Apart from aiding in the investigation and trial process, experts believe that the Bill will also end police atrocity and bring transparency
In a world where information is power, the untapped mysteries of one’s DNA can make for a potent weapon. As a result of which several senior world leaders who visited Moscow in the last few months for diplomatic discussions, refrained from getting tested for COVID-19 in Russia.
If murmurs around the intelligence corridor are to be believed, the French head of state was kept at a distance from Russian leaders during a lengthy conversation over the Ukraine crisis in a meeting held in Kremlin in February. All this because French President Emmanuel Macron refused to take a Russian COVID-19 test.
Just after this incident, before meeting with Russian President Vladimir Putin, German Chancellor Olaf Scholz refused to take the PCR test given by the Russian side. Scholz opted to take the PCR test required for Kremlin entrance with a German doctor at the German Embassy in Moscow.
International relations and intelligence experts believe access to such sensitive information is a useful addition to the arsenal in the high-stake arena of national security and international espionage.
However, the Indian Parliament is facing a heated debate over privacy and misuse of sensitive data which will now be collected under the Criminal Procedure (Identification) Bill, 2022 passed in Lok Sabha on 4 April.
Citing invasion of privacy, excess state surveillance and misuse of sensitive data, opposition parties are objecting to the contentious bill which gives legal sanction to police to obtain physical and biological samples of convicts and detainees for investigation in criminal matters.
The bill proposes allowing law enforcement and prison officials to collect, retain, and analyse physical and biological samples, such as retina and iris scans.
According to the text of the Bill, it is “to authorise for taking measurements of convicts and other persons for the purposes of identification and investigation in criminal matters and to preserve records and for matters connected therewith and incidental thereto”.
Section 2(1)(b) of the Bill defines “measurements” to include finger impressions, palm-print impressions, footprint impressions, photographs, iris and retina scans, physical and biological samples and their analysis, behavioural attributes including signatures and handwriting, or any other examination referred to in Section 53 or Section 53A of the Code of Criminal Procedure (CrPC), 1973. Section 53 relates to the medical examination of a person arrested.
However, legal, cyber experts along with law enforcement agencies are backing the amendments under the new bill claiming it is the ‘need of the hour’.
Updating the evidence gathering process
Senior Supreme Court lawyer and cyber law expert Karnika Seth said the Criminal Procedure Identification Bill 2022 permits law enforcement to take appropriate body measurements of accused persons who are being investigated for committing crimes. This includes finger impressions, palm and footprint, etc. which will require stringent data security measures to be put in place.
Former Uttar Pradesh DGP Vikram Singh said, “Criminal Procedure (Identification) Bill is a successor to the Prisoner Identification Act 1920. The world has changed, and crime and criminality have changed. What worked yesterday will not work today. There are a whole lot of innovations and applications of technology in the world of crime. And the policing has taken a backseat – it has not been able to cope up with the modus operandi of high tech criminals like mafia crime syndicates, drug suppliers, human traffickers and terrorists.”
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Singh said that a database lasting for 75 years is not an option but a compulsion in today’s times. He explained, “The admissibly low conviction rate is a speaking testimony to the fact that investigating agencies are way behind the technology used by criminals. This will be a boon to investigators allowing them to present evidence in court, irrespective of the fact that the witness may turn hostile or may even die. But the scientific evidence will remain for all time and therefore the investigating agency would be on a sound legal and moral pedestal.”
Data collection: An invasion of privacy?
The government has also stated that those who have not been convicted or arrested for crimes against women or children, or who are in detention for an offence punishable by less than seven years, have the right to decline to provide biological samples.
According to the Bill, even if such data is collected from the accused, it can be removed from the records until a magistrate in writing directs otherwise after the accused is released without trial, dismissed, or acquitted by a court.
“In the matters pertaining to the right to privacy, no fundamental right is absolute. There have to be reasonable restrictions when the requirement of society and national security is there. And therefore there’s a safeguard that if a person is exonerated his/her data will be deleted. Therefore, nobody can have an apprehension that he is being maligned,” Singh said.
