Criminal Identification Or Disapropriation
Arjun Garg and Kritika Kumari
10 Dec 2022 6:59 AM GMT
When a person's identity with an ascertained person is an issue then it may be proved and disproved presumptively by similarity or dissimilarity of characteristics like weight, size, hair, voice, etc.The identity of a person or thing is necessary to prove relevant facts of the case, and the identification test is not a substantive piece of evidence. This makes the identification of criminals all the more necessary to render justice to the people. For this, an appropriate method needs to be adopted to ascertain the identity of the alleged offenders without infringing upon the rights and liberties of the individual.
The new Criminal Procedure (Identification) Act, 2022 ("Act") repeals the old Indian Prisoners Act of 1920. Under the cloak of modernising the identification process and increase the conviction rate, the bill aims to build capacity for the police and forensic teams. The bill widens the ambit of the person and details that can be taken and the person who can take these measurements.
But the new act has gained widespread criticism as it is alleged to infringe upon the rights of the individual and is thus violative of Articles 14, 19 and 20 of the Indian Constitution. There seems to be far-reaching powers given to the authorities.
The system by which the police took fingerprints or other related samples back then in the 19th century was void of legal sanction and insufficient to render the justice. Instances where prisoners refused to give their fingerprints and samples made the passing of the Indian Prisoners Act all the more necessary and expedient.
The Law Commission of India and an Expert Committee on Reforms of the Criminal Justice System, chaired by Dr. Justice V. S. Malimath, recommended amending the 1920 Act in March 2003 noted the need to bring it in line with contemporary trends in criminal investigation. The bill was introduced in the Lok Sabha on March 28, 2022 and came into effect on August, 4 2022.
Accordingly, the bill aims to expand its scope on three grounds in comparison with the old Indian Prisoners act 1920. Firstly, the type of data that may be collected, secondly, the persons from whom such data maybe collected and lastly, the authority that will be authorised to collect such data. However, under both the 1920 and 2022 act, refusal to give sample is an offence under Section 186 of Indian Penal Code.
ANALYSIS OF THE ACT
"Every saint has a past and every sinner has a future", this observation was made by Justice Krishna Iyer in the case of Mohd. Giasuddin v. State of A.P. This phrase summarizes the reformative theory of punishment.
In the case of State of Gujarat v. High Court of Gujarat, the Supreme Court of India observed that reformation should be the dominant objective of punishment. As per provision 4(2) of the Criminal Identification Act, the record of measurements shall be retained in digital or electronic form for a period of seventy-five years from the date of collection. Whereas as per provision 4(3) of the State Government and Union territory Administration may notify an appropriate agency to collect, preserve and share the measurements in their respective jurisdictions.
The Act may defy the reformative nature and ideology of the Indian Criminal system by keeping information of a person under criminal records for a lifetime, which ultimately affects the educational, and professional outlook of an individual.
In the Act the definition of "measurement" though widens the scope of measurements thus to be collected. However, there have found to be many problems associated with the collection of samples as there lacks proper mechanism, resources and equipments to collect, store and process such an extensive and broad data of samples.
It must also be noted that there is no specific provision under the Indian evidence act 1872 and Code of Criminal Procedure 1973 to manage science, technology, and forensic science issues. Due to such lack of provisions regarding the proper use and collection of such samples, the investigating officer might face issues in ascertaining the proper collection of evidences.
In Gautam Kundu v. Bengal, it has been laid down that no one can be compelled to give a sample of blood for analysis. Similarly, in Bhabini Prasad Jena v. Convenor Secretary, Orissa State Commissioner for Women and Anr., the court has emphasised on the reluctance to use such scientific advances and tools which result in invasion of right to privacy. However, in view of the aforesaid, the Act is silent on how these measurements will be effectuated, i.e., the proper tools and methods used to collect such samples to ensure proper collection of these data in such a large scale as to ensure accuracy and privacy of the individual as also held in Asit Kapoor v. Union of India.
Section 3 of the Act which lays down the taking of measurement of the person by the police officer or a prison officer in any manner as prescribed by the Central Government or the state government. These powers might be used arbitrarily, considering several instances of illegal and unlawful arrest have been noted in the cases of Bhim Singh v. State of Jammu and Kashmir and Rudul Sah v. State of Bihar. In addition, as pointed out in "Political and Administrative Manipulation of the Police" published in 1979 by the Bureau of Police Research and Development, warns that excessive control of the political executive and its principal advisers over the police had the inherent danger of making the police a tool for subverting the process of law, promoting the growth of authoritarianism, and shaking the very foundations of democracy.
Two layers of storing, conserving, and exchanging measures have been created in accordance with the Bill. Notified agencies at the level of states and Union Territories (UTs) and NCRB is in charge of collecting, storing, preserving, destroying, sharing, and disseminating the measurements supplied by the states and UTs. The Supreme Court has held that tasks entrusted to an entity in subordinate legislation may not be further delegated to another entity. These delegated powers include guidelines to NCRB on maintaining records. NCRB issuing guidelines for itself also violates the principle of separation of powers between an entity that issues the guidelines and one that has to follow these guidelines as can be made out from Siddharth Sarawagi v. Board of Trustees for the Port of Kolkata and Ors.
It is crucial that the Bill itself specifies a cap on the authority provided to the executive and the officials, or at the very least, delineates a wide range of acceptable use for those powers.
The Act is a major step towards doing away with the drawbacks of the Indian Prisoners Act 1920, but accordingly is more flawed than the previous one. It widens its ambit in the terms of a person whose measurement can be taken and who can be authorised to take such measurements, is also extensive and exhaustive and Draconian and arbitrary in the powers and authority it confers on the designated authority. The scope could thus be limited to those cases of extreme circumstances that attract harsh penalty.
The time period it prescribes to keep the recorded samples of the alleged offenders for a long period of 75 years to the undefined agency at the click of mouse have far-reaching impact on the identity of the person. As per the suggestions of the Malimath Committee, equipped laboratories, a specific law giving uniform standards for obtaining genetic information need to be established to prevent the misuse of the same on which the said act is silent.
Provisions may be reanalysed considering the fact that there is no legislation governing the scientific and technological issue. It may also be considered as to how these samples collected which will be used to propel justice.
Authors: Arjun Garg is Managing Partner of GSL Chambers and an Advocate on Record of Supreme Court of India. Kritika is a third year Law Student of the Maharashtra National Law University, Aurangabad. Views are personal.