Draft bill amending criminal procedure needs revamp, writes Olav Albuquerque

This is why the Criminal Procedure (Identification) Bill allows the government to collect, digitise and store biological samples, biometrics, and physical measurements of convicts, those arrested for heinous crimes including anti-social elements who have been kept in preventive detention, are let down by abysmally slipshod drafting.

Olav Albuquerque | Updated on: Friday, April 01, 2022, 08:19 AM IST

Photo Credit: Pixabay
Photo Credit: Pixabay

Law has to keep changing with the changing external environment which is why a Bill has to be precise, succinct, and definite. If it is not, it is a bad law which some jurists declare is not a law at all. They are wrong because when the President gives his assent after it is passed by Parliament, it becomes a law whether it is bad or good. While drafting a Bill, the definitions must be crisp and pithy without extra verbiage which allows the vagaries of judicial interpretation to add to the labyrinthine mysticism of courts and the law.

This is why the Criminal Procedure (Identification) Bill allows the government to collect, digitise and store biological samples, biometrics, and physical measurements of convicts, those arrested for heinous crimes including anti-social elements who have been kept in preventive detention, are let down by abysmally slipshod drafting. The aim of the amendment will be defeated.

This new Bill will supplant the 122-year-old Identification of Prisoners Act, (IPA) 1920 which was drafted by the British under the supervision of Lord Macaulay, who had a prodigious memory and was a veritable expert in the law of that period. However, this 1920 law has become obsolete because it aimed to store fingerprints and footprints of those convicted for rape, murder, dacoity, sedition, and store their data for identifying them in the future. But the new Bill allows police officers to collect biometric samples of arrested persons on their own whim, which will ensure the building of a database of putative criminals at the behest of the political party in power. When this party has an ideology that may be inimical to certain groups, this will be reflected in such a database because police officers act as tools of their political masters who decide their future.

Under the new Bill, those arrested for offences carrying less than seven years in jail, or those who are not charged with sexual crimes against women and children, can refuse to give their biometric samples. It is dangerous, if not absurd, to allow a police officer, to collect samples of those charged with offences under the Narcotics, Drugs and Psychotropic Substances Act, 1985, the Unlawful Activities Prevention Act, the Protection of Children from Sexual Offences (POCSO) Act, or the Maharashtra Control of Organised Crime Act, which are all draconian laws. This is because some of these police officers can implicate activists in these crimes at the behest of certain chief ministers which has been done in the past. The new Bill should mandate the collection of biometric samples to identify repeat offenders only with an order passed by a magistrate who is satisfied that the person from whom biometric samples are to be collected, is a menace to society. With state governments vying between themselves to build monolithic databases of criminals, those whose samples will be collected maybe those who are political opponents of those in power. The case of Stanislaus Lourduswamy who was a Jesuit priest and was literally hounded to death is a case in point.

The Supreme Court has ruled that narco-analysis or brain mapping is inadmissible as evidence because it violates the fundamental axiom of criminal jurisprudence that no alleged criminal can be compelled to be a witness against himself. The graver the crime, the stricter the evidence needed to convict a criminal. This allows rapists, serial murderers, and child molesters to be acquitted like the three judgments delivered by Justice Pushpa Ganediwala who ruled that unless there was skin-to-skin contact, POCSO would not apply, culminating in the recall of her confirmation and resignation from the judiciary.

But to return to the issue-at-hand, it is very sinister to lump those detained in preventive detention with those convicted for selling drugs or sexually abusing children. Preventive detention is not an offence because the police detain those bad characters whose names figure in their registers on the apprehension of breach of the peace. Some detenues may even be activists who are inconvenient to powerful politicians like a chief minister or a governor. India is notorious for using the police to hound political opponents who are exonerated the minute their own political parties return to power. Hence, there must be checks and balances to ensure there is no misuse of this law.

A Bill is drafted by employees of the state who act under the diktat of their superiors which is why the definition of “measurements” in the Criminal Procedure (Identification) Bill is vague enough to allow “any other examination referred to in Section 53 and 53A of the Criminal Procedure Code, 1973. What escapes notice is that both sections 53 and 53A are loosely worded to permit “such other tests which a medical practitioner may think necessary.” Does this imply that tests banned by the Supreme Court like narco-analysis or brain mapping may be used as investigative tools? A gangster like Abu Salem was subjected to narco-analysis but his replies cannot be used as evidence against him. Investigative agencies like the CBI may still use these draconian tools against gangsters without the approval of the Supreme Court.

This is why the Delhi Special Police Establishment Act is another law that needs to be overhauled. Laypersons do not know that the Caged Bamboozlers of India more famously known as the CBI cannot investigate on its own but needs the consent of the states to probe corruption cases. This is why Maharashtra, Punjab, Rajasthan, West Bengal, Jharkhand, Chattisgarh, Kerala, Mizoram, and Meghalaya have withdrawn consent to the CBI to investigate their own corrupt politicians. For governments are made up of corrupt politicians who fool the people into electing them.

The new Bill will apply to the CBI which maintains a database of criminals and supplies these to the international police or Interpol after issuing a red corner notice for absconding terrorists like Dawood Ibrahim. If this Bill is not reworded, it will prove to be more of a calamity than a benefit.

(Dr. Olav Albuquerque holds a Ph.D. in law and is a senior journalist-cum-advocate of the Bombay High Court)

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Published on: Friday, April 01, 2022, 08:19 AM IST