New Criminal Procedure Bill will give overarching powers to police: Lawmakers, ex-IPS officers

The Criminal Procedure (Identification) Bill, 2022 can only add to the discretionary powers of the investigating agencies and will allow them to exploit their authority, lawmakers and former IPS officers have said. The Bill was passed Rajya Sabha on April 6, 2022 with a voice vote despite vociferous opposition after it sailed through Lok Sabha on April 4.

The Bill, which will replace the Identification of Prisoners Act, 1920, expands the type of data that may be collected, persons from whom such data may be collected, and the authority that may authorise such collection. It also provides for the data to be stored in a central database.

Under both the 1920 Act and the 2022 Bill, resistance or refusal to give data will be considered an offence of obstructing a public servant from doing his duty.

The Bill states that biological samples and their analysis, behavioural attributes including signatures, handwriting and examinations including blood, semen, hair samples, and swabs, and analyses such as DNA profiling will be allowed.

The National Crime Records Bureau (NCRB) will collect, store and preserve the record of measurements for 75 years. It will share the data with law enforcement agencies.

In the previous Act, data could be collected from only those convicted or arrested for offences punishable with rigorous imprisonment of one year or more. Now, it can be collected from anyone convicted or arrested for any offence, persons detained under any preventive detention law and on the order of a magistrate from any person to aid an investigation.

Senior Congress leader P Chidambaram called the Bill unconstitutional, illegal and in direct contravention of the Selvi and Puttaswamy judgments of the Supreme Court. He demanded that it be sent to a parliamentary committee.

In the Selvi case, the court said that polygraphy, narcoanalysis and brain electrical activation profile (BEAP) violate an individual’s rights. The Puttaswamy judgement holds that the right to privacy is protected as a fundamental right under Articles 14, 19 and 21 of the Constitution of India.

Raising his concerns in the House, Chidambaram said with a Bill like this, the Constitution is being broken everyday wittingly or unwittingly. “There is also another Act — Identification of Prisoners Act, 1920. There is also another Bill which is pending, DNA Technology Use and Application Regulation Bill, 2019, which I believe has been reported back to the House. Why has the DNA Technology Regulation Bill (been) kept pending since 2019, and why is this Bill being introduced?” asked Chidambaram.

The former Union Home Minister asked if the measurements and biological samples included narco analysis, polygraph tests, BEAP and psychiatric examination and pointed out that all of them were unlawful. He wanted to know if these measurements could be taken without the consent of the person.

Former Haryana cadre IPS officer Vikash Narain Rai underscored that this legislation would only add to the discretionary powers of the investigating agencies. “They will now misuse even more of their authority,” said Rai.

“Anybody who has just been arrested and may not even have a criminal charge has to submit these identity markers to the police. The police is creating a huge database, but it needs to be questioned how it will help to solve crimes. Crime is not solved based on databases; crime is solved when you match data with a criminal. Matching of data helps to solve crimes and not the piling of data,” explained Rai, who had cracked the Samjhauta Express train blast case in which 68 passengers including 43 Pakistani nationals were killed.

He pointed out that even today when you catch someone, you request the court for samples. If the court is satisfied with the request, then the police are allowed to do so. “The police is arming themselves with a technology which is has no limitation and with an authority which has no objectivity and only discretion. This will create a draconian institution. This will be thoroughly misused like they are misusing UAPA,” highlighted Rai.

The earlier law might have been old, said Rai, but the new Act which is coming into force is unnecessary. All the data that the government is saying that an arrested person should give is already available with various arms of the government – either with the passport agency or with UIDAI. “The police simply need it so that they can work independently without transparency. They do not want to be accountable,” reiterated Rai.

Chidambaram pointed out that this Bill, which the Home Minister had introduced, goes directly against the pronouncement in the Selvi case. “And it fails every one of the three tests laid down in the Puttaswamy judgement,” he said.

The three-fold Puttaswamy test states that in order for legislation to violate the right to privacy, it must fail legality, which postulates the existence of law; need, defined in terms of a legitimate state aim; and proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them.

He underscored that all the members in the House have violated Section 144. “Has anyone not violated any law in this country? I ask the honourable Home Minister, who has had an active political career, have you never violated any law? This Section says any person, convicted of offence punishable under any law — so even if you are convicted of offence where punishment Rs 100 (fine), this law applies,” added Chidambaram in his speech. He said the draft law extends to detention and arrests even without charge.

Rai alleged that the police is an agency where planting of evidence and switching of identities is part of their culture. “Instead of working on that aspect, they are creating more databases. Why aren’t they making planting of evidence a bigger crime than the actual crime? How is the government going to punish fabricating evidence? It’s only then that the police will become accountable,” said Rai.

Union Home Minister Amit Shah said in Rajya Sabha that this law would not be used on political protestors.

“Everyone is arrested under the same CrPC and there is no Indian Political Procedure Code. There are many loopholes in the law which will only add to its misuse,” added Rai.

A senior high court lawyer, who did not want to be identified, stated that this law would also fail Article 14 of the Constitution, which states that all citizens must be treated equally before the law. The Act does not treat everyone as equal and data which is collected under this law does not need to have any relation to the case being investigated.

The argument in favour of this law states that the US has such a system. Rai, however, underscored that most lawmakers here forget that the US has a bipartisan system where both the ruling and the Opposition have to pass the Bill to enact it into law. The system there has enough safeguards to prevent misuse. Police in America are armed with body cameras, but here the Supreme Court passed an order two years ago to place cameras in police stations. “We have not been able to do that even. Where does the question of a body camera arise? Why aren’t the police being trained to behave constitutionally, instead here they are allowed to behave in contradiction to the Constitution,” remarked Rai.

They are stating that it will be with NCRB, but so what, asked Rai. “Once you get the data from NCRB, they can be misused for identity theft. We don’t have enough checks and balances in the system to counter such misuse. The judiciary is supposed to act as the bulwark, but it has totally failed,” Rai said.