India’s parliament has passed the Criminal Procedure (Identification) Act of 2022 following a lengthy debate. Legislation is being introduced to rescind the 1920 Identification of Prisoners Act, which permitted the use of identification and investigative methods on detainees. The 2022 Act’s expanded definition of measurements includes iris and retina scans, behavioural traits like handwriting, fingerprint imprints and palm impressions (and their analysis), and physical and biological samples. When reporting measurements, the phrase “and their analysis” implies that profiles can be generated from a variety of sources of information. The Act stipulates that measurements are to be preserved in digital or electronic form for 75 years. This article intends to assess the Act’s potential misuse and possible violation of fundamental rights such as the right to equality and privacy of those covered by the Act. Additionally, the author wishes to provide a concise explanation of the Act and numerous other related issues.
Keywords : Identification, Measurements , Analysis, Behavioural Attributes, Right to Privacy
Recently the Criminal Procedure (Identification) Act, 2022 has come into force after being passed by the Parliament . This Act repeals the Identification of Prisoners Act, 1920, but continues to interact with provisions of the Code of Criminal Procedure, 1973. The one was a colonial time law that authorised the police officers to take measurements of people who are under trial , arrested or convicted. The Criminal Procedure Identification Act gives the legality to the police to take biological and physical samples of convicts as well as accused. All this data will be stored by the National Crime Records Bureau (NCRB) for up to a period of 75 years. The Magistrate has the power to direct a person to give his measurements for the purpose of investigation. It aims to ensure the unique identification of those involved with crime and to help investigating agencies. Further the state governments are given the discretion to establish their own data repositories and a state level institution like NCRB to preserve and store data. It could include various types of measurements such as iris and retina scan , palm prints , signatures and many more .This act includes the modern technology such as in DNA scanning; the previous act was just limited to the fingerprints and footprints which are very less source which could help in future to find out the criminals. But all this would need a lot of money by the government to not only make DNA banks but also for storing , collecting such a large amount of data. The concern of safety and privacy is the measure which is in a violation state because of this act. The Right to Privacy is now recognized as a basic right under Article 21 following the decision of the K.S. Puttaswamy and Anr. vs. Union of India and Ors. The court held that the right to privacy was integral to freedoms guaranteed across all the fundamental rights. The practices of the collection, storage and destruction of vital details of a person can only be applicable after a strong protection law along with the stringent punishment for the breachers. Not just the better data protection law is needed but the better implementation of the law is also needed. Considering the size of the data of its populace, India requires a robust and extraordinary data protection mechanism governed holistically by a statute which will provide protection to people’s sensitive data from leakages. At the same time, such a data protection mechanism will assist the government in using that data safely to serve justice expediently. There is a significant scope of amending this legislation to make it more justice-oriented, to meet its objective of robust investigation for the identification and prosecution of criminals.
This paper is of descriptive nature and the research is based on secondary sources for the deep analysis of the Criminal Procedure (Identification) Act, 2022 and its impact on the life of prisoners in India. Secondary sources of information like newspapers, websites, articles are used for the research.
Review of Literature
The Criminal Procedure (Identification) Act, 2022 stands as a critical legislation shaping the lives of prisoners by regulating the procedures for their identification within the criminal justice system. Extensive literature surrounding this act delves into its multifaceted impact on prisoners’ lives, highlighting its role in safeguarding their rights, ensuring fair treatment, and potentially minimizing wrongful convictions through enhanced identification protocols. Scholars have examined how this act addresses issues of lineup procedures, eyewitness identification, and the use of technological advancements such as biometrics, shedding light on its implications for both the legal system’s efficacy and the well-being of individuals within the prison system. Moreover, analyses have emphasized the Act’s potential to mitigate the risks of misidentification, wrongful imprisonments, and subsequent challenges faced by prisoners post-release, thereby advocating for reforms that prioritize procedural fairness and the protection of prisoners’ rights.
What does the act attempt to jurisdiction?
The Criminal Procedure (Identification) Act, 2022 seeks to collect the measurements of all the persons convicted , under trial , and arrested for the crimes thereby keeping records of all the information collected. An Act to authorise for taking measurements of convicts and other persons for the purposes of identification and investigation in criminal matters and to preserve records and for matters connected therewith and incidental thereto. 
