Author: Abhishek Ranjan, IV year of B.A.,LL.B. from Army Institute of Law, Mohali
“By interpretation or construction is meant, the process by which the courts seek toascertain the meaning of the legislature through the medium of authoritative forms in which it is expressed”.
-Salmond
Introduction
The above lines hold true in a country like India, which is the world’s largest democracy, and where rules and regulations are being made at the drop of a hat. However, being the second-largest country in the world in terms of its population the consequence of such legislationleaves a deep impact.
Hence, the policy regime in India must be watertight with negligible ambiguity, which can only be made possible by rigorous analysis and correct interpretation. This piece of writing is also an earnest attempt at identifying key features of the recent Criminal Procedure (Identification) Bill(Hereinafter, ‘The Bill’), which was introduced in the parliament on 28th March 2022, to replace the Identification of prisoner act 1920. This analysis identifies the bill at its core and interprets it in light of its impact on other branches of law.
Further, it subjects the bill to the test of constitutionality assessing it about the principles of equality (Article 14) and self-incrimination[Article 20(3)]. The analysis then goes on to assess a few key features of the bill and concludes with the observation that certain features of the bill are antithetical to the Constitution of India.The bill further does not empower the investigative regime in the country, but rather puts in question the rights of prisoners and their reform.
Aims and highlights of the Bill
The Criminal (identification) bill aims to collect what it calls ‘Measurements’ of the person convicted of a crime and allows for its processing, storage, preservation, dissemination, and e-DNA Technology (Use and Application) Regulation Bill, 2019 destruction[1] for the purpose of investigation and prevention of crime. The bill, on one hand, aims to do away with the Identification of Prisoners Act, 1920; on the other, it continues to align with the Code of Criminal Procedure, 1973 and the DNA Technology (Use and Application) Regulation Bill, 2019.The scope of the bill is unnecessarily wide and allows for the collection of the following measurements[2]-
a) Finger-impressions
b) palm-print impressions
c) foot-print impressions
d) photographs
e) iris and retina scan
f) physical, biological samples, and their analysis,
g) behavioral attributes including signatures, handwriting or;
h) any other examination referred to in section 53 or section 53A of the Code of Criminal Procedure, 1973[3].
Further, by application of the Criminal Procedure Code,the scope of biological collections extends to blood, bloodstains, semen, swabs in case of sexual offenses, sputum and sweat, hair samples, and fingernail clippings by the use of modern and scientific techniques including DNA profiling[4]. This becomes even wider to include familial details by the virtue of Section 53A of CrPC.
Legal implications of the bill
I. Extraneous Powers to local authorities under the Bill
The bill bestows concrete powers to a person in the capacity of being a police or an officer to compel the following persons to give their measurements if required-
a) A person convicted of any offense for violation of any existing law.
b) Any person who has been ordered to maintain peace and security under section 117 of the CrPC.
c) Any detainee, detained under any preventive detention law.
d) All persons arrested for an offense can be compelled to give all measurements except for biological samples, however, offenders convicted for a crime against women can be convicted for a crime against women, and children or for a period of 7 years can be compelled to give samples inclusive of the biological samples.
The bill goes an extra mile to enable the magistrate to compel any person to give their measurements if the magistrate feels it to be expedient for investigative purposes.[5] These far-reaching powers to lower authorities make the justice system extremely fragile since these authorities are not qualified enough to be able to dispense these powers judiciously. It is a fact that police officers are a hard-pressed, hard-worked, and beleaguered lot. An analysis of the NationalPolice Commission shows that an investigative officer is only able to devote 37 percent of his time to investigational work and other time is taken by other duties such as petition, court, inquiries, etc.[6] and therefore, furthering their involvement in such grave area of investigation can prove to be disastrous.
