The Criminal Procedure (Identification) Act allows Police to collect finger impressions, palm prints impressions, footprint impressions, photographs, iris and retina scans, physical and biological samples. It also permits the authorities to collect behavioural attributes including signatures, handwriting or any other examination referred under Section 53 or Section 53A of CrPC. The Act received Presidential assent yesterday.
A Plea has been filed in the Delhi High Court challenging the vires of Criminal Procedure (Identification) Act, 2022 as being unconstitutional, illegal and void.
The plea moved by Advocate Harshit Goel challenges sec. 2(1)(a) (iii), 2(1) (b), 3, 4, 5, 6 and 8 of the Act by arguing that the Act affects the Fundamental Rights of citizens of India, more specifically an under trial, arrestee, convict or a detainee under any preventive detention law.
“It is further submitted that provisions of the Act makes it lawful for the Police to forcibly take ‘measurements’ of convicts, arrestees, detainees, under trials and any person who may be remotely involved with the connection of an offence without prima facie establishing their involvement or the evidentiary or investigation and seeking permission from the Court.
A division bench comprising of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla will be hearing the PIL.
The plea avers that the coercive provision transgresses the right against self-incrimination, a well-established principle of the criminal justice system and mandated under Article 20(3) of the Constitution, Stating that forcing an individual to part with his ‘measurements’ under the provisions of Act violates the standard of `substantive due process’, the plea submits that sec. 3 and 5 of the Act allows excessive for simple questioning, or who is involved in the pettiest of offences.
These provisions constitute a clear attack on ‘personal liberty’ and clearly fall foul of Article 21 of the Constitution and are thus liable to be struck down,” the plea states.
The Delhi high court on Thursday sought the Centre’s response on a petition claiming that the provisions of the Criminal Procedure (Identification) Act, which enables the police to “forcibly take measurements” of convicts, those arrested and others, are unconstitutional and illegal.
Issuing notice on the plea, a bench of acting chief justice Vipin Sanghi and justice Navin Chawla said the public interest litigation (PIL), filed by lawyer Harshit Goel alleging that the law aids profiling and creation of a surveillance state, “requires consideration”.
Senior advocate Amit Mahajan, appearing for the Union government, said the petition was not maintainable while arguing that the validity of a law cannot be challenged in vacuum in a PIL.
To this, the court asked the Centre to file its reply to the challenge, including the aspect of maintainability.
The petitioner, while seeking judicial review of sections 2(1)(a) (iii), 2(1) (b), 3, 4, 5, 6 and 8 of the Act, has claimed that the provisions grant “unguided discretionary powers” to authorities and are arbitrary, excessive, unreasonable, disproportionate, devoid of substantive due process and in violation of fundamental rights of the citizens of India as well as of the basic structure of the Constitution.
In his plea filed on April 19, the petitioner has said that under the Act, the police can “forcibly take measurements” — which would include iris and retina scan, biological samples and behavioural attributes — of convicts, arrestees, detainees, under trials and any person who may be remotely involved in an offence, without prima facie establishing their involvement or the evidentiary value of such ‘measurements’.
The petition stated that while the old law created a statutory framework to lawfully collect finger and foot-print impressions and photographs of only a class of individuals, the present Act puts all persons in the same bracket.
“Under the present Act, such aim is apparent upon a reading of Section 3 (taking of measurement) with Section 4 (data basing of measurements). Together, it is clear that these provisions intend to create a database of ‘measurements’ profiling the class of persons identified in Section 3 for the purposes of aiding investigations of future crimes,” the petition stated.
BY ADVOCATE RAJKUMAR PAHUJA