What all things can be collected through this Act ?
S. 2(1)(b) of the Act defines ‘measurements’ that may be taken from persons as including “finger-impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scan, physical, biological samples and their analysis, behavioural attributes including signatures, handwriting or any other examination referred to in section 53 or section 53A of the Code of Criminal Procedure, 1973.
2 The examinations contemplated under Section 53 of the Code of Criminal Procedure, 1973 (‘CrPC’) include that of “blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and fingernail clippings by the use of modern and scientific techniques including DNA profiling…”. Section 53A of CrPC further provides for the recording of additional particulars, namely, age of the arrestee and marks of injury on their person.
It would refer to the collection of footprints impressions. The Supreme Court has held that the identification by footprint impression is an imperfect science. Courts in absence of any evidence ,don’t consider the footprints as an evidence.
Fingerprints are the things which do not change even after such a long time. Law enforcement agencies often use these unique identifiers to link individuals to crime scenes. Their record helps in the further identification of the crimes done by the same criminals.
In India, it is pertinent to note that there are no standards guiding the examination of fingerprints. In spite of these scientific challenges, fingerprint examination can aid investigations and provide crucial evidence. However, for fingerprint evidence to be considered reliable it is crucial that best practices be followed. Even then, courts mostly rely on fingerprint examination only for the purpose of exclusion. In India, it is pertinent to note there are no standards guiding the examination of fingerprints.
Palm print Impressions
Palm impressions are not so authentic in nature therefore their examination can be prone to many errors. It has a rate of false negatives of 9.5%.
Iris and Retina Scans
Firstly there is currently no government database anywhere in the world that uses retina scans. Looking into private endeavours like the cryptocurrency worldcoin, established in 2019 by founder of OpenAI SamAltman ,also scans iris in exchange of crypto currency but has faced privacy concerns and has faced scrutiny of experts and attack by hackers as well.so,the field is not easy to ace for government agencies.
Forensic DNA Profiling
The ‘analysis’ of biological samples under S. 2(1)(b) may be broader than forensic DNA profiling, serological examination for identification of body fluids, or species and grouping analysis. With respect to forensic DNA profiling, while it has a stronger scientific basis and is better established as a scientific method, it remains fallible and prone to errors. In 2016, ‘Forensic science in criminal courts: Ensuring scientific validity of feature-comparison methods’ (PCAST, 2016)93 a report by the President’s Council of Advisors on Science and Technology, carried out a foundational study of six feature comparison methods and concluded that only forensic DNA analysis from single source samples is foundationally valid.94 Even with respect to analysis of complex DNA mixtures, PCAST found that the methods of analysis were not valid and reliable.95 A recent study on the foundational validity of DNA mixture interpretation, has concluded that currently there exists no public data to assess the reliability of this method.96 This is especially pertinent considering that often evidence collected from crime scenes will generate mixed DNA profiles. Currently in India, guidelines on interpretation of DNA profiles are not at par with international scientific standards and are not uniformly implemented across the country.
How may the authorities compel a person to give measurements ?
The Act allows a police officer or a prison officer to take measurements from the classes of the persons in a manner that shall be prescribed by the Central or State Governments.
Who may be compelled to provide measurements, and who can compel it ?
Here is the list of all the persons who can be compelled by a prisoner officer to give the measurements :
a) Any person who has been convicted of any offence under the law that is in force.
b) Any person who has been ordered to give security for maintaining peace or good behaviour .
c) Any person who has been detained under any preventive detention law.
d) All the persons who are arrested for an offence. Such persons can be compelled to provide all the measurements except biological samples.
Act in respect of fundamental rights
The act violates the right to equality under article 14, the right against self-incrimination under Article 20 (3) and the right to privacy under Article 21.
The act fouls of article 14 as it excessively delegates legislative powers by giving the Central and State Governments wide-ranging rule making powers, without providing adequate guidance for the exercise of the same. The Act grants excessive and overbroad discretion to police and prison officers as well as Magistrates to compel persons to allow the taking of their measurements.
