The Criminal Procedure Act gives a new angle to data collection and retention in India
By Suryashekhar Biswas
With the increased digitalization, data protection and privacy are a growing concern in India. In that line, the Supreme Court of India in 2017 declared the right to privacy as a fundamental right under article 21 of the Indian Constitution. This was followed by the Personal Data Protection Bill which was proposed in the Lok Sabha in 2019.
In the absence of a data protection law, the government proposed the Criminal Procedure (Identification) Act 2022, which has implications for data protection and privacy in the context of criminal justice.
Here, we do a comparative analysis of the current and the previous bill.
Criminal Procedure Act, 2022
Criminal Procedure (Identification) Act 2022 was introduced as a bill, in the Lok Sabha in March 2022 and was finalized with assent from India’s President, on 19 April 2022.
The act brings about crucial changes to criminal investigation and data storage, replacing a British-era law that was in effect until now. This has huge implications for data privacy and security, and the storage of unique personal data which makes individuals identifiable. It was met with a mixed reaction from experts.
This act seeks to replace and upgrade previous laws on criminal identification and investigation. The stated aim is to upgrade criminal prosecution to the latest technological standards.
What Criminal Procedure Act 2022 brings to the front?
The Previous Bill:
Earlier, the Identification of Prisoners Act 1920 was the only pretext for the police to collect information, but the colonial-era law seemed inefficient and outdated.
The Act allowed the taking of finger and footprint impressions, which applied to a limited category of convicted and unconvicted persons. It also allowed for photographs on the order of a Magistrate.
The New Bill:
The authority of the collection of data has been extended to the head-warden of prisons and head-constables, alongside the investigating officer and magistrate – who were previously also authorized to collect data.
It allows police to collect “finger-impressions, palm-print impressions, footprint impressions, photographs, iris and retina scans, physical, biological samples…” – as referred to in Section 53 or 53A of the Code of Criminal Procedure.
Data collected by officials can now be stored for 75 years or till the person has been fully acquitted.
Concerns voiced by the experts-
Privacy: Data can be stored for a long even after the accused has not been convicted which makes privacy concerns real. Analysts have highlighted that data or biological samples will be collected even for minor offences like smoking in the public. This makes it disproportionate and incompatible with the right to privacy enshrined as an integral part of the right to life (Article 21).
Misuse: Tracing the history of criminal justice, analysts have noted that the Criminal Tribes Act (1871) and Habitual Offenders Act (1952) were used to target vulnerable communities. These provisions allowed the state to mark specific communities as innately criminal.
If data is collected and retained, this might lead to the targeting of specific communities and individuals.
The error of conviction rate: Analysts point out that this act may lead to an increase in conviction rate – which can be wrongfully quoted to state that the law has been successful in curbing crime. However, the increase in conviction rate will be at the cost of a serious violation of the privacy of innocent individuals.