Criminal Procedure Identification Act, 2022

One More Draconian Law To Throttle Dissent

S V Singh

The Criminal Procedure Identification Act, 2022’ is the latest addition to the armory of draconian laws enacted by Modi government. Passed by Rajya Sabha on April 6, this is blatantly unconstitutional black law, which leaves the citizens at the mercy of the police, is in force since April 18. Who cares for the constitution these days! Original black law, “The Identification of Prisoner’s Act, 1920” enacted by the British colonial rulers 102 years ago, has been darkened further. Head constable is now empowered to seek absolutely private and personal information even from a person who happens to be under preventive detention. This law mocks at the Right to Privacy. Personal data related to one’s life-identity like; fingerprints, palm prints, foot prints, iris & retina scan, blood, semen, saliva sample, behavioral identification such as text, voice, DNA sample are no more personal. Anyone can be subjected to the inhuman narco test, drug induced, uncivilized psychological tests of the mind, strictly prohibited by supreme court since 2010. Any denial or obstruction caused by the victim will be a crime. It’s not necessary that one is convicted or accused in a crime, preventive detention by any law enforcement agency is enough to face the music. Police constable’s ‘understanding’ that all these tests are needed in the investigation of a crime means you can’t refuse to comply, you have to ‘cooperate’. All these very personal physical data of yours will be preserved by the ‘National Crime Records Bureau’ for a full 75 years and will be shared with any ‘law enforcement agency’ anywhere in India. Not only does this law flout many articles of the constitution, but it has been written in such a way that every important section can be interpreted in many ways. Responsibility of how to read a line has been left to the police. No one knows better than police how to read a particular line, everybody know!

During the passage of this law by the Parliament, there was a very informative, listenable debate. This too rarely happens these days. How this law is unconstitutional, anti-people and oppressive, this fact was most methodically and convincingly explained by P Chidambaram who himself has been Minister of Home Affairs under UPA government and has personal experience and expertise in getting the draconian laws passed. What is to be revealed and what is to be concealed while drafting such draconian laws, no one knows better than him!! ‘It is the job of Parliament to make laws in a democracy, but whether those laws are constitutional or otherwise, it is decided exclusively by the Supreme Court’, educates Chidambaram. There are several unique features of the working of Modi government. It does not accept any amendment, hardly sends any vital bill to parliamentary Standing Committee or Select Committee to ensure constitutionality and do not bother that the Supreme Court will come in its way, are some of these. Every fascist government works exactly the same way. It is not necessary to lock the parliament or put it on fire as Hitler did, there are more sophisticated methods to make it defunct. Opposition argued that we are going to change the 102-year-old law, a serious debate is necessary on its legality, ‘if nothing happened in 102 years, sky will fall in 102 days, don’t be hasty in passing it, argued opposition!! These significant and weighty arguments of the opposition seemed light and inconsequential to the Home Minister. This proves that heaven may have not fallen during these 102 years, but if this law is not passed immediately, then, who knows, it may, indeed, happen in 102 days!! Bill was passed exactly as it was presented in the Parliament and became a law, not a single word is changed. Modi government, in fact, wanted to introduce another similar bill, the ‘DNA Technology (Use and Application) Regulation Bill’ in 2019 but the government withdrew it before exposing the same for debate in Parliament. Political developments during last two years drove the government to enact present law incorporating various inhuman and unconstitutional provisions related to DNA. This law is more dangerous than DNA bill and it, ruthlessly, suppresses the constitutionally guaranteed fundamental rights ‘right to human dignity’ and ‘right to privacy’.

