The Criminal Procedure (Identification) Act, 2022: A threat to the inviolable rights?
Amidst the outcry to fill the void of a data privacy framework in India, the Government has come out with the dubious Criminal Procedure (Identification) Act, 2022 [“The Act”] giving wide powers to the Government by the usage of vague words.
Some provisions of the Act, providing for excessive delegation, are arbitrary and excessive which is in conflict with Article 14 while some other aspects meddle with the personal data of the people to a problematic extent, conflicting with the right to privacy under Article 21. Furthermore, the broadening of the definition of "measurements" creates issues with respect to the right against self-incrimination under Article 20(3) which this blog will elaborate upon.
Assessing the Constitutionality
In India, every Act made by the Parliament must be constitutionally sound and when it comes to an Act which gives sweeping powers to the State with respect to sensitive personal data, it becomes even more pertinent to have close scrutiny in this regard, so that every citizen’s constitutionally-protected rights are not taken away. This Act, insofar as Article 14 of the Constitution of India is concerned, is in conflict broadly in two major aspects.
Firstly, the Act is arbitrary and excessive. Section 2(b) of the Act defines "measurements of convicts to be taken" by using words like "behavioural attributes" which are open to various interpretations. This, coupled with the absence of any provision which signifies a need for the disclosure of the reasoning behind the collection of measurements for a convict, is a clear show of arbitrariness. The Supreme Court of India in the case of EP Royappa laid down the arbitrariness test, which included protection from arbitrary state action under Article 14 of the Constitution of India, The Supreme Court has also held in the Shah Bano case that manifest arbitrariness is a ground for parliamentary legislation being ultra vires the constitution. In Section 5 of the Act, there is no mention of the fact that the collecting of measurements must particularly aid in a criminal investigation. As a result, there is no rational connection between this power and the lawful goal of assisting in specific criminal investigations, which is a clear show of arbitrariness.
The police officials and magistrates have been offered an alarming amount of discretion in matters related to the manner of collection of data which is no doubt excessive. Section 5 of the Act gives the magistrate the authority to direct ‘any person’ to give measurements, which was only "arrested persons" in the now repealed Identification of Prisoners Act 1920. Hence, the Act has widened these aspects even more than the colonial-era legislation and this provision is granting excessive discretion to the magistrate in so far as the collection of measurement is concerned. Also, the persons whose data is directed to be collected by the order of a magistrate have no recourse provided under the Act to get their data erased. Similarly, Section 3 of the Act under the garb of the words "if so required" provides excessive discretion to the police forces when it comes to the collection of measurements.
Secondly, there is excessive delegation. The executive is given broad rule-making powers without proper oversight. Section 8 of the Act gives the Central and State government authorities the power to make rules but there are very general guidelines which provide no legislative contours to the exercise of the rule-making power by the Central and State governments. Under Section 4 (1), the National Crime Records Bureau (NCRB) has been empowered with storing, preservation of measurements and storing, sharing, dissemination, destruction and disposal of records but there is a very big lacuna as to how this data is going to be used and shared. This aspect is delegated purely to the executive with no guidelines by the legislature at all. The Supreme Court in the case of Hamdard Dawakhana v. UOI has held that delegation is not valid if there are no proper guidelines; in the present case both Sections 4 and 8 of the Act delegate powers to the executive without proper safeguards and guidelines. In addition, "essential legislative function" which is the determination of a legislative policy and its formulation as a rule or conduct, cannot be delegated to the executive, as has been held by the Supreme Court in Re Delhi Laws Act, however, in the Act, essential legislative functions of providing safeguards and specifying the use of data to be collected are completely transferred to the executive due to which this Act may not stand constitutional scrutiny vis-a-vis Article 14 of the Constitution of India.
