The criminal procedure (identification) act, 2022 and the right to privacy

The Criminal Procedure (Identification) Act, 2022 was enacted to replace the Identification of Prisoners Act, 1920. Effectually, the new enactment has widened, both, the scope and ambit of a colonial era legislation. While the stated purpose is introduction of new technologies, the legislation potentially encroaches upon the right to privacy forming an intrinsic part of Article 21 of the Constitution, as being examined in this article.

On 28 March 2022, the Government of India introduced the Criminal Procedure (Identification) Bill, 2022 which has now been passed and enacted, as the Criminal Procedure (Identification) Act, 2022 (Act).

Trumpeted to be a replacement of the Identification of Prisoners Act, 1920, (1920 Act) and purposed for the introduction of new ‘measurement’ techniques, the Act, arguably, borders on being arbitrary and violative of fundamental right to privacy. In context, the article examines the concerns of expanded applicability and a random approach to retention of personal data while also undertaking an analysis in reference to the landmark judgement of Justice K.S.Puttaswamy (Retd) and Another versus Union of India and Others (Privacy judgement).

Concerns Inherent in the Act

Expanded Applicability   

Section 3 of the Act, categorizes the ‘persons’ covered as those:

• Convicted of an offence punishable under any law or
• Any person falling under sections 107, 108, 109 or 110 of the Criminal Procedure Code, 1973 (Cr.P.C.) and ordered to give security for keeping peace or maintaining good behavior; or
• Arrested in connection with an offence punishable under any law; or
• Detained under any preventive detention law.

Section 5 expands the applicability to anyone by empowering the Magistrate to pass an order directing any person to give measurements under this Act, if satisfied that the same is required for the purpose of any investigation or proceeding.

In comparison, the 1920 Act mandates the taking of measurements (only) of persons arrested or convicted for offences punishable with imprisonment of 1 year (or above). Also, the same empowers the Magistrate to pass order against an individual only if the person had been previously arrested in connection with the proceeding. Furthermore, there was no provision for taking of measurements of those held under preventive detention laws.

Necessarily, the Act not only extends the application to persons accused of minor offences but also provides a convenient route for a roving collection of personal data through random arrests under the preventive detention laws and through Magisterial orders under section 5 of the Act (which provision lacks any scaffolding of a speaking order).

Retention of Data

Section 4(2) of the Act provides for retention of ‘measurements’ recorded, for a period of 75 years (from the date of collection).

Proviso to the section states that where any person who has not been previously convicted of any offence, is released without trial or discharged or acquitted; all measurements recorded under the Act, would be destroyed (unless directed to the contrary, by the Magistrate).

The necessary corollary would then be:

• The state has access to ‘measurements’ (personal data) of an individual for 75 years;
• Measurements of an individual who has been previously convicted but has been acquitted for an offence for which measurements were taken, would not be destroyed;
• The Magistrate may order retention of measurements of any individual, even though discharged or pronounced innocent by a Court of law.

A concerning upshot is that the proviso imparts a retrospective effect to the Act, by retaining records of those who had been convicted before the enactment of this Act but acquitted of an offence for which measurements were recorded (under the Act).

Analysis in Reference to the Fundamental Right to Privacy

Potential for violation of Right to Privacy

The Privacy judgement held that:

“…right to privacy is a basic fundamental right forming an intrinsic part of Article 21…”.

Dwelling upon various facets of privacy and circumstances permitting restrictions on fundamental rights, the Apex Court stated that in terms of the Article 21 requirement of ‘procedure established by law’, the expression;

“…does not connote a formalistic requirement of a mere presence of procedure in the enacted law. That expression has been held to signify the content of the procedure and its quality which must be fair, just and reasonable…”.

Accordingly, the Court laid down a three-fold requirement test for all restraints sought to be applied:

• Legality which postulates the existence of a law;
• Need, defined in terms of a legitimate state aim; and
• Proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.

An analytical application of this test could be undertaken as:

The enactment of the Act fulfills the first requirement of existence of an established law.

The second requirement is existence of a legitimate state aim ensuring that the nature and content of the law falls within the zone of ‘reasonableness’. Such legitimacy is a guarantee against any State arbitrariness.

In context, the objects and reasons of the legislation state that the Act has been introduced to make provisions for modern techniques and to expand scope and ambit; as also to authorise taking and recording measurements of convicts and other persons, for identification, investigation and to preserve records.

While introduction of modern techniques for improved investigations into criminal offences, might constitute a legitimate aim; an arbitrary expansion of scope and ambit of the Act and preservation of personal data (as provisioned), cannot be a legitimate state aim. 

It has been categorically stated that;

“…The pursuit of a legitimate state aim ensures that the law does not suffer from manifest arbitrariness. Legitimacy, as a postulate, involves a value judgement. Judicial review does not reappreciate or second-guess the value judgement of the legislature but is for deciding whether the aim which is sought to be pursued suffers from palpable or manifest arbitrariness…”.

Necessarily, the Act which legitimizes a roving exercise to gather and preserve personal data of individuals, at will; does not pass muster, on the principle of ‘reasonableness’ required to justify abridgement of a fundamental right. 

Proportionality mandates a rational nexus between the objectives sought to be achieved by the State and means adopted for the same.

Essentially, this requires a rational nexus between improved investigations through modern techniques and expanded applicability and prolonged retention of personal data.

However, the Act does not display such proportionality as can be examined:

• Section 3(c) permits recording of ‘measurements’ of individuals detained under the preventive detention laws.

Preventive detention laws are brought into operation when there is an apprehension that an individual may commit an act detrimental to public order or security of the state. Such individuals are held pursuant to an order of detention and without registration of a First Information Report (FIR) or commencement of any investigative proceedings or criminal trial.

Recording of ‘measurements’ of individuals who do not fall into the category of either arrested or convicted (within the criminal justice system), is thus, disproportionate and without any rational nexus.

Vide this Act, the legislature has taken the arbitrariness, inherent in preventive detention laws, a step forward, whence there is a complete absence of state accountability.

• Section 5 empowers the Magistrate to direct recording of ‘measurements’ of any individual, for the purpose of any investigation or proceeding. The Act is unprecedented in extension of applicability to those individuals against whom there is no complaint or FIR. Absence of an obligation of a speaking order, further adds to the arbitrariness and lack of accountability, inherent in the Act.

Hence, the Act (as enacted), fails to satisfy the requirements of ‘legitimacy’ and ‘proportionality’, necessary for any abridgement of a fundamental right.

Potential Consequences of the Act in its Present Form

The Act in its present form, could potentially lead to:

• Collection and retention of personal data of those against whom there is no initiation of criminal proceedings;
• Retention of personal data of those acquitted or discharged;
• Retention of personal data of those required to provide security for good behavior or for maintaining peace and those held under preventive detention laws, since the Act is silent about deletion of data of those who are not formally discharged, released without trial or acquitted;
• Creation of inferences or profiles in the garb of ‘analysis’ of data, unknown to such individuals.

It is hence imperative that the present Act be amended to narrow its applicability as also streamline the retention policy, in harmonization with the salutary principles of data privacy as enumerated within various data privacy laws. The same is also required to ensure an effective application of the Act, for assisting investigations while preserving fundamental rights of the populace.

The Hon’ble Apex Court in the Privacy judgement warned that:

“…Knowledge about a person gives power over that person. The personal data collected is capable of effecting representations, influencing decision-making processes and shaping behavior. It can be used as a tool to exercise control over us like the ‘big brother’ State exercised. This can have a stultifying effect on the expression of dissent and difference of opinion which no democracy can afford…”.