On April 4 and 6, Lok Sabha and Rajya Sabha had respectively passed the Criminal Procedure(Identification)

Bill, 2022 following a lengthy debate. With the President giving his assent to the Bill on April 18, it was

duly notified by the Government, bringing the Act into force. It is a modification of the Identification of

Prisoners Act, 1920, which stands repealed through Section 10(1) of the 2022 Act. In entirety, there has been

considerable evolution as compared to the previous 1920 Act which is a colonial law that permitted the collection

of fingerprints, footprint impressions, and photographs of convicts and others. The Criminal Procedure

(Identification) Act, 2022 was enacted with the aim of authorizing law enforcement agencies to take

measurements of convicts and other persons for the purposes of identification and investigation in criminal

application, leaving it to the whims and fancies of the State and its enforcement agencies. The author intends to

to equality and privacy of those covered by the Act. Further, the author wishes to provide a concise explanation

of the Act and numerous other related issues.

Keywords: Investigation, Criminal records, biological data, Centralised database, Fundamental rights.

The contemporary legislation titled “The Criminal Procedure (Identification) Act, 2022” has triggered a lot of

hue and cry on the ground of human rights violation amongst social activists. It has substituted The Identification

of Prisoners Act formulated by the Britishers in the year 1920. The Criminal Procedure (Identification) Bill,

2022 was introduced in the Lok Sabha on 28

that ambit of measurement should be broadened to include “palm impressions”, “specimen of signature or

writing” and “specimen of voice”. Further, it opined that these measurements must not be kept limited to

proceedings under The Code of Criminal Procedure,1973 but must be extended to proceedings under other

statutes also. Keeping in mind the progress made in present times in the area of forensic science, new kinds of

these innovative techniques must not intervene into the sphere of privacy of an individual. In India, the right to

privacy is a fundamental right protected under Article 21 of the Indian Constitution. The most recent affirmation

of this right came in a historic 2017 decision of Justice K.S. Puttaswamy (Retd) v. Union of India. In the ruling,

the right to privacy was acknowledged as a fundamental right and stipulated that it must be subject to reasonable

restrictions that are required to safeguard the interests of the general public and the State. Further, the apex court

has held that individuals have a right to privacy in matters such as their personal information, communication,

and other private matters. It has also decided that the State must ensure that its citizens' privacy is protected from

arbitrary interference.

law, who is either convicted for an offence which is punishable with rigorous imprisonment of one year upwards

or such an offence which make him liable to enhanced punishment on subsequent conviction or any person who

is required to furnish security for good behaviour under section 118 of The Code of Criminal Procedure, 1973.

This Act is equally applicable on non-convicts. It even mandates the person who has been arrested for an offence

punishable with rigorous imprisonment of one year or upwards, to give his measurements if so, required by the

police officer.

Not only the measurements are permitted by the Act but it allows the photographs also. Only

magistrate first class is empowered to pass such an order. If the magistrate thinks fit that photographs need to be

taken along with measurement of any such person who has been at least once arrested in connection with

person whose measurements or photographs are taken is released without trial, discharged or acquitted, all his

measurements and photographs including negatives and copies shall be either destroyed or handed over to him.

The court, district magistrate and sub divisional magistrate are empowered to direct otherwise but reasons must

be recorded for such an order.

The colonial law of 1920 has been completely changed by the contemporary law. Keeping pace with

technological development, the new Act provides for digitization of collected records so that it can be easily

accessed through centralised database thereby adapting the measures followed by various other nations.

physical, biological samples and their analysis, behavioural attributes including signatures, handwriting or any

other examination referred to in section 53 or section 53A of The Code of Criminal Procedure, 1973”.

Section 3 has widened the scope of taking of measurements. It authorises the taking of measurements not only

from any person who is either convicted under any law for the time being in force but who is even arrested or

detained under any law. Apart from these, it covers the person who is ordered to give security for proceedings

under section 107, 108, 109 or 110 of The Code of Criminal Procedure, 1973. The police officer or prison

officer, if thinks fit, may collect such measurements in a manner prescribed by the central or state government.

enforcement agencies. The records must be preserved digitally for a period of seventy-five years from the date

of collection of measurement. But in case where a person who has not been previously convicted is either

released or acquitted or discharged, his whole record of measurement should be destroyed unless the court or

magistrate directs otherwise. The state government and the union territories are empowered to decide the

appropriate authority to collection, preservation and distribution of these measurements.

The magistrate is

empowered to give directions to any person to submit to measurement in the interest of justice. The person so

ordered has to give his measurements as directed.

