Guest Post: Proportionality concerns with Criminal Procedure (Identification) Act

This post is authored by Ishita Tulsyan and Navdha Sharma.

The introduction of The Criminal Procedure (Identification) Act, 2022 ( ‘the Identification Act’) raised several surveillance and privacy concerns. Replacing the Identification of Prisoners Act 1920 ( ‘the Old Prisoners Act’), it attempts to modernize the process of identification of persons involved in criminal allegations to expedite and enhance criminal investigations. This is accomplished by expanding the types of ‘measurements’ that can be obtained (ie, the data that can be collected), the persons from whom measurements may be collected, and the storage of the said data for a period of 75 years.

The Identification Act permits the collection of measurements for an expansive set of categories and increases the persons whose measurements can be collected. Section 2 (1)(b) of the Identification Act, defines “measurements.” While the Old Prisoners Act authorized only the collection of measurements such as finger-impressions and foot-impressions, the Identification Act now includes within its ambit “finger-impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scan, physical, biological samples and their analysis, behavioural attributes including signatures, handwriting,” on top of any other examination mentioned in Section 53 and 53A of the Code of Criminal Procedure, 1973. This represents a significant expansion in the type of data collected from individuals.

In the Old Prisoners Act, measurements could only be taken from persons who were convicted or those arrested in connection with an offence punishable by rigorous imprisonment of more than one year.  However, in the Identification Act, the measurements can be taken of all convicted and arrested persons, without any requirement of a minimum threshold for those not convicted. Further, measurements can be taken from individuals under preventive detention as per Section 3(c). Thus, all-in-all, the new Act has introduced a whole sea of new measurements that could be taken, and these new measurements can be taken from more people than under the Old Prisoners Act.

In this blog, the authors analyse the constitutionality of the Identification Act by examining whether the collection and storage of measurements satisfy the proportionality test for privacy infringing measures set out in Justice K. S. Puttaswamy v Union of India (5 judge-bench) (“Puttaswamy”).

Proportionality: the Puttaswamy test

The proportionality test, first set out in the Right to Privacy decision, was subsequently elucidated on and applied by J. Sikri in the Puttaswamy judgment; the criteria for judging the constitutionality of State interference with an individual’s right to privacy may be summarised as follows:

1. Legitimate aim – the action taken by the government must be for a proper or legitimate purpose.
2. Rational nexus – there should be a rational connection between the infringing act and the legitimate state aim sought to be achieved.
3. Necessity – the state must demonstrate that it is necessary to introduce an intrusive measure despite the negative effect on the rights of the individuals; including that there are no lesser restrictive measures of similar efficacy available to the State.
4. Balancing – between the need to adopt the measure and the right to privacy.

Assessing the Identification Act –

Legitimate Aim; the expansive provision of the measurements does, arguably, have a proper purpose. Just like the Old Prisoners Act, it is meant to aid the police in investigating crimes.

Rational Nexus; completion of the investigative procedure with speed and accuracy is a legitimate state aim and the current expansion in the categories of measurements that can be obtained will aid in achieving that. The new measures would enable the authorities to create a database using the collected measurements and match the data of suspects against it, thereby aiding criminal investigations.

Necessity; there is no denying that the Identification Act interferes with extremely personal data of individuals as it broadens the scope of both the measurements (as explained above) and the categories of people from whom it can be obtained. On a comparative reading of the Section 2(a) Prisoners Act and Section 2(1)(b) of the Identification Act, it is evident that the latter encompasses significantly more data collection than the former. As the erstwhile Old Prisoner’s Act thus constitutes a lesser restrictive measure, the burden then lies on the state to establish that the Old Prisoners Act did not fulfill the “legitimate state aim” as effectively as the Identification Act will. This requires the State to demonstrate that the Prisoners Act failed to meet the state aim of expediting the criminal investigation process because of which there arose a need for a new, more privacy infringing measure Act. Absent this, the Old Prisoners Act remains a viable lesser restrictive measure. However, the State has failed to discharge its burden as it did not provide any data or conduct a study which showed that the Prisoners Act fell short of achieving the state aim. Thus, due to the existence of a less-restrictive alternative (in the form of the Old Prisoners Act), the necessity limb of the proportionality test is not met.

Proportionality or Balancing; it is imperative that State’s rights-infringing measures are not absolute and do not curtail the rights of individuals any more than necessary. The removal of the minimum requirement of severity of offences as it relates to whose data can be collected will enable the authorities to collect data of persons charged with petty offences carrying punishment as little as a month. The Identification Act doesn’t even attempt to define the term ‘biological samples’ and what it would entail. This leaving a major scope for misuse at the hands of state authorities. Due to the term not being defined anywhere, it could be construed to include tests such as narco-analysis, polygraph test, brain electrical activation profile test, etc. Such methods are not only extremely intrusive, violative of bodily autonomy, but also of the right against self incrimination. Further, the proportionality test requires the maintenance of balance between the extent and nature of the interference and the reasons for interfering. While there might be substance in the rationale behind collection of measurements, there is no reasonable justification for  retaining the measurements for a period of 75 years, especially as the same severely undermines the right to privacy of such individuals even when they have served their sentence, if any. This is especially true considering that the life expectancy in India is itself 71 years. Thus, even if the necessity limb of the test would have been satisfied, the balancing limb would still warrant that the Identification Act be struck down.

Conclusion The proportionality test given under “Puttaswamy” is a conjunctive test and thus, failing any limb results in the measure being struck down. The Criminal Procedure (Identification) Act, 2022 fails to satisfy the necessity test to begin with, as the government has nowhere demonstrated that the lesser restrictive measure that the Identification Act replaces failed to meet its investigative requirements. Further, even beyond that, balancing limb of the proportionality test is also not satisfied given the Act’s extremely broad application and excessive data retention requirements. Thereby, it impermissibly restricts the right to privacy of convicted and non-convicted persons.

