Disentangling The Criminal Procedure Identification Act 2022 Palakdeep Kaur

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Disentangling- THE Criminal Procedure Identification ACT,

2022 - Palakdeep kaur
Law of Crimes (Punjabi University)
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DISENTANGLING THE CRIMINAL PROCEDURE

(IDENTIFICATION) ACT, 2022: AN ANALYSIS
A Project submitted to
ARMY INSTITUTE OF LAW, MOHALI
UNDER THE GUIDANCE OF
Dr. AMRITA RATHI & Dr. KULPREET KAUR BHULLAR
SUBMITTED BY
PALAKDEEP KAUR, ROLL NO. 1979
CLASS- B.A. LLB, 4th YEAR,
SUBMITTED IN PARTIAL FULFILLMENT OF B.A. LLB

DEGREE
PUNJABI UNIVERSITY, PATIALA

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DECLARATION
I hereby declare that project work presented in this report entitled “DISENTANGLING THE
CRIMINAL PROCEDURE (IDENTIFICATION) ACT, 2022: AN ANALYSIS”, submitted
by me to Army Institute of Law, Mohali is a record of bonafide project work carried out by
me under guidance of Dr. Amrita Rathi & Dr. Kulpreet Kaur Bhullar. All the reference and
ideas are duly acknowledged.
DATE: March 10, 2023
PLACE: Mohali
NAME: Palakdeep Kaur
ROLL NO.: 1979

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ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my teacher Dr. Amrita Rathi & Dr.
Kulpreet Kaur Bhullar as well as our principal Dr. Tejinder Kaur who gave me the golden
opportunity to do this wonderful project on DISENTANGLING THE CRIMINAL
PROCEDURE (IDENTIFICATION) ACT, 2022: AN ANALYSIS which helped me in doing
lot of research and I came to know about so many new things. I am really thankful to them.
Date: March 10, 2023
PALAKDEEP KAUR
1979

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TABLE OF CONTENTS
ABSTRACT......................................................................................................................... 1
I. INTRODUCTION ........................................................................................................... 2
II. SCHEME OF THE CRIMINAL PROCEDURE (IDENTIFICATION) ACT, 2022 ... 3
III. PROVISIONS OF THE ACT AGAINST THE CONSTITUTION ............................ 9
A. VIOLATIONS OF THE RIGHT TO EQUALITY ................................................. 9
B. VIOLATION OF RIGHT AGAINST SELF-INCRIMINATION ........................ 13
C. VIOLATION OF RIGHT TO PRIVACY UNDER ARTICLE 21 ....................... 14
POSSIBLE SOLUTIONS FOR THIS ACT ..................................................................... 17
CONCLUSION ................................................................................................................. 17
REFERENCES…………………………………………………………………………….19

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ABSTRACT
The Criminal Procedure (Identification) bill, 2022 was introduced in the Lok Sabha on 28th
March 2022, with the aim of improving conviction rate, protect the human rights of citizens.It
was passed by Rajya Sabha on 6th April 2022 and received the Presidential assent on 18 th
April, 2022. The Act has expanded the scope of the information which can be collected by
the government from the convicts, arrested persons and other persons by using the modern
state of art technology. However, the power of collection of biometric and biological data
raises serious questions about its legal validity. In this research paper, the authors have
critically analysed the provisions of this legislation. The paper is an attempt of the author to
expose how certain provisions are in violation of the Constitution of India. It also contains
certain amendments that can aid to achieve the objectives of this Act.

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I. INTRODUCTION
The recent Criminal Procedure (Identification) Act, 2022,1 received the assent of President of
India on April 18, 2022 has created a furore.2The Act seeks to repeal and replace the 102-
year-old Identification of Prisoners Act, 1920. The Act provides statutory framework to
lawfully collect, store and analyse, what it terms as ‘measurements’, of convicts and other
persons for the purpose of identification and investigation in the criminal matters. 3The
primary functions of intelligence bodies and law enforcement agencies are prevention and
investigation of crimes and maintenance of law and order in the State. In pursuing its aim, the
Act, empowers the agencies to access and make use of ‘measurements’ for fixing the identity
of perpetrators. Law enforcement agencies often evade all the parameters drawn to define its
powers and limits. While the legitimacy of these agencies cannot be denied, but it is equally
important to acknowledge that the authority to collect ‘measurements’ constitutes a powerful
weapon in the hands of the State. Right to equality, right against self-incrimination and right
to privacy are fundamental rights. 4 Like other fundamental rights these rights are not absolute
and may be restricted by laws pursuing other legitimate aims. Such aims ought to be pursued
through a procedure that is just, fair and reasonable.
In light of this, the present paper aims to analyse the existing legal provisions of the Act. The
brief identifies common pitfalls. We map some elements of this existing legal provisions
against the test of constitutional legality with a focus on fundamental rights.
A. Research Objective
The object of this paper is to analyse the provisions of the Act in line with the constitutional
validity of the Act. As collection and storage of data clearly indicates grave violations of the
fundamental rights of the citizens.
B. Research Questions
This paper focuses on review and analysis of the Act in the constitutional perspective. In this,
following are the research questions:
 What is the scheme of the Criminal Procedure (Identification) Act, 2022?

 What are the major issues in the present Act?
1
Criminal Procedure (Identification) Act, 2022, No.11, Acts of Parliament, 2022 (India).
2THE HINDU, https://www.thehindu.com/news/national/president-gives-assent-to-criminal-procedure-
identification-bill/article65335826.ece , ( last visited Feb 22, 2023).
3Criminal Procedure (Identification) Act, 2022, Objects and Reasons, No.11, Acts of Parliament, 2022 (India).
4INDIA CONST., art. 14, 20(3) & 21.

