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The legal systems across the globe have accepted the ideas of justice, fairness, equality, and reasonableness as the cornerstones of their nations. Our forefathers inscribed them as a sacred pledge in the glorious Constitution. They are the golden thread that weaves the fabric of the country and forms the bedrock of any law formulated thereof. The Hon’ble Supreme Court reiterated this in the landmark case of Maneka Gandhi v Union of India[i] where it said that procedure should be just, fair and reasonable. We have followed the approach of J.S. Mill where he says that ‘restraint over a person in a civilized society is just only if prevents harm against others.’[ii] Procedure is the handmaid of justice and not its mistress. Justice cannot be compromised on the part of one party for the benefit of others.
[Image Source: gettyimages]
The Criminal Procedure (Identification) Bill, 2022 passed in both the Lok Sabha and the Rajya Sabha is waiting for the assent of the President. It aims at replacing the Identification of Prisoners Act of 1920. The objective of this bill is to extract all identifiable information from a person including his fingerprints, footprints, measurements, photographs, etc. They shall be struck off in case the person is either dismissed or discharged. The National Crime Records Bureau (NCRB) has been assigned the responsibility of keeping records. It must share the data with law enforcement agencies. The notice of collection, preservation, and retention of data in their jurisdiction will be given by the states and the union territories. It has added clauses like the collection of ‘biological samples’, ‘behavioral attributes’, and blood, semen, hair, swabs, and DNA profiling under section 53 and section 53A of the Code of Criminal Procedure (CrPC). It is imperative to note that the DNA Technology (Use and Application) Regulation Bill, 2019 is still pending in the Lok Sabha.
The bill is primarily violative of Article 14, Article 21, and Article 20(3) of the Constitution of India. It confers enormous power to the police and magistrates. They can compel the accused to give evidence. Certain terms in the bill like ‘behavioral attributes’ are vaguely worded. Clause 6(2) of the Bill makes refusal to give measurements a punishable offence under Section 186 of the Indian Penal Code, 1860 (IPC). The consequential question is that if a person penalized under section 186 for giving samples, is later found to be innocent and acquitted in the original case, will his details remain in the record because he was convicted under section 186 of IPC? This is a major lacuna which needs to be answered. The provisions regarding the destruction and deletion of such information in case a person is found innocent are also missing. Laws of technologically advanced nations have included the right to erasure which calls for the deletion of data without undue delay.[iii]
This clause is also incongruous to the Report on Identification of Prisoners Act, 1920,[iv] of the Law Commission which stated that the less serious the offence the more restricted shall be the power of taking coercive measures.
The bill lacks the vital element of ‘Reasonable Classification’ as under the proviso of clause 3 it has made it compulsory for a person being accused of a crime punishable with seven years or more or of a crime against a woman or child to give biological samples. But all the other persons if arrested may have to give measurements. The rationale behind it is as clear as mud. It is manifestly arbitrary.
The provisions of the bill are not just opposed to Article 20(3) of the Constitution of India but also blow to smithereens the landmark judgment of Selvi v. State of Karnataka.[v] The term ‘behavioral attributes’ in Clause 2(1)(b) is so expansive that it can include a psychometric evaluation. NARCO analysis, brain mapping, lie detector test can also be included within its ambit which violates the landmark judgment.[vi]
Post Justice K.S. Puttaswamy and Anr. vs. Union of India (UOI) and Ors,[vii] the right to privacy is enshrined as a fundamental right under the ambit of Article 21. While giving the judgment of the Puttaswamy case the Court had observed informational privacy to be an integral part of the right to privacy. According to the IITF Principle of the Unites States, Information privacy is “an individual’s claim to control the terms under which personal information i.e., information identifiable to the individual is acquired, disclosed, and used”.[viii]
The collection, storage and retention of the data of a person can be seen as an intrusion in his personal space. In a progressive society where the world is heading towards the protection of personal data, this bill appears to be a step backward because it clearly infringes upon the fundamental right to privacy.
HO Hock Lai in his book titled a Philosophy of Evidence Law wrote: “It is not only the case that the truth is needed to do justice, the court must do justice in finding the truth.”[ix]
Countries like USA and England have a concept of ‘trial within a trial’.[x] This gives the power to the fact finder to exclude or refuse the admissibility of any evidence which cannot be accepted on the ground of being a violation of any human and constitutional rights. Their Constitution not only safeguards the rights but also adds a layer of protection of morality and ethics while a trial is conducted. This forms the basis of why the admissibility of evidence can be excluded. This power vested in the court creates apprehension and develops a sense of responsibility. It acts as checks and balances.[xi] However, the lack of this judicial interference is visible in the Indian legal system. The draconian bill has bestowed unbridled powers upon the police rise in which may engender derogatory and infernal practices. The United States has incorporated the ‘Doctrine of fruit of the poisonous tree’ as coined by Frankfurter J. in Nardone v. United States.[xii] This doctrine expands the exclusionary rule to make evidence inadmissible in court if it was taken by coercive or illegal methods. There have been arguments in a plethora of cases about the legality of methods of evidence collection.
