WHY IN THE NEWS?
Recently, the President of India has given his assent to the Criminal Procedure (Identification) Bill. The bill was passed by the Parliament to expand the scope of information the government can collect from convicts, and arrested persons and improve the conviction rate in the country. However, there are ethical concerns about the collection of biometric and biological data which violates fundamental rights and infringes upon individual freedom and privacy.
NEED FOR THE NEW LAW
- Obsolescence of Identification of Prisoners Act, 1920 – The act was framed during the British
- Technological upgradation – to make use of modern technologies to collect and process the
IMPORTANCE OF TECHNOLOGY IN IDENTIFICATION
- Raise conviction rate – Around 5 Lakh cases were dropped every year in the absence of evidence due to low technological induction in the investigation process.
- Ensure civilized investigation- use of technology to process samples helps avoid inadequate torturing of
- Efficient use of resources in terms of time, money, and energy to identify criminals
- Ensure Justice- technology helps to avoid unnecessarily targeting innocents and provide justice to the needy one.
- Protect human rights of victims- easy to prove heinous crimes with modern
COMMITTEES RECOMMENDED AMENDMENTS TO EXISTING LAWS
- Law Commission 1980 recommended amending the Identification of prisoners Act
- Malimath Committee 2003 recommended reforming the Criminal Justice
- Persons who may require/ direct collection of data
- Officer in charge of a police station, or of rank Head Constable or above can collect identifiable In addition, a Head Warder of the prison can also collect the samples.
- Metropolitan Magistrate or Judicial Magistrate of the first class can order the collection of samples. In case of persons required to maintain good behaviour or peace, the Executive Magistrate can order to collect of the
- Police can collect samples without a magistrate’s order only when serious and heinous criminal activities against women and children
- Investigating officer, an officer in charge of a police station, or of rank Sub-Inspector or above can collect
- Magistrate can order to collect the
- Data permitted to be collected
- (i) Biological samples, and their
- (ii) Behavioural attributes including signatures, handwriting, and
- (iii) Examinations under sections 53 and 53A of CrPC (includes blood, semen, hair samples, swabs, and analyses such as DNA profiling).
- 1920 Act
- Fingerprints, foot-print impressions, photographs.
- Persons whose data may be
- Convicted or arrested for any However, biological samples may be taken forcibly only from persons arrested for offenses against a woman or a child, or if the offense carries a minimum of seven years’ imprisonment.
- Persons detained under any preventive detention
- On the order of the Magistrate, from any person (not just an arrested person) to aid the
- Convicted or arrested for offenses punishable with rigorous imprisonment of one year or
- Persons ordered to give security for good behaviour or maintaining
- Magistrate may order in other cases collection from any arrested person to aid criminal
- Procedure of data storage and its processing
- Samples collected will be stored and processed under National Crime Records
- NCRB will disseminate the collected data to law enforcement Further, states/UTs may notify agencies to collect, preserve, and share data in their respective jurisdictions.
- The data collected will be retained in digital or electronic form for 75
- NCRB will delete Information only when:
- Person was Arrested without
- Proved acquittal on trial and No conviction history in the
- No order from magistrate to collect
ISSUES WITH THE NEW ACT
- Privacy issue:
- Violation of fundamental rights under Article 21
- Against the verdict under Puttaswamy v/s Union of India
- Inconsistency with a pending bill:
- DNA Technology Use and Application Regulation bill mandates to collection of samples only when death or imprisonment of 7 years is awarded to the
- Diluting the responsibility:
- Crucial information collected by Head constables without adequate
- Blanket power:
- Samples can be collected from anybody on the order of Magistrates even for preventive
- Against the principle of Equity:
- Simple as well as heinous crimes are treated equally in sample collection violates the Right to Equality under Article 14, Freedom of speech and expression under Article 19, and the Right to a Dignified Life Article 21 of the Constitution of
- Collected data are to be stored for 75 years without any scientific explanation in fixing the
FAILURE IN PROVING SOME TESTS BEFORE THE JUDICIARY
- Public interest Test – failed to prove that Curtailing Fundamental Rights for benefit of society in every
- Failure of the least intrusive way when Fundamental rights are violated – Most intrusive ways against Fundamental rights are used under this act even for simple
- Proportionality test- Benefit out of Violation of fundamental rights, arbitrary storage of 75 years, and complete surveillance failed to prove proportionality test.
- Infrastructure deficit:
- Lack of capacity building and inadequate forensic
- laboratories at the ground level are not well
- Burden on Judiciary:
- Appeal procedures before higher judiciary against lower courts will become a frequent scenario as magistrates are giving orders for sample
- Absence of Sensitivity training for police constables:
- Utmost care is required while collecting DNA
- Misuse of Information:
- Safety of DNA samples is at stake when it is collected, stored, processed, or during their
- Lack of clarity in framing rules and their interpretation is a cause of
- Strict implementation of the laws to ensure speedy
- Sensitivity training should be imparted to the investigating officers, prosecutors, and judicial officers, and collaboration with doctors and forensic experts is
- The need of the hour is a strong data protection law, with stringent punishment for breaches, should be in
With the changes in society and the nature of crimes, the existing laws need to be evolved in accordance with the contemporary needs and democratic aspirations of people. However, it should not be done at the expense of violating basic Fundamental rights of people.