This article
covers the journey of the six month old, ‘The Criminal Procedure
(Identification) Act, 2022’. This Act
allows the police officers or prison officers to collect certain identifiable
information (such as fingerprints, biological samples) from convicts or those
who have been arrested for an offence. The Act specifies the grounds under
which measurements may be collected and who can collect such measurements. This
Act had raised serious apprehensions of its misuse from the opposition before
its enactment and after the coming into force by different section of the
society.
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As the Act
provides for the use of modern techniques to capture and record appropriate
body measurements. The "measurements"
under the Act includes finger-impressions, palm-print impressions, foot-print
impressions, photographs, iris and retina scan, physical, biological samples
and their analysis, behavioural attributes including signatures, handwriting or
any other examination referred to in section 53 or section 53A of the Code of
Criminal Procedure, 1973. Whereas the repealed Act, the Identification of
Prisoners Act, 1920 only provides for allowed taking only fingerprint and
footprint impressions of a limited category of convicted persons.
The Act empowers the National Crime Records Bureau (NCRB) to
collect (from state governments, union territory (UT) administrations, or other
law enforcement agencies), store, process, share, disseminate and destroy
records of measurements, as may be prescribed by rules. The Criminal Procedure (Identification)
Rules, 2022 specify these details. These
Rules were notified by the Ministry of Home Affairs on September 19, 2022.
A writ petition is filed before the Hon’ble High Court of
Delhi seeking a judicial review of the provisions of the Criminal Procedure
(Identification) Act, 2022. The petitioners’ pleaded that the absence of
pre-legislative consultation in the instant case violates the essence of
participatory democracy, part of the basic structure of the Constitution. The
petitioners attacks the following provisions of the Act:
1. Section 3 read with Sections 2(1) (b), 6 and 8 of the Act
violates Articles 14, 19(1)(a), 20(3), 21 and 51 of the Constitution and
India’s Binding Obligations under International Law.
2. Section 5 read with Sections 2(1)(a) (iii), 2(1) (b), 6
and 8 of the Act violates Articles 14, 19(1)(a), 20(3), 21 and 51 of the
Constitution and India’s Binding Obligations under International Law.
3. Section 4 and Section 6 of the Act violates Article 14 and 21 of the
Constitution.
4. Section 8 of the Act violates the federal character of the Constitution and suffers from the vice of excessive delegation.
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Join Lawyers Directory!The Act delegates certain powers to the government. The Rules further delegate these to the NCRB. The Supreme Court has held that tasks entrusted to an entity in subordinate legislation may not be further delegated to another entity. These delegated powers include guidelines to NCRB on maintaining records. NCRB issuing guidelines for itself also violates the principle of separation of powers between an entity that issues the guidelines and one that has to follow these guidelines. The Act provides for destruction of measurement records if a person is acquitted. The Rules put the onus on the person to request for the destruction of such records.
The petitioners’ in the writ petition claims that the impugned provisions of the Act collectively militate against individual freedom, rule of law and mandate to build a welfare State by use of the Directive Principles of State Policy, all parts of the basic structure of the Constitution, and are therefore unconstitutional.
The matter is sub judice and listed for further hearing before the Delhi High Court on November 15, 2022.
For the detailed Act please click the following link: