The Criminal Procedure (Identification) Act, 2022 past the Rajya Sabha on Wednesday, just two days after being passed by the Lok Sabha, was drafted to “authorize the measuring of convicts and other persons for the purpose of identification and investigation in criminal matters”. This law violates the right to self-incrimination and turns the presumption of innocence in investigations on its head. It will fundamentally change the scope of criminal investigations by giving investigative bodies and the central government full powers.
Article 20(3) of the Constitution protects an accused from being forced to testify against himself. However, this fundamental right has been watered down over the years. In 2005, the Code of Criminal Procedure (CrPC) was amended to allow a judge to order any person to submit their handwriting samples for the purpose of an investigation or trial. In 2019, in Ritesh Sinha v. State of UP, the Supreme Court ruled that such handwriting samples could contain speech samples. The court ruled that this would not violate the right to self-incrimination. It relied on its judgment in the Kathi Kalu Oghad case (1962), which held that taking handprints or footprints cannot be characterized as self-incriminating since prints are immutable except on rare occasions.” Instead, it stated, that the Constitution prohibits the compulsory extraction of any testimony, oral or written, from the defendant “which, by itself, makes the charge against the defendant at least probable”.
The logic used in 1962 to interpret what would violate the right to self-incrimination is unlikely to apply to the technologies used today. While the database of convicts is not new, the new law allows for the collection of information including fingerprints, handprints, footprints, photographs, iris and retina scans, physical, biological samples and their analysis, behavioral attributes including signatures, handwriting, or any other test according to Sections 53, 53A of the CrPC. It also mandates the National Crime Records Bureau to store, retain and destroy the records of measurements nationally, as well as to process and share them with all law enforcement agencies. The bill is worded vaguely, and the types of data processing, sharing and dissemination it entails will certainly involve the use of new and emerging technologies. Fears that it will allow for new forms of coercion of suspects are not unfounded, as are fears that it could create new and worrying forms of surveillance and the suppression of dissent.
Technologies that process huge amounts of data are changing and evolving rapidly. Its application to the police and criminal justice system has new implications for the right to self-incrimination. A single fingerprint can be compared to thousands of others in minutes. Information that would be gathered through the investigative procedures permitted under the proposed law would reveal much about an individual’s personal beliefs or conduct. Mandatory submission of such information could have a deterrent effect after being exposed to new technology – in other words, a defendant’s past could be enough to implicate him.
The bill proposes taking “measurements” of convicted individuals, those arrested (or held under preventive detention laws), or those who have enforced promissory notes promising good behavior. Only persons who have been arrested for petty offenses punishable by less than seven years should not be required to allow measurements to be recorded. This sounds a warning against forced data collection, especially when viewed in light of the practices used to monitor oppressed communities.
For example, under the Criminal Tribes Act 1871, many nomadic and semi-nomadic communities were designated hereditary criminals, with the colonial intent of controlling their movement. Despite the repeal of the law in 1952, these named tribal communities (‘Vimukta’) continue to be treated as criminals by birth, through the ‘habitual offender’ provisions in state-level police statutes, which allow local police stations to keep records of such lead people in their field. Police keep medical history sheets that allow them to record demographic details of the “offender” and information about their family, associates, and habits as “proof” that they are “habitual criminals.” This has allowed for uncontrolled abuse of power by the police to harass Vimukta children, men and women, extorting bribes from them and consequently denying them access to education, formal employment and health services. It sentences part of the country’s population to multiple cycles of arrest, bail and acquittal. The new law could make even more stringent the practice of taking medical history, which is carried out when a person is merely accused of a crime and not convicted – the “measurements” are to be stored nationally for 75 years with no clear procedure outlined for destroying the information .
Digitization could push state and local criminalization of oppressed caste communities to the national level. Fingerprint and iris scan digitization projects are already underway in several states – Maharashtra is the first state to launch its biometric database of lower court hearings and convicts. The right to self-incrimination is at the core of protection from police excesses and torture. The retention of records required by the bill violates this right.
Parliament must legislate to protect, rather than enable, such blatant attacks on fundamental rights and freedoms.
This column first appeared in the print edition on April 8, 2022 under the title Guilty Until Proved. Sonavane and Ravindranath are attorneys for the Criminal Justice and Police Accountability Project. Kashyap is an attorney with the Article 21 Trust and Rethink Aadhaar Campaign