George Orwell’s dystopic ‘surveillance state’ in his landmark novel 1984 , where Big Brother (aka the government) watches every move of the citizen, making the concept of privacy redundant, seems to be coming true for Indians as one more dangerous piece of legislation is passed by both Houses of Parliament.
The Criminal Procedure (Identification) Bill, 2022, was introduced by the Bharatiya Janata Party (BJP) government on March 28. It was passed in the Lok Sabha on April 4 and in the Rajya Sabha on April 6 amid heated arguments by opposition parties and calls for referring the Bill to a Standing Committee, which Home Minister Amit Shah ignored.
The new law will replace the Identification of Prisoners Act, 1920, and “widen the scope of evidence for conviction”, according to Amit Shah. Indian prisons suffer from a problem of overcrowding that goes up to 300 per cent in some prisons.
As per Prison Statistics India 2020 report, the total capacity of prisons is 4,14,033, while the present occupancy is 4,88,511. An overwhelming number of those incarcerated are undertrials, numbering 3,71,848, while the convicted people are only 1,12,589. In 2020, three in four prisoners were found to be undertrials, the highest share of undertrial detainees since 1995. While the need of the hour is to provide solutions to speed up the trial procedure and decongest prisons, the Home Minister seems to be approaching the problem from a tangent.
According to the Bill, all data are to be maintained by the National Crime Records Bureau (NCRB) for a period of 75 years in digital form. While records are to be destroyed in case of an acquittal or release, a court or magistrate can direct the retention of details. Resistance or refusal to give data is considered an offence under both the 1920 Act and the 2022 Bill.
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Under the 1920 law, fingerprints, footprint impressions and photographs of those convicted or arrested for offences punishable with rigorous imprisonment of one year or more, were mandated to be collected. The idea was to name and shame Indian freedom fighters. The new law that seeks to replace the colonial-era law, instead of being liberal, has turned out to be more draconian. The data that will now be collected have become more intrusive on the personhood of an Indian citizen and the authorities have more sweeping powers than the British rulers did.
Among other things, collection of biological samples and their analysis; behavioural attributes, including signatures and handwriting; and examinations under Sections 53 and 53A of the Code of Criminal Procedure (CrPC), including of blood, semen, hair samples, swabs and DNA profiling, will be permitted. Using a person’s handwriting and signature, which are prone to change from day to day and by context, to declare that person guilty of a crime is fudgy science.
All this data can be collected from someone who is convicted or any person arrested for any offence. Besides, the Bill allows for forcible collection of biological samples from any person arrested for offences against a woman or a child or if the offence carries a minimum of seven years of imprisonment. This means that merely being accused of a crime can compel the collection of biological data from a person. This distorts the presumption of innocence for an accused and treats them as guilty from the moment they are charged with a crime.
Earlier, only an investigating officer, an officer in charge of a police station, a sub-inspector or someone of a higher rank could collect the samples, but now even a head constable or a head warden of a prison can do so. In a highly segregated society such as India, where social hierarchies are more forcefully adhered to inside prisons and police stations, who gets charged with what crimes and who has access to justice depends largely on the background of the person. In such a scenario, experts say, providing unbridled powers to collect biological data to all and sundry does not bode well for society.
‘Bill makes a mockery of CrPC’
Kirity Roy, National Convener of Programme Against Custodial Torture & Impunity, said by empowering head constables to collect measurements, the Bill makes a mockery of the CrPC under which none other than an officer in the rank of sub-inspector can lodge a first information report (FIR).
Kirity Roy, who is also secretary of Banglar Manabadhikar Suraksha Mancha (MASUM), speaking to Frontline , said: “The Bill violates the spirit of our Constitution as the privacy of my body is guaranteed in the Indian Constitution. The intention of the Bill is to destroy the fundamental principle of criminal jurisprudence that no one is guilty until proven by a court of law. In Kharak Singh vs State of Uttar Pradesh , 1962, the Supreme Court explained that life was much more than animal existence. The Bill is against this spirit ingrained in the Indian Constitution.
“It also allows the police and prison officials to collect measurements notwithstanding the refusal by any person. In fact, refusal to be measured is punishable under the provisions of the new Bill. This is a violation of fundamental rights. The government is trying to curb the right to refusal of the accused and convicts. Every citizen is entitled to the right to privacy. Thumb impressions, signatures, iris and retina scan are collected and stored under the guise of investigation, but this opens up large avenues for abuse of the same. The right to privacy ensured by the Supreme Court in Justice K.S. Puttaswamy and Anr vs Union of India , 2017, is being violated in this Bill.”
He wondered how Parliament passed the Bill before introducing a strong data protection Bill and sending it to the Parliamentary Standing Committee for evaluation. Meanwhile, the DNA Technology (Use and Application) Regulation Bill, 2019, which provides a framework for using DNA technology, is pending in the Lok Sabha.
Social activists condemned the passage of the Bill. Shabnam Hashmi tweeted: “Fascism has arrived. Every day there is an attack on personal liberties. Surveillance is growing. Unconstitutional, draconian bill introduced in Parliament The Criminal Procedure (Identification) Bill, 2022. If U think U R safe from hatred & totalitarian control U R mistaken.”
