An unavoidable update?
More than a month after the Criminal Procedure (Identification) Act 2022 came into effect, the Union Home Ministry notified subsequent rules on Monday. The Act replaced the colonial-era Identification of Prisoners Act, 1920. Like its erstwhile version, the new legislation is meant to provide legal sanction to police and other authorities to search an arrested person. More specifically, it empowers police and magistrate to collect physical and biological samples of convicts and accused. Criminal Procedure (Identification) Act, 2022 broadens the ambit of Identification of Prisoners Act, 1920. While the previous act allowed for collection of "measurements" like photographs, footprints and fingerprint impressions, the new Act redefines "measurement" to include, additionally, palm-print impressions, iris and retina scans, behavioural attributes — signatures, handwriting etc. — and physical as well as biological samples. Apart from expanding the ambit of "measurements", the 2022 Act also allows for a wider population that can be made to provide their physical and biological samples during the course of investigation. While the 1920 Act covered such convicts and arrestees whose offence entailed imprisonment of one year or upwards, the new Act covers convicts and arrestees charged for committing any offence. The legislative update is apparently brought out to sync the investigation process with technological advancements of the day. While doing so, there was a need to strike a balance between individual rights and the interests of society and state. As the state redefines norms and rules, one wonders how much consideration is given to the voices representing individual rights of people. There are two issues of grave concern in the legislation — possible infringement of right to privacy and creation of a system of mass surveillance. At the centre of these concerns is the integration of the resulting database with other databases like the one created by Criminal Tracking Network and Systems (CCTNS). This formidable database can be used for predictive policing and for keeping an eye on masses through analysis of individual data. Furthermore, the unnecessary collection and preservation of data of individuals charged under minor offences will create an extensive burden on the system, without serving any meaningful cause. The logjam may create more problems than providing solutions. Also, while the intent behind the legislation may be right at the leadership level, there is no guarantee of proper conduct on the ground. Unless well-defined caveats and safeguards are instituted, the risk of misuse of data by local authorities for petty gains may keep looming large. Yet another concern that is widely floated around the legislation is that the mandate to provide very personal and biological details may lead to self-incrimination of individuals — something that the Indian Constitution doesn't approve of. There are, however, certain bright spots as well in the new legislation. It provides that a person arrested for an offence (not against women and children) punishable by less than seven years of imprisonment "may" not allow his biological samples to be taken. The use of soft modal auxiliary "may" can be noted here. Also, while the described arrestees may not allow their biological sample to be taken, they may still be required to provide other measurements, including behavioural ones. The Union Home Minister has clarified in the Parliament that data of "political detainees" will not be collected unless they are charged under other criminal sections. He also said in the clearest terms that brain mapping and polygraph tests will not be part of the "measurements". If the relevance of the 1920 identification law was to be maintained, an update was unavoidable. In fact, the 87th report of the Law Commission had recommended provisions similar to the ones that are being implemented. But these are defining moments, and the balance established hereon will go a long way. In this light, the government could have been more considerate of the apprehensions raised by the critics. Collection and use/misuse of citizen's data may seem lucrative to the State for the time being but it will have grave fallouts in the future. Being a representative of people's power, the Indian government must be sensitive towards people's data. It should be open for amendments, if needed.