Storage and use of data procured
Clause 4 of the data protection bill provides for various measures to store the data collected from the convicts, keep a record of such data and transfer it across several law enforcement agencies.[7] The bill further provides for the records to be kept electronically or digitally for 75 years[8] without providing for any grounds on the account of which such data can be deleted. The provisions of this bill are in stark opposition to the DNA Technology (Use and Application) Regulation Bill, 2019 (hereinafter the ‘DNA Bill’) wherein samples can only be taken subject to the consent of the person arrested and upon his/her refusal a due the discretion lies with the magistrate[9].As far as storage of data is concerned the Criminal Identification bill fails to provide any metric for storage of data for such a long time. Even under CrPC, it is Ultravires of the investigative agencies to store the sample collected beyond the period of investigation[10].
Constitutional Challenges in the Bill
II. The Billviolates Article 14
Under the constitution, certain acts are held Ultravires if it has transgressed while delegating powers[11], something that the current bill does- Firstly by conferring the legislative powers on the executive. Secondly solely relying on the discretion of officials such as police, prisonofficers, and magistrates in gatekeeping the privacy of the person arrested. The legislature must make sure it does not create a parallel legislature[12] in its delegation to the executive, further in no circumstance should the legislature abdicate its duties[13]. In the case of Subramanian Swamy v. Union of India[14], it was held that excessive delegation is violative of Article 14 if its leads to conferring of administrating functions without any checks, guidance, or controls[15].By abdicating its legislative powers under cl 4 and cl 8, and by conferring extra administerial powers to officials under cl 3 and 5 the bill does violate the principles of article 14 of theconstitution. In Shreya Singhal v. Union of India[16],it was observed that any law that restricts fundamental rights must be free of ambiguity so that its purpose remains lucid and there is no scope forthe arbitrary exercise of power. Thus, it restricts the law to transgress executive discretion to curtail rights and freedoms[17]. In the case of the State of Punjab v. Khan Chand[18], it was held that “discretion which is absolute and uncontrolled degenerates into arbitrariness.”[19]
III. The Bill is Manifestly Arbitrary
The test of a law being manifestly arbitrary was given in the case of Shayara Bano v. Union of India[20]and had become a ground for establishing legislation as unconstitutional under article 14. It was observed that for any act to be manifestly arbitrary it must be “done by the legislature capriciously, irrationally, and/or without adequate determining principle….[the law is] excessive and disproportionate”[21], the same opinion was reiterated in the Puttaswamy case[22]. Inanalysing the current bill, one finds that there are various instances where no direct inference can be drawn for purpose of the clauses or the determining principle behind achieving the ends, and hence, the legislation seems manifestly arbitrary.Further, the admissibility of certain evidence that the bill aims to collect is still questionable, these are-
a) Handwriting and signature- There is no scientific theory to ascertain the handwriting of an individual[23]and the handwriting of an individual is subject to change in various instances based on several factors[24]. The SC also has opined that the science of handwriting analysis is not an exact science[25], hence including it under measurement seems manifest arbitrary.
b) Footprints- The SC has called the science of footprints to be rudimentary[26], attempts to convict individuals based on footprints have been termed “too far-fetched”[27] by the supreme court, hence the provision of the bill to store this data for 75 years remains ambiguous.
c) Palm print impressions- The palm print impression is often not relied upon by courts due to the high chances of it being faulty, the rate of faulty negative being as much as 9.5%[28]
d) Iris and retina scan- Going by the reports furnished by UDAI to the supreme court in the Puttaswamy case the failure rate of retina scan failure in India is 8.5%[29], therefore the collection of these as measurements serves little purpose.
e) Pattern Matching- This method of investigation entails matching known samples to unknown samples but is highly dependent on the subjectivity of the expert carrying out this process[30]. Thereisa high chance that these experts are impacted by cognitive bias[31].
Thus, the bill fails to better the investigative regime, as the samples collected in the garb of measurement are not only excessively wide but also fail to better the investigative regime and hence does not serve its purpose.
