The 2022 Bill and the 1920 Act: A comparison
The Act provides a statutory framework to lawfully collect ‘measurements’ (which only included details such as finger and foot-print impressions) and photographs of a class of individuals. Such class comprises convicts and persons arrested in connection with serious offences and persons ordered to furnish security for good behaviour under the Code of Criminal Procedure, 1973 (CrPC).
In the Bill, ‘measurements’ include, inter alia, "iris and retina scan, physical and biological samples and their analysis." It does not, however, define ‘biological samples’.
Section 3 of the Bill engineers a remarkable broadening of the current scope of persons who have no option but to allow their ‘measurements’ to be taken:
(a) convicts of and persons arrested for offences punishable under any law for the time being in force;
(b) persons ordered to give security for their good behaviour under provisions of the Code; and
(c) persons detained under any preventive detention law.
Thus, the Bill significantly widens the scope of individual data which can be collected as well as the ambit of individuals whose ‘measurements’ can be taken.
The proviso to the said Section 3 carves an exception for persons arrested for petty offences by stating that such persons "may not be obliged to allow" the taking of their biological samples. This hardly serves as an adequate safeguard, as it only prohibits taking of biological samples while other intrusive details such as iris and retina scan and physical samples can still be taken forcefully.
The curious case of Section 5
Section 5 of the Act empowers only a magistrate of first class to direct any person to allow his measurements or photograph to be taken. The second proviso to this Section ensures that no such direction shall be given unless the person has at some time been arrested in connection with such investigation or proceeding, thereby acting as an inbuilt safeguard against the discretionary powers of the magistrate.
Section 5 of the Bill intends to confer similar powers on a magistrate who, in this case, can also be an executive magistrate where issues of ‘public tranquillity’ and ‘good behaviour’ are involved. While Section 5 of the Act limits its application to investigations and proceedings under the Code, the Bill expands the application of Section 5 to investigations and proceedings under every law in India. More importantly, the necessary safeguard in the form of the second proviso to Section 5 is glaringly missing in the Bill.
This omission bestows unbridled discretionary powers on a magistrate who can compel any person to provide ‘measurements’, even in case of a trivial offence, or where such person’s involvement in the given offence has not even been prima facie established. There is no prescription in the Bill which can help a magistrate determine the markers for an individual to be considered as a relevant person for the purposes of an investigation.
The 87th report of the Law Commission of India notes that the scope of the said Section 5 of the Act is ‘fairly wide’ and acknowledges the ‘width of its coverage’. Since the coercive direction passed under Section 5 interferes with bodily integrity, the said report recommended a revised Section 5 under which the magistrate, when issuing an order, would be required to record their reasons for such an order.
The Bill does not take this recommendation into account. On the contrary, this new Section 5 is a regression from the current protection. While it does not provide the comfort of a reasoned order, it also takes away the embedded safeguard in the form of the existing second proviso. Notably, this unrestrained discretion shall not only be enjoyed by a judicial magistrate, but also by an executive magistrate.
The manifold Constitutional transgressions of the Bill
For reasons unknown, the policy on pre-legislative consultation was not followed for the Bill and the draft legislation was never published in the public domain for comments. In its current form, the Bill suffers from multiple infirmities.
Violation of Article 20(3)
Section 6 of the Bill makes it lawful for the police to forcibly take ‘measurements,’ which also include biological samples and their analysis- in case of resistance or refusal. This coercive provision transgresses the right against self-incrimination, a well-established principle of our criminal justice system and mandated under Article 20(3) of the Constitution. Justice VR Krishna Iyer once characterised this right as "a human article, a guarantee of dignity and integrity and of inviolability of the person and refusal to convert an adversary system into an inquisitorial scheme in the antagonistic antechamber of a police station." This fundamental right does not only protect persons formally accused, but also suspects.
The Supreme Court of India has famously held that forcible administration of tests such as narco-analysis, polygraph and brain mapping constitutes "an unjustified intrusion into mental privacy and could lead to further stigma for the victim." When administered involuntarily, outcomes of these tests cannot be used in a court of law as evidence.
The Union Home Minster went on record in the Rajya Sabha to state that ‘biological samples’ will not include the practices of narco-analysis, polygraph test or brain mapping. However, such oral promise is protected by parliamentary privileges and a claim of reasonable expectation would hardly be enforceable in courts. Unless such promises are implicit in the law itself, misuse of the provision by the implementing authority cannot be ruled out.
