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PlL in Delhi HC Challenges Criminal Procedure (Identification) Act, 2022

PlL in Delhi HC Challenges Criminal Procedure (Identification) Act, 2022
Trade & Regulatory Compliance Practice | Vivek Prasad

Background

A Public Interest Litigation (“PIL”) has been filed in the Delhi High Court in April 2022, challenging the constitutional validity of the Criminal Procedure (Identification) Act, 2022 (“the Act”).

The Act, which was notified on 18th April 2022, authorises the taking of “measurements”, of convicts and other persons for the purposes of identification and investigation in criminal matters and the preservation of these records. The term “measurements” includes, inter-alia, finger-impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scan, physical, biological samples and their analysis, behavioural attributes including signatures, and handwriting.

Further, a Magistrate may also direct any person to give measurements for the purposes of investigation or proceedings under the Code of Criminal Procedure, 1973 (“CrPC”) or any other law.

The measurements, which are to be taken by Police and prison officers and are to be then collected by the National Crime Records Bureau (“NCRB”), are mandated to be retained in digital or electronic form for a period of seventy-five years from the date of collection of such measurement.

The Act also makes it an offence to resist or refuse the taking of measurements and makes it lawful for police officers and prison officers to take such measurements, notwithstanding resistance or refusal. This provision also existed in the Identification of Prisoners Act, 1920 (“1920 Act”), which now stands repealed.

The PIL is said to have challenged the Act on the grounds being violative of several constitutional provisions, including the right to privacy and the right to equality before law. The Court has issued notice to the Respondents and the PIL is next listed for hearing on 15th November 2022.

Our Take

The scope of the term “measurements” has been expanded as compared to the 1920 Act. The 1920 Act defined measurements to “include finger impressions and foot-print impressions”.

However, the term “measurements” as used in the Act now includes a wide range of physical and biometric attributes and collection of these, specifically in the face of resistance or refusal amounts to a violation of the right to privacy, which has been recognized by the nine judge bench of the Supreme Court in K.S Puttaswamy & Anr. v. Union of India & Ors. (AIR 2017 SC 4161), to be a fundamental right under the broader right of life and personal liberty.

It may also be violative of autonomy and personal integrity, which have been previously held by the Supreme Court in NALSA v. Union of India (AIR 2014 SC 1863) to be protected under the right to freedom of speech and expression. Further, the power granted to Magistrates to direct “any person” including those arrested under “any law”) to give measurements for proceedings under the CrPC gives wide discretionary powers to magistrates.

Finally, given that the data protection law for the country (the draft Data Protection Bill, 2021) is still under consideration of the Government and has not been enacted, the collection, storage and retention of personal data and information, including physical and biometric attributes is not regulated. Therefore, the introduction of the Act in the absence of any specific data protection law in the country may have data privacy related implications.

Links:

Criminal Procedure (Identification) Act, 2022 - https://egazette.nic.in/WriteReadData/2022/235184.pdf

Identification of Prisoners Act, 1920 - https://legislative.gov.in/sites/default/files/A1920-33.pdf

Practice Contacts

Ameet Datta - Partner (Practice Lead) | ameet@saikrishnaassociates.com

Suvarna Mandal - Associate Partner | suvarna@saikrishnaassociates.com

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