Explanation: Can the new criminal procedure identification law require you to share biological samples?

Representative image, DNA sample collection. The new bill authorizes the collection of certain identifiable information about specified persons such as convicts for the purpose of criminal investigation while expanding the scope of persons from whom such information may be obtained.

Setting aside all concerns about privacy and the potential misuse of sensitive personal information, including biometric details, the new Criminal Procedure (Identification) Bill 2022, which replaces the Criminal Procedure (Identification) Act 1920, colonial-era prisoner identification, has passed through both houses of parliament and is now the law of the land with the president giving his assent to the bill.

The new bill does not only authorize the collection of certain identifiable information about specific individuals, such as convicts, for the purpose of criminal investigation. It expands the scope of such personal data and the persons from whom such data may be obtained.

The National Crime Records Bureau has been appointed as the nodal agency to collect, store and maintain these details.

Changes introduced in the bill

1920 Act Bill 2022
Data whose collection is authorized
The law authorized the collection of photographs, fingerprints and footprints The new amendment further includes palm prints, iris and retina scans, signature and handwriting, physical and biological samples such as blood, semen, hair samples and swabs ( articles 53 and 53A of the Code of Criminal Procedure)
Persons whose data may be collected
This information will be collected from
1. Persons convicted or arrested for offenses punishable by rigorous imprisonment for one year or more
2. Persons Summoned to Bond for Good Conduct or Keeping the Peace
3. Any person arrested to facilitate a criminal investigation, if the magistrate orders the collection of personal data on this person
The new law expands this list to also include:

Persons convicted or arrested for an offense
Persons detained under a remand law
By order of the magistrate, any person (not just an arrested person) to assist in the investigation

However, biological samples can only be forcibly taken from those arrested for offenses against a woman or child, or if the offense carries a minimum sentence of seven years in prison.

Persons Who Can Demand/Direct Data Collection
1. Investigating officer, officer in charge of a police station or of the rank of sub-inspector or above
2. Magistrate
1. By order of an officer in charge of a police station or of the rank of chief of police or above. Additionally, a prison warden
2. By order of the Metropolitan Magistrate or Judicial Magistrate, First Class.
3. In the case of persons bound to good conduct or the peace, the Executive Magistrate

The bill further mentions that the personal data collected will have to be kept in digital or electronic form for 75 years from the date of collection. The file may be destroyed in the case of persons who have not been previously convicted and who are released without trial, acquitted or acquitted by the court after exhausting all appeals.

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Further, the resistance of any relevant authority to provide such details will be considered an offense under Section 186 of the Indian Penal Code 1860 which covers obstruction of any official in the performance of his duties.

The bill empowers the NCRB to collect and store details of individuals covered by the bill from state governments, Union Territory (UT) administrations or other enforcement agencies. of the law. Processing of details with relevant criminal records and dissemination of details will be done by law enforcement.

The need for these changes

  1. In the statement of purposes of the bill, it is stated that due to the evolution of digital technology and the increase in cybercrimes, it is essential to provide for the capture and recording of bodily measurements for the unique identification of a person involved in any crime, which will help investigative agencies to solve criminal cases. Advanced countries around the world are relying on new “measurement” techniques to obtain reliable results.
  2. The current law, the Identification of Prisoners Act 1920, only authorized the taking of fingerprints and prints from a limited category of convicted persons.
  3. The 2022 bill provides for the use of modern techniques to capture and record appropriate body measurements. The DNA Technology Regulation (Use and Application) Bill 2019 (pending in Lok Sabha) provides a framework for the use of DNA technology for this purpose. In 1980, the Law Commission of India, when reviewing the 1920 Act, noted the need to revise it to bring it into line with modern trends in criminal investigation. In March 2003, the Expert Committee on Criminal Justice Reforms (Chairman: Dr. Justice VS Malimath) recommended amending the 1920 Act to empower the Magistrate to authorize the collection of data such as blood samples for DNA, hair, saliva and semen.
  4. It was deemed necessary to broaden the “scope of persons” from whom action can be taken, as this will help investigative bodies gather enough legally admissible evidence.
  5. More accurate physical and biological samples will make criminal investigations more efficient and faster and will also help increase the conviction rate.
  6. It is expected to minimize the threat from organized crime, cyber criminals and terrorists who are proficient in identity theft and identity fraud. The bill will help control the serious national and global threats they pose.
Bangalore Police
An officer in charge of a police station, or of the rank of chief of police or above, may authorize the collection of biometric and DNA samples in cases such as reckless and negligent driving. Bangalore Traffic Police file photo. Image Wikimedia Commons

Problems with the bill

  1. Unconstitutionality: The bill was argued against Article 20(3) of the Constitution, which is a fundamental right that guarantees the right not to incriminate oneself. It explicitly states that no person charged with an offense shall be compelled to testify against themselves and that such a law is beyond the legislative “jurisdiction” of the House.
  2. Violation of Section 21, or the right to be forgotten, which requires private information about an individual to be removed from Internet searches and other directories in certain circumstances.
  3. Undermines the right to privacy: Seemingly technical, the legislative proposal undermines the right to privacy, not only of those convicted of a crime, but also of any Indian citizen. The bill proposed to take samples even from people engaged in political protests.
  4. Violation of Article 20: Apprehensions were expressed that the bill permitted the coercive taking of samples. The bill involved the use of force in the collection of biological information, also extending to narcotics analysis and brain mapping.
  5. The bill seeks to apply these provisions to persons detained under any preventive detention law. For example, this would include someone arrested for reckless and negligent driving, which carries a maximum jail term of six months.
    This differs from the Law Commission’s (1980) observation that the 1920 Act is based on the principle that the less serious the offence, the more restricted the power to take coercive action should be.
  6. It should be noted here that the DNA Technology Regulation (Use and Application) Bill 2019 waives the consent requirement for the collection of DNA from persons arrested only for offenses punishable by death penalty or imprisonment for more than seven years.

Read more: Cyber ​​crimes soar in Bangalore, police scramble to catch up

The reviews and the way forward

Lawyer Vidush Pandey said the new law is very much needed given the advances in scientific technology and its use in criminal acts. “Certain provisions of the law are very well structured, but there are few areas where further deliberation is needed,” Pandey said.

Another legal expert, Abhishek, said issues, such as concerns over Articles 20 and 21, raised in parliament need to be discussed again.

During debates over the legislation at Rajya Sabha, it was clarified that biometric data of political detainees would not be collected and that the bill would exclude brain mapping and polygraph testing from its scope. It was further clarified that no action will be taken against any politician for violating restraining orders issued by the police.

Critics say the law should not become a political “witch hunt” tool. DNA profiling should also be used only for serious crimes and only for counter-terrorism purposes. In modern society, a sophisticated police force is essential. Therefore, the focus should be on capacity building at the police station level and on forensic skills building.

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