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 Whether the Act violates the right to equality, the right against self-incrimination and
the right to privacy?
 What should be the possible solutions in this regard?
C. Scope of the Study
In this paper, the main area of focus are provisions of the Act and constitutional perspective.
D. Limitation of Research
The limitation of this research is that it focuses on analysis of key provisions of the Act
through constitutional principles. It does not specifically deal with scientific aspects. Only
that much aspect of scientific is analysed as is necessary for the present topic. The project
does not deal with aspects other than scientific.
II. SCHEME OF THE CRIMINAL PROCEDURE (IDENTIFICATION) ACT, 2022

The collection of ‘measurements’ for the investigation of crime is now a common method in
all over the world. The DNA Technology (Use and Application) Regulation Bill, 2019 aims
to regulate, control and limit DNA profiling for identification of individuals only to matters
provided in law. 5 The Law Commission of India in its 87th report recommended the
Identification of Prisoners Act, 1920 (now repealed) to bring it in tune with modern criminal
jurisprudence. 6The Criminal Procedure (Identification) Act, 2022 was introduced by
government in the Lok Sabha on March 28, 2022, it was passed by the Lok Sabha on April
04, 2022 and by the Rajya Sabha on April 06, 2022.7 The Act received the assent of the
President of India on April 18, 2022. 8
A. What does the Act seek to do?
The Act seeks to allow the police and prison authorities to collect, store and analyse physical
and biological samples including retina and iris scans of convicts, arrested persons or other
persons for the purposes of identification and investigation in the criminal matters. 9
B. What kind of measurements may be collected under this Act?
5The DNA Technology (Use and Application) Regulation Bill, 2019, No. 128, Bills of Parliament, 2019 (India).
6LAW COMMISSION OF INDIA, “87th Report on Identification of Prisoners Act, 1920” (August,
1980),https://lawcommissionofindia.nic.in/51-100/report87.pdf. (last visited March 5, 2023).
7 PRS LEGISLATIVE RESEARCH,https://prsindia.org/billtrack/the-criminal-procedure-identification-bill-
2022#:~:text=The%20Identification%20of%20Prisoners%20Act,including%20convicts%20and%20arrested%20pe
rsons (last visited Feb 28, 2023).
8Supra Note 2.
9 Supra Note 3.

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Section 2(1)(b) of the Act set out the definition of “measurements” includes “finger-
impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scan,
physical, biological samples and their analysis, behavioural attitudes including signatures,
handwriting or any other examination referred to in section 53 and section 53A of the Code
of Criminal Procedure, 1973.”10 The Act massively widens the ambit of the data to be
collected. Section 53 and 53A establishes the legal framework for the collection of biological
samples. 11 The biological samples include “blood, blood stains, semen, swabs in case of
sexual offences, sputum and sweat, hair samples and finger nail clippings and DNA
profiling.”
C. Whose measurements may be collected?
A list of persons has been provided in the Act whose data may be collected.12 The data may
be collected from the following classes of persons:
 Anyone who has been convicted for punishable offence;
 Anyone who has been ordered to give security for good behaviour or maintaining
peace in connection with a law under punishable offence;13
 Anyone who has been arrested or detained in connection with a law for time being in
force;
 Other persons.14
Hence, the data can be collected from the classes of persons listed above. However, a person
can be compelled to give all measurements except biological samples. Biological samples can
be taken forcibly only from persons arrested for an offence against a child or a woman, or for
an offence entailing punishment of 7 years imprisonment or more. The section itself permits
the use of force as is reasonably necessary. Apart from this, Section 5 of Act widens the
scope of later provisions. The said section states that a magistrate can also direct any
individual to give measurements for the purpose of any investigation under CrPC. Notably, if
a person refuses or resists giving information, the police or prison officer in question can take
it “in such manner as may be prescribed.” 15 Further, refusal to furnish the data is an offence
under Section 186 of Indian Penal Code.16
D. Who can compel to take measurements?
10The Criminal Procedure (Identification) Act, 2022,§ 2(1)(b), No. 11, Acts of Parliament, 2022 (India).
11The Criminal Procedure Code, 1973,§53&53A, No. 2, Acts of Parliament, 1973 (India).
12The Criminal Procedure (Identification) Act, 2022, § 3, No. 11, Acts of Parliament, 2022 (India).
13The Criminal Procedure Code, 1973, § 107, 108, 109, 110 & 110, No. 2, Acts of Parliament, 1973 (India).
14The Criminal Procedure (Identification) Act, 2022, § 5, No. 11, Acts of Parliament, 2022 (India).
15The Criminal Procedure (Identification) Act, 2022, § 6(1), No. 11, Acts of Parliament, 2022 (India).

