India’s criminal justice system is changing. The legal edifice built by the British is being replaced brick by brick, with laws in tune with modern times and Indian conditions. Interior Minister Amit Shah and Law Minister Kiren Rijiju are the architects and have been thinking for a year to bring about this paradigm shift. Emphasis is on the Indian Penal Code (IPC), 1860; the Code of Criminal Procedure (CrPC), 1973; and the Indian Evidence Act, 1872.
On April 18, President Ram Nath Kovind gave his assent to the Criminal Procedure (Identification) Bill 2022, ushering in the first major change. Opposition parties and critics called the legislation “draconian” and “unconstitutional”, and said it could be used to create a police or surveillance state. Policymakers and law enforcement, on the other hand, have called it a progressive law that puts Indian agencies on par with their counterparts in the US or UK.
The US Federal Bureau of Investigation, for example, has a centralized database of shoe prints. “The US Secret Service today has a database of almost every item. Digital prints are available for everything from a shoe and mural to a deleted tweet,” said Muktesh Chander, former director from the National Critical Information Infrastructure Protection Center in Delhi, principal responsible for IPS.With this, detectives can match shoe prints at crime scenes with their central database, identifying the makers and when that particular shoe was sold from which outlet in which part of the country.
“India needs to keep pace with the changing times where the big five tech giants like Google already have a database of individuals,” Chander said. “We’ve only taken a small step in that direction.”
He added that the new law would help the government achieve the “one nation, one database” mantra in which the National Intelligence Grid (NATGRID) and Crime and Crime Tracking Networks and Systems (CCTNS) – which link data records at every police station in the country – will get a wider range of details, including even sweat and cum matches in cases where the offense carries a prison sentence of more than seven years.
Currently, different government agencies maintain different details. For example, the electoral commission and passport authorities have photographs of citizens, and the Aadhaar database contains iris scans. During the 2020 Delhi riots, Delhi police had asked the Election Commission to access their voter rolls to match faces captured by CCTV cameras. After public outrage, the commission had to clarify that it followed legal guidelines to help the law enforcement agency. A senior Home Office official said the IPC and CrPC allow the government to seek information from other departments on national security matters.
YC Modi, former head of the National Investigation Agency, said the new law would certainly help in a speedy investigation. “Crime is a dynamic situation and criminals adopt new methods every time,” he said.
The NIA’s investigation into the 2019 Pulwama terror attack had started as a blind case in the absence of any evidence against the perpetrators. The agency collected more than 4,000 fingerprints, but did not have a corresponding national database to compare. Finally, he used DNA profiling and other forensic tests to identify Adil Ahmad Dar as the suicide bomber who rammed the explosive-laden car into the Central Reserve Police Force convoy. Biological traces were the only evidence left at the scene of the carnage.
“A lot of information is already available from government and law enforcement agencies directly or indirectly,” said ML Sharma, former special director of the CBI. “So the issue is not who will have access to it, but rather what type of personal information should they access bearing in mind the nature of the crime. It is this thin line that makes the law draconian.
He said, however, that the constitutional validity of the current law could not be questioned. “There is no doubt that privacy is a fundamental right, but it is not absolute and is subject to the precepts of public order and public peace,” he said.
Where the law falters, Sharma said, is that it allows actions like fingerprints and retina scans to be taken in all, even the smallest offences. “The law states that only biological samples cannot be taken for less serious offences,” he said. It could intrude on citizens’ privacy, he added.
The Identification of Prisoners Act 1920, which has been repealed, only covered offenses punishable by at least one year in prison and included only fingerprints, footprints and photographs. “The current law may be conducive to public order, but the harshness of this law should only be applied to serious offenses which are punishable by knowledge and punishable by imprisonment for three years or more,” Sharma said.
Prashant Mali, a cybercrime lawyer at the Bombay High Court, said under the new law a person’s actions can be used against them in a trial. However, Article 20(3) states that a person cannot be compelled to testify against himself.
Also, if a person is released on bail, they can still be arrested if they refuse to provide the measures according to the new law, he said. “The purpose of the bail provisions will be defeated,” he said.
Experts also believe that the implementation of these provisions would be a burden on the police in common cases. It would also entail considerable public expenditure with no corresponding gain for public peace.
Former Home Minister GK Pillai recalled that the collection of biometric data for the Aadhaar database had to be abandoned a few years ago as the technology was not readily available in all centres. There were also authentication and storage issues.
“Finally, the new law must also be in line with the proposed data protection law which aims to raise awareness among citizens of their right to consent in the ever-changing digital ecosystem. Liability will have to be fixed against the use misuse or leakage of personal data,” he said. The government will also have to specify what kind of measures will be kept for 75 years, which could last the life of the accused.
The devil is in the details. Says Pillai: “Technology alone cannot control crime. So while the new law will provide a tool for police forces and central agencies to track criminals and crack cases, lawmakers and law enforcement must also focus on restoring the credibility of institutions using these tools.
Interagency rivalries, battles between central states, and the leaking of critical details in sensitive cases are some of the ills plaguing the criminal justice system today. A glaring example is that almost all opposition-led states have withdrawn their consent for the CBI to investigate cases in their states. “The bill is very broad and ambiguous and can be misused by the state and the police. It is against the right to be presumed innocent until proven guilty,” the congress leader said. , Manish Tewari.
Says Pillai: “The trust gap between the Center and the states must first be bridged, and the central agencies must earn the trust of the people to successfully implement any law.”