India
Why is there friction between the government and the judiciary?
The story so far: On September 19, the Ministry of Home Affairs (MHA) notified the rules governing The Criminal Procedure (Identification) Act, 2022. The Act was passed in March by the Parliament. Until rules are notified, an Act cannot be implemented or come into force. The legislation would enable police and central investigating agencies to collect, store and analyse physical and biological samples including retina and iris scan of arrested persons.
The Act seeks to repeal the Identification of Prisoners Act, 1920, which is over 100-years-old. The old Act’s scope was limited to capturing of finger impression, foot-print impressions and photographs of convicted prisoners and certain category of arrested and non-convicted persons on the orders of a Magistrate.
The Statement of Objects and Reasons of the bill when it was introduced in Parliament said that new ‘‘measurement’’ techniques being used in advanced countries are giving credible and reliable results and are recognised world over. It said that the 1920 Act does not provide for taking these body measurements as many of the techniques and technologies had not been developed then. The Act empowers a Magistrate to direct any person to give measurements, which till now was reserved for convicts and those involved in heinous crimes. It also enables the police upto the rank of a Head Constable to take measurements of any person who resists or refuses to give measurements.
As per the rules, “measurements” include finger-impressions, palm-print, footprint, photographs, iris and retina scan, physical, biological samples and their analysis, behavioural attributes including signatures, handwriting or any other examination referred to in Section 53 or Section 53A of the Code of Criminal Procedure, 1973 (2 of 1974). Though it has not been specified, analysis of biological samples could also include DNA profiling.
When the Bill was debated in Parliament in March this year, the Opposition members termed it “unconstitutional” and an attack on privacy as it allowed the record of samples of even political detainees.
However, the rules notified on September 19 state that samples of those detained under preventive Sections such as 107, 108, 109, 110, 144, 145 and 151 of the CrPC shall not be taken unless such person is charged or arrested in connection with any other offence punishable under any other law. It can also be taken if a person has been ordered to give security for his good behaviour for maintaining peace under Section 117 of the said Code for a proceeding under the said Sections.
The rules do not mention the procedure to be adopted for convicted persons.
The National Crime Records Bureau (NCRB) under MHA will be the one-stop agency for storing and preserving the data of arrested persons. The State governments can also store the data, but it shall provide compatible application programming interfaces for sharing the measurements or record of measurements with the NCRB. The rules state that the NCRB will issue Standard Operating Procedure (SOP) for collection of measurements which would include specifications of the equipment or devices to be used, specifications and the digital and physical format of the measurements etc. The rules said that in case any measurement is collected in physical form or in a non-standard digital format, it shall be converted into standard digital format and thereafter uploaded in the database as per the SOP. Only authorised users could upload the measurements in the central database in an encrypted format.
The procedure for destruction and disposal of records are yet to be specified by the NCRB. The rules state that any request for destruction of records shall be made to the Nodal Officer who is to be nominated by the respective State Government. The nodal officer will recommend the destruction after verifying that such record of measurements is not linked with any other criminal cases.