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Section 3 authorises a police officer or a prison officer to take measurements. Police officer
“means the officer-in-charge of police station or an officer not below the rank of constable.” 17
And prison officer means “an officer of prison not below the rank of head warder.” 18
E. Who will collect the measurements and for how long?
The Act uses two separate terms. The terms are “measurement”19 and “record of
measurements.”20Section 4 provides for data to be stored, preserved, processed with criminal
records in a central database. National Crime Boards Bureau (NCRB) as the nodal agency to
maintain the record of measurements, in interests of “prevention, detection and investigation
and prosecution” of offences. This section, further allows NCRB to collect data from state
governments, the administration of union territories or any other law enforcement
agencies. 21States or Union Territories may notify any agencies for the collection, storage and
sharing of the measurements in their respective jurisdictions. 22 All the measurements
collected will be shared or disseminated with any law enforcement agencies. The
measurement to be recorded in digital or electronic form, for 75 years. 23 All records of
measurements will be destroyed in case of persons with no conviction or acquitted or
discharged by the court after exhausting all remedies. 24 However, the court may direct the
retention of measurements after recording all reasons in writing.
F. What are the concerns with the Act?
The collection of measurements squarely attracts concerns. The concerns have been
summarized as follows:
1. The Provision instead of defining the term “measurements” widens the ambit of
measurements to be collected to include biometrics, physical and behavioural
attributes.25 It is open to the court for interpretation. The terms such as ‘physical and
biological samples’ and their ‘analyses’ remain undefined. It is notable that, term
‘Behavioural attributes’can be interpreted to be of testimonial nature. It may include
signature, handwriting and voice samples. There is a significant departure from the
provisions under CrPC. Section 53 of CrPC imposes an obligation upon the arrested
person to subject himself for medical examination at the instance of police officer to
17The Criminal Procedure (Identification) Act, 2022, § 2(1)(c), No. 11, Acts of Parliament, 2022 (India).
18The Criminal Procedure (Identification) Act, 2022, § 2(1)(e), No. 11, Acts of Parliament, 2022 (India).
19Supra Note 10.
20The Criminal Procedure (Identification) Act, 2022, § 4, No. 11, Acts of Parliament, 2022 (India).Sec 4.
21The Criminal Procedure (Identification) Act, 2022, § 4(1)(a), No. 11, Acts of Parliament, 2022 (India).
24The Criminal Procedure (Identification) Act, 2022, Proviso § 4(2), No. 11, Acts of Parliament, 2022 (India).
25Supra Note 10.

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help the investigation. Therefore, the question arises: (i) what kind of measurements
constitute physical and biological samples? (ii) Does it include measurement of
internal organs under this Act?(iii) Do measurements include Narcoanalysis,
polygraph test, Brain Electrical Activation Profile (BEAP)?From a perusal of the
definition, it is apparent that the definition is inclusive one and could cover a wide
range of measurements.
2. Legal infirmity exists in Section 3 and 4 of the Act. The provisions use the two terms
such as ‘measurements’ and the ‘record of measurements.’ Record of measurements
cover under Section 4(1) and 4(2) whereas measurements cover only under Section
4(3). It is not crystal clear from the sloppy provisions of the Act, what would be
covered under the ‘record of measurements?’.
3. The National Crime Records Bureau (NCRB) is responsible for overseeing database.
The Act does not use the term database. Rather, it uses two distinct terms. 26 This is a
significant omission. Further, the language of section 4 employs even broader
language, as there are no safeguards currently pertaining to overseeing database.
4. In addition, on one National database, Section 4(3) sanctions the States and Union
Territories to maintain their own databases in their respective jurisdiction.
Importantly, it also provides that these State-level databases forward copies of their
content to the national database. In addition to this, NCRB can share with ‘any law
enforcement agency.’ Again, it does not provide the definition of ‘law enforcement
agency’. Now, the question arises, who are the law enforcement agencies?This
arrangement opens up the possibility for misuse. Therefore, it gives sanctions to
agencies the ability to permit almost anyone access to the records of measurements
without administrative review or oversight of any kind.
G. The Identification of Prisoners Act, 1920 &The Criminal Procedure (Identification)

Act, 2022: A Comparison
Table 1: Comparison of key provisions27
The Identification of Prisoners The Criminal Procedure

Act, 192028 (Identification) Act, 202229
26Ibid.
27Supra Note 7.
28 The Identification of Prisoners Act, 1920, No. 33, Acts of Parliament, 1920 (India).
29Supra Note 1.

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Object The Act authorises the taking the The existing enactment authorise for
taking of measurements and taking measurements of convicts and
photographs of convicts or other others persons for the purpose of
persons. identification and investigation in the
criminal matters.
Measurements The Act allowed collection of The new Act additionally includes
permitted to photographs, foot-prints biological samples and their analysis,
be collected impressions and finger impression. behavioural attitudes and examination
under Section 53 and 53A of CrPC.
Persons whose Following measurements will be The new Act expands this list to
measurements collected from: include:
may be i. Persons convicted or i. Persons convicted or arrested
collected arrested for offences for any offence;
punishable with rigorous ii. Persons detained under any
imprisonment of one year prevention detention law;
or more; iii. On order of the Magistrate,
ii. Persons ordered to give from any person to aid
security for good investigation in the criminal
behaviour or maintaining matters.
peace; Note: Biological Samples may be
iii. If the magistrate may order taken forcibly only from persons
in other cases collection arrested for offences against a woman
from any arrested person to or child, or if the offence carries a
aid criminal investigation. minimum of seven years
imprisonment.
Persons who i. Investigating officer, i. Officer-in-charge of a police
may officer-in-charge of police station, or of rank Head
require/direct station or of rank of Sub- Constable or above. In
collection of Inspector or above. addition to this, a Head
measurements ii. Magistrate. Warder of prison.
ii. Metropolitan Magistrate or
Judicial Magistrate of first
class. The Executive

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Magistrate also in case of

persons required to maintain
good behaviour or peace.
H. Scientific and Legal validity of certain measurements

