The Right to Privacy and the Indian Criminal Procedure (Identification) Bill – JURIST – Commentary

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Bhavya Agarwal, penultimate student at Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapith Rajasthan in India, discusses the legal privacy implications of India’s recent Criminal Procedure (Identification) Bill…

The Criminal Procedure (Identification) Bill, 2022 was passed by the Parliament of India on April 6, 2022. It is the replacement of the colonial law i.e. the Prisoners Identification Act, 1920. The newly introduced bill calls for the collection of biometric data from convicted prisoners.

It allows police and prison officers to collect biometric data from inmates. This will include fingerprints and footprints, photographs, iris and retina scans, and other physical and biological samples. The bill is more intrusive in the personal lives of prisoners. The collection of personal data violates Article 21 of the Indian Constitution. The Bench of Justice At Bhushan, At Khanwilkar, At Sikri and D Misra decided in the case of Justice KS Puttaswamy (Ret.) & Anr. v. Union of India & Ors. (2017) that the right to privacy and personal dignity is considered an integral part of the right to life and part of the freedom guaranteed by Part III of the Indian Constitution. Said bill does not comply with the aforementioned Supreme Court ruling.

The bill essentially authorizes competent authorities to collect signatures and handwriting, or any other scheduled examination Section 53 or 53A of the Code of Criminal Procedure, 1973. This can result in power-centric sovereign rule. The plight of Indian citizens is that he leaves no personal space for the people. Providing biometric data to public officials violates their right to privacy. The exercise of absolute power by the government can lead to the corruption of social and political systems

Going further, the word “shall” in section 3 of the bill highlights the compulsion of a convicted person to provide their data to officials. There is no option for the voluntary consent of prisoners. The lack of strong data protection laws is the major problem in our society. It may even result in the loss of collected data and the repercussions of the same will lead to several misuse of information. Society is the mixture of criminals, delinquents and innocents. And everyone should have access to basic humanitarian law. This bill violates the fundamentals of life, including security and safeguards against executive operations. A country’s legal system should be for the people, of the people and by the people. The recently passed bill does not aim to secure people or provide them with basic dignity. Any legislation passed by Parliament is for “everyone”, including criminal offenders. Even prisoners have the right to live their lives. The constitutional values ​​of liberty, equality, fraternity and justice do not exclude the rights of prisoners.

The insecurity of losing personal data can cause these people to suffer from mental trauma and other disorders. In accordance with the rule of law, it is the duty of the sovereign to protect every citizen against any form of violation of human rights. People who survive in a democratic country elect their representatives thinking that they will benefit. This bill can help authorities keep records or compile a history of repeat offenders. But it can violate the rights of prisoners who are charged through the criminal justice system and not convicted under any law. The legislature of the Republic of India should bear in mind that India is a signatory to the International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966 and is required under Article 2(2) to guarantee economic, social and cultural rights to every citizen, regardless of any grounds of discrimination. Thus, detainees must also benefit from all rights.

The Amendment Bill 2022 endangers citizens by making authoritarian rule arbitrary. The affair of EP Royappa c. State of Tamil Nadu AIR 1974 SC 555, viewed the concept of equality as dynamic and ruled that it cannot be confined, locked up and boxed in. Convicted persons must also be granted rights by judicial decisions as a precedence under the legislation. This will allow freedom to break out of traditional and doctrinaire limits.

In addition, the bill needs to be properly scrutinized by lawmakers, legal scholars, and jurists. The study of jurisprudential values ​​and the teachings of John Austin, an English legal theorist, should be given to all legislators and decision makers. The concept of natural law and philosophy behind its origin is that law and morality are two different aspects. Legal positivism speaks of an analytical and reasonable approach to the science of legal origin. All of the above issues, including privacy, the personal dignity of individuals, and the risk of rising autocratic totalitarianism for prisoners, can be resolved if the origin of nature and theory of law is taken into account. .

Privacy rights, as discussed in the case of Maneka Gandhi v. Indian Union AIR 1978 SC 597 are deliberately extended by the Court. The view was to expand the scope and reach of fundamental rights rather than watering down their meaning and content through a process of judicial construction. Lawmakers and policy makers should subject themselves to empirical and in-depth research on the judgments rendered by the various High Courts and Supreme Courts. The CrPC Amendment Bill 2022 should be drafted in accordance with judgments, constitutional values ​​and human rights. This will provide fundamental freedom to all citizens, including convicted or arrested prisoners. For the same, an effective and efficient review of the bill must be done to establish the ideals of liberty, equality and freedom.

Bhavya is a penultimate year student of BA LL.B. (FYIC) Program at Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapith, Rajasthan, India. She is primarily interested in human rights issues with particular emphasis on criminal and constitutional law. Currently, she is an intern with the Chambers of Rebecca Mammen John, Senior Advocate, Supreme Court of India. His articles have appeared in Weekly Mainstream, Outlook and India time.

Suggested quote: Bhavya Agarwal, Right to Privacy and Criminal Procedure (Identification) Bill in India, JURIST – Student Commentary, May 6, 2022, https://www.jurist.org/commentary/2022/05/ bhavya-agarwal-india-criminal-procedure-identification/.


This article was prepared for publication by Katherine Gemmingen, co-editor of comments. Please direct any questions or comments to him at [email protected]


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