TBN bureau, 12/02/24: The Criminal Procedure (Identification) Act of 2022 and the Criminal Procedure (Identification) Rules of 2022, which permit police, prison officials, or anyone else ordered by a judicial or executive magistrate to take “measurements” of people who have been found guilty, arrested, and detained, were not allowed to be examined by the Supreme Court on Monday due to their constitutionality.
Justice Sanjiv Khanna and justice Dipankar Datta, who made up the bench, felt that the high court had to address any challenge to the Act and Rules before the Supreme Court could consider the high court’s ruling.
Internet Freedom Foundation (IFF), sensing the bench’s tone, decided to withdraw the petition while retaining the option to go to the Supreme court.
IFF is a registered charitable trust that was established to safeguard, advance, and uphold citizens’ human rights when they use ICTs. Abhinav Sekhri, an attorney, represented the petitioner.
The petitioner argued that the challenged Act and Rules are inadequate in fulfilling the State’s constitutional duty to safeguard and protect the data it obtains from individuals, unreasonable in how it categorises people and circumstances in which information may be obtained, and disproportionate in how they violate the fundamental right to privacy.
The petitioner argued that the contested Act and Rules give State authorities unrestricted, uncanalized discretionary power to gather sensitive personal data of almost everyone who interacts with the criminal justice system, including (i) prisoners, (ii) anyone detained or arrested for any kind of crime, and (iii) people ordered to provide security in exchange for good behaviour or the maintenance of peace.
For example, Respondent No. 1 is authorised by Section 2(1)(b) read in conjunction with Section 3 of the contested Act to obtain “measurements” from all such individuals, such as fingerprints, palm prints, footprints, iris, and retina scans, as well as “physical and biological samples and their analysis” and “behavioural attributes” (such as signatures, handwriting, etc.).
The petitioner argues that the “implugned Act and Rules suffer from the vice of excessive delegation, lack oversight mechanisms, and do not adhere to a proportionality assessment as mandated by the Constitution.”
The petitioner continues by claiming that there is no discernible link between the types of people and circumstances for which information may be gathered, the type of information that is gathered, and the prevention and prosecution of criminal activity in the contested Act and Rules.
The petitioner argues that the contested Act and Rules greatly broaden the scope of individuals who are susceptible to data collection as well as the type of data that is gathered from the earlier law that governed the area, the Indian Prisoners Act of 1920.
For instance, the impugned Act’s Section 2(1)(b) read in conjunction with Section 3 permits the extremely invasive collection of data from people convicted of any crime, undertrial prisoners, and those detained under any law pertaining to preventive detention under the vague term “behavioural attributes.”
“The petitioner argues that the contested Act and Rules fail to demonstrate a reasonable connection between the types of crimes, the type of information gathered, and the intended outcome, thereby granting discretion to law enforcement and correctional officials,” the petition reads.
The petitioner also drew attention to the absence of security measures for the gathering and archiving of private information.
The challenged Act’s Section 4(2), when read in conjunction with Rule 5, gives Respondent No. 1 permission to keep “measurements,” which include biometric and other data, for a period of 75 years. Furthermore, Rule 5(4) gives responders the option to define the destruction and disposal of such records by a “standard operating procedure” as no legal procedure has been established for this purpose.
The petitioner contends that “such retention of sensitive personal data fails the just, fair, and reasonable test prescribed under Articles 14, 19, 20(3), and 21 of the Constitution in addition to the proportionality test.”
It also contends that the National Crime Records Bureau may “share and disseminate” such sensitive personal data with “any law enforcement agency” in any way that may be specified under Section 4(1)(d) of the contested Act read in conjunction with Rule 5.
“Under the Rules, particularly Rule 5, which supposedly governs the sharing and dissemination of measures, no particular method has been defined.
“As held by this court in K.S. Puttaswamy versus Union and the Aadhaar judgement, such uncanalized sharing of information that is collected for a specific purpose (at the time of arrest) with any law enforcement agency for use for any purpose violates these principles of purpose limitation, data minimization, and facilitates profiling,” the petitioner claims.
The petitioner contends that the language in the proviso to Section 4(2) of the contested Act and Rule 5 of the contested Rules is such that, even in the event of a person’s acquittal by a court, any “measurements” (taken at the time of arrest) that have been shared with any law enforcement agency shall remain in effect.
The petitioner further emphasises that law enforcement authorities are not required by the Act or the Rules to erase the “measurements” of those who have been found not guilty and to improperly place the burden of proof on the acquitted parties.
Actually, as per the proviso to Section 4(2) read with Rule 5, such a remedy can only be requested (i) following the exhaustion of all available legal remedies (i.e., essentially until the matter reaches a state of finality before this court); even at that point, (ii) the magistrate retains the authority to deny the request.
The petitioner argues that the law is unconstitutional due to ambiguity because Rule 5(5)(i) mandates that a request for the destruction of measurement records be made to the nodal officer designated by the relevant Central or state government, while the proviso to Section 4(2) appears to require the magistrate to make the final decision.
The petition, filed by advocate-on-record Vrinda Bhandari, also made note of the fact that the contested Act does not offer the necessary and proportionate protection of personal information or accountability for its misuse in light of the Digital Personal Data Protection Act, 2023, which grants broad exemptions from the applicability of the law to government instrumentalities and does not distinguish between personal data and sensitive personal data.
A bill to redefine “measurements” was approved by the Parliament in 2022, enabling the police to collect and analyse physical and biological samples, pictures, finger imprints, palm prints, footprint impressions, and eye and retina scans.
Aside from collecting behavioural traits like signatures and handwriting, the Act permits the police to conduct any other examination that is requested in accordance with Sections 53 or 53A of the 1973 Code of Criminal Procedure.