The uniqueness of scientific evidence remains an assumption without watertight proof. There
is no scientific evidence to support the reliability of forensic analysis of certain
measurements. Section 45, 47 and 73 of Indian Evidence Act, deals with admissibility of
handwriting.30The Rajasthan High Court has noted that an expert opinion could be rejected it
is based on imperfect science, which again gives way to uncertainty regarding the
measurement of handwriting analysis. 31 The Apex Court has noted that it cannot be admitted
unless there is other corroborative circumstantial evidence to support it. 32 In many cases, the
court have noted that expert evidence of handwriting analysis is opinion evidence that it
cannot be regarded as conclusive evidence. 33Human judgments are fallible and even expert
opinion may give incorrect opinion, therefore, it could turn into fatal law. 34 Similarly, the
measurements of footprints is not very reliable due to its limited research into its forensic
application. At this juncture, it is important to noted that an accused cannot be convicted
solely on the basis of footprints.35In another case law, the Supreme Court has held that
science of identification of footprint impression is not a well-established science.36 Similarly,
problems arise from time to time with regard to fingerprint impressions , it must be read with
Section 73 of Indian Evidence Act.37Recently, the Supreme Court pointed out that fingerprint
evidence cannot be admitted in absence of substantive piece of evidence. 38In Justice S.K.
Puttaswamy Anr. v. Union of India 39, submitted data for authentication failures.
Table 2: Authentication failure rate at national level40
Modality Unique UID Failed Unique ID Failed %
Participated
30 The Indian Evidence Act, 1872, § 45, 47 and 73, No. 1, Acts of Parliament, 1872 (India).
31 Ameer Mohammed v. Harkat Ali, AIR 2002 Raj 406.
32 Alamgir v. State, (NCT) Delhi, AIR 2003 SC 282.
33 Ishwari Prasad Mishra v. Mohd. Misa AIR 1963 SC 1728; see also Sashi Kumar v. Subodh Kumar AIR 1964 SC
529.
34 Murarilal v. State of Madhya Pradesh 1980 1 SCC 704.
35 State of Uttar Pradesh and Ors. v. Sunil and Ors. AIR 2017 SC 2150.
36 Mohd. Aman v. State of Rajasthan AIR 1997 SC 2960.
37See Supra Note 31.
38 Hari Om @ Hero v. State of Uttar Pradesh 2021 SCC OnLine SC 2.
39 (2017) 10 SCC 1.
40Ibid, Para 53.

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IRIS 1,08,50,391 9,27,132 8.54%

FINGER 61,63,63,346 3,69,62,619 6.00%
Section 45 of Indian Evidence Act, recognise scientific evidence as relevant. 41There is no test
for the admissibility of scientific evidence in the court which considers which takes into
accounts its reliability as well. The U.S. Supreme Court has given five pre-conditions for
admissibility of scientific evidence. wherein the court prescribes five following
preconditions:
i. Whether the scientific technique can be tested;
ii. Whether the scientific technique has been subject to peer review and publication;
iii. What is the known/potential error rate of the scientific technique;
iv. Whether there exist standards to control the operation of the scientific technique;
iv. Whether the technique has attracted widespread acceptance in the relevant
community. 42
Such conditions are missing in India.
III. PROVISIONS OF THE ACT AGAINST THE CONSTITUTION

A. VIOLATIONS OF THE RIGHT TO EQUALITY
This act presents very serious violations of the right to equality as provided under the
Article 14 of the Constitution as there is extravagant power delegated to the legislative
authority and excessive discretionary powers to functionaries and provisions are evidently
arbitrary.
1. Excessive delegation of the powers

A law may be found to be ultra vires the Constitution, on the ground that in delegating
powers, it has transgressed the permissible limits. 43 Section. 3 of the act provides the
discretion to the police or prison officers to take measurements if required, of their
own accord and under section 5 such measurements can be taken on the order of the
magistrate. However, these two sections provide no guidance on the process and
circumstances under which these authorities can compel the taking of the
measurements. This act has delegated excessive power to the executive at numerous
places by providing it with wide rule-making powers with virtually no guidance and
41 The Indian Evidence Act, 1872, § 45, No.1, Acts of Parliament, 1872 (India).
42 Daubert v. Merrell Dow Pharmaceuticals Inc. 509 U.S. 579 (1993)
43 VN Shukla, ‘Judicial Control of Delegated Legislation in India’, JOURNAL OF INDIAN LAW INSTITUTE, 357, 360,
(1959)

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giving the excessive powers to the authorities by giving them discretion in various
matters. However, the legislature cannot abdicate its legislative functions, and when
delegating its powers, it must ensure that the executive does not become a parallel
legislature. It is possible for the working out of details to be delegated to the
executive, as long as the broad policy is laid down and standards are established, such
that the executive can operate within prescribed limits. 44 Moreover, in addition to
excessive delegation of legislative powers, the conferment of authority to pass
administrative orders would be violative of Article 14 of the Constitution, if “such
conferment is without guidance, control or checks”.45
Furthermore, Section 4 envisages two levels at which these measurements will be
stored, preserved and shared. The State government and Union territory
Administration to notify the appropriate agency to collect, preserved and share the
measurements in their respective jurisdiction. 46 With respect to the Central level the
National Crime Records Bureau shall collect, preserve, store, process and share and
disseminate such records with any law enforcement agency in such manner as may be
prescribed. 47 Again there is same concern, that there is no guidance provided to them
on the basis of which these powers are to be exercised and regulated.
Excessive delegation of legislative authority
Section 8 gives the power to the Central government and the State government to
make rules in regarding the manner of taking measurements48, Collection, storing,
preservation and sharing, dissemination, destruction and disposal of records. 49 The act
does not provide any legislative guidance for the rules to be framed. Delegation of
legislative power is invalid in the absence of specific guidance in the parent statute as
to the standards or criteria or principles in terms of which the rule-making powers
delegated to subordinate authorities are to be exercised.50 In addition to that, this
section has given the power to the Central and the State governments to make rules
regarding “any other matter” prescribed or in respect of which provisions are to be
made. There is no limitation on the power of taking, collecting, processing, storing,
destroying, sharing and disseminating all measurements and their records, or even an
44 Re Delhi Laws Act et, AIR 1951 SC 332.

