Explainer: Can the new Criminal Procedure Identification Act force you to share biological samples?

NEW LAW FOR CRIMINAL INVESTIGATIONS

Representative image DNA samples
Representative image, DNA sample collection. The new Bill authorise collection of certain identifiable information about specified persons such as convicts for criminal investigation purposes while also expanding the ambit of persons from whom such details can be taken.

Brushing aside all concerns about privacy and potential misuse of sensitive personal information, including biometric details, the new Criminal Procedure (Identification) Bill, 2022, that replaces the colonial era Identification of Prisoners Act, 1920, breezed through both houses of Parliament and is now the law of the land with the President giving his assent to the Bill.

The new Bill does not only authorise collection of certain identifiable information about specified persons, such as convicts, for criminal investigation purposes. It expands the ambit of such personal details and the persons from whom such details can be taken.

The National Crime Records Bureau has been named the nodal agency to collect, store and preserve these details.

Amendments introduced in Bill

1920 Act2022 Bill
Data Permitted to be collected
The Act allowed collection of photographs, finger impressions and footprint impressionsThe new amendment additionally includes palm print, iris and retina scans, signature and handwriting, physical and biological samples such as blood, semen, hair samples and swabs (Section 53 and 53A of Criminal Procedure Code)  
Persons whose data may be collected
Such information will be collected from
1. Persons convicted or arrested for offences punishable with rigorous imprisonment of one year or more 
2. Persons ordered to give security for good behaviour or maintaining peace
3. Any arrested person to aid criminal investigation, if the Magistrate orders collection of personal details from such person
The new law expands this list to also include:

Persons convicted or arrested for any offence
Persons detained under any preventive detention law 
On the order of Magistrate, any person (not just an arrested person) to aid investigation

However, biological samples may be taken forcibly only from persons arrested for offences against a woman or a child, or if the offence carries a minimum of seven years imprisonment
Persons who may require/direct collection of data
1. Investigating officer, officer in charge of a police station, or of Sub-Inspector rank or above
2. Magistrate
1. On the order of an officer in charge of a police station, or of rank Head Constable or above.  In addition, a Head Warder of a prison
2. On the order of Metropolitan Magistrate or Judicial Magistrate, first class.
3. In case of persons required to maintain good behaviour or peace, the Executive Magistrate  

The Bill further mentions that the personal details collected will need to be retained in digital or electronic form for 75 years from the date of collection. The record may be destroyed in case of persons who have not been previously convicted and are released without trial, discharged or acquitted by the court after exhausting all legal remedies.


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Further, resistance by any concerned authority in giving out such details will be considered an offence under Section 186 the Indian Penal Code, 1860, which covers obstruction of any public servant in the discharge of his functions.

The Bill empowers NCRB to collect and store the details about the persons covered under the Bill from state governments, union territory (UT) administrations, or other law enforcement agencies. Processing the details with relevant criminal records and disseminating the details will be done by law enforcement agencies.

The need for these amendments

  1. In the statement of objects of the Bill, it is reasoned that due to developments in digital technology and rise in cyber crimes, it is essential to provide for capturing and recording body measurements for the unique identification of a person involved in any crime, which will assist the investigating agencies in solving criminal cases. Advanced countries across the globe are relying on new “measurement” techniques for reliable results.
  2. The existing law, Identification of Prisoners Act, 1920 allowed taking only fingerprint and footprint impressions of a limited category of convicted persons.
  3. The 2022 Bill makes provisions for the use of modern techniques to capture and record appropriate body measurements. The DNA Technology (Use and Application) Regulation Bill, 2019 (pending in Lok Sabha) provides a framework for using DNA technology for this purpose. In 1980, the Law Commission of India, while examining the 1920 Act, had noted the need to revise it to bring it in line with modern trends in criminal investigation. In March 2003, the Expert Committee on Reforms of the Criminal Justice System (Chair: Dr. Justice V S Malimath) recommended amending the 1920 Act to empower the Magistrate to authorise the collection of data such as blood samples for DNA, hair, saliva, and semen.
     
  4. It was felt necessary to expand the “ambit of persons” whose measurements can be taken, as this will help investigating agencies gather sufficient legally admissible evidence.
  5. More accurate physical and biological samples will make the investigation of crime more efficient and expeditious and will also help in increasing the conviction rate.
  6. It is expected to minimise the threat from organised crime, cybercriminals and terrorists who are proficient in identity thefts and identity frauds. The bill will help check serious national and global threats posed by them.
Bangalore police
An officer in charge of a police station, or of rank Head Constable or above can authorise collection of biometric and DNA samples in cases like rash and negligent driving. File pic of Bangalore traffic police. Pic Wikimedia Commons

Issues with the Bill

  1. Un-constitutionality: The proposed law was debated against Article 20(3) of the Constitution, which is a fundamental right that guarantees the right against self-incrimination. It explicitly states that no person accused of any offence shall be compelled to be a witness against himself, and that such a law goes beyond the House’s legislative “competence.” 
  2. Violation of Article 21, or the right to be forgotten, wherein private information about a person should be removed from internet searches and other directories under certain circumstances.
  3. Undermines the Right to Privacy: Seemingly technical, the legislative proposal undermines the right to privacy, not only of persons convicted of crime, but also that of every Indian citizen. The Bill proposed to collect samples even from people engaged in political protests.
  4. Violation of Article 20: Apprehensions have been raised that the Bill enabled coercive drawing of samples. The Bill implied use of force in collection of biological information, also extending to narco analysis and brain mapping.
  5. The Bill seeks to apply these provisions to persons held under any preventive detention law. For example, this would include someone arrested for rash and negligent driving, which carries a penalty of a maximum imprisonment of six months. 
    This differs from the observation of the Law Commission (1980) that the 1920 Act is based on the principle that the less serious the offence, the more restricted should be the power to take coercive measures.
  6. It is to be noted here that the DNA Technology (Use and Application) Regulation Bill, 2019 waives the consent requirement for collecting DNA from persons arrested for only those offences which are punishable with death or imprisonment for a term exceeding seven years.

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Critiques and the way forward

Advocate Vidush Pandey said that the new law was very much needed given the advances in science technology and its use in criminal acts. “Some provisions of the law are very well structured, but there are few areas where further deliberations are required,” said Pandey.

Another legal expert, Abhishek, said that the issues, such as concerns with reference to Article 20 and 21, raised in Parliament need to be discussed again.

During debates on the legislation in Rajya Sabha, it was clarified that the biometric data of political detainees would not be collected and the proposed law would exclude brain mapping and polygraph test from its ambit. It was further clarified that no measurements will be taken of any political person for violation of prohibitory orders promulgated by police.

Critics says the Act should not become a tool for political “witch-hunt”. DNA profiling also should be used purely for serious crimes and for counter-terrorism purposes only. In modern society, a sophisticated police force is essential. Therefore, emphasis should be made on capacity building at the police station level and building expertise in forensics.

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About Utkarsha Srivastava 10 Articles
Utkarsha Srivastava is an advocate by profession, based in Delhi.