Legality of biometric data collection for investigation

The Criminal Procedure (Identification), Bill, 2022 has stirred up a hornet's nest over the proposed collection of biometric data of an accused, convict, or suspect. Privacy advocates have raised the red flag over the proposed legislation alleging that it may give rise to the human rights violation. The bill introduced in the Lok Sabha seeks to repeal the colonial-era legislation – "The Identification of Prisoners Act, 1920," currently in force. The statement of objects and reasons of the bill explains that the current Act was enacted to authorize the taking of measurements and photographs of convicts and other persons. The term "measurements" used in the Act is limited to allow for the taking of finger impressions and footprint impressions of a limited category of convicted and non-convicted persons and photographs on the order of a Magistrate. It is the ambit of the category of persons from whom biometric data would be collected, stored, and used for solving criminal cases under the proposed legislation which is being viewed as problematic by its opponents. The proposed legislation seeks to authorize police and prison officials to collect biometric data from a person who has been convicted, undergoing trial, an accused, suspect, detained in case of an alleged violation of law or anyone whom the law-enforcing and investigating agencies suspect, may indulge in violation of law in future. Justifying the expansion of the ambit of "measurements" to be collected from these categories of persons, the bill states that new ''measurement'' techniques being used in advanced countries are giving credible and reliable results and are recognised the world over. The current Act does not provide for taking these body measurements as many of the techniques and technologies had not been developed then. It is, therefore, essential to make provisions for modern techniques to capture and record appropriate body measurements in place of existing limited measurements, says the bill. New measurements defined under the proposed law include finger impressions, palm-print and foot-print impressions, photographs, iris and retina scan, physical, biological samples and their analysis. It seeks to empower the National Crime Records Bureau to collect, store, and preserve these biometric data and to share, disseminate, destroy and dispose of records. It will empower a magistrate to direct any person to give measurements and empower police or prison officer to take measurements of any person who resists or refuses to give measurements. Resistance to or refusal to allow the taking of measurements under the proposed law shall be deemed to be an offence under section 186 of the Indian Penal Code which will criminalize any act of refusal to provide such biometric data which has raised hackles among the opponents of the bill. The Central Government, as a proponent of the bill, justifies the expansion of the scope and ambit of "measurements" and the category of person whose "measurements" can be taken on the premise that it will help the investigating agencies to gather sufficient legally admissible evidence and establish the crime of the accused person. The proposed law also seeks to provide impunity to those authorized by it and states that "no suit or any other proceeding shall lie against any person for anything done or intended to be done in good faith under this Act or any rule made thereunder." Opponents of the bill including members of the Opposition Bench in the Lok Sabha have alleged that the bill is violative of Article 20 (3) of the Constitution which states that no person accused of an offence shall be compelled to be a witness against himself. The Supreme Court, however, held the view that Article 20(3) does not say that an accused person shall not be compelled to be a witness. It says that such a person shall not be compelled to be a witness against himself. The question, therefore, arises, the SC says, is: Is an accused person furnishing evidence against himself, when he gives his specimen handwriting, or impressions of his fingers, palm or foot? The apex court says the answer to this question in its opinion, must be negative. It elaborated the law point explaining that the evidence of specimen handwriting or the impressions of the accused person's fingers, palm or foot, will incriminate him, only if on comparison of these with certain other handwritings or certain other impressions, identity between the two sets is established. By themselves, these impressions or the handwritings do not incriminate the accused person or even tend to do so and when an accused person is compelled to give such specimen it may be said that he has been compelled to be a witness; it cannot however be said that he has been compelled to be a witness against himself, the SC said. The proposed legislation has revived the debate over the contentious issue of biometric data collection for crime investigation.