45 Subramanian Swamy v. CBI (2014) 8 SCC 682.
46Supra Note 22.
47The Criminal Procedure (Identification) Act, 2022, § 4(1), No. 11, Acts of Parliament, 2022 (India).)
48The Criminal Procedure (Identification) Act, 2022, §3 & 6(1), No. 11, Acts of Parliament, 2022 (India).
49Supra Note 47.
50 Hamdard Dawakhana v. Union of India, AIR 1960 SC 554.
10

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indication of the broad contours within which the powers are to be exercised- in
addition to a complete lack of safeguards under the bill. 51
Here, the major concern is that there is no mention of the purpose for which the
records are created and stored; for which purpose they can be shared, disseminated or
accessed; what kind of analysis will be done from them and by whom; the powers and
functions of NCRB; the period of possessing these records; process and grounds for
the removal of these records and how these records are going to be stored and shared.
The records can be retained digitally for 75 years from the date of collection. The
records can be destroyed and not the measurements and that too in only those cases
where, after the exhaustion of legal remedies, there has been acquittal. Discharge or
release of the accused and the accused has not been previously convicted of an
offence.52 However, there is no mention of any procedure by which the destruction of
the records can be applied for. This indicates that there is no compulsion of the
destruction of records even after 75 years and they can be retained for longer period
than 75 years. These are some of the important disciplinary safeguards that need to be
provided for in the parent act itself to prevent presupposition of arbitrary power
through the rules framed by the executive.
Excessive grant of discretion to functionaries
A law that restricts fundamental rights must be sufficiently clear and precise in terms
of the extent, scope and nature of the interference allowed, along with the presence of
sufficient safeguards to prevent abuse of powers by authorities. 53 Grant of discretion
by itself, is not a matter of concern as long as there are guidelines governing the
exercise of discretionary powers. However, discretion which is absolute and
uncontrolled degenerated into arbitrariness. Section 3 and section 5 have the given
excessive discretion to the police officers and Magistrates respectively.
The police officer of the rank of head constable and above or officer in charge of the
police station can collect the measurements. 54 Section 53 of the CrPC, which provides
for the examination of accused by a medical practitioner at the request of a police
officer, requires the police officer to at least be satisfied that there are “reasonable
grounds for believing that an examination of his person will afford evidence as to the
commission of an offence”, having regard to the nature of the offence and the
51Ibid.
52SupraNote 23.
53Shreya Singhal v. Union of India, (2015) 5 SCC 1.
54The Criminal Procedure (Identification) Act, 2022, § 2(1)(c), No. 11, Acts of Parliament, 2022 (India).
11

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circumstances of its commission. This act does not require even this threshold level of
satisfaction before police officers can take measurements of the persons covered
under section 3.55 The prison officers and police officers can take measurements “of
so required”. 56 It is their discretionary power and the officer have full freedom to
decide when it is required to take measurements, paving the way for the
discrimination. Since the scope of the measurements has been extended in the present
act to “finger-impressions, palm-print impressions, foot-print impressions,
photographs, iris and retina scan, physical, biological samples and their analysis,
behavioural attributes like signatures, handwriting etc., the unguided discretion of the
police or prison officers may lead to the misuse of the data.
The magistrate may make an order to a person to give measurements, if he is satisfied
that it is expedient to direct any person to give measurements under this act for the
purpose of any investigation or proceeding under the CrPc, 1973 or under any other
law.57 This power was available in the 1920 act as well but now the discretionary
power of the magistrate has expanded as the ambit of the measurements has been
widened considerably under this act. Also, in the 1920 act, the measurements could be
taken of persons who are or were at some time “arrested in connection with such
investing or proceeding” and were the persons of interest in the given case. Whereas,
in the present act, section 5 applies to “any person” for the purpose of not just
investigating under the CrPC but “any other law for the time being in force”, which
has broadened the scope of this provision and thereby increased the scope of
discretionary powers.
2. Clearly arbitrary provisions
This act does not reveal any hypothesis or regulating principle and thus is clearly
arbitrary. The test of manifest arbitrariness has been established as a separate ground
for invalidating parliamentary legislation under Article 14. A legislation is manifestly
arbitrary if the same is done by the legislature capriciously, irrationally and/or without
adequate determining principle and is excessive and disproportionate. 58
The bill does not disclose a basis for determining from whom measurements can be
taken under the bill. The persons who have been arrested and who have been detained
55 STATIC SQUARE,
https://static1.squarespace.com/static/5a843a9a9f07f5ccd61685f3/t/6246bd9d8ccac84dd8c11f3e/1648803256217
/P39A+Brief+-+Criminal+Procedure+%28Identification%29+Bill%2C+2022.pdf. (last visited March 3, 2023)
56Supra Note 12.
57Supra Note 14.
58 Shayara Bano v. Union of India, (2017) 9 SCC 1.
12