Guest Post: Puttaswamy and privacy rights of the accused

This post is authored by Thulasi K. Raj

Following the judgment of the Supreme Court in Puttaswamy, the privacy rights of accused persons have been litigated upon across various High Courts in India. The right to privacy is especially relevant at various stages of a criminal case where numerous situations can potentially infringe the accused’s privacy. In this post, I will examine how privacy claims made by the accused have been examined by courts post-Puttaswamy. I specifically examine two types of claims: (i) cases where the personal information of the accused is available (or has been made available) in the public domain; and (ii) cases concerning the procedures an accused may be subjected to.

In cases where the accused has raised a privacy claim, the State typically makes a ‘countervailing interest’ argument; that a key governmental interest such as effectively investigating crimes is furthered by interfering with an individual’s privacy, and hence is justified. However, Puttaswamy, laid down that State infringements on privacy cannot merely serve an important interest, but must fulfil the four-part test of legality, necessity, proportionality, and reasonable safeguards. The Supreme Court held that “An invasion of life or personal liberty must meet the threefold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.” The proportionality limb also specifically requires the State’s measure to be the least rights infringing measure possible that continues to fulfil the State’s desired objective, with courts balancing competing interests. Justice Kaul’s separate opinion would add a fourth limb to this test, ‘procedural safeguards against abuse of interference with rights’, in line with Article 21’s guarantee of a ‘procedure established by law’.

The first set of privacy claims is where the personal information of accused persons were made public due to them being the subject of a criminal prosecution and judicial interventions were sought to safeguard this data. One of the prominent cases in this regard was Re: Banners before the Allahabad High Court. The district administration and police had put up banners displaying the names and photographs of persons who were accused of vandalism.

Expressly referring to Puttaswamy’s, and applying thefour-tier test, the High Court in Re: Banners first held that there were no statutory provisions “permitting the State to place the banners with personal data of the accused” in public (contravening the ‘legality’ test). Further, the publication of personal data also failed the ‘legitimate aim’ and ‘proportionality’ requirements. The purported aim, as argued by the State, was to deter people from violating the law. According to the Court, this was insufficient as the action of publishing personal information on banners was not necessary to achieve this aim. Therefore, the banners were ordered to be removed and the administration was asked to refrain from such actions in the future without legal authority.

In Karthick Theodre, an individual who had been acquitted of criminal charges by a 2014 judgement sought the “erasure or redaction of his personal information from the public domain.” In other words, the petitioner sought the redaction or erasure of his name from the judgement. Relying on Puttaswamy, various arguments including the right to be forgotten were raised before the Madras High Court. The apprehension of the petitioner was duly noted, that whenever his name was searched through search engines, results relating to the judgment would appear. However, the Court dismissed the plea on the grounds that without an adequate data protection law, laying down the parameters of when the redaction of the names of the accused should be directed, there was no objective criteria based on which the court can pass orders. While certain High Courts have granted reliefs based on the right to be forgotten, (See Jorawar Singh Mundy, Zulfiqar Ahman Khan,) the Madras High Court held that absence of a statute renders the petitioner remediless.

The second set of cases are privacy claims by accused persons as to the procedures they can be subjected to during an investigation. In Mursaleen Mohammad, the appellant was convicted under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS”). The appellant was subject to an x-ray examination by the authorities and subsequently confined till he defecated to recover the contraband allegedly stored in his body. The Calcutta High Court observed that the search and recovery of contraband from a person contemplated under section 50 of the NDPS Act does not allow for invasive medical procedures absent compliance with strict statutory safeguards. The Court noted that there were procedural irregularities in collecting the ‘evidence’. By relying on Puttaswamy, the Court affirmatively held that ‘recovery of contraband inside the body of a suspect must not only be in accordance with the procedure established by law but also be compatible to (sic) the dignity of the individual and ought not subject him to cruel, inhuman treatment.” The recovery of contraband, according to the Court, encroached on the appellant’s right to privacy.

In Vinod Mittal, the Himachal Pradesh High Court considered the legality of an order by a Special Judge, directing the petitioner to undergo a polygraph test and provide a voice sample to the investigating agency. The petitioner challenged the constitutionality of these directions, relying on Article 20(3) of the Constitution and the decisions in Ritesh Sinha and Selvi. The petitioner, however, admitted that he was willing to provide the sample if the court found such procedures to be legally permissible. The High Court said that the tests the accused could be subjected to could broadly be divided into three kinds: “(i) permissible with or without consent, (ii) permissible with consent only, and (iii), impermissible altogether.” After studying relevant judgments, the Court held that polygraph tests fall under the second category.

The Court concluded that “It is not legally impermissible [for a court] to issue direction[s] to a person to undergo Narco Analysis, polygraph and BEAP test, but such direction shall be subject to consent of said person and the person has a right to elect to consent or refuse to undergo such test…” The Himachal Pradesh High Court, therefore, indicated through this case that such techniques, if done in an involuntary manner, would be an unjustified intrusion and violate an individual’s (mental) privacy.

These cases demonstrate that the four-tier test laid down in Puttaswamy has been significantly engaged with by constitutional courts in interpreting the right to privacy of the accused. The use of the conjunctive test laid down by the Supreme Court has facilitated a more robust scrutiny of State action vis-à-vis accused individuals. The interpretation certainly requires further development, with greater sophistication in enhancing the analysis under Puttaswamy. However, these are positive judicial observations that will likely result in a consistent and continuous engagement with violations of the right to privacy. While various aspects of the right to privacy, including the right to be forgotten, await comprehensive judicial recognition, privacy jurisprudence has tremendous potential to protect the rights of the accused in the years to come.