EVERY penal law is a political statement. Therefore, it is not the text of the law read in abstraction or isolation but a contextual understanding of the law that matters. History has seldom shown judicious application of penal laws untrammeled by human motives and fallibilities. The predominant facet of state power to govern its citizens is police power. Any piece of legislation that enhances the police power has an inherent tendency to diminish the level of democracy and freedom. The Criminal Procedure (Identification) Bill, 2022, passed by both Houses of Parliament is no exception. It is certain that the Bill will be translated into law.
Modern constitutions in liberal democracies focus on the rights of the accused. This is based on the principled reason that state excesses must be prevented. The state could be dishonest or unfair and as such, in a democracy, the law should be capable of safeguarding an insignificant individual against a mighty state. Many of the penal laws reflect this constitutional wisdom. Presumption of innocence, the benefit of doubt given to the accused and the imposition of burden of proof of guilt on the prosecution are some of the sound principles of penal law that are in tune with an ideal constitutional approach towards the accused.
Article 20 of the Constitution, which deals with “protection in respect of conviction of offences”, demonstrates this idea abundantly. This provision has three components. The first clause prohibits conviction for an act that is not an offence at the time of its commission. The second clause says that no one can be punished twice for the same offence. The third clause is against self-incrimination. This provision was under Article 14 in the draft Constitution, which was subjected to textual modifications. Serious debates took place in the Constituent Assembly on designing this safeguard. The draft Article 14 was deliberated in December 1948. Apart from Dr B.R. Ambedkar, Thakur Das Bhargawa, Naziruddin Ahmad, T.T. Krishnamachari, Kazi Syed Karimuddin and P. Kakkan, among others, participated in the discourse. Concerns were raised about unreasonable searches and seizure by officers of the state. Article 20(3) says that “no person accused of any offence shall be compelled to be a witness against himself”. This clause against testimonial compulsion has a wider amplitude.
The legal scholar Subhash C. Kashyap rightly says: “There is no reason to confine the content of (this) constitutional guarantee to (the bare) literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance…….” (Constitutional law of India , volume 1, 2nd edition, 2015). He explains that the phrase is “to be a witness” and not to “appear as a witness” and, therefore, the protection “is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him” ( Ibid. ). Article 20 (3) should to be read with Article 21, which says that “no person shall be deprived of his life and personal liberty except according to the procedure established by law”. In the realm of criminal laws, procedural law is as significant as substantiative laws.
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The 2022 legislation on collection and preservation of biometrics needs to be tested against the background of this constitutional understanding. The new law poses significant questions relating to human dignity and liberty since it tries to erase this crucial protection. It seeks to replace and repeal the colonial law, the Identification of Prisoners Act, 1920. But through this replacement, the content of the law is dramatically altered, impacting enormously the very foundation of the country’s criminal justice system. Section 3 of the Bill says persons convicted or ordered to give security bond for good behaviour or arrested in connection with a punishable offence must allow the authorities to take measurements from him. This provision effectively facilitates self-incrimination, understood in its wider connotation. Any sample collected, when corroborated by testimonies, can effectively make a deposition that can be used against the person from whom the sample is collected. When followed by such corroboration, this self-incrimination can lead to conviction of the accused.
Overbreadth of penal provision
The vocabulary of the provision is overbroad and inclusive. Overbreadth of a penal provision does not pass constitutional muster ( Shreya Singhal vs Union of India , 2015). Phrases such as “convicted of an offence punishable under any law for the time being in force” and “arrested in connection with any offence punishable under any law” can take in political protests, and agitations within their ambit.