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will have to give measurements only if the officers feel that it is required. There are
no specific criteria for such requirement as there is no determining principle behind
taking the measurements of some persons and not others.
The measurements can be taken of any person irrespective whether they are arrested
or are persons of interest in any criminal proceedings. 59 However, only those person’s
measurements can be destroyed who have been acquitted, discharged or released
without trial. 60 The persons who are not involved in criminal proceedings are subject
to greater degree of infringement of their right to privacy then the unconvicted
suspects who were at some point arrested for an offence. 61
Any person arrested for an offence committed against a woman or a child or for any
offence punishable with imprisonment for a period not less than seven years may be
obliged to allow taking of his biological samples. 62 A classification must be
reasonable to pass the constitutional test of Article 14, i.e. the classification must be
founded on intelligible differentia distinguishing one class from another; and the
differentia must have a rational nexus to the object sought to be achieved by the Act.63
Therefore in the present provision, there is no rational nexus between the
classification based on gender/age of the victim for the requirement of biological
samples, and the purposes of the investigation.
B. VIOLATION OF RIGHT AGAINST SELF-INCRIMINATION

The scope of measurements has increased considerably in the act. The measurements are to
include “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.”64 The “behavioural attributes” is a
vague term and the authorities can go overboard with its scope. It is open for the
functionaries to include the measurements of testimonial nature. “Behavioural attributes” as
measurements may be coercively taken from a person by making use of a compelled
psychiatric evaluation. Such evaluation, when it leads to any incriminating admission, would
59Supra Note 14.

60Supra Note 23.
61Supra Note 55.
62The Criminal Procedure (Identification) Act, 2022, Proviso § 3, No. 11, Acts of Parliament, 2022 (India). 3
63 Shri Ram Krishna Dalmia v. Justice S. Tendulkar, AIR 1958 SC 538
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constitute a ‘testimonial compulsion’. 65 They may also include narco-analysis, polygraph

tests, or brain mapping, which were prohibited by the Supreme court. 66 This implication is
further strengthened by the fact that the provision is phrased as an inclusive definition. The
Supreme Court has, across a line of cases, held that inclusive definitions are understood as
intended to enlarge and add to the ordinary meaning of words, especially in cases where the
extended statutory meaning may not fall within the ordinary or natural meaning. 67
Therefore, we can say that this provision is against the right against self-incrimination in
India provided under Constitution, which states that- “No person accused of an offence shall
be compelled to be a witness against himself”. 68 Whereas, this provision gives the powers to
the functionaries to compel the persons to witness against themselves.
C. VIOLATION OF RIGHT TO PRIVACY UNDER ARTICLE 21

The right to privacy as a fundamental right is protected under Article 21 of the Indian
Constitution. Informational privacy including biometric and other personal data is also within
the right to privacy. Retention of data which constitutes private information, amounts to an
interference with the right to privacy. 69 The infringement of right to privacy is constitutional
only if it satisfies the four-fold test of proportionality, which is as follows-
1. Legitimate aim, ensuring that the goal is ‘of sufficient importance to warrant
overriding a constitutionally protected right or freedom.’
2. Suitable means, implying thereby a rational connection between means and ends.
3. Necessity of means to be judged as follows:
 Identify a range of possible alternatives to the measure employed by the State.
 Examine the effectiveness of each of these measures in realising the purpose
in a ‘real and substantial manner
 Examine the impact of each measure on the right at stake
 Determine whether there exists a preferable alternative that realises the aim in
a real and substantial manner but is less intrusive on the right as compared to
the State’s measure.
65Supra Note 55.

66 Selvi v. State of Karnataka, (2010) 7 SCC 263
67 Ramanlal Bhailal Patel & Ors. v. State of Gujarat, (2008) 5 SCC 449 [23];
State of Maharashtra & Ors. v. Reliance Industries Limited & Ors., (2017) 10 SCC 713 [21];
Regional Director, ESIC v. High Land CoffeeWorks of P.F.X. Saldanha & Sons & Ors., (1991) 3 SCC 617 [3, 7].
68INDIA CONST. art. 20(3).
69 Justice KS Puttaswamy&Ors. v. Union of India, AIR 2017 SC 4161.
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4. Proportionality stricto sensu, which should avoid the concerns with ‘ad-hoc
balancing’ by judges by using ‘Brightline rules’, which implies conducting the ‘act of
balancing' on the basis of some established rule or by creating a sound rule. 70
This act satisfies only first requirement of proportionality as it has the legitimate aim of
improving investigation, detection and prevention of crimes but rest of the prongs remain
unsatisfied.
It does not show suitable means for achieving the legitimate aims as it compels a large class
of persons to provide measurements. There is lack of rational nexus between the provisions
of the act and the legitimate aim supported by it.
The assessment of the necessity of the specific framework of collection and storage of
measurements can be contemplated in the following prongs-
i. The Act’s coverage is extensive- the act includes an extensive class of

