By Mohd. Naushad Khan
The Criminal Procedure (Identification) Bill, 2022 passed by the Rajya Sabha on April 6, just two days after it was passed by the Lok Sabha, has stirred debate on its use and misuse. Some experts have welcomed it with some riders, while others believe it will pave the way for a ‘police state’.
Another concern is if the government wants to misuse any law, it will do so, no matter how good or bad a law is. It is therefore the need of the hour that other stakeholders like judiciary should remain pro-active and civil society more vigilant.
The Criminal Procedure (Identification) Bill, 2022, is aimed to modernise a British-era law by allowing police to collect samples of a person’s biometric details, such as fingerprints and iris scans, if they have been arrested, detained, or placed under preventive detention on charges that carry a seven-year or longer sentence.
“The Act does not provide for taking these body measurements as many of the techniques and technologies had not been developed at that point in time. It is, therefore, essential to make provisions for modern techniques to capture and record appropriate body measurements in place of existing limited measurements,” the Bill reads.
As per the Bill, The National Crime Records Bureau (NCRB) will collect the biometric data from state governments, Union Territory administration, law enforcement agencies and preserve the record for 75 years. It will also have the power to destroy these records. The NCRB will process these records and share the details with any law enforcement agencies.
Vibhuti Narain Rai, Ex- Director General of Police, Uttar Pradesh, while sharing with Radiance his perspective on the ongoing debate on the issue, said, “This law was already in existence since 1920. Our technology and our scientific knowledge were limited then. Norms of collection of Finger and footprints was there, but there was no internet. As a police officer, when I was posted in Banaras at that time getting access of footprints from any other place (police station) was not very easy. But with the advent of internet, access of finger prints has become very easy. Now a police station in Karnataka can get finger-prints from Ballia easily and quickly at the click of a mouse.”
“I fail to understand why parliamentarians are opposing it and I found nobody raising convincing arguments against it. If I am not a criminal or economic offender then why should I be scared about the biometric data? All the MPs visit Dubai and they travel to Europe and America. When I visited Dubai for the first time long back, I was surprised; they were taking prints of my eyes. It was not done in India at that point of time. Now we are doing in India for Aadhaar. If you apply for a visa in the United States, one will have to go with all these formalities. People are ready to give more information to Jio but hesitant to give less information as compared to Jio to the government,” the Ex-DGP said.
“I personally feel that mostly the economic offenders are scared of it. I can also give example from Bureaucracy. All corrupt bureaucrats, they may be having crores of money but they cannot buy property because now Aadhar card is required. With this, the government can know the number of properties one will buy or have. It is also true that one can have five to six cars but only one car in his name, the rest may be in others’ names like wife, gardener, driver and so on. Now it cannot be done because a cook or a gardener will have to explain how he can afford to buy a luxury car. I also know that a man was drawing salary from five medical colleges and he was not attending even a single medical college. When Aadhar was introduced, he was removed from all these faculties,” he argued.
On the question of safeguard and misuse of the law, the retired IPS office said, “If government wants, it can misuse no matter how good or bad a law is. One can see what is happening in Uttar Pradesh. More than 100 people have been shot even when they were still suspects and not declared criminals by courts. Any law could be misused. The point is, there should be pro-active judiciary, vigilant civil society, public opinion, and media. They will have to fight. The BJP government is more likely to have these tendencies because of their ideological moorings, training and upbringing.”
Another senior IPS officer, Dr. Hanif Qureshi, a TEDx speaker and an Indian Police Service officer, who also served as secretary to the government of Haryana with vast experience of policing comprising criminal investigations, said, “I think it is the need of the hour but there should be enough safeguards to ensure that it is not misused.”
However, former DGP Chhattisgarh MW Ansari said it would pave the way for a ‘police state’ if it does not have any mechanism to see how it is implemented, used and misused.
John Dayal, noted social and human rights activist, while taking in detail about all the nuances of the Identification law, argued, “Why prisoners? That term can include everybody who has been inside a prison while not on official duty as a police officer, jailor, staffer, doctor or magistrate. This term includes people arrested for protesting a price rise, for demanding their due wages as an employee, or a university student taking part in a political agitation. It can mean undertrials awaiting a court hearing or sentencing. It also means people who have not been even charged with a crime, but are just held on suspicion as hundreds of young and old people arrested under UAPA or by the National Investigations Agency.”
While expressing his concern, Dayal said, “All these people have not had a court of law and a judge find them guilty. Most perhaps will not be guilty. India has nothing to be proud of the number of people who spend long years in jail and then have a judge find them innocent of the crime for which they had been jailed, perhaps under political pressure or because the police were acting under influence or were corrupt. I am not very sure if they will be fingerprinted in the police station when they are arrested or only after they have been convicted and sentenced.”
On biometric data, he said, “The second is the issue of biometrics itself. Most Indians give their biometric data to the government in the belief that Aadhar cards are mandatory. The government had said they were not mandatory. The Supreme Court also said that. But slowly, step by step, the government sabotaged the Supreme Court ruling by making the Aadhar card and its data mandatorily linked to PAN cards, bank accounts, income tax, GST and so on. Now often, schools demand this for processing scholarships. Aadhar data has become universally mandatory without legal or parliament sanction.”
On the protection of data and its misuse, he opined, “There have been deep concerns about how data is shared, sold or consumerised by the corporate sector or used for surveillance by government agencies. The right to privacy of a citizen upheld by the Supreme Court as a fundamental right has been short-circuited. Internationally, biometric data is sought for serial sexual offenders. In the west, electronic leg or ankle cuffs or shackles have been used to ensure that a suspect does not move out of a court’s jurisdiction, for instance.”
He added, “India does not have the scientific forensic expertise required to solve intricate cases. This is borne out by the low rate of conviction, and the massive use of third degree to pin or fix blame. This may, I fear, become another instrument put to use in extrajudicial manner to curtail the freedom of people. Even criminals have human rights. Ownership of their biometric data was one of these.”
While sharing his point of view, Nasir Aziz, president of SAMLA (South Asian Minorities Lawyers Association), said, “In my opinion this is an attack on personal liberty. The bill is loosely drafted. While for hardened criminals, the government may have some justification but using it even for people arrested while protesting, the amendment crosses all limits.”
Earlier when it was debated in Parliament, Kunwar Danish Ali, Member of Parliament (Lok Sabha), member Committee on Defence, Estimates and Home, had tweeted, “Criminal Procedure Identification Bill will surely lead us to a Police state. Raising voice against human rights violations will be a crime in ‘New India’. With the misuse of UAPA, peaceful and innocent anti-CAA protesters are still languishing in jails.”
Mahua Moitra, a Trinamool Congress (TMC) MP, said in her Lok Sabha statement that the new Bill is more intrusive and has fewer checks and balances than the one being abolished. The new Bill was introduced without the country having any overbroad data protection legislation in place. A Personal Data Protection Bill was submitted in 2019; however it was referred to a Joint Parliamentary Committee and has not been drafted yet.
She added, “The new Bill aimed to keep pace with technological advancements over the last ten years, but these advancements also expand the state’s surveillance powers, and if there are no adequate safeguards, the new Bill will most likely provide the government with inordinately broad discretionary powers.”
“The Bill would pave the path for India to become a surveillance state,” said Congress MP Manish Tewari, who spearheaded the opposition attack on the Bill. “The Bill violates Articles 14, 19, 21, and 20(3) of the Constitution,” he added.