Criminal Procedure (Identification) Act , 2022

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    In Context

    • Recently, the President of India has given his assent to the Criminal Procedure (Identification) Bill.

    Background 

    • The old code, the Code of Criminal Procedure, 1898, did not have the provision of medical examination of the accused. 
    • The Law Commission, in its 41st Report (1969), considered the necessity of physical examination of the arrested person for an effective investigation, without offending Article 20(3) of the Constitution. 
      • The recommendation was included in the CrPC (of 1973), as Section 53. 
    • Later, an amendment was made in the CrPC (with effect from June 23, 2006) and an Explanation of ‘examination’ was added to Section 53 to provide legal backing to materials/biological samples on which the medical examination could be conducted. 
    • Similarly, Section 311A was added to facilitate providing a specimen signature or handwriting during investigation.

    Major Provisions 

    • It authorises the police and prison authorities to take ‘measurements’ of convicts and others for the purpose of identification and investigation in criminal matters and to preserve records. 
      • The Act does not mandate the compulsory recording of all measurements for all types of offences. 
        • The measurements shall be taken ‘if so required’ and as may be prescribed by governments.
    • Repeals the old act
      • The Act seeks to repeal the Identification of Prisoners Act (IPA) of 1920, whose scope was limited to recording measurements which include finger impressions and footprint impressions of certain convicts and non-convict persons.
    • Broadens the scope of the ‘measurements
      •  The scope of the ‘measurements’ in the IPA was limited 
        • The Act now includes physical measurements such as finger impressions, palm prints, footprint impressions, photographs, iris and retina scans; biological samples and their analysis; and behavioural attributes including signatures, handwriting; or any other examination referred to in Sections 53 or 53A of the Code of Criminal Procedure (CrPC), 1973.
          • The CrPC provides for ‘examination’ (of the accused by a medical practitioner) which includes examination of blood, semen, swabs (in the case of sexual offences), sputum and sweat, hair samples and fingernail clippings using modern and scientific techniques including DNA profiling and other necessary tests which could provide evidence as to the commission of an offence. 
    • Punishment:
    • It also does away with the condition of an offence being punishable by at least one year or more of imprisonment for the “measurements” to be taken.
    • It only grants an exemption in the form of mandatory consent for “biological samples”, except in cases where the accused is arrested for sexual abuse of women and children or for an offence carrying a minimum punishment of seven years.
    • Powers of Magistrate: Under the act , a Magistrate may direct a person to give details for the purpose of an investigation or proceeding under the CrPC. 
      • Depending on certain factors (such as the area concerned), the Magistrate may be a Metropolitan Magistrate, a Judicial Magistrate of the first class, or an Executive Magistrate. 
    • Records of juveniles
      • The Act does not explicitly bar taking measurements of juveniles
        •  the provisions of the (Special Act) Juvenile Justice Act, 2015 regarding destruction of records of conviction under the Act, shall apply. 
    • Role of NCRB: It will store, process, and preserve whatever data is collected by the States and Union Territories. 

    Objectives 

    • The purpose is to help the enforcement agencies in the prevention and the detection of crime.
    • It is part of the Government’s efforts to upgrade crime-solving technology in line with global standards.
    • It will help in maintaining law and order, which is a legitimate state interest. 

    Apprehensions and Allegations 

    •  It gives too much power to the executive, with very little accountability, raising the temptation for abuse of this law’s provisions.
    • It violates fundamental rights of citizens including the right to privacy — the Constitution states that Parliament can bring no law that violates the fundamental rights of citizens.
      • The proposed law will be debated against Article 20(3) of the Constitution, which is a fundamental right that guarantees the right against self-incrimination. 
      • it states that “no person accused of any offence shall be compelled to be a witness against himself”.

    Supreme Court Judgments 

    • As early as 1961, the Supreme Court of India in State of Bombay vs Kathi Kalu held that the person in custody giving his specimen handwriting or signature or impression of his thumb, finger, palm or foot, to the investigating officer, cannot be included in the expression “to be a witness” under Articles 20(3) of the Constitution. 
    • Similarly, in a catena of cases, it has been held that taking a blood sample for the purpose of a DNA test, taking a hair sample or voice sample will not amount to compelling an accused to become a witness against himself, as such samples by themselves are innocuous and do not convey information within personal knowledge of the accused. 
    • Thus, the constitutionality of collecting biological samples or other measurements for facilitating investigation, has been settled for a long time.
    • The only exceptions are scientific techniques, namely narco analysis, polygraph and brain fingerprinting which the Supreme Court in Selvi vs State of Karnataka (2010) held to be testimonial compulsions (if conducted without consent), and thus prohibited under Article 20(3) of the Constitution.
    •  These tests do not fall under the scope of expression “such other tests’ ‘ in Explanation of Section 53 of the CrPC. 
    • The Court also laid down certain guidelines for these tests.

    Conclusion and Way Forward 

    • A number of analytical tools can be applied nowadays to the database of measurements to do predictive policing (which is very common in developed countries). The use of better technology will only help in minimising the probability of errors. 
    • The right of an individual will have to be considered in the background of the interests of society. 
    • The validity of any new scientific technique would need to be tested on the touchstone of permissible restrictions on fundamental rights.
    • It would have been prudent to add a provision in the Act for juveniles for clarity and allay any doubts. 
    • To facilitate identification and investigation in criminal matters. Enforcement agencies must be allowed to use scientific methods to prevent and detect crime. 
    • It should be ensured that Right to Privacy should be maintained along with keeping national security as the prime agenda.
    • Necessary training should be imparted to the investigating officers.

    Source: TH

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