persons who can be compelled to provide measurements regardless of the
seriousness and character of the offence. These persons include, all
persons convicted of any offence and possibly ex-convicts, persons
detained under any preventive detention laws and arrestees.71 The act does
not classify the basis of the nature of the offence, in assessing whether it is
of such a nature that investigation requires the measurements of the
person. The power of the magistrate to order the taking the measurements
of any person not only under CrPC but any other law in force is also
overbroad. An extensive database does not in and of itself translate into
better crime prevention, investigation and prosecution. 72
ii. The act does not limit the time-span for the storage of the measurements as
well as record of the measurements- there is no proper procedure provided
in the act to apply for removal or deletion except in the context of the
acquittal, discharge or release of persons without any criminal
antecedents.73 Even for such classes of people, NCRB is tasked with the
responsibility of destruction of record of records but the procedure for
such destruction is not very clear and the measurements cannot be
70Ibid.
71Supra Note 12.
72 Gaughran v. United Kingdom 45245/15.
73Supra Note 24.
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destroyed at all. However, the records can also be retained for more than
75 years. In Aycaguer v. France, 55 a period of 40 years was interpreted as
“indefinite storage, or at least as a norm rather than a maximum”. The state
notified agencies have been given the responsibility of collecting,
preserving and sharing the measurements themselves. 74 Since, these
measurements include sensitive information like biological samples, and
there is no specific provision for their destruction, they can be undoubtedly
misused.
iii. The act contains no procedural safeguards to minimise the infringement of
privacy- as explained above, the act leaves out certain procedural
safeguards or has given excessive discretion to the rule-making bodies. It
does not specify the purpose of using, sharing and disseminating the
records. The functionaries are not provided with any guidance regarding
the manner of collection of measurements, on the period for which records
and measurements may be stored, or the manner in which a person
resisting the taking of their measurements can be compelled to give them.
The act has a disproportionate impact on the right to privacy
The provisions of the Act provide for the collection of biometric information such as
fingerprints, iris and retina scans even of the persons who are not reckons in the criminal
proceedings (by the order of the Magistrate under section 5). The degree of intervention into
the private life of individuals indicates the serious violation of the right to privacy.
There is disproportion in the impact of the Act as there is no distinction between the convicts,
persons arrested or detained, and persons furnishing security under the Section 117 of CrPC
and on the seriousness of offence and the investigative needs in the case that a person is
involved in. Even if a rational nexus between severity of the offence and the risk of future
offending is assumed, it is notable that all measurements, excluding non-biological samples
can be collected and retained vis-a-vis persons implicated in a minor non-violent offence,
such as a traffic violation. This is not proportionate to the risk, if any, posed by the said
offender or to the aims of the investigative process and consequently, the need for future
investigation and identification.75
74Supra Note 22.

75Supra Note 55.
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The sensitive personal information of the persons can be retained for at least 75 years and
even indefinitely as there are no procedural safeguards for its destruction. This constitutes a
disproportionate restriction of individual’s right to privacy.
It can be concluded that “The Criminal Procedure (Identification) Act, 2022” violated the
right to equality under Article 14, the right against self-incrimination under Article 20(3) and
the right to privacy under Article 21 of the Constitution of India.
POSSIBLE SOLUTIONS FOR THIS ACT

The fulfil the objects of the object, the following amendments should be done-
i. There shall be clarity on the quality of measurements collected and storage of

records of measurements, how these measurements are to be processed with
relevant crime and criminal records. The manner in which the records can be
shared and circulated with the law enforcement agencies.
ii. A framework shall be provided to ensure the uprightness of measurements. The
database shall be regulated be administered and regulated by the NCRB and the
forensic experts guide the quality of the measurements collected for the database.
A systematized procedure shall be followed by NCRB to corroborate consistency
across the measurements.
iii. The Act should also include the safeguards against sharing of information to third
parties as NCRB also sees the working of AFIC (Automated fingerprint
identification System) and CCTNS (Crime and Criminal Tracking Network &
Systems). The NCRB lacks the expertise necessary to maintain even the minimum
standards that may be prescribed to ensure the integrity of the collected
records.NCRB employs IPS and/or IAS officers in positions of authority, even
with respect to the functioning of databases such as CCTNS and AFIC. 76 Since the
bill provides no guidance on the information sharing and creation and
maintenance of databases, there is high possibility that multiple databases may be
linked by NCRB which will violate an individual’s right to privacy.
CONCLUSION
The main objective of the Act is to improve the effectiveness and efficiency of the
investigations. The 2022 Act can undoubtedly bring the modern prisoner identification
76NATIONAL CRIME RECORDS BUREAU, https://ncrb.gov.in/en/importance-contact-number, (last visited

March 6, 2023).
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techniques. But there is possibility of abuse of power by the authorities, chances of self-
incrimination by the accused, data privacy, overlapping or conflicting legislation between
states and the Central government, etc. Furthermore, the presupposition that the aim of the act
can be achieved by collecting such extensive range of measurements and creating a wide
database is doubtful. The entire exercise of collection, preservation and storage of the
different types of measurements will create greater administrative burdens and may not
deliver on promised returns, making the creation of such database. This is unconstitutional as
it infringes upon the privacy of the persons. Moreover, Constitution has a transformative role
to aid an environment where rights are protected even for those who committed a certain
crime and not left at the mercy of executive supremacy. The Act takes a wriggling stroll on
the threatening thread of possibly opening barriers of legally commanded coercive actions
which could be the promoter of state-authorized abuse, imposed upon its people, overlooking
their fundamental rights instead of protecting them.
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REFERENCES
The following sources have been referred
STATUTES-
i. The Constitution of India

ii. The Criminal Procedure (Identification) Act, 2022
iii. The Criminal Procedure Code, 1973
iv. The Identification of Prisoners Act, 1920
v. The Indian Evidence Act, 1872
JOURNALS-
i. VN Shukla, ‘Judicial Control of Delegated Legislation in India’, JOURNAL OF

INDIAN LAW INSTITUTE, 357, 360, (1959)
ONLINE SOURCES-
i. LAW COMMISSION OF INDIA, “87th Report on Identification of Prisoners Act,