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One of the most strident voices against the Bill in Parliament was raised by Trinamool Congress member Mahua Moitra, who said the Bill redefined the term ‘measurement’ to allow the police to take biological samples and behavioural attributes without a data protection law “which India so desperately needs”.
“The mala fides of this Bill are apparent, not only the unconstitutional provisions it seeks to enforce. It also seeks to blur out any and all distinction between an undertrial, a detainee, a suspect and a convict. It is using the words ‘a person involved in any crime’. It is a broad sweep. The expansion of this ambit… allows arrest of persons for any offence, which include people under preventive detention laws,” she said.
Manish Tewari of the Congress specifically asked whether brain mapping and narcoanalysis would be used as part of biological samples and their analysis, and wondered about the purpose of collecting details on behavioural attributes.
Others from the opposition camp, Supriya Sule of the Nationalist Congress Party (NCP), Bhartruhari Mahtab of the Biju Janata Dal (BJD) and Kunwar Danish Ali of the Bahujan Samaj Party (BSP) echoed Mahua Moitra’s views on the matter.
Dayanidhi Maran of the Dravida Munnetra Kazhagam (DMK) was more direct in addressing the fears towards the Bill. He indicated that the track record of the government did not inspire confidence that the Bill would not be misused to curb dissenters.
He said: “As a common man, I am concerned. Do you not feel that this will be misused, targeted against individuals? Your government is known to target the minorities. Any law you bring, the first abuse is done to the minorities…. Any ordinary citizen who is accused or a person suspected of anything can be profiled to this extent. Already we feel that the Union government is spying on Indians with the Pegasus software, which you failed to address.”
E.T. Mohammed Basheer of the Indian Union Muslim League (IUML) from Kerala called it a black law and said it would give extra-constitutional powers to police officials and usher in a police state. N.K. Premachandran of the Revolutionary Socialist Party (RSP) in Kerala, said it took away the democratic and fundamental rights of citizens.
Syed Imtiaz Jaleel of the All India Majlis-e-Ittehadul Muslimeen in Maharashtra said: “My objection is not that we cannot collect this data, that we should not use technology to prevent crime. My objection is that the government is bringing in this law without respecting the constitutional Right to Privacy or the right against self-incrimination.” He posed a question to Amit Shah: “Under what circumstances can a cop be allowed or denied access to this database? What are the permissible uses of this database? What punishment happens if a police officer uses this database in violation of extant law?”
Former Home Minister and Congress leader P. Chidambaram termed the Bill unconstitutional, illegal and said the objectives of the Bill, “to expand the ambit of powers, to use modern techniques for body measurements and to provide legal sanctions”, seem to be harmless words but the harm and mischief lies in these sections.
He said the Bill was in direct contravention of the 2010 judgment in Selvi vs State of Karnataka and the 2017 verdict in the Justice Puttaswamy case.
He said: “Since 2010, the law in this country is that narcoanalysis, polygraph tests and BEAP [brain electrical activation profile] are unlawful and unconstitutional. They violate liberty and privacy. In the Puttaswamy judgment, the court said that an invasion of life and personal liberty must meet a threefold requirement—legality, which postulates the existence of a law; need, defined in terms of a legitimate state aim; proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them. This law, which the honourable Home Minister has introduced, goes directly against the pronouncement in the Selvi case and it fails every one of the three tests laid down in Puttaswamy .”
Raising objections to Section 3 of the Bill, which extends the law to any person, Chidambaram said: “That includes all of us…. Tomorrow if members of the TMC, the AAP or the Congress march from the Gandhi statue to Vijay Chowk and the police stop you, they can arrest you. The moment they do that, they can take your fingerprints, your DNA samples, behavioural samples, that is the law. Let the Home Minister say this is not the law, that these sections will be excluded. Then exclude them. Is there any person in this House who can say, I have never violated any law in this country or never will? We are not talking about heinous crimes, we are talking about simple laws.”
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As with all things, one must learn from the mistakes of others. There are several countries in the world where the use of forensic science for criminal law or regulatory purpose is routine, but in the face of emerging proof on the role of scientific evidence in wrongful incarcerations, those countries are now looking to mend their ways. In such a situation, India’s rush to embrace outdated methods in law-making must be cautioned.
In the United States, a report from the President’s Council of Advisers on Science and Technology (PCAST) in 2016 brought into question the reliability of forensic evidence in the legal system. In 2009, a report by a National Research Council (NRC) committee of scientists, judges, lawyers and forensic practitioners concluded that only straightforward DNA identifications met scientific standards. The rest was essentially hit and miss in the dark that had ended up ruining lives. The evidence mounted by the Innocence Project (IP), a non-profit legal organisation, has been reported widely.
The IP found that dubious forensics contributed to about half the wrongful convictions the group has overturned with DNA testing in the U.S. since 1992, including 14 death row sentences. It has been reported that the National Registry of Exonerations, a public database maintained by three universities, lists some 670 cleared cases between 1989 and 2021 that originally involved false or misleading forensic evidence, ranging from bunk bite marks to smudgy fingerprints.
That innocent lives have wasted away behind bars convicted on the basis of flimsy forensic evidence while the real perpetrators of crime roamed free, committing more crimes in the interim, is a fact that is accepted across the world. It is time India woke up to this reality.