Delhi High Court Seeks Centre, NCRB Response On Plea Against Law Allowing Police To Collect DNA, Biometrics Of Accused

The Delhi High Court on Wednesday issued notice on a plea seeking to declare the Criminal Procedure (Identification) Act, 2022, to be void and unconstitutional for being ultra vires Articles 14, 20(3) and Article 21 of the Constitution of India.

A division bench comprising Chief Justice DK Upadhyaya and Justice Tejas Karia sought response of Union Government through Ministries of Law & Justice and Home Affairs, National Crime Records Bureau (NCRB) and the Delhi Government.

The Act empowers the police to collect, store, and analyze physical and biological samples, including retina scans, behavioral attributes, and DNA, from convicts, arrested persons, and others to aid investigations.

The plea has been filed by two students challenging the action of Delhi Police in allegedly coercing them to provide their photographs and fingerprints, following their participation in a peaceful campus stand-in protest.

The plea alleges that the Act, as well as Criminal Procedure (Identification) Rules, 2022, are irrational in their classification of persons and situations in which information may be collected and are disproportionate in their invasion of the fundamental right to privacy.

Senior Advocate Diya Kapur appearing for the petitioners contended that the Act makes no distinction between hardened criminals and those accused of minor offences.

She said that the act of storing biometrics of those booked for minor offences for 75 years in the NCRB records is disproportionate and violative of KS Puttuswamy judgment on right to privacy.

Apart from Kapur, the petitioners were represented by Advocates Apar Gupta, Abhinav Sekhri, Naman Kumar, Indumugi C. and Avanti Deshpande.

The plea states that the Impugned Act and Rules grant State authorities an “open-ended and uncanalised discretionary power” to collect sensitive personal information of virtually every person who comes in contact with the criminal justice system, namely convicts, those who are arrested or detained under any offence, and persons ordered to give security for good behaviour or maintaining peace.

“Section 4(2) of the Impugned Act read with Rule 5 of the Impugned Rules authorise Respondent No. 1 to store “measurements” for 75 years. No procedure for destruction and disposal of such records has been prescribed under the law, and Rule 5(4) leaves it to the discretion of the Respondents to specify it through a “Standard Operating Procedure”. Such retention of sensitive personal data fails the proportionality test prescribed under Articles 14, 19, 20(3) and 21 of the Constitution,” the plea states.

It adds that the Act and do not automatically require the authorities or law enforcement agencies to delete the “measurements” of persons who have been acquitted and illegally shift the onus on the persons acquitted.

The matter will now be heard on March 19.