Violation of Article 14
Violation of the right against self-incrimination also bears implications vis-à-vis other fundamental rights. The excessive and disproportionate provisions of the Bill do not pass the test of arbitrariness formulated by the Supreme Court and deserve negation under Article 14. Manifest arbitrariness, in the words of the Court, is "something done by the legislature capriciously, irrationally and/or without adequate determining principle." The Statement of Objects and Reasons appended to the Bill does not lay down any rationale behind the egregious widening of the scope of the existing provisions, except for an unsubstantiated claim that "this will help the investigating agencies to gather sufficient legally admissible evidence and establish the crime of the accused person." Wide discretionary powers have been bestowed upon functionaries under the Bill with negligible checks and restraints. As such, the Bill also fails the substantive due process test, which requires every law to serve a legitimate State interest and to be ‘just, fair and reasonable’.
Violation of Article 19(1)(a)
The wide definition of ‘measurements’ also raises vital concerns regarding personal autonomy. Values of autonomy and personal integrity form a component of ‘expression’ protected under Article 19(1)(a) and manifest in the form of independent decision-making and control over dissemination of personal information. An arrested or detained person has the right to turn down a scan of their iris and retina, as it directly interferes with their bodily autonomy and gathers personal information. Personal autonomy can only be restricted by a legislation which is proportionate and informed with due process. The Bill, however, puts serious crimes and minor offences on the same pedestal, which is neither proportionate nor reasonable.
Violation of Article 21
It is well established that the fundamental right to life and personal liberty also enshrines a ‘right against cruel, inhuman or degrading treatment’. Article 21 provides a shield to protect ‘bodily integrity and dignity’, and such protection extends to prisoners, undertrials, arrested persons, detainees in the course of investigation and persons in protection homes. The Bill, in flagrant violation of the law laid down by the Supreme Court, has clauses which allow significant intrusion into dignity of an individual who may be called in for questioning, or who is involved in the most petty of offences.
Prisoners are especially entitled to a ‘fair trial’ and ‘presumption of innocence’. The Bill, however, is based on presumption of guilt, reeks of reverse onus and betrays a proclivity to treat a person as a suspect and not as a right-bearing individual.
The provisions of the Bill raise well-founded concerns regarding the violation of fundamental right to privacy. Under the Bill, collection and dissemination of citizen records has been authorised, but there is no legislative policy to ensure proper use of such records. The National Crimes Records Bureau (NCRB) is to collect, store and share the records while states and union territories can appoint agencies for such purposes in their respective jurisdictions.
With absolutely no framework devised for implementation, the executive has been given the power to make rules regarding the manner of collection, storage and sharing of records.
In the absence of a data protection law and where the fundamental right to privacy is at stake, it was incumbent upon the Parliament to develop a skeletal framework within which the executive would determine the scope of the legislation and the limits of its power. Even though there is a requirement of ratification of rules by the concerned legislature, it only helps the cause of accountability and does not cure the vice of excessive delegation.
Implementation without proper policy and supervision can lead to disastrous consequences, as has already been seen in the case of several Aadhaar data breaches.
Rise of the ‘good citizen’: A culture of control through social condemnation
The Act was brought into force by a colonial government for which social control, and not individual welfare, was the primary objective. Our Constitution, however, is based on the ethos of personal liberty. It is a pity then that the Bill furthers a normative arrangement which is more draconian than its colonial counterpart. More so, the Bill paves the way for a dangerous end-product, a breed which is typical of invariably all totalitarian regimes: a ‘good’ citizen who is obedient, who does not indulge in activities which the State labels and treats as criminal and who does not dissent.
One of the stated objectives behind data collection and dissemination under the Bill is ‘prevention’ of offences of all kinds. However, such data collection will only aid profiling, mass surveillance and suppression of dissent. Armed with such a law, the State can create a seamless repository of ‘political prisoners’ and people who are arrested for protesting the policies of the government. Citizens can easily be segregated on the basis of their disposition towards the government; the ‘bad apples’ would be identified, monitored closely and kept in check. Fearful of this constant persecution, more and more citizens can be coaxed into being ‘good’.
Record maintenance of this kind can also further communal profiling. Members of certain communities can be accused of having inherent criminal inclination which may create an overall bias against such communities in the criminal justice system. A new set of condemned citizens will emerge - ones who are ‘more likely to be criminal’.
In his 2018 essay titled Criminal Procedure and the Good Citizen, Bennet Capers describes what it means to be a ‘good citizen’ in the eyes of the criminal justice system:
“...the good citizen is willing to aid the police and to consent to searches….The good citizen, having nothing to hide, welcomes police surveillance… the good citizen would never run from the police, disobey a police order, or engage in evasive behaviour, however wrong or dangerous the order may prove to be.…And of course, while even good citizens have a privilege against self-incrimination….if wrongly accused of a crime, will immediately present themselves to the authorities to prove their innocence.”
The Bill wants you to be this ‘good’ citizen.