It empowers police, governments to conduct such intrusive investigations with little accountability and few legal guidelines
Written by Aditya Sharma , Christophe Jaffrelot |
Updated: April 5, 2022 9:05:44 am It is common enough for law-enforcement agencies the world over to collect personal data from people they arrest and convict. But two issues particular to the Indian context make this Bill disturbing.
On March 28, the government introduced the Criminal Procedure (Identification) Bill in the Lok Sabha, seeking to replace the Identification of Prisoners Act, 1920 which regulates how the police can gather data from convicted or suspected criminals. The Bill exemplifies the current trend to pass laws that are filled with ambiguity and lack safeguards. It also reflects a desire to expand the power of the government to interfere in the lives of citizens.
If the Bill were passed, the type of data collected by the police would shift dramatically, from basic fingerprint and footprint impressions to a range of other samples, including iris and retina scans, behavioural attributes, and “biological samples”. The National Crime Records Bureau would hold the collected data for 75 years. Rule-making power in this arena, currently vested only in state governments, would be extended to the central government. More importantly, the Bill would entirely reshape the remit of law-enforcement officers to gather personal data. While the present law’s provisions apply only to convicts, those who are out on bail or those arrested for serious crimes, the Bill extends this wanton collection of data not only to all convicts, but also to anyone who is arrested or detained, and even people who are merely “suspected” of committing a crime or are deemed “likely” to do so.Must Read Opinions
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It is common enough for law-enforcement agencies the world over to collect personal data from people they arrest and convict. But two issues particular to the Indian context make this Bill disturbing. First, the Government of India has repeatedly demonstrated a crippling fear of dissent and a willingness to wage open warfare against its opponents – presented, lately, as enemies more than adversaries. If the Bill were enacted, nothing would stop the police from, say, detaining protestors and collecting their personal data to use against them at a later date. Considering the way law enforcement has used such methods in the past, notably against crowds who were peacefully protesting the Citizenship Amendment Act in Delhi and Uttar Pradesh in 2019-20, such a law would encourage this kind of behaviour, and further erode the already scant safeguards that exist against the government’s intrusion into citizens’ lives. The chilling effect of such a law would be severe. The Bill’s widening of the present law’s scope, giving the police a free hand to gather personal data from more or less anyone they choose, proves that this fear may not be unfounded.
Second, India’s privacy rules are threadbare. The GoI’s casual approach was most recently exemplified by the controversy surrounding the paucity of safeguards built into Aadhaar, as well as the numerous failures of the Aarogya Setu contact-tracing app. Although the Supreme Court’s Puttaswamy decision in 2017 established privacy as a fundamental constitutional right, the process to draft and introduce national data protection legislation has dragged on for years.
Following the Supreme Court’s 2017 verdict, the state formed a committee chaired by Justice B N Srikrishna to deliberate on a law to protect privacy. In July 2018, the Justice Srikrishna Commission published its report and prepared the first Personal Data Protection Bill (PDPB). However, the version that was subsequently drafted by an ad hoc Joint Parliamentary Committee was so disrespectful of the Commission’s work that Justice Srikrishna declared, in December last year, that it “enhanced” the danger to the fundamental right of privacy and even had “Orwellian” dimensions. Indeed, the new name of the Bill now includes “national security” as one of its objectives – and this is one of the reasons why privacy has been so diluted.
Justice Srikrishna pointed out that the Bill allows the Centre to exempt any of its agencies from the provisions supposed to protect privacy – in the name of security. He also argues that the “Data Protection Authority” is “entirely captive to the government and cannot be said to be an independent regulator”. The Bill shows that the government has no serious intention of passing comprehensive privacy rules, let alone adhering to them – another cause for worry when assessing the possible ramifications of the new Criminal Procedure Bill.
The Bill has met severe criticism from several quarters. The Opposition has slammed the proposal, calling it “draconian” and arguing that it violates clauses of the Constitution that protect life and personal liberty and guard against self-incrimination. The Internet Freedom Foundation noted its “extreme concern” and urged Parliament to refer the Bill to a standing committee. Defending itself, the government has asserted that the present prisoner identification law is a century old and perhaps not appropriately rigorous for the present day, considering the array of technological and scientific advancements that have transformed crime and law enforcement since 1920. There is some merit in this argument. But some progress has already been made. The Crime and Criminal Tracking Networks and System project, for example, set up by P Chidambaram in 2009 under the UPA government, played a significant role in modernising Indian policing. Much more can be done and perhaps the legal framework behind this process does need updating to bring it into line with modern international standards.
But this sweeping and accountability-free Bill ends up making the cure far worse than the symptom. The government’s tendency to target protestors and political opponents using surveillance techniques means that the danger this Bill poses is simply too great. Empowering police and governments to conduct such intrusive investigations and in such an arbitrary manner, targeting whomsoever they choose with little accountability and few legal guidelines, will not make Indians safer.
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