Though the well-drafted Evidence law by Sir James Stephen was never amended much, a need was felt to walk hand in hand with advanced legal systems of the world. The Law Commission in its 94th report[xiii] recommended that the power should be given to the courts to refuse evidence if it has been obtained: in derogation of human dignity and social values, if the seriousness of the crime, importance of evidence, or urgency of the situation is ignored and whether the collection is justifiable or not. These recommendations of the Law Commission were not paid any heed which reflected the spirit of a progressive society. The question of paramount significance here is that have we slammed the doors on the face of the doctrine of fruits of the poisonous tree? The ever-growing doctrine can never find a place in the Indian criminal jurisprudence after this bill because it advocates for compulsive collection of evidence rather than making evidence inadmissible if it was taken by coercion.
Scientific evidence is categorized as relevant evidence under Section 45 of the Indian Evidence Act, 1872. They hold strong reliability and greatly influence the minds of judges. But our country lacks such scientific expertise and laboratories which is a good source of reliabilty. This possibly jeopardizes the entire criminal justice system. The scientific basis to claim that a person’s writing samples are distinct is absent.[xiv] The authenticity of iris and retina scans has been questioned time and again.[xv] The US Supreme Court has given extensive guidelines regarding the scientific validity of forensic techniques for prosecuting an accused in Daubert v. Merrell Dow Pharmaceuticals Inc.[xvi] (popularly called as ‘Daubert test’). Such guidelines are missing in India.
The bill has failed to take into account the stigma it might create against a person whose personal data is floating in cyberspace. This can be used as an arsenal against the marginalized sections of society. Countries around the globe are taking steps toward protecting the data of their citizens. In the absence of data protection laws in India, how can the safety of the data collected thereof be ensured? There is an exigent requirement to formulate data protection laws to safeguard the information of citizens. A restrictive interpretation should be accorded to the words like ‘measurement’, ‘behavioral attributes’ etc so that the rights of the citizens are not infringed. The ‘Doctrine of parity’ should not be ignored while giving operation to provisions like clause 3. This means that a person committing a petty offence should not be equated with the one committing a grave offence. The Machiavellian principle of aims being more important than the means has never been a part of the fundamental law of the land. Therefore, stanchions of fairness and reasonableness should not be dismantled at any cost.
Article is written by Varalika Nigam and Harshada Gangwar (Advocates at Allahabad High Court), the views are personal. In case of any queries please contact/write back to us via email firstname.lastname@example.org or at Khurana & Khurana, Advocates and IP Attorney.
[i] 1978 SCR (2) 621
[ii] John Stuart Mill, On Liberty of Thought and Expression, On Liberty (Longman, Roberts
& Green, London, 1st edn1869)
[iii] Article 17, General Data Protection Regulation
[iv] Eighty-Seventh Report on Identification of Prisoners Act, 1920, Law Commission of India, 1980. Accessible at: https://lawcommissionofindia.nic.in/51-100/report87.pdf
[v] AIR 2010 SC 1974
[vi] Justice U L Bhat, Relevancy, Proof and Evaluation of Evidence, (Lexis Nexis, 2nd Edition, July 2020)
[vii] (2017) 10 SCC 1
[viii] Principles for Providing and Using Personal Information (“IITF Principles”) issued by the Clinton administration’s Information Infrastructure Task.
[ix] HO Hock Lai, A Philosophy of Evidence Law: Justice in the Search for Truth (OUP Oxford; 1st edition (6 March 2008)
[x] One eighty-fifth Report on Review of the Indian Evidence Act, 1872, Law Commission of India, 2003. Accessible at: https://lawcommissionofindia.nic.in/reports.htm
[xi] Richard Glover and Peter Murphy, Murphy on Evidence, 13th Edition, (Oxford University Press, 2013.)
[xii] 308 U.S. 338 (1939)
[xiii] Ninety-Fourth Report on Evidence obtained illegally or improperly proposed Section 166A, Indian Evidence Act,1872, Law Commission of India, 1983. Accessible at: https://lawcommissionofindia.nic.in/51-100/Report94.pdf
[xiv] Committee on Identifying the Needs of the Forensic Sciences Community, National Research Council, ‘Strengthening Forensic Science in the United States: A Path Forward’ (2009)
[xv] An Analysis of the Criminal Procedure (Identification) Bill, 2022, Project 39A, National Law University, Delhi.
[xvi] 509 U.S. 579 (1993)