Highlighting the legal aid, Seth said National Crime Records Bureau (NCRB) is empowered to collect and store records and dispose of records. The bill empowers the magistrate to direct any accused person to give measurements who resists such action. A person may refuse to give voice samples or biometrics data, such provisions could come to aid and assist the investigation. However, in my view, such provisions should only be exercised in case of serious offences where punishment is more than three years.
According to the Bill, the biological data obtained will be transferred to the NCRB “in the interest of prevention, detection, investigation, and prosecution of any offence under any legislation currently in force.”
The NCRB can collect the record of measurements from the concerned state government or Union Territory Administration, as well as any other law-enforcement agency, and will have the authority to store, preserve, and destroy such records at the national level, as well as share and disseminate such records with any law-enforcement agency.
PDP bill to bill to strengthen data protection
“The provisions of the bill need consistency in PDP bill, which is underway and robust industry practices to secure sensitive personal data need to be infused into the data protection regime in India. Data of the accused ought to be protected in a dedicated and secure Indian server,” Seth said.
Another cyber lawyer Nisheeth Dixit said that in the absence of a long-delayed data protection framework, the proposed bill raises concerns about preserving subjects’ data rights and the risks of profiling. “Any encroachment on personal space must pass the Supreme Court’s constitutionality test. It is critical for the state to address the gaps and ambiguities in the law as soon as possible,” Dixit said.
Better policing and trials
“The main issue here is the collection of data versus the prevention of crime. In the domain of data analytics, data is being captured using tracking systems, artificial intelligence, facial recognition, biometrics etc. – for safety procedures. In terms of evidence gathering, it becomes vital as judgment is passed based on the evidence and facts presented in court. How will you prove that a certain person was present at the crime scene, the fingerprints found are his and so on – so for prevention of crime, the bill could prove useful,” Dixit added.
Explaining the importance of biological evidence, Delhi based cybercrime expert Amit Dubey said, “The provision under the new act has been long anticipated. It correctly replaces an old Act that had grown obsolete. There have been many instances where police are completely in the dark due to the lack of such scientific evidence. The collection of such data would give them a deep insight into the crime scene and another important element of the investigation and evidence gathering process. Many cases would easily be solved and disposed of if the proposal is implemented.”
Mentioning the ZIPNET project – a platform to identify dead bodies and missing persons, Nisheeth Dixit said that it is a classic example of the best usage of scientific and personal data. Many unidentified bodies and missing persons were identified by using their biometric data.
Apart from aiding in the investigation and trial process, Vikram Singh highlighted that the Bill will also end police atrocity and bring transparency. “With the implementation of the Bill the third-degree used by cops will also come down because the application of scientific investigation is the surest means to ensure fair, reasonable, scientific methods of investigation. The corruption and malpractices will also go down.”
International protocols
Singh explained the provisions under the bill are much more lenient to the rules followed by federal agencies in the US and South Africa. “US’ PATRIOT Act was passed in response to the September 11, 2001, terrorist attacks that significantly expanded the search and surveillance powers of federal law enforcement and intelligence agencies. Both the FBI and CIA manage tremendous databases. Similarly, South Africa has compiled and managed a huge database of convicts,” Singh said.
Amit Dubey, who assists many law enforcement agencies in investigating technical cases, said international law enforcement agencies in the UK, the US and many other democratic countries have a huge data bank including DNA profiles of criminals and accused. These data help them in analysis and further investigation.
Sharing examples of the United States, Nisheeth Dixit also added that the US tracks paedophiles, and sexual offenders, by putting GPS trackers and biometrics.
“While the word ‘biological samples’ is not defined further, it could refer to bodily invasions such as blood and hair drawing and DNA sample collection. But, there has to be more clarity on the term and severity of crime, behaviours, attitudes and how it will be covered under one definition,” Dixit said.
The writer is founder and editor of The 420, a portal that aims to make India digitally empowered and save each citizen from becoming a victim of cybercrime. Views expressed are personal.
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