Decoding new criminal procedure bill and why Oppn dubs it ‘draconian’

The government tabled the Criminal Procedure (Identification) Bill, 2022, in the Lok Sabha on Monday, amid protests from Opposition members who termed it “unconstitutional” and forced a vote on the issue.

If passed, the law would allow police and prison authorities to collect, “finger-impressions, palm-print impressions, foot-print impressions, 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”.

What the Bill suggests

The Bill seeks to apply these provisions to persons held under any preventive detention law. The National Crime Records Bureau (NCRB) will be the repository of physical and biological samples, signature and handwriting data, which can be preserved for at least 75 years.

The Bill also authorises taking measurements of convicts and “other persons” for identification and investigation.

Police personnel up to the rank of head constable have been authorised to record the measurements. It also enables NCRB to share the records with any other law enforcement agency.

Initially listed in the name of Home Minister Amit Shah, the Bill was introduced by Minister of State for Home Ajay Mishra.

Opposition’s stance

According to the Opposition, the Bill was beyond the legislative competence of Parliament as it violated fundamental rights of citizens including the right to privacy.

Under the existing law — The Identification of Prisoners Act, 1920 — “measurements” of only “finger impressions” and “footprint impressions” are allowed. The new Bill also does away with the condition of an offence being punishable by at least one year or more of imprisonment for the “measurements” to be taken.

Leading the Opposition charge, Congress MP Manish Tewari said the Bill is in “derogation” of Article 20(3) and Article 21 of the Constitution, and is beyond the legislative “competence” of the House. “The words ‘biological samples and their analysis’ in clause 2 (i) (b) of the Bill could extend to narco analysis and brain mapping and when it is made coercive… it is clearly violative of Article 20 (3) of the Constitution of India,” he said.

“Further, the implied use of force in clause 6(1) to take measurements violates the rights of prisoners laid down in a catena of Supreme Court judgements beginning with A K Gopalan 1950, Kharag Singh 1964, Charles Sobhraj 1978, Sheela Barse 1983, Pramod Kumar Saxena 2008,” he said. It is also in violation of Right to be Forgotten enshrined in Right to Life under Article 21 of the Constitution in terms of the Puttaswamy judgment, the leader said.

“The present Bill…seeks to empower the police and court to take measurements of persons who are under trial or who are suspected to be involved in a case or there is a presumption against some person that he may, in future, do any illegal act,” the Congress’ Adhir Ranjan Chowdhury said.

Fundamental rights and the Bill

BSP member Ritesh Pandey pointed out that the Bill proposes to collect samples even from protestors engaged in political protests.

RSP member N K Premachandran described the Bill as “draconian legislation” and in “total violation” of fundamental rights. “If I am arrested for picketing for protection of civil rights for any genuine demand, and if a FIR has been launched against me, then a DNA test can be taken. What is this? This is a violation of the basic right of an individual. What is the logic? What is the reason? What is the intention of the Bill?” Premachandran asked.

The TMC’s Sougata Ray said: “This law, which allows for narco analysis, which allows for taking biological specimens and taking scans of iris, violates basic human rights and is against the principles of the Constitution.”