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Criminal Procedure Act’s grand tech vision comes with dangers of police power, data violation

Even if the conviction rate increases, it will happen at the expense of individuals who are vulnerable to India's power dynamics.

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The Criminal Procedure (Identification) Act, 2022, which received the assent of President Ram Nath Kovind on 19 April aims to make the criminal justice system ‘more effective’ by linking it with technology. The ‘grand’ vision at play here is that the intersection of the two will ensure the police and investigators remain two steps ahead of criminals. Under this Act, the convicted, as well as other persons involved in the case, will be required to give their personal data, including fingerprint and palmprint impressions, photographs, iris and retina scans, physical, biological samples and their analyses, behavioural attributes such as signatures, handwriting, or any other examination referred to in Section 53A of the Code of Criminal Procedure, 1973.

The collection of personal data, as envisaged under the Act, squarely attracts concerns about the violation of the Right to Privacy. In the Supreme Court’s decision that affirmed the Right as a facet of the fundamental Right to Life, Justice D.Y. Chandrachud stated, “Privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable.” However, the collection of personal data from these overbroad categories, which would allow identification throughout the person’s life and information retention for 75 years, violates this understanding of privacy. Funnily enough, even the average life expectancy in India is lower than that! Data could end up being retained even after the person passes away.

Blurring lines between guilty and innocent

Historically, the police have been in possession of fingerprints, footprints, body marks, and other measurements of communities classified as ‘criminals by birth’ under the erstwhile Criminal Tribes Act (CTA), 1871 and subsequently, through the post-Independence Habitual Offenders Act, 1952. These provisions allowed the criminalisation of scores of nomadic and semi-nomadic tribes across India. The vast discretionary powers of the police are, therefore, exercised to the detriment of oppressed caste communities. The data collected thus far has been through local police stations and stored at a local level. The storage of this data by the National Crime Records Bureau (NCRB) has the potential of churning out 360-degree profiles at a pan-national level of those deemed as ‘habitual offenders’.

The Act’s prescribed collection of data also violates the thresholds of necessity and proportionality upheld by the Supreme Court in the Right to Privacy decision. In the Act’s statement of objects and reasons, it is stated that such an exercise will make criminal investigations more efficient and expeditious as well as increase the conviction rate. We argue that even if the conviction rate increases, it will likely do so at the expense of individuals with no social and economic capital and who are vulnerable in a country under a myriad of hierarchies and power dynamics. Such unquestionable and discriminatory powers of the police over citizens of the country will definitely make the Narendra Modi government call the Act ‘successful’ by showing how they achieved the increase in conviction rate. However, a higher conviction rate would not only exacerbate but also incentivise the existing casteist policing habits of the Indian police.

It is also important to note here that as per the Modi government’s response in Rajya Sabha on the question of whether a delay in evidence gathering was resulting in the increased pendency of cases, the “disposal of case depends on several factors such as category of the case (Civil or Criminal), complexity of the facts involved, nature of evidence and co-operation of the stakeholder.” Therefore, by its own admission, the government also tells you that increased evidence gathering would not necessarily result in an increase in the conviction rate. Thus, the Act fails to fulfil the very aim for which it was put in place.

Also read: Criminal Procedure (Identification) Bill can set dangerous precedent. Here’s why

Further cracks

The retention of personal data and its purported use for the prevention of crime casts a net of suspicion over an extremely wide section of society, for the Act allows for the collection of data from any person involved in any case. Thus, a person arrested for a minor offence like public smoking, an action that would violate the Arnesh Kumar Guidelines, could hypothetically end up giving their biometric and DNA data. It is undeniable that such an exercise would far exceed its purpose and, thus, be disproportionate. In its decision on the constitutionality of Aadhaar, the Supreme Court had also rejected the notion of data collection and retention from a broad set of people to counter crime, as it would target “every resident of the country as a suspicious person” and put in place a presumption of criminality.

The value of “being acquitted” will now be under question too. Irrespective of the acquittal, the data will remain with the police without any avenue to access it to ascertain its quality and without any guarantee against misuse. Linking it to the provision of the Habitual Offenders Act, 1952, acquittal in one state offers no guarantee on the issue of double jeopardy because of the duration of the data storage. This will also leave the individual with no Right to Privacy and lead to an increase in surveillance and policing.

Also read: AI products, services need data but don’t have to invade privacy. It needs future-proofing

Unchecked power and what to do about it

To sum up, the hidden goal of The Criminal Procedure (Identification) Act, 2022 seems to be to increase the unchecked powers of the police. As the Act lacks appreciation for an individual’s consent to give such personal data, it empowers the police to initiate criminal proceedings against them in case they refuse to do so. In order to resolve these issues, it is imperative that the Act be amended to ensure that these unchecked powers are reigned in.

The collection of evidence should be limited to only those categories of data that are relevant to the investigation and should be retained only for the purpose of investigation and trial. It should be collected from suspects only in incidents where identification would be necessary such as bodily crime, terrorism or drug-related incidents. To summarise, data collection should be necessary and proportionate to fulfil the purpose of criminal investigation and conviction.

Currently, data under the Act will be obtained through uninformed consent and transferred between agencies without any accountability. There are also no provisions that limit data sharing with third parties. These actions go against internationally settled best practices such as Chapter 3 (Rights of the data subject) of the General Data Protection Regulation (GDPR) of the European Union, which ensures the lawfulness, fairness, and transparency in data processing and includes safeguards such as the principles of data minimisation, storage limitation, and purpose limitation.

The Criminal Procedure (Identification) Act, 2022, therefore, will directly affect a person’s fundamental Right to Privacy, the right to be forgotten, the right to freely move within the country, and the right to access, correction and deletion of personal data. In the absence of data protection laws in India, what remedy will be available to the person whose data is being misused? That remains to be seen.

Sanjana Meshram is a lawyer & a research associate at the Criminal Justice & Police Accountability Project and Anushka Jain is an Associate Policy Counsel at Internet Freedom Foundation. Views are personal.

(Edited by Humra Laeeq)

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