Article 20 (3)
The Act defines measurements to include behavioural attributes including signatures, handwriting…”. The term ‘behavioural attributes’ has not been further defined in the Act, and is also not a term of art in forensic science. This leads to concerns of its possible interpretation in a way that might include measurements of a testimonial nature, allowing them to be compulsorily procured, in contravention of the ruling in Selvi v. State of Karnataka.
The Act amounts to an infringement of the informational privacy of persons it covers; and, to be constitutional, it must satisfy the fourfold requirement of the doctrine of proportionality laid down in Justice KS Puttaswamy v Union of India (I). While the Act has the legitimate aim of improving investigation, detection and prevention of crimes, it fails to satisfy the other three prongs of proportionality.
It is compelling to view this Act in comparison to legal provisions
in other prominent jurisdictions to compare and contrast the provision. The relevant jurisdictions that will be explored are that of the United States, the United Kingdom and the European Union :
1) United States– In the US, activities of evidence collection from convicts and others are handled primarily by the Federal Bureau of Investigation (FBI). Recently, they have come up with initiatives for the collection of DNA and Iris (under the so called ‘pilot program’) samples as evidence from the convicts.The Indian Act mandates collection of measurements regardless of the gravity of the offence, treating unequals equally. Furthermore, it gives the law enforcement sweeping powers to use and disseminate the data stored with any law enforcement agency without any authorization required. The legality is significantly murkier considering the primary body here is the NCRB which is storing and disseminating among law enforcement agencies but the standard operating procedure is drafted by the NCRB itself.
2) United Kingdom- The UK recently passed the Police, Crime, Sentencing
and Courts Act 2022. The enactment incorporates numerous provisions that are parallel to those adopted in the Criminal Procedure (Identification) Act, 2022 in India. The pertinent provisions that are broadly parallel are- strengthening the laws governing the extraction of digital information, formation of a code of practice that will bring out clarity on obtaining digital evidence, parliamentary scrutiny of the retention of personal data relating to hate crimes, etc. Although both of the frameworks operate in a similar manner with minuscule differences, a crucial point of variance that is evinced is the cognizance given to the privacy of the citizens in the enactment of the UK, the absence of which in the Indian enactment seems telling.With respect to the Criminal Procedure (Identification) Act, 2022, creation of a national database which is mainly controlled by the NCRB throws up a similar challenge against privacy. In addition to that, the position of NCRB drawing its own guidelines has grave repercussions to be considered.
3) European Union- The European Union’s framework with respect to the extraction of data through evidence and the cross – border transfer of it for fighting crime is a function of the Prum Conventions which is a law enforcement treaty between certain EU members. It broadly deals with elements such as the collection of data through DNA and biometric samples. Commentators have expressed similar concerns as expressed in the case of India and the US regarding transparency and accountability as well as lack of democratic and judicial control. The General Data Protection Regulation (GDPR) perhaps constitutes the primary legal foundation of the rights of data subjects. Article 9 of the GDPR states that processing biometric information is prohibited with certain limitations such as where explicit consent has been given for specific purposes, vital interests of the subject, for public interest etc. The exceptions essentially serve as the rule in such a context. Using the exception alongside a wide mandate, the member states may validate collection of measurements which would otherwise be in violation of one’s right to privacy. The GDPR also mandates data impact assessment by the data controller before the processing of biometric information according to clause 91 of the Preamble of the GDPR. But even in such a situation, necessity and proportionality serves as an essential condition for the validation of the data processed by the member states.
The Criminal Procedure (Identification) Act, 2022 suffers from glaring inadequacies which require correction. It is recommended that:
(a) Clarification is made with respect to the definition of persons who must give measurements and for the purposes of proportionality, the definition should not be inclusive
(b) Limit the definition of “Measurement” to deter misuse by law enforcement into taking
intrusive tests which may be in violation of established laws and principles laid down by the
Courts. Provide clarity to the scope of biological samples as otherwise it may lead to sampling which can be intrusive.
(c) Ensure distinction between the offences with respect to gravity. In the United States,
Some states are attempting to limit the collection and use of biometric information and the processing of the same only to certain offences such as kidnapping, murder, sexual offences.Collection, storage and processing of such data for petty offences also fails to stand up to the standards of proportionality and necessity.