Any person who is directed to give his measurements cannot

refuse or resist to such giving. Otherwise, he can be charged under section 186 of The Indian Penal Code, 1860.

under Article 14, 19 and 21 of the Indian Constitution”. The four- fold test explains and applies “tests of

given under Section 53 or 53A of the Code of Criminal Procedure, 1973. This may result in power-centric rule

of the sovereign. The plight of citizens in India is that it leaves no personal space for the people. Providing

biometric data to public servant officials is violative of their privacy rights. Exercise of absolute power by the

government can result in corrupt social and political systems. To elaborate further, the term “shall” in Section 3

of the Bill sheds light on the compulsion of convicted person to provide officials with their data. There is no

option for voluntary consent to the prisoners. The absence of strict laws on data protection is the major problem

for our society. This may even lead to loss of collected data and the repercussions of the same will cause several

misuse of information. Society is the concoction of criminals, offenders and innocents. And all the people should

have access to basic humanitarian law. This Act is violative of fundamentals of life, including security and

safeguards from executive operation. The legal system of a country must be for the people, of the people and by

rights violation. People who are surviving in a democratic country elect their representatives with the mindset

that they will be benefitted. This Bill may help the authorities in record-keeping or in making a history sheet of

the chronic offenders. But the same may infringe upon the rights of prisoners who are accused under the criminal

system and are not proved guilty under any law. The legislative body of the Republic of India must keep in mind

that India is a signatory to the

International Covenant on Economic, Social and Cultural Rights (ICESCR),

1966 and is obliged under Article 2(2) to guarantee economic, social and cultural rights to every citizen

irrespective of any basis for discrimination. Thereby, prisoners too must be given all the rights.

The Act further endangers the citizens by making the authoritarian power arbitrary. The case of E.P. Royappa

held the concept of equality as dynamic and ruled that it cannot be confined, cabined

meaning and content by a process of judicial construction. Law and policymakers should undergo empirical and

extensive research of the judgments passed by the various High Courts and Supreme Courts. The Act must be

drafted in accordance with the judgments, constitutional values and human rights. This will provide fundamental

(2017) 10 SCC 1.

Act had provided that this direction by magistrate can be only given to such person who has been once

arrested in connection with the investigation. Moreover, the Act misses to provide the grounds on which

the magistrate can exercise such discretion. Next comes the storing, preservation and distribution of

records of measurements under Section 4. But it fails to lay down proper guidelines as to When, Purpose,

Whom and methodology through, the whole process will be carried out. Further, the Act provides that

the measurements shall be preserved for seventy-five years but is silent about what will happen beyond

that. Moreover, this preservation period is applicable on those records that are collected by the National

Crime Records Bureau. Again, the Act is silent about the measurements collected by the authorities

constituted by either the state or the central government. The Act misses on the time period for which

such records be stored or under what conditions such records be collected. Lastly, both the state and the

measurement was allowed of handful of persons but latest law has expanded the scope with just an

exception in case of biological samples. The agencies can easily frame the chain of the persons to find

the accused. This will also aid the investigation agencies making the investigation easier, faster and

efficient.

v. The discretionary power given to magistrate to direct any individual to submit to measurement is

violative of article 14 of Indian Constitution which provides protection to an individual against arbitrary

state action. Further, the security of records that are stored for seventy-five long years is a major concern

past incidents of data leakage in India, the privacy of individual is at risk.

vi. The Act makes an exception of biological samples in case of (i) offences against women and child and

(ii) offences punishable with minimum seven years of imprisonment. The first exception is gender bias

and is violative of right to equality.

advancement in investigations of criminal matters. But the Act missed to lay down specific guidelines

for uniform recording of measurements. In the absence of procedural safeguards, there are chances of

human error and false positive reports.

viii. There are chances of conflict between state and central government as both are empowered under the act

to frame rules.

positivism talks of analytical and reasonable approach to the science of legal origin. All the above-mentioned

issues including privacy, personal dignity of individuals and the risk of rise in autocratic totalitarianism to the

prisoners can be sorted if the origin behind nature and theory of law is taken care of.

The effort of legislature in framing the Act of 2022 is quite appreciable as it provides for advanced identification

of individuals involved in criminal activities and makes the investigation in criminal matters easier and more

efficient. But the Act is facing criticism on the grounds of being excessive, disproportionate, privacy

encroachment and data protection concerns. The safety of the sensitive information collected under the Act is

major issues. In order to overcome this hurdle, the Government must focus on formulation of Data Protection

Act with severe sanction in case of its violation. The Act must constringe its sphere of collection and utilisation

is quite long with limited infrastructural facilities. This period should be reduced and infrastructural facilities

must be developed to prevent data misappropriation. Further, the government must hire experts to collect

evidence from scene of crime, must develop forensic laboratory and rely upon advanced equipment to identify

the real accused involved in crime. The legislature must completely explain the terminology used in the Act.

The authorities working in rural and backward areas must be sensitised towards using and managing the modern

technology in recording and processing of measurements. The legislature must lay down rules and regulation to

guide the investigation authorities so that the uniformity can be maintained in database throughout the country.

19, 20 (3), 21 of the Indian Constitution but the petition is still pending. Now, the judiciary will examine both

sides of the coins and decide the fate of Act of 2022.