Harsh Raj, National Law School of India University, Bengaluru
1. Introduction
The Criminal Procedure Act, 2022 (“the Act”) passed by the Indian Parliament repealing the Identification of Prisoners Act, 1920, has sparked extensive debates regarding its impact on individual privacy, data collection, and the intersection of technology and law. The Act expands the scope of biometric and personal data that can be collected during criminal investigations and also has an expanded set of individuals who can be compelled to give such data.1 There are multiple grounds on which the Act has been challenged in courts, which include violations of administrative law principles such as excessive delegation of power to NCRB, the Criminal Procedure (Identification) Rules, 2022 (“the Rules”) being ultra vires the scope of the Act, among others.2 This paper analyzes the provisions of the Act with the specific focus on its implications on the Indian Evidence Law, highlighting violation of privacy and liberty rights of the accused due to lack of judicial oversight and sufficient safeguards, and scrutinizing the admissibility of biometric evidence under the Bharatiya Sakshya Adhiniyam, 2023 (“the BSA”).
The paper argues that lack of sufficient safeguards and judicial oversight of the chain of custody of the biometric samples collected under the Act pose a serious threat not only to the privacy rights of the accused but also undermines the legitimacy of the entire process. This is further exacerbated by the fact that such biometric samples shall most probably be stored as ‘electronic records’ over the 75 years timeline, and the current outdated provisions of the BSA lack the safeguards to ensure the authenticity and reliability of the modern technological records. Recent judicial attitude towards central legislations shows that it is unlikely that the Act will be declared ultra vires the constitution in-toto,3 despite the ongoing challenge to its constitutionality.4 Therefore, the paper submits that the judiciary must at least address the potential misuse of biometric evidence by mandating a more robust oversight framework.
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