MHA seeks states’ response on framing rules for Criminal Identification Act
The ministry of home affairs has reached out to state home departments and stakeholders ahead of it formulating the rules for the Criminal Identification Act, which allows law enforcement agencies to collect and retain biometric data of people accused in crimes, in addition to those convicted.
New Delhi: The ministry of home affairs has reached out to state home departments and stakeholders ahead of it formulating the rules for the Criminal Identification Act, a piece of legislation enacted in the Budget Session this year, which allows law enforcement agencies to collect and retain biometric data of people accused in crimes, in addition to those convicted.
A person aware of the matter, who asked not to be named, said the rules will seek to address how, and how long for the data is stored, and whether those acquitted can have their biometric details deleted. It is also likely to specify which law enforcement agencies will be empowered to collect the data.
“There are a lot of nuances that need to be determined,” the person said, adding: “The idea is to chalk out an Act that covers all grey areas.”
When the Criminal Procedure (Identification) Bill, 2022, was introduced in parliament in April, it was seen as controversial. The law accords powers to law enforcement agencies to collect biometric data of accused, convicted persons and detainees, and Union home minister Amit Shah said data of political detainees will not be collected.
The bill was passed by a voice vote after Shah assured members of parliament it will not be misused.
The new framework updates a British-era law that enables police to collect samples of a person’s biometric details, such as fingerprints and iris scans, if they have been arrested, detained or placed under preventive detention on charges that attract a jail term of seven years or more.
The Actmakes it mandatory for people to allow collection of 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, among others. The law also empowers the National Crime Records Bureau (NCRB) to collect, store and preserve these records for 75 years and share it with other agencies. Resistance or refusal to allow the collection of data is an offence.
The home minister had said in Lok Sabha that the data the data will be stored on a centrally located “protected platform” maintained by NCRB and not accessible to individuals, leaving out any scope of its misuse. Lok Sabha passed the bill on Monday.
Many questions remain as to whether data of those slated to serve less than seven years should be collected. The Act may also come in conflict with the Data Protection Bill (which is still being finalised by government) which guarantees the right to be forgotten.
“The law is inconsistent with the principles of the right to be forgotten. It provides that the records shall be retained digitally for 75 years which in many cases would violate the principle of purpose limitation. Even after that, no procedure has been envisaged to apply for removal or deletion of the data,” said Kazim Rizvi, founder of policy think tank The Dialogue.
“In such a scenario, without the promulgation of a robust data protection law, it will not be possible to make sure that the collected data is destroyed after the prescribed period of 75 years or when the person is discharged. Ideally, the data should be deleted once the person has completed his sentencing or when the appeal period is over in cases of acquittal. Exceptional circumstances may be carved out, by law, for retaining the data post the sentencing period, however such exceptions must always be laid down in consonance with the higher constitutional norms.”
Rizvi added that the excessive data collection and its storage for such a long time goes beyond the principles of necessity and proportionality. “It stands inconsistent with the fundamental rights to privacy and right against self-incrimination of the people as observed by the Hon’ble Supreme Court in Selvi v. State of Karnataka. There is also no evidence to prove that such increased data collection will lead to increased conviction rates,” he said.
“Accordingly, the feasibility of the mandate should be reconsidered and the provision should be amended to provide for the destruction of the data after the period of appeal has elapsed. Specific circumstances should be laid down if there is a need to store such sensitive personal data beyond the required time period and a reasoned court order must be obtained to this effect by the law enforcement agencies. Factors such as prior criminal antecedents, nature and gravity of the charges should also be considered by the judicial officers while passing such an order.”