INTRODUCTION
The Criminal Procedure (Identification) Act 2022 has been a topic of controversy since its introduction in parliament. This legislation permits law enforcement agencies to collect and retain biometric information from individuals suspected of criminal activity. The act is intended to strengthen the powers of the police and to make it easier for them to investigate and prosecute criminals. However, the legislation has also raised concerns about privacy and other fundamental rights. In this article, we will examine the Criminal Procedure (Identification) Act 2022 and its ramifications on the right to privacy and other fundamental rights.
BACKGROUND
The Criminal Procedure (Identification) Act 2022 was passed by the government to cater to the need for law enforcement agencies to have access to cutting-edge technology to help in their fight against crime. The act enables police officers to take and retain biometric data from individuals suspected of committing a crime, such as fingerprints, facial recognition, and DNA samples.
The Act requires police officers to obtain identifying information from anyone they arrest or detain, including fingerprints, DNA samples, and photographs. The information collected will be entered into a national database and used for future investigations. The Act also allows identifying suspects using facial recognition.
The act also permits the police to collect and retain data on individuals who have not been convicted of a crime, but who are considered to be persons of interest in an ongoing investigation. The Act has been criticized by the opposition and the general public as a violation of privacy and other fundamental rights, such as the right against self-incrimination and the presumption of innocence until proven guilty. This has raised concerns about the potential for abuse of power, as well as the possibility of breach of data and the misuse of personal information.
RIGHT TO PRIVACY
The right to privacy is a fundamental human right enshrined in the national constitution and international law. The Article 21 of the Indian Constitution, Article 12 of the Universal Declaration of Human Rights, Article 17 of the International Covenant on Civil and Political Rights, and Article 8 of the European Convention on Human Rights all recognize the right to privacy.
The right to privacy includes the right to control personal information and the right to be free from unreasonable searches and seizures. The collection and retention of biometric data by law enforcement agencies raise concerns about the potential for these rights to be violated. The collection and storage of personal information by the police can also have a chilling effect on free speech and association, as individuals may fear being monitored and targeted by law enforcement for their political views or activities.
The Criminal Procedure (Identification) Act 2022 includes provisions that seek to balance the right to privacy with the need for effective law enforcement. For example, the act requires that the police obtain a warrant before collecting biometric data from an individual, and sets limits on the retention of such data. The act also includes provisions for the destruction of data where an individual is not charged with an offense.
However, critics argue that these safeguards do not go far enough to protect the right to privacy. They argue that the act still permits the collection and retention of personal information without the consent of the individual and that the potential for abuse of power by law enforcement agencies remains high.
RIGHT AGAINST SELF-INCRIMINATION
The Act permits the taking of samples under duress which may be a breach of Article 20(3), which guards against self-incrimination. The Act suggested that the collecting of biological data by coercion may result in narcoanalysis and brain mapping. Article 20(3) of the constitution has the following components:
- It is a privilege that belongs to a defendant in a criminal case.
- It is a defense against being forced to testify.
- It is a defense against such pressure leading to his testifying against himself.
The Act allows the collection and storage of fingerprints, palm prints, footprints, photographs, iris and retina scans, physical samples of biological materials and their examination, behavioral characteristics like signatures, and any test written in Sections 53 or 53A of the 1973 Code of Criminal Procedure, including handwriting tests, according to Section 2 of the Act. The fact that “behavioral characteristics” is not an art form in forensics raises questions about how vague and broadly defined it is. Whether or not to include measures of a testimonial character is open to dispute. When such examination results in any “testimonial compulsion” would be an admission that would be incriminating.
The comprehensive reading of “behavioral characteristics” would even allow procedures like mapping of the brain, polygraph testing, and narco-analysis, and all these are specifically forbidden by the Supreme Court’s decision in Selvi v State of Karnataka. According to Section 53 and Section 53A of the Code of Criminal Procedure, each person who has been arrested by the police is subject to a physical examination, that includes collecting their fingerprints, footprints, biological samples, and behavioral traits like signatures, handwriting, and fingerprints. In addition to DNA profiling analyses, this data includes blood, semen, hair, and swab samples. A person in custody under any law will not be compelled to provide such data, except when they are being held for an offense against women or children, even while refusing to do so is against the law under this Act. According to Article 20(3) of the Constitution, such prosecution breaches a person’s right to life and liberty because it essentially amounts to coercive testimony and evidence gathering.
OTHER FUNDAMENTAL RIGHTS
The Criminal Procedure (Identification) Act 2022 also raises concerns about other fundamental rights, such as the right to a free and fair trial, being innocent until proven guilty, and the right against discrimination.
The collection and retention of biometric data by law enforcement agencies will affect the right to a free and fair trial by prejudicing judges and the decision of the court. The collection and retention of data on individuals who have not been convicted of a crime, but who are considered to be persons of interest in an ongoing investigation, can also impact the right of being innocent until proven guilty.
The act also raises concerns about non-discrimination. The collection and storage of biometric data can discriminately affect lowers sections of society i.e., illiterate, and poor communities. These communities may be more likely to be subject to police scrutiny and to be wrongly accused of a crime.
CONCLUSION
The Criminal Procedure (Identification) Act 2022 is a controversial piece of legislation that raises significant concerns about privacy and other fundamental rights. Overall, the Criminal Procedure (Identification) Act 2022 is a law that raises significant concerns about privacy and other fundamental rights. While the use of biometric data in criminal investigations may be beneficial in some cases, it is important to ensure that the right rules are enacted to safeguard one’s privacy and other rights. Additionally, it is important to continue to monitor the implementation of this law and to address any potential issues that may arise. Moreover, it is important for policymakers to carefully consider the implications of the Criminal Procedure (Identification) Act 2022 and to take steps to ensure that individual rights are protected while also enabling law enforcement agencies to effectively combat crime.
* Second-Semester Student at National Law University, Ranchi.
The NUSRL Criminal Law Blog 
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