This Law Is Unconstitutional, Anti-People And Dangerous

Let’s see, what does the most sacred ‘Article 21’ of the most sacred bourgeois democracy document, constitution, say? “No person shall be deprived of his right to personal liberty unless there exists a lawful reason to do so”. This article, therefore, definitely provides two rights to every citizen or non-citizen of the country; ‘right to life’ and ‘right to personal liberty’. A comment is warranted right here. This much-lauded constitutional fundamental right has been taken verbatim from the ‘India Act 1935’ brought by the colonial rulers. It did not occur to our giant constitutional experts that the last phrase, “unless there is a lawful reason to do so” that practically turns this sacred right null and void, is struck down. SC has rightly observed that ‘Article 21’ is the ‘heart of all constitutional rights’. Describing it as the ‘highest point of constitutional values ​​provided in democratic society’, Justice Bhagwati said that citizens cannot be deprived of this right even in emergency. ‘The right to life and the right to personal liberty’ do not mean right to somehow keep breathing like an animal in any way’ SC elaborates. According to various interpretations of the Supreme Court, ‘right to life’ includes; living life with dignity, living in pollution free air and water, avoiding hazardous industries, making a living, respect of privacy, right to shelter (home), staying healthy, free education up to 14 years, free legal aid, no private captivity, early trial, no handcuffs, protection from inhuman treatment, protection from delay in execution, freedom to travel abroad, freedom from bonded labor, protection from violence-torture in custody, emergency healthcare, time-bound treatment in government hospitals, protection against deportation, fair trial, guarantee of essential commodities in jail, guarantee of dignified treatment to women, protection from public hanging , right to be heard, right to information, dignified life, appeal against punishment, social security and protection of family, right to social and economic justice and empowerment, protection from feet shackles, right to suitable life insurance, right to sleep, protection from noise pollution, right of protection from high tension electric wires. All distinguished authorities on constitution of the world will agree that all these rights are simply not possible without economic freedom, even if written in bold letters in the constitution.

Criminal Procedure Identification Act, 2022 is not only blatantly unconstitutional, ruthlessly suppresses right to live a life of privacy and dignity, but it also makes mockery of the established norms of a civilized society. Article 21 of this law empowers any law enforcement agency and jail authorities unrestricted right to take measurements and samples of any person even if he/she is not convicted or accused of a crime, even from a person who is just taken into custody or merely detained as this happens quite often as a matter of routine. There would hardly be any person who is never detained!! Any number of biological and behavioral dimensions of the body can be included in sampling as it is not clearly defined exactly which samples can be taken. This means that police or any other agency also get the right to conduct Narco Test, Polygraph Test, Brain Electrical Activation Profile (BEAP) and Psychological Test. According to section 2 of this law, in case a person does not give a sample, the law enforcement agency will take the sample (means forcefully!) and if that agency is obstructed in its work, then this will be construed as obstructing a government servant in official duty and will be prosecuted for criminal offence. This clearly means that all these measurements and samples will be taken without permission. To do so, is unconstitutional and a clear violation of the judgements of the Supreme Court in several cases. Besides, it is an insult to international human rights declarations. The uncivilized narco test, polygraph test, psychological test and brain electrical activity test are banned since 2010 by the Supreme Court, terming them as inhumane, tortuous. ‘Right to privacy is the proof of our being civilized’, look, how serious has the Supreme Court been on right of living a dignified life and respecting personal privacy? To know this in detail, we must read the SC ruling dated August 24, 2017 by the largest 9-judge bench in the famous case, ‘Retired Justice Puttuswamy Vs Central Government’. This law flaunts and ridicules this judgement, makes fun of it.

Amended Law Of 2022 Is More Dangerous And Inhuman Than The Colonial Law Of 1920

Its pleasure visualizing 1920!! Bolshevik Revolution, the most epoch-making event in human history is accomplished. Glorious workers’ state is established over the vast lands of USSR after overthrowing the inhuman capitalist exploitative system. Communist parties and formidable trade unions of workers are organized everywhere in every country. Freedom movements are intensifying to break the shackles of colonial slavery. The country had just seen the glorious Ghadar movement. Students and youth are thronging the freedom movement. In such a situation, the British brought “The Identification of Prisoner’s Act, 1920” with the aim that this law will scare and thwart masses from joining freedom movement. What are the compulsions today that a ‘nationalist’, ‘ultra-powerful’ government to come up with such an anti-people, inhuman, unconstitutional, uncivilized law under the excuse of technological advancement. Let us compare these two laws.

