In The Garb of Increasing Convictions, a Bill Profiling Citizens to Curb Dissent

The Bill now expands the ambit of ‘measurements’ that can include iris, retina scan, biological samples, etc.

In 1980, six decades after the Identification of Prisoners Act, 1920 was enacted, the Law Commission, in its 87th report recommended its expansion in view of some progress made in forensic technologies balancing it with emerging evolution in jurisprudence on privacy.

Four decades since that report, a Bill has been introduced in Lok Sabha to significantly widen the scope of the Act, taking it much beyond what the Law Commission had recommended and regressing on the aspects of privacy, which has taken more concrete shape since then.

The 1920 Act permitted collection of ‘measurements’, which included finger print and foot print, and photographs by the police and prison officials from people convicted, arrested, detained under different laws or from those required to give security for good behaviour. It also permitted collection of measurements or photographs if a Magistrate ordered for it.

Expanded Ambit of Bill

The Bill now expands the ambit of ‘measurements’ that can include iris, retina scan, biological samples and their analysis, behavioural attributes etc. The stated objective of the Bill is to ‘make investigation of crime more efficient and expeditious and help increase the conviction rate.’ It is also argued that new measurement techniques are being used in advanced countries, which are giving ‘credible and reliable results.’

In this article, I will argue that the Bill is unlikely to improve conviction rate and instead its real objective is to allow for greater surveillance and through that curb dissent and criticism.

Increasing Conviction Rate

In 2020, the National Human Rights Commission, at its webinar raised the issue of India lacking adequate number of forensic laboratories and manpower leading to huge pendency of cases and delay in administering justice.

Following this, a question was raised in Rajya Sabha asking the government if pendency before forensic labs were leading to delays in disposal of cases. The government responded that disposal of cases depends on many factors like category of case, complexity of facts, nature of evidence and co-operation of stakeholders.

A few months ago, the government reiterated this in response to another similar question in Lok Sabha. In this response, it also gave information on steps it was taking to build forensic capacity at the central and state level but it admitted to not having any data on requirements of forensic labs and experts in States / UTs and on pendency of cases due to delays in furnishing forensic reports.

What does this discussion indicate? It shows that simply building more databases with multiple ‘measurements’ of people convicted, arrested or detained is not going to improve conviction rate unless sufficient investments are made in improving the forensic capabilities of the country that can analyse these measurements.

The MHA and state governments have taken steps in this direction, there are multiple schemes under which funds are being allocated, but the performance is still dismal.

Govt Data

For instance, the National Crime Records Bureau (NCRB), through the Central Finger Prints Bureau (CFPB), maintains a central searchable database of all fingerprints collected from state governments called NAFIS (National Automated Fingerprint Identification System).

As per the latest 2020 report of Finger Prints in India, NAFIS has a total of 27,77,689 ten digit finger prints. This report also shows that in 2020, the CFPB accepted 5,30,174 finger print slips for search but was able to trace 39,903 slips only (a mere 7.5 percent traceability, much less than the 22.1 percent it managed in 2019).

In this report, it also noted some success stories of having identified accused by tracing finger prints but a recurring fact across many of these stories was that the quality of the finger prints was poor.

Even then, the report offers no analysis or evidence of whether any of those finger prints that were traced lead to conviction or even to any cases of mistaken identity and wrongful conviction. Any mention of privacy or safeguards during sharing of finger prints is also entirely missing from the report!

One wonders why lakhs of finger prints are in record when admittedly several may be of poor quality and traceability remains dismal.

In a similar vein, in absence of cogent evidence that technologies like finger printing, in existence since at least a century in India, have led to convictions, what gives the government the confidence to say that if more ‘measurements’ on an individual will be collected, these will improve conviction? The data cannot be collected as the first step and then capabilities for its analysis built, that amounts to putting cart before the horse.

And not only do such capabilities need to be built, there needs to be in place safeguards and limitations to prevent misuse of data if and when it is eventually collected. There also needs to be an audit of such capabilities for being compliant with our rights.

It is not entirely uncommon to find technologies that imbibe the bias of the people administering those technologies and thus become another tool in the hands of the state to oppress some communities.

Chilling Effect

So, if there is no cohesive link between collecting more ‘measurements’ and improvement in conviction rate, what is the purpose of bringing this Bill? Here the approach of the Law Commission in recommending an expansion of the 1920 act is instructive.

The Law Commission engages in a thorough discussion on rights of individuals whose ‘measurements’ may be collected, right to privacy (even as it acknowledged that in 1980 the right to privacy was not recognised in Indian law in all its amplitude) and rights against self-incrimination.

It underlined the need to expand the scope of the Act, but adopted a cautious and gradual approach instead of the sweeping approach taken in the Bill.

In fact the report notes that it may not be possible that all technologies that have emerged be included, and that, “the law must try to strike a proper balance between social needs and individual privacy. An all-embracing and pervasive provision might unintentionally have the effect of authorising many practices, which may not be desirable.”

The table below indicates this difference in approaches:

The Bill also empowers NCRB to collect the data on such ‘measurements’ collected by state law enforcement agencies for the purpose of storing, preserving, processing, and sharing such data. This seems to be on similar lines as the NAFIS database. Neither the 1920 Act nor the Law Commission report envisaged such centralisation, its benefit to individuals being unclear.

The sweeping import of the Bill, catch all provisions to include in its ambit as many persons as possible including those detained under preventive detention laws (who technically, may not even be arrested for or accused of any offence) and capture multiple data points, suggests that the real intent is to legalise the kind of policing practices that can create a 360 degree profile of any individual.

And this kind of dystopian scenario is already being tried in Hyderabad where, in the name of smart policing, people are being randomly stopped on roads and their photographs are taken.

Once the state centrally gathers massive data regarding an individual, including political opponents who are most likely to be detained under preventive detention laws, with little transparency on how the data will be used or shared further, this becomes a tool to tame an individual, suppress dissenting voices and have a chilling effect on any kind of criticism of the state.

Consultation is a Must

The Bill should have been put in public domain prior to its introduction and comments from stakeholders should have been invited in compliance with the Pre Legislative Consultation Policy, 2014. Even now, the Bill can be sent to a Parliament Standing Committee for thorough review and consultations.

In the meanwhile, some progress might happen on the Personal Data Protection Bill, which should be the precursor to this Bill. The government cannot and must not get the Bill passed on dubious grounds that this will aid investigation and improve conviction rate and cannot shy away from answering critical questions on infringement of rights of people.

(Maansi Verma is a lawyer and Trustee of the Article 21 Trust, which works on issues at the intersection of technology and rights. This is an opinion article and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)