(d) Provide an explanation for the arbitrary timeline of the 75 years time period for retention
of the records of measurements.
(e) The onus for destruction of data in this 75 year time period has also been placed on the people whose data has been collected. This would impact people from sections of the society who do not have access to the law and would therefore be unable to apply for deletion. The provision should be read in terms of Right to be Forgotten and should not be at the mere discretion of the Nodal Officer.
(g) Ensure mechanisms to ensure that Section 5 of the Act does not result in arbitrary actions
by the Magistrates against any person. This can be done by mandating that the Magistrate who is giving the order must provide the reason of the order to take measurements in detail.
(h) Legislating a robust Data Protection enactment to:
(i)Constitute a Data Protection Authority which could potentially lay down the
guidelines for the collection, storage and use of the data (which has been previously
acknowledged as sensitive personal data) instead of NCRB drafting the Standard
(ii) Assess proportionality of the collection, use and storage of the data and ensure that
the data is being used for the specific purpose for which it was collected.
(iii) Shifting the burden of removing data from the data subject to the data controller
and placing it as a right of the individual whose name is liable to be deleted from the
records instead of it being a discretion of the authorities.
(iv) Placing accountability and promoting transparency on the NCRB and the multiple
levels of agencies who has access to the measurements, since any breach or misuse of
such data is a gross violation of one’s fundamental rights.
(v) Ensure that the Data Protection Authority has cognizance over the processing of
measurements in national databases and would include breach of information in the
event of discrimination as a result of profiling of individuals
(i) Remove Section 6(2) of the Act as it goes against Article 20(3) of the Constitution protecting against self-incrimination and established principles of law laid down by the Supreme Court.
(j) Clarify the term “good faith” under Section 7 of the Act and lay down the scope of the term because otherwise it serves as a big gap enabling authorities to shirk responsibility in case of misuse and breach of measurements.
(k) The controller must assess the risk and impact on the rights of individuals.
The word measurement has more coverage in the Criminal Procedure (Identification) Act, 2022, compared to the Prisoners Act, 1920, and the word biological samples is not defined properly in the new Act. India is a democratic country, and that doesn’t mean we should intrude on someone’s right to privacy. To resolve this issue, the government has to introduce a Data Protection Bill to safeguard the sensitive information of the public. There is a great need to construct more forensic labs and data storage banks in the country.
We agree that there is a need to improve the efficiency of investigations, and for that purpose, the collection of measurements is essential. But this cannot be implemented at the cost of intruding on the fundamental rights of the citizens of the country. The entire exercise of collection, preservation and storage of the different types of measurements will create greater administrative burdens and may not deliver on promised returns, making the creation of such database(s) unnecessary while also infringing on the fundamental rights.
Dr. B.R Ambedkar National Law University, Sonepat
Goyam Pitalia, Vulnerable to misuse by police, the new Criminal Identification Act can create surveillance state, THE WIRE (Aug. 30, 2022) https://thewire.in/rights/criminal-identification-act-surveillance
 THE CRIMINAL PROCEDURE (IDENTIFICATION) ACT, 2022, NO. 11, Acts Of Parliament, 2022 (India)
An analysis of the Crinimal Procedure (Identification) Act 2022, National Law University,Delhi , Sep. 2022,https://static1.squarespace.com/static/5a843a9a9f07f5ccd61685f3/t/634d22c3b82adb4257926c79/1665999595973/P39A+Brief+-+Criminal+Procedure+%28Identification%29+Act%2C+2022+%281%29.pdf
 An analysis of the Crinimal Procedure (Identification) Act 2022, National Law University,Delhi , Sep. 2022,https://static1.squarespace.com/static/5a843a9a9f07f5ccd61685f3/t/634d22c3b82adb4257926c79/1665999595973/P39A+Brief+-+Criminal+Procedure+%28Identification%29+Act%2C+2022+%281%29.pdf
 Nicole Westman,States pass laws limiting use of DNA searches for criminal investigations , The Verge,https://www.theverge.com/2021/6/1/22462859/dna-genetic-genealogy-criminal-laws-maryland-montana (last visited November 13, 2023)