The Bill Violates Article 20(3) of the Indian constitution
The bill in clause two provides for the collection of measurements and it also includes ‘Behavioural attributes. Under forensic science, the term behavioural attribute is significantly vague and has no predefined scope. For Instance, here under the impression of analysingthe behavioural nature of a convict, he/she may be subjected to forced psychiatric analysis. Further, any occurrence of an incriminating statement by the convict during such analysis would lead to ‘Testimonial Compulsion’. It is pertinent to understand that this behavioural attribute can also (include and not be limited to ) narco-analysis, polygraph tests, or brain mapping, which were prohibited expressly by the Supreme Court’s ruling in Selviv. the State of Karnataka[32]. The inclusive meaning conveyed by the bill can be twisted to use the provisions in deviance with the right against self-incrimination. The Apex court in several cases has observed that inclusive definitions tend to widen the ordinary meaning of words and often add new meaning to them, especially in cases where the extended statutory meaning may not fall within the ordinary or natural meaning[33]. Therefore, this lack of clarity to its provisions makes it against article 20(3).
The Bill Violates Article 21 of the Indian Constitution
I. The Bill Violates Informational Privacy
The Landmark Puttaswamy Judgement held the right to privacy to be a fundamental right under the Right to life.[34] The 5-judge bench had the onus of deciding the constitutional framework for the Aadhaar and ruled that informational privacy ( including biometric and personal data) forms an integral part of Article 21[35]. The bill’s vendetta of storing and retaining this data thus amounts to an infringement of the right to privacy. Further, in the case of S and Marper v. the United Kingdom[36],It was held that retention of biological data without consent amounts to a privacy violation. Further use of pictures[37] and voice[38] recording in order for the sole purpose of identification of an individual has been considered violative of privacy rights in the international regime.
II. Unproportionate Restriction on Privacy is Unconstitutional
In the Puttaswamy judgment, a test of proportionality was laid down, that any law must pass in order to be constitutional, as far as privacy is concerned. These include informed consent, collection limitation, purpose specification, use limitation, access and correction, accountability, and data security. This test of proportionality was first laid down by the 5-judge bench in the case of Modern Dental College[39], following the doctrine as was laid in the case of R v Oakes[40].This was further refined in the Puttawamy case and entailed the following-
1. Legitimate aim, so much so that it necessitates the overriding of constitutional freedom.
2. Suitable means, to achieve the ends
3. Necessity of means to be judged as follows:
First, identify alternatives to the measure employed by the State;
Next, examine the effectiveness of each of these measures in realizing the purpose in a ‘real and substantial manner;’
Next, examine the impact of each measure on the right at stake;
Finally, determine whether there exists a preferable alternative that realizes the aim in a real and substantial manner but is less intrusive on the right as compared to the State’s measure.
4. Proportionality, which should avoid the concerns with ‘ad-hoc balancing’ by judges by using ‘bright-line rules’, which implies conducting the ‘act of balancing' on the basis of some established rule or by creating a sound rule.
While the Bill has a legitimate aim of improving the investigation, detection, and prevention of crimes, it fails to satisfy the other three prongs of proportionality.
Suggestion for Amendments
After a thorough analysis of the bill, one concludes that the bill seems arbitrary, lacks constitutional ethos, and does more harm than good in the criminal justice system of India. In order to eliminate the harms emancipating out of this bill, the following aids must be worked upon-
a) The enactment of the data protection bill, 2019 - It shall strengthen the rights of convicts against any malicious use of the data collected under the current bill
b) Removal of ambiguous terms- The terms used in the bill such as ‘measurements’, ‘behavioural analysis’ etc are very subjective and leave room for arbitrariness, defining the true essence of these terms will make the bill easy for interpretation and will give it a constitutional alignment.
c) Time limit for retention of data- The current framework fails to provide reasoning for retention of data for 75 years after collection, the right time duration for retention of data shall be fixed, in the best interest of the ‘right to be forgotten’ of the prisoners under Article 21 of the constitution.
