The Criminal Procedure (Identification) Act, 2022 (2022
Act) was enacted with the aim of authorizing law
enforcement agencies to take measurements of convicts and other
persons for the purposes of identification and investigation in
criminal matters. The 2022 Act, which received the President’s
assent on April 18, 2022, came into force on August 04, 2022. The
2022 Act repealed the Identification of Prisoners Act, 1920
(1920 Act), which is a colonial law that permitted
the collection of fingerprints, footprint impressions, and
photographs of convicts and others. In this note, we summarize and
analyze the key features and challenges to the 2022 Act.

Key features of the 2022 Act

• Definition of measurements

  • The 2022 Act has redefined and broadened the scope of
    ‘measurements’ to include 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 (CRPC).

  
  

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




• Taking of measurement

  • The 2022 Act covers the collection of measurements not only
    from convicted persons but also persons under preventive detention
    or arrested for any punishable offence.

  
  

  • The 2022 Act authorizes the police or prison officials to
    compel a person to give measurements.

  
  

  • In order to aid in an investigation or proceeding under the
    CRPC, the 2022 Act empowers a Magistrate to pass an order directing
    any person to give measurements.

  
  

  • However, Section 3 of the 2022 Act carves out an exception for
    person(s) arrested (except for an offence committed against a woman
    or a child, or for any offence punishable with imprisonment for a
    period of seven years or more), from allowing the taking of their
    biological samples.




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

  • The 2022 Act empowers the National Crime Records Bureau
    (NCRB) to collect, store, preserve and destroy the
    records of measurements at a national level. The NCRB is also
    authorised to share such records with any law enforcement
    agency.

  
  

  • The data collected will be retained in digital or electronic
    form for 75 years. The records will be destroyed in case of persons
    who are acquitted or released without trial; however, in such
    cases, a Court or Magistrate may direct the retention of details
    after recording reasons in writing.




• Resistance to allow taking of measurements

  • The 2022 Act attaches criminal liability for resistance or
    refusal by any person to allow taking measurements. As per Section
    6 of the 2022 Act, resistance or refusal shall be deemed to be an
    offence under Section 186 of the Indian Penal Code, 1860 which
    provides punishment for obstructing public servant in discharge of
    public functions, wherein the person may be imprisoned for a term
    which may extend to 3 months or with fine which may extend to INR
    500 or both.




• Power to make rules

  • Under the 1920 Act, the power to make rules relating to
    criminal investigations was entrusted with the State governments;
    however, the 2022 Act vests the rule making power in the Central
    government and the State government.

Key challenges of the 2022 Act

• The terms such as ‘analysis’, ‘biological
  samples’ and ‘behavioral attributes’ used under the
  definition of ‘measurements’, do not have a set threshold,
  leaving them open to wide interpretation and thus, leading to
  transgressing the right against self-incrimination provided under
  Article 20(3) of the Constitution of India.




• The blanket mandate to collect measurements under the 2022 Act
  restricts the fundamental right of privacy without proving
  proportionality of the Act despite the landmark decision in
  K.S. Puttaswamy v. Union of India¹ that
  laid down a four-fold test of proportionality to satisfy the
  infringement of the right to privacy.




• The 2022 Act attaches criminal liability under Section 186 of
  the Indian Penal Code, 1860 for resistance or refusal by any person
  to allow taking measurements, thereby amounting to forcible
  extraction of testimonial response. Such criminalization is in
  violation of an individual’s right against self-incrimination
  under Article 20(3) of the Constitution of India and further
  impinges on the right to life and liberty under Article 21 of the
  Constitution of India.




• By empowering a Magistrate to pass an order directing any
  person to give measurements, the 2022 Act makes it discretionary on
  the part of such Magistrate to provide any reason for it. The same
  is in contravention of Article 14 of the Constitution of India,
  which gives a person right against arbitrary and unreasonable State
  action.




• The 2022 Act does not make any distinction between the
  categories of accused persons based on the nature of offences and
  thus, it makes a person accused of any petty offence to be treated
  at par with a person accused of heinous crimes.




• The 2022 Act envisages record-keeping by the NCRB but does not
  specify how they would be created and managed. Similarly, there is
  distinct lack of clarity regarding the means of securing the data
  and the manner in which the records are to be shared.




• The 2022 Act leaves the door open for abuse of powers by
  providing discretionary powers to the police or prison officials to
  take measurements ‘if so required’.




• By extending the power to legislate and/or make rules under the
  2022 Act to the Central government, it may give rise to conflicts
  with State authorities who are also empowered under the 2022
  Act.




• The 2022 Act neither provides any specific guidelines nor
  elucidates any procedural safeguards for collection, storage,
  processing, sharing and destruction of measurements.




• The 2022 Act is also in violation of right to privacy under
  Article 12 of the Universal Declaration of Human Rights, 1948 and
  Article 17 of the International Covenant on Civil and Political
  Rights, 1966 which provides protection to persons against arbitrary
  interference with their privacy, family, home, correspondence,
  honor and reputation.

Conclusion

The 2022 Act is a welcome piece of legislation which is targeted
towards advanced prisoner identification techniques and a more
efficient investigation process. However, the 2022 Act had garnered
heavy criticism when it was passed, with critics describing it as
excessive, disproportionate, violative of the right to privacy, as
well as raising data privacy concerns. Consequentially, Advocate
Mr. Harshit Goel moved the High Court of Delhi seeking a judicial
review of Sections 2(1)(a) (iii), 2(1) (b), 3, 4, 5, 6 and 8 of the
2022 Act. Vide Order dated April 21, 2022, the Court directed the
government to file its response and listed the matter for hearing
on November 15, 2022. The matter is bound to reach the Supreme
Court of India sooner or later which would then decide the fate of
the 2022 Act. Thus, the judiciary will reflect and analyze both
sides of the coin with regards to the constitutionality of the 2022
Act.

Footnote

1 (2017) 10 SCC 1

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