investigation course of. However, the 2022 Act had garnered
heavy criticism when it was handed, with critics describing it as
extreme, disproportionate, violative of the suitable to privateness, as
properly as elevating knowledge privateness issues. Consequentially, Advocate
Mr. Harshit Goel moved the High Court of Delhi looking for a judicial
overview of Sections 2(1)(a) (iii), 2(1) (b), 3, 4, 5, 6 and eight of the
2022 Act. Vide Order dated April 21, 2022, the Court directed the
authorities to file its response and listed the matter for listening to
on November 15, 2022. The matter is sure to achieve the Supreme
Court of India ultimately which might then determine the destiny of
the 2022 Act. Thus, the judiciary will mirror and analyze each
sides of the coin as regards to the constitutionality of the 2022
Act.

Footnote

1 (2017) 10 SCC 1

The content material of this text is meant to supply a normal
information to the subject material. Specialist recommendation ought to be sought
about your particular circumstances.

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