Additionally, this Act violates a very basic and fundamental right guaranteed by the constitution, namely the right to life and personal liberty. The right under Article 21 is a right which has been described as the "heart of fundamental rights" by the Supreme Court. This right not only entails the right to life and personal liberty but also has many rights enclosed in it of which the right to privacy is one of the most relevant fundamental rights in recent times.
In Puttaswamy-I, a 9-judge bench of the Supreme Court affirmed that privacy is a fundamental right under Article 21 of the Constitution. The Puttaswamy-II decision, in the Aadhaar ruling, further emphasized that the right to privacy also involved informational privacy (including biometrics and other personal information) which is protected by Article 21.
In the Act, the right to privacy has been violated extensively in some sections. First and foremost, most of the measurements covered under the Act, precisely, finger-impressions, palm-print impressions, foot-print impressions, iris and retina scans, physical and biological samples and their analysis, are personal information. Therefore, the Act has broad powers for the collection of personal data, which is protected under the right to privacy guaranteed under Article 21 which cannot be constrained except according to the procedure established by law and also that procedure has to be just, fair and reasonable. which is not the case here because the restrictions placed by the Act on the right to privacy do not satisfy the fourfold test of proportionality. An infringement of the right to privacy is constitutional only if it satisfies the four-fold test of proportionality laid down in Puttaswamy-I and Puttaswamy-II.
The test laid down was as follows:
Firstly, there has to be a legitimate aim, ensuring that the goal is "of sufficient importance to warrant overriding a constitutionally protected right or freedom." Secondly, it seeks to have a suitable means, implying thereby a rational connection between means and ends. Thirdly, there has to be a necessity of means and lastly, it is proportionality stricto sensu, for justifying a limitation on a constitutional right, a proper relation (“proportional” in the narrow sense of the term) should exist between the benefits gained by fulfilling the purpose and the harm caused to the constitutional right from obtaining that purpose.
In the Act, although there is a reasonable goal of increasing crime investigation, detection, and prevention, it fails to meet the other three proportionality pillars.
The Act allows for compelling a large class of persons identified under Section 3 and Section 5 to provide their measurements. Convicts, arrestees, prisoners, and those ordered to provide security for breach of the peace or good behaviour can be compelled to provide measurements "if required" under Section 3. The Act makes no attempt to identify the circumstances under which relevant officers may force the taking of such measures. The Act does not stipulate that the taking of measures in a certain case must be related to assisting the investigation in that case. As a result, Section 3 and Section 5 have no rational nexus to the purported goal of assisting investigations in particular cases and do not satisfy the test of proportionality.
This Act has introduced some new aspects into "measurements" which may create issues with the right against self-incrimination provided under Article 20(3).
Section 2(b) of the Act defines "measurements" to include “finger-impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scan, physical, biological samples" and their analysis, "behavioural attributes”. It is not known now how wide scope is given to the term “behavioural attributes” and this could lead to concerns about it being overbroad and vague. So, it is notably subject to interpretation including testimonial measurements which may include narco-analysis, polygraph tests, or brain mapping, which were prohibited explicitly by the Supreme Court in Selvi v. State of Karnataka.
As a result, the term "behavioural attributes" can be construed to include both its inherent meaning and the handwriting, signatures, and other measurements mentioned in Sections 53 and 53A of CrPC, thereby infringing Article 20(3) of the Constitution.
This Act seeks to cater to a long-pending pressing need to the fill the void in law created due to the rapid development of modern technology i.e. to bring under legal domain the new techniques, but some provisions of this Act trample the valuable fundamental rights of the citizens and need to be thought upon so that this Act may become a genuine attempt towards including modern technology and techniques in the criminal justice system with less scope of discrimination and abuse of authority.
[*] Vishakha Shakya, is a 1st year student at the Dr. Ram Manohar Lohiya National Law University, Lucknow. [**] Kartikeya Misra, is a 1st year student at the Dr. Ram Manohar Lohiya National Law University, Lucknow.
The views expressed above are the author's alone and do not represent the beliefs of Pith & Substance: The CCAL Blog.