S N	Parameters	Identification of Prisoner’s Act, 1920	Criminal Procedure Identification Act, 2022
1	Which samples can be taken	Fingerprints, foot-print impressions, photographs	Adds: (i) biological samples, and their analysis, (ii) behavioural attributes including signatures, handwriting, and (iii) examinations under sections 53 and 53A of CrPC (includes blood, semen, hair samples, and swabs, and analyses such as DNA profiling)
2	From whom the samples are taken	Convicted or arrested for offences punishable with rigorous imprisonment of one year or more  Persons ordered to give security for good behavior or maintaining peace Magistrate may order in other cases collection from any arrested person to aid criminal investigation	Convicted or arrested for any offence.  However, biological samples may be taken forcibly only from persons arrested for offences against a woman or a child, or if the offence carries a minimum of seven years imprisonment Persons detained under any preventive detention law  On the order of Magistrate, from any person (not just an arrested person) to aid investigation
3	Authority ordering samples	Investigating Officer, SI and above	Constable or jail warder
4	Period of preservation	Up to completion of prison term	75 years (means for life time)
5	Sample to be stored	Concerned police station	National Crime Record Bureau (NCRB) can be shared with any agency in India
6	Refusal to give sample	Crime	Crime
7	Sample’s relation with case	Mandatory	Not mandatory from any body as per order of magistrate

Why Is Modi Government Arming Itself With Draconian Laws?

Commanding huge mandate, the ‘popular’ mighty Modi government with a clear majority in parliament having governments in all the states except a few, having all governors of its choice, compliant heads in all central institutions, CBI, ED, CVC, CIC, IT, EC, Delhi Police etc. is enacting one draconian, anti-people law after another. Government wants to spy on everyone including its own ministers, judges, journalists with a terrifying intelligence tool like Pegasus. Parliamentary opposition is defunct. Whatever BJP wants, happens in parliament. What is, then, the need of enacting such law that mocks at the basic tenets of constitution, which is so blatantly unconstitutional that it would not get approved by the Supreme Court if the spirit of constituent assembly and natural justice is upheld? Not only the enactment after scrapping a 102 years old law but also the haste in doing so is alarming, as opposition’s repeated requests to send the bill to standing committee or select committee are turned down. Why the government is so afraid in spite of being in such a comfortable position as no government so far has been? Why does the Modi government want to deprive citizens of their personal dignity and right of privacy by leaving these basic tenets of being a modern civilized society at the mercy of the police which already cares a hoot about the constitutional values, when stories of custodial torture, death by beating of the accused under custody, keep coming at frightening regularity? Government itself have admitted in Rajya Sabha that in the last three years, a total of 4690 people were arrested under the UAPA and only 139 were convicted, arrests under the sedition law have increased by 160% between 2016-2019 and the conviction rate remained below 3%. These basic questions warrant serious debate as our dignity and privacy are at stake.

