Delhi HC seeks Centre's stand on challenge to Criminal Procedure (Identification) Act

The Delhi High Court on Thursday sought the Centre’s response on a public interest litigation 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.

A bench headed by Acting Chief Justice Vipin Sanghi stated that the plea “requires consideration” and issued notice on the petition by lawyer Harshit Goel who asserted that the law aids profiling and creation of a surveillance state.

Central government counsel Amit Mahajan said the petition was not maintainable and argued that the validity of a law cannot be challenged in vacuum in a PIL.

The bench, also comprising Justice Navin Chawla, 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, 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, undertrials and any person who may be remotely involved in an offence, without prima facie establishing their involvement or the evidentiary value of such ‘measurements’.

Such an exercise of power, the petitioner has stated, transgresses the right against self-incrimination under Article 20(3) of the Constitution and right to life and personal liberty, right to privacy as well as bodily integrity and dignity under Article 21.

“While the provisions of the Act specifically and directly affect undertrials, arrestees, detainees under any preventive detention law and convicts, they also have grave consequences for every citizen of India as they aid citizen profiling and creation of a surveillance state. The aforesaid provisions of the Act are, therefore, antithetical to individual freedom, equality, rule of law, democratic character of the Constitution and Directive Principles of State Policy, violate the basic structure of the Indian Constitution and are liable to be struck down as unconstitutional,” stated the petition filed through lawyers Yashwant Singh, Harshit Anand and Aman Naqvi.

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 (databasing 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,” it has submitted.

The matter would be heard next on November 15.