1920” (August, 1980),https://lawcommissionofindia.nic.in/51-100/report87.pdf.
(last visited March 5, 2023).
ii. NATIONAL CRIME RECORDS BUREAU, https://ncrb.gov.in/en/importance-

contact-number, (last visited March 6, 2023).
iii. PRS LEGISLATIVE RESEARCH,https://prsindia.org/billtrack/the-criminal-
procedure-identification-bill-
2022#:~:text=The%20Identification%20of%20Prisoners%20Act,including%20co
nvicts%20and%20arrested%20persons (last visited Feb 28, 2023).
iv. STATIC SQUARE,

https://static1.squarespace.com/static/5a843a9a9f07f5ccd61685f3/t/6246bd9d8cca
c84dd8c11f3e/1648803256217/P39A+Brief+-
+Criminal+Procedure+%28Identification%29+Bill%2C+2022.pdf. (last visited
March 3, 2023)
v. THE HINDU, https://www.thehindu.com/news/national/president-gives-assent-to-
criminal-procedure-identification-bill/article65335826.ece , ( last visited Feb 22,
2023).
19

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BILLS
i. The DNA Technology (Use and Application) Regulation Bill, 2019, No. 128,
Bills of Parliament, 2019 (India).
CASE LAWS
i. Alamgir v. State, (NCT) Delhi, AIR 2003 SC 282.

ii. Ameer Mohammed v. Harkat Ali, AIR 2002 Raj 406.
iii. Daubert v. Merrell Dow Pharmaceuticals Inc. 509 U.S. 579 (1993)
iv. Gaughran v. United Kingdom 45245/15.
v. Hamdard Dawakhana v. Union of India, AIR 1960 SC 554.
vi. Hari Om @ Hero v. State of Uttar Pradesh 2021 SCC OnLine SC 2.
vii. Ishwari Prasad Mishra v. Mohd. Misa AIR 1963 SC 1728; see also Sashi Kumar v.
Subodh Kumar AIR 1964 SC 529.
viii. Justice KS Puttaswamy&Ors. v. Union of India, AIR 2017 SC 4161.
ix. Mohd. Aman v. State of Rajasthan AIR 1997 SC 2960.
x. Murarilal v. State of Madhya Pradesh 1980 1 SCC 704.
xi. Ramanlal Bhailal Patel & Ors. v. State of Gujarat, (2008) 5 SCC 449 [23].
xii. Re Delhi Laws Act et, AIR 1951 SC 332.
xiii. Regional Director, ESIC v. High Land CoffeeWorks of P.F.X. Saldanha & Sons &
Ors., (1991) 3 SCC 617 [3, 7].
xiv. Selvi v. State of Karnataka, (2010) 7 SCC 263
xv. Shayara Bano v. Union of India, (2017) 9 SCC 1.
xvi. Shreya Singhal v. Union of India, (2015) 5 SCC 1.
xvii. Shri Ram Krishna Dalmia v. Justice S. Tendulkar, AIR 1958 SC 538
xviii. State of Maharashtra & Ors. v. Reliance Industries Limited & Ors., (2017) 10 SCC
713 [21].
xix. State of Uttar Pradesh and Ors. v. Sunil and Ors. AIR 2017 SC 2150.
xx. Subramanian Swamy v. CBI (2014) 8 SCC 682.
20

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Disentangling The Criminal Procedure Identification Act 2022 Palakdeep Kaur

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Disentangling- THE Criminal Procedure Identification ACT,

Studocu is not sponsored or endorsed by any college or university

DISENTANGLING THE CRIMINAL PROCEDURE

ARMY INSTITUTE OF LAW, MOHALI

UNDER THE GUIDANCE OF

Dr. AMRITA RATHI & Dr. KULPREET KAUR BHULLAR

PALAKDEEP KAUR, ROLL NO. 1979

CLASS- B.A. LLB, 4th YEAR,

SUBMITTED IN PARTIAL FULFILLMENT OF B.A. LLB

PUNJABI UNIVERSITY, PATIALA

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DATE: March 10, 2023

NAME: Palakdeep Kaur

ROLL NO.: 1979

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Date: March 10, 2023

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II. SCHEME OF THE CRIMINAL PROCEDURE (IDENTIFICATION) ACT, 2022 ... 3

III. PROVISIONS OF THE ACT AGAINST THE CONSTITUTION ............................ 9

A. VIOLATIONS OF THE RIGHT TO EQUALITY ................................................. 9

B. VIOLATION OF RIGHT AGAINST SELF-INCRIMINATION ........................ 13

C. VIOLATION OF RIGHT TO PRIVACY UNDER ARTICLE 21 ....................... 14

POSSIBLE SOLUTIONS FOR THIS ACT ..................................................................... 17

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 What is the scheme of the Criminal Procedure (Identification) Act, 2022?

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C. Scope of the Study

II. SCHEME OF THE CRIMINAL PROCEDURE (IDENTIFICATION) ACT, 2022

A. What does the Act seek to do?

B. What kind of measurements may be collected under this Act?

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G. The Identification of Prisoners Act, 1920 &The Criminal Procedure (Identification)

The Identification of Prisoners The Criminal Procedure

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Magistrate also in case of

H. Scientific and Legal validity of certain measurements

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IRIS 1,08,50,391 9,27,132 8.54%

III. PROVISIONS OF THE ACT AGAINST THE CONSTITUTION

1. Excessive delegation of the powers

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44 Re Delhi Laws Act et, AIR 1951 SC 332.

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B. VIOLATION OF RIGHT AGAINST SELF-INCRIMINATION

59Supra Note 14.

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constitute a ‘testimonial compulsion’. 65 They may also include narco-analysis, polygraph

C. VIOLATION OF RIGHT TO PRIVACY UNDER ARTICLE 21

65Supra Note 55.

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i. The Act’s coverage is extensive- the act includes an extensive class of

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The act has a disproportionate impact on the right to privacy

74Supra Note 22.

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POSSIBLE SOLUTIONS FOR THIS ACT