During the agitation for democracy in Hong Kong, to escape the Chinese surveillance, “people covered their faces, disrupted security cameras and even avoided public transport that required ID proof” (“CPC: Criminal Procedure Identification Bill raises fears of surveillance in India”, by Zoya Mateen and Meryl Sebastian, BBC News, April 13, 2022). Section 3 of the Bill can take in ordinary bailable offences such as rash and negligent driving, which is punishable under Section 279 of the Indian Penal Code (IPC). To say that the state is legally entitled to collect, preserve and use the biometric details of such persons will mean complete, disproportionate, and unjust state control over individuals. Again, going by Section 4 of the Bill, the National Crime Records Bureau (NCRB) and other authorised agencies can not only collect such ‘measurements’ but also retain them for a long time from the date of collection. Significantly, the impact of this data extraction cannot be undone, even when an accused is ultimately acquitted.
Total control over the individual
Let it not be mistaken that the new law is only a revision of the 1920 enactment in view of technological temptations or compulsions. While the 1920 Act was limited to fingerprints, footprints and photographs, the new Bill, by way of Section 2(b), is meant to collect biological samples; behavioural attributes such as signature and handwriting apart from substances such as blood, semen, and hair. A comparison of the itinerary of the permitted data is relevant. In view of the all-encompassing definition for the word ‘measurements’, the state gets total control over the individual. A surveillance state could prevail over citizens by imposing itself on them on the basis of the provisions of the law.
Again, unlike the 1920 enactment, the present law enables collection of data not only from the persons arrested or convicted but also “from any person”, if there is an order to that effect by a magistrate, issued under Section 5 of the Bill. The Magistrate can issue such order “for the purpose of any investigation or proceeds under the Criminal Procedure Code, 1973 or any other law for the time being in force”. This would mean that a person from whom measurements are ordered to be taken need not be an accused. This provision is not only elastic and arbitrary, but even intimidatory. The statute, symbolically, views the citizenry as protentional prisoners and this makes it more draconian than the colonial Act. The 1920 Act covered only convicts or persons directed to give security for good behaviour, while the new law could target “any person” with the support of a magisterial order.
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It is difficult and often impossible for a person to prove that she is not liable to be subjected to the rigour of the new law since she has to erase the suspicion cast on her. This overturns the idea of presumption of innocence and tries to install a notion to the contrary, i.e., presumption of guilt as we find in several draconian statutes like the Unlawful Activities (Prevention) Act (UAPA). The expansion of state power is writ large in the wide range of authorities empowered to collect the data or to direct such collection. Not only police officials, even jail authorities are entitled to extract data. Under the new law, even executive magistrates have the power to issue directions for collection of ‘information’. Earlier, such powers were vested only with judicial magistrates. Section 2(iii) of the Bill says that Magistrate will also mean executive magistrate, “in relation to ordering someone to give security for good behaviour or maintaining piece”.
The provisions proposed in the new law need strict scrutiny. They enable collection of unlimited variety of data from individuals, practically in an unregulated manner. This is in no way proportionate to the object of identification of an accused or detection of the crime. Even in a situation where an accused is otherwise identified or identifiable, or where identification is not warranted at all, an extraction of DNA samples on the basis of the provisions of the new law is possible. This can lead to annihilation of privacy, apart from opening avenues for commercial exploitation of data. In the absence of a data protection law in the country despite the recommendations for the same by Justice B.N. Srikrishna Committee, the new law will pose immense threat to citizens’ biometric security. This will transcend the realm of penal laws and will arm the state to arbitrarily collect data.
Incidentally, an analysis by Shankar Narayan in The Wire says that even in the United States and the European Union, where data protection laws exist and are relatively better implemented, the extraction of data in the field of crime detection or prevention has posed serious threat to citizens’ privacy and dignity, while laws enabling such extraction fail to achieve the proclaimed object of detection and prevention of crimes. According to him, the new law in India “follows similar unsuccessful, discriminatory laws elsewhere” ( The Wire, April 11, 2022). Going by the track record of the Indian police and prison system, one can imagine the possible abuse of power the new provisions can entail, particularly when data protection in India remains on paper.