Conclusion
The Criminal Identification bill is the one that is closely related to the rights of prisoners, an area that is grappled with human rights violations. Therefore, it needs to be interpreted with sensitivity and in consonance with principles of natural justice. Any ambiguity in its framing can prove detrimental to the rights vested among people in our democracy and can lead to excessive state surveillance. The need of the hour is to remove all discrepancies in the bill and make it just and right, not only to improve the criminal justice system of India but to also uphold the fundamental rights vested in all individuals. For any law to be good for the society ends must be proportional to means, like Gandhiji said “If one takes care of the means the end will take care of itself.”
[1] The Criminal (Identification) Bill, 2022, (Bill No. 93 of 2022), clause 4, [2]The Criminal (Identification) Bill, 2022, (Bill No. 93 of 2022), clause 2(1)(b). [3]Id. [4]Criminal Procedure Code, 1973, (Act No. 2 of 1974), § 53. [5]The Criminal (Identification) Bill, 2022, (Bill No. 93 of 2022), clause 5. [6] SK Pachauri, Prisoner, and Human rights, Pg-57 [7]The Criminal (Identification) Bill, 2022, (Bill No. 93 of 2022), clause 4(1). [8]The Criminal (Identification) Bill, 2022, (Bill No. 93 of 2022), clause 4(2). [9]The DNA Technology (Use and Application) Regulation Bill, 2019 Cl 21 2019, Bill No. 128 of 2019, Bills of the Parliament (2019) [10]Criminal Procedure Code, 1973, (Act No. 2 of 1974), §53, 53A, 54, and 311A. [11] VN Shukla, ‘Judicial Control of Delegated Legislation in India’ (1959) 1(3) Journal of Indian Law Institute 357, 360. [12]Re The Delhi Laws Act, 1912,The ... vs The Part C States (Laws) Act, 1950 [13]Ibid [14] (2014) 8 SCC 682 [48-49]; AIR 1958 SC 538, [11] [15]Ibid [16] (2015) 5 SCC 1 [17, 18, 26];(2019) 1 SCC 1 [319,1288]. [17] European Court of Human Rights, Guide on Article 8 of the European Convention on Human Rights: Right to Respect for Private and Family Life, Home and Correspondence, 9-10, 93, August 31, 2018, available at https:(//www.echr.coe.int/Documents/Guide_Art_8_ENG.pdf (Last visited on April 29, 2022). [18] AIR 1974 SC 543 [19]Ibid [20] (2017) 9 SCC 1. [21]Ibid. [22] (2019) 1 SCC 1 [106]. [23] Committee on Identifying the Needs of the Forensic Sciences Community, National Research Council, ‘Strengthening Forensic Science in the United States: A Path Forward’ (2009) accessed at accessed 29th April 2022. [24]Shruti Gupta and others, ‘Effect of natural variations with respect of time interval in handwritings of individuals’ (2017) 45 Nowa Kodyfikacja Prawa Karnego 81. [25] Sarkar’s Law on Evidence (2020 Vol. 1) 1351. [26]AIR 1956 SC 415 [26]. [27] 2008 13 SCC 268 [12]. [28] Heidi Eldridge and others, ‘Testing the accuracy and reliability of palmar friction ridge comparisons – A black box study’ (2021) 318 Forensic Science International. [29] (2017) 10 SCC 1. [30] Report to the President: Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (PCAST 2016) [31]Itiel Dror, ‘Cognitive and Human Factors in Expert Decision Making: Six Fallacies and the Eight Sources of Bias’ (2020) 92 Analytical Chemistry 7998–8004; Itiel Dror, ‘A hierarchy of expert performance’ (2016) 5 Journal of Applied Research in Memory and Cognition 121-127. [32] (2010) 7 SCC 263. [33] (2008) 5 SCC 449 [23]; (2017) 10 SCC 713 [21]; (1991) 3 SCC 617 [3, 7]. [34] Article 21, of the Constitution of India. [35](2019) 1 SCC 1. [36] 2008 ECHR 1581. [37] 15225/89 52-53. [38] P.G. and J.H. the United Kingdom No. 44787/98. [39] (2016) 7 SCC 353. [40] [1986] 1 S.C.R. 103 [68].