Explainer: Why a new bill to collect data from convicts is raising civil rights concerns

On Monday, the Central government introduced a bill that will significantly expand the scope of the information the government can collect from convicts, arrested persons and other persons such as habitual offenders.

Called the Criminal Procedure (Identification) Bill, 2022, it replaces the 102-year old Identification of Prisoners Act, 1920.

The government has claimed that this is an update to an outdated law and would make criminal investigations “more efficient” and also “help in increasing the conviction rate”. However, many lawyers and activists have voiced concerns around the legislation, saying that it could infringe fundamental rights such as privacy and the right against self-incrimination.

What is the bill about?

The Criminal Procedure (Identification) Bill, 2022 authorises law enforcement agencies to collect a host of biometric data as well as biological samples from convicts and other persons to help identify criminals and investigate crimes. The bill also specifies how data will be recorded and preserved.

Presently, under the 1920 law, the police can only record fingerprint and footprint impressions for a limited number of convicted and non-convicted people. However, what the police can collect now has been massively expanded. Along with fingerprints and footprints, the police can keep records of a person’s iris and retina scan as well as biological samples and their analyses along with behavioural attributes such as signatures and handwriting.

It also includes other measurements defined under sections 53 and 53(A) of the Code of Criminal Procedure which has blood, semen, saliva and sweat, hair samples, fingernail clippings, DNA profiling and other such tests which a registered medical practitioner thinks are necessary to collect evidence in regard to a crime.

Who is covered under the bill?

The bill expands the scope of people from whom the police can collect information. It applies to anyone who has been convicted under any law or is arrested for any offence or is detained under any preventive detention law.

In contrast, under the present law, information can be collected from people who are either convicted or arrested for an offence carrying more than one year’s imprisonment.

The bill also says that if a person resists giving information, the police can take it forcibly in a manner that may be prescribed by the executive later. The legislation awards very limited power to refuse the collection of information. It says that a person arrested for a crime that has a sentence of less than seven years and is not a crime against a woman or a child can refuse to give “biological samples”, a term that has not been defined. Therefore, in other scenarios, the police can take information without a person’s consent.

Further, a magistrate has the power to authorise the police to collect anyone’s measurement if required for “any investigation or proceedings”. Apart from that, certain persons who have been ordered to give security or a bond for their good behaviour can have their information recorded. These provisions exist in the current law as well.

How long is the information stored and who stores it?

The information collected will be retained for 75 years from the date of collection.

The National Crime Records Bureau, which falls under the Union Ministry of Home Affairs, will collect, store, process, share and destroy the data.

State governments and union territories have the option to notify an appropriate agency to collect, preserve and share information in their jurisdictions since the police are under their respective state’s control.

Further, the bill says that information about first-time offenders who are released or acquitted will be deleted after all legal remedies have been exhausted. However, a court or a magistrate can order against this deletion.

What are the concerns with the bill?

The bill has met with resistance, both from Opposition leaders as well as civil rights lawyers and activists.

In the Lok Sabha, parties such as the Congress and the Trinamool Congress said that this bill attacks the fundamental rights of individuals.

Manish Tewari, a member of Parliament, flagged that “biological samples and their analysis” could extend to narco analysis and brain mapping and if forced, would affect the fundamental rights of the accused.

The Supreme Court, in Selvi v State of Karnataka had held that these investigative techniques when taken against a person’s consent would infringe the fundamental right against self-incrimination guaranteed by Article 20(3) of the Constitution and the right to life guaranteed under Article 21 of the Constitution.

Apart from that, the bill could also violate a person’s right to privacy. Currently, India does not have a data protection law. In such a scenario, the collection of such extensive data by the police also raises questions on how this data might be used.

Civil rights body Internet Freedom Foundation said that the purpose of the new bill is not to just identify prisoners but also to “establish the crime of the accused”. This could potentially be prone to misuse as there are not enough safeguards in the bill currently.

It further argued it is unclear whether the police can collect and use a person’s DNA, since DNA’s use in criminal investigation is under debate in a separate bill.

Digital rights researcher, Srinivas Kodali pointed out that this bill is another step in the National Crime Record Bureau creating a “360-degree profile of people of interest” since it is also building other databases such as the National Automated Facial Recognition System and National Automated Fingerprint Recognition System.