Modern technology per se is not a guarantee for a fair state action. Sometimes it works the other way round. In the Bhima Koregaon case, it was widely reported that false evidence was planted in computer devices to incriminate the accused. A forensic analysis by Arsenal Consulting alleged that numerous documents were planted in the laptop of Rona Wilson, an activist, accused in the case arrested along with prominent intellectuals and writers. Across the country, false accusations are levelled and draconian provisions ranging from those under the sedition law to the UAPA are invoked against dissenters of the regime. The potential misuse of the provision of the new law is only to be imagined in this politico-legal scenario.
How the police and the court will act in such a situation needs an empirical examination. Penal provisions can be invoked in an undemocratic and oppressional manner during unjust political situations as shown by contemporary India. The new law is inseparable from this political context. Since its provisions rely heavily on the unfettered discretion given to the police, prison authorities and magistrates, including executive magistrates, their vulnerability to political diktats will be clear. Therefore, the potential of the new law to create a surveillance state is much greater. This is especially so in the context of the recent Pegasus controversy, the details of which were expounded by this writer in an article titled “ Another ‘tryst with destiny’? ” ( Frontline , August, 2021).
The provisions as they occur in the Bill are either overbroad or vague. To illustrate, ‘measurements’ permitted to be taken by the present enactment, as defined under Section 2(b) of the Bill include almost all types of biometric details like finger impressions, palm-print impressions, footprint impressions, photographs, iris and retina scan, physical biological samples and their analysis. The measurements also include “behavioural attributes including signatures or any other examination referred to in Sections 53 or 53A of the Criminal Procedure Code, 1973”.
Section 53 of CrPC talks about “examination of the accused by medical practitioner at the request of police officer” and section 53A talks about “examination of person accused of rape by medical practitioner”. The term ‘measurements’ is given a wide and inclusive definition which could encompass the physique, psyche and the genetics of an individual as even the DNA samples could fall within the ambit of this term, definitionally.
As per the new law, preservation of data and records is permitted for 75 years. The proposed legislation does not guarantee any protection for particulars collected and preserved. Any refusal to provide data is punishable, as it is treated as an obstruction to the public official’s duties. This enlarges the scope of Section 186 of the IPC, dealing with obstruction to public servants discharging a public function. New instances of such obstructions in terms of refusal to part with biometric details is quite possible, given the wide provisions in the law.
The Puttaswamy verdict
How extraction of data can offend one’s privacy requires examination in the light of the apex court’s judgment in K.S. Puttaswamy vs Union of India (2017). The court, following the concept of proportionality, laid down certain parameters for permissible intrusion to privacy. Among other things, the Puttaswamy verdict said that proportionality required the state action to be “necessary in a democratic society for a legitimate aim” and that “the extent of such interference must be proportionate to the need for such interference”. More importantly, the court also said that “there must be procedural guarantees against abuse of such interference”.
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The wide and unfettered discretion vested with the authorities for collection and preservation of data in broad and generic terms cannot satisfy the requirement of proportionality doctrine tested in the context of privacy and dignity which are judicially declared facets of Article 21 of the Constitution dealing with right to life. The arbitrariness in the provisions will also offend Article 14 of the Constitution, which deals with equality before law and equal protection of the laws. An unreasonable classification among persons who are liable to provide data and not liable is the direct result of the invocation of the law. When data can be collected without showing its requirement in connection with a particular case, the provisions are manifestly arbitrary. The notion of manifest arbitrariness expounded by Justice Fali S. Nariman in the Shayara Bano judgment (2017) applies to many of the provisions in the new law.
An all-pervasive power exercised by the state on an individual will be in direct contravention of the guarantees of rights in international instruments. Article 17 of the International Covenant on Civil and Political Rights, which India has ratified, is relevant. According to this provision, “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation”.
Many populist autocracies across the world, ranging from Hungary to Russia, strengthen themselves with laws based on majoritarianism that lack democratic legitimacy. The present law on identification is a clear move towards totalitarianism, in the guise of legislation. It is constitutionally illegitimate, juridically deceptive and politically dangerous.
Kaleeswaram Raj is a lawyer in the Supreme Court of India.