The reason is not far to seek. Unemployment is unprecedented. It has, in fact, reached a level when youth have stopped looking for job out of utter hopelessness. There are no accurate data available but even by the most conservative estimates, army of the unemployed is over 380 million strong. Prices of everything including the basic food items are rushing northwards. Wholesale inflation has crossed 15% mark. Most significantly, government has herself realized that she can’t do anything in subsiding the crisis which is building up with ferocious speed. Era of the false pretensions is over. Entire population barring a handful is in extremely stressful, dire condition. Volcano of mass anger and restlessness can erupt any time. The Sri Lankan level can arrive at any moment. As the reasons causing this situation are systemic, it can’t be resolved within four walls of the present politico-economic system known as capitalism. The same situation is being witnessed everywhere in every country, may be slight variation in intensity. That is why the drums of ‘freedom of democracy’, ‘constitutional values’ which the media used to play fervently stand burst.  Even in America, the mightiest forte of capitalist democracy, which roams around the world raining bombs and missiles, to usher ‘democracy’, condition of ‘democracy’ has reached to that rotten, disgusting level that Donald Trump, a close friend of our PM lets loose his lumpen fascist brigade to storm Capitol Hill on 7 January 1921. The paid foot soldiers of fascism then went berserk and tore down even the black gowns of the justices and overturned their ‘seats of justice’. Nothing happened to Trump and he is still defending his ‘men’. Brazil brand of ‘democracy’ is in even worse condition. On 31 May 2020, goons of the Brazilian President Jair Bolsonaro’s party, led by Bolsonaro himself on horseback, marched to shut down Brazil’s Supreme Court and threatened publicly that if his right-wing party members are arrested or if cases against them are not withdrawn, they will rage the Supreme Court structure to dust. Since than the Supreme Court of Brazil has not given him any chance to complain!! Turkish flavor of fascism is even more stinking. On 15 July 2016, there was a gunfight between two factions of the army in which 300 soldiers were killed. Turkey’s intelligence agency ‘declared’ it was an attempt to assassinate ‘popular’ President Recep Tayyip Erdogan. Since than over 75,000 people have been arrested on charges of conspiracy to murder. Arrested persons include 10,000 soldiers, 2745 judges, thousands of trade union workers, journalists, writers, litterateurs and 21,000 teacher-professors. These are all those people who were opposing the snatching of democratic rights and the anti-people, anti-worker, anti-women policies of the Erdogan government. More than six years have lapsed since that ‘coup’ and arrests without bail are still going on. On 26 April 2022, an industrialist has been arrested for being ‘involved in a conspiracy to murder’. Turkey’s Supreme Court is at its designated place and ‘the law is taking its course’ as usually!! On 25 April 2022, Nigeria blocked cell phones of almost all 73 million cell phone holder citizens of the country because they did not register their phones in the government network!! In Ukraine, there were rallies and parades as a replica of the frightening Nazi rallies in Nuremberg during 1930s. Why to go that far, just look at our picturesque island southern neighbor Sri Lanka. Myth of Sinhala pride’, only reason of the ‘popularity’ of Rajpakshas is exploded to dust. Destitute and desperate people are furiously looking for the media anchors who had mortgaged their conscience and were selling whatever was in their ‘national interests’ as dictated by the equally ‘mighty’ PM/President siblings. Sri Lankans are dumping their ministers along with their luxury vehicles into the drains and setting on fire the glittering palaces made out of theft of their labor power. No government, however mighty it thinks it is, can sleep peacefully if it is surrounded by billions of hungry people all around. This fact is turning even the ‘powerful’ 56- inch chest rulers scarry and that is exactly the reason that they are arming themselves to teeth with draconian laws throwing the democratic values to the wind and tearing apart their respective ‘sacred’ constitutions. Bourgeois democracy is only this much deep. We have had enough of it. Capitalism-imperialism simply can’t afford it any more.  

What Is To Be Done?

Parliamentary opposition leaders, P Chidambaram, Manoj Jha, Koena Mitra et al delivered eloquent speeches amid roar of clapping and thumping of desks in both houses of parliament while participating in debate on ‘The Criminal Procedure Identification Act, 2022’. They convincingly proved that this law makes mockery of our fundamental rights. This bill/ now law is utterly unconstitutional, crushes guaranteed fundamental right to live with dignity and right to privacy, a proof that we are civilized people. Sponsor of the bill, the MHA listened to every word very carefully but the law was passed without even a single amendment. Repeated pleas that since this bill will not pass the constitutional validity test of the SC, it should at least be handed over to either standing committee or select committee of the parliament. All these ‘mercy pleas’ failed to elicit any response from the treasury benches. All of the debating ‘honorable’, then, returned to their respective bungalows. This much only can be expected from parliamentary opposition as their motive behind fiery, pro-people speeches is to prove their credentials to their real masters, the finance capital sharks; please have a look at our performance also, give us one more opportunity to serve you!! That is, however, not going to happen as the Adani-Ambanis of the land have found the best party, government of their choice to safeguard their aggregate interests, why to make unnecessary experiments during this turbulent weather!! All these bourgeois players are set to join the ruling party today or tomorrow to save their vulgar comforts. ‘SC will declare this law unconstitutional and ask government to scrap or amend it’, leave alone the mighty home minister, even the most naïve will not buy this. Those of us who are convinced that the present system is beyond repair or reform and relief to the masses is only possible by replacing present exploitative system with a humane, labor respecting system which is not driven by profit motive, who believe that the socially produced goods should not be appropriated by a handful of owners, have a job cut out to them. They have to shed their inhibitions to unite first of all and then mount a nation-wide wave of massive mass movement to get all these draconian laws scrapped, save the consistently diminishing democratic space and simultaneously take this whole bloody system on target. Any delay in this respect will prove to be very costly for the society as a whole.