Recently, the Criminal Procedure (Identification) Bill, 2022 was introduced on 28th March 2022 in the Lok Sabha, and Subsequently, the same was passed by the Rajya Sabha (on 06th April 2022. The present bill authorizes the collection of certain identifiable information of criminals which includes, Palm print impression, iris and retina scans, behavioral attributes such as signature and handwriting, and other physical and biological samples such as blood, semen, hair samples, and swabs, and their analysis. Earlier, the Identification of Prisoners Act, 1920 was applicable. Moreover, the earlier act of 1920 was very narrow, and very limited power was given. Further, the present bill will replace the act of 1920. However, the Collection of such biological and identification marks raises a serious question about the Privacy of the Prisoners. Thereby, the question arises on the Constitutionality of the Act. This article seeks to analyze the validity of the present bill under the various provisions of the Constitution of India.
VIOLATION OF ARTICLE 14 OF THE CONSTITUTION
The present Bill violates various provisions of the Constitution, which include the Right to Equality. Further, the present bill also delegates excessive legislative authority to the executive, which is a fraud on the Constitution. Moreover, the bill also fails to qualify the test of Reasonable Classification.
EXCESSIVE DELEGATION
The Present Bill delegates excessive power to the executive, which is evident from the various provisions. For instance, the bill delegates the legislative function to the executive by providing a wide range of rulemaking power and which has been provided without any guidance. Further, the bill also delegates excessive discretionary power to decide who they may compel to provide measurements, in what circumstances, and for what purposes. In the famous Judgment of re Delhi laws Act, it was observed that the legislature can’t abdicate the legislative functions, and while delegating the powers, it must ensure that the executive doesn’t become a parallel legislature. In the judgment of Subramanian Swamy v. Union of India, the Hon’ble Court has observed that the excessive delegation of legislative powers, the conferment of authority to pass administrative orders would be violative of Article 14, if “such conferment is without any guidance, control or checks”. The present bill not only delegates unguided legislative power under cls. 4 and 8 but also delegates excessive and overbroad discretion to the police and Magistrate under cls. 3 & 5 respectively.
THE BILL IS MANIFESTLY ARBITRARY
For the first time, the Supreme Court in the Judgment of Shayara Bano v. Union of India, established the ‘manifest arbitrariness’ as a separate ground for invalidating any parliamentary legislation under the provision of Article 14. The present Bill doesn’t disclose any rationale or determining principle, thereby the bill is ‘manifestly arbitrary’. It is also notable that the ‘manifest arbitrariness’ test was also acknowledged by the majority opinion in the famous Aadhar judgment.
THE PROVISION UNDER CL. 3 VIOLATES THE RIGHT TO EQUALITY.
Section 3 of the present bill talks about a class of person who may be compelled to give their ‘biological samples’. The class of persons includes, inter alia, any person who has, at any point of time, been arrested for an offence against a woman or a child or for any offence the punishment for which is 7 years or more. Other arrested persons – those whose alleged victims were neither women nor children, and those whose alleged offence is punishable by less than 7 years of imprisonment – may only be compelled to provide measurements other than biological samples.
It is a well-settled rule that to qualify the legislative classification, the rule must qualify the constitutional test of Article 14. It must meet two requirements, firstly, the classification must be based on intelligible differentia, and second, differentia must be founded on rational nexus. In the present Bill, the classification has no rational nexus. The classification has been based on the gender, and age of the victim for the requirement of biological samples. Further, there is no rational nexus to whether such biological samples will aid police’s investigative machinery generally. Thereby the present bill also fails the test of ‘Article 14’.
VIOLATION OF ARTICLE 20(3)
Article 20(3) of the Indian Constitution reads as “No person accused of any offence shall be compelled to be a witness against himself”. This provision of the constitution provides protection to the accused. However, Cl. 2 of the Bill defines “measurements” includes finger-impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scan, physical, biological samples and their analysis, behavioral attributes including signatures, handwriting or any other examination referred to in section 53 or section 53A of the Code of Criminal Procedure, 1973…”.
It is notable that the term ‘behavioural attributes’ used in cl. 2 of the bill, is not a forensic science, thereby leading to a vague scope. Further, an expansive interpretation could even be understood to include narco-analysis, polygraph tests, or brain mapping. Further, it is also notable that the Supreme Court in the Judgment of Selvi v. State of Karnataka have expressly Prohibited it.
VIOLATION OF THE RIGHT TO PRIVACY UNDER ARTICLE 21
A 9- judge bench of the Hon’ble Supreme Court in the Judgment of Puttaswamy has clearly established that the ‘right to privacy’ as a fundamental right protected under article 21 of the Indian Constitution. Further, in the judgment of the puttaswamy II case, while the Supreme Court has to rule on the constitutionality of the Aadhar framework reiterated the inclusion of informational privacy within the right to privacy under Article 21. Retention of data that constitutes private information amounts to an interference with the right to privacy.
The Present bill has a legitimate aim of improving the investigation, detection, and prevention of crimes. However, it has failed to satisfy the other prongs of proportionality. The Criminal Procedure (Identification) Bill, 2022 is contrary to the provisions of the Indian Constitution. The present bill violates the Right to Equality under Article 14, The right against self-incrimination under Article 20(3), and the Right to Privacy Under Article 21 of the Indian Constitution.