UNDER THE THUMB: A NEW LEGISLATION EXPANDS THE INDIAN GOVERNMENT’S SURVEILLANCE POWERS
Bindu Doddahatti and Ameya Bokil
By March 2021, the National Crime Records Bureau—the apex body maintaining crime- and criminal-related databases—had a record of eight million fingerprints in its National Automated Fingerprint Identification System.
Much of it was collected, it is assumed, under the purview of either the Identification of Prisoners Act, 1920, or various state regulations. A lot of what has been collected, though, goes beyond the sanction of the law. For instance, there are the recent reports of police in Telangana and Madhya Pradesh collecting fingerprints and photographs during stop-and-search operations. It would seem that, so far, state desire for greater surveillance and the eagerness to adopt new technologies for this purpose has been checked only by the absence of physical infrastructure to store the quantities of data and not by any legal framework or procedural safeguards aimed at protecting citizens’ rights.
Over the last five years, the NCRB has moved to remove curtails by inviting private companies to help create the infrastructure for both the NAFIS and its National Automated Facial Recognition System. While the NAFIS is expected to store the fingerprints of 15 million people, the NAFRS proposal mentions storing 50 million facial images. Several states, including Telangana and Karnataka, are also in the process of shoring up their own data storage infrastructure through the creation of massive data centres. These developments have brought governments closer to solving the physical-capacity problem.
In April, Parliament passed the Criminal Procedure (Identification) Act, which takes care of the legal infrastructure needed to legitimise its data collection. The act—passed amid objections from opposition parties and without consultation with civil society—allows the police to take “measurements of convicts and other persons for the purpose of identification and investigation in criminal matters.” The 1920 legislation permitted the collection of only fingerprints, footprints and photographs of convicts, those arrested for offences punishable by rigorous imprisonment and those ordered to execute bonds for maintaining peace and good behaviour. The new act expands the categories of measurements to include iris and retina scans, biological samples and behavioural attributes.
The act’s overreach in restricting the rights to privacy and equality, as well as the right against self-incrimination, has been written about by various commentators. Moreover, although the act does not directly mention surveillance, it has the potential to vastly increase the government’s powers to snoop on citizens. While discussing the legislation in the Rajya Sabha, the home minister, Amit Shah, said that it would address low conviction rates by building the forensic and scientific capacity of the country’s law enforcement agencies. The claim that forensic evidence is the gold standard of good criminal investigations needs to be evaluated and this could be done using a comparative lens.
The United States has a long history of using forensic science in law enforcement and has been grappling with serious issues of accuracy, reliability and official misconduct for over four decades. Critical legal scholars have repeatedly questioned the accuracy and reliability of forensic evidence and the use of technology in criminal-justice administration, which appear neutral on the surface but are designed to target specific marginalised communities. And so, the act’s aim to modernise the “measurement” techniques along the lines of advanced countries, when compared to the ongoing discussions about those very methods in countries such as the United States, seems farcical.
It is also important to look at just how wide the net of the surveillance system enabled by this law is, both in terms of the kind of data the police is now authorised to collect and, more importantly, the number of people that can come under its ambit. Between 2018 and 2020—the three latest years for which crime records data is published by NCRB—six million people were convicted. Today, they would likely find themselves under the net of this law the same way they would have under the now repealed 1920 act. In the same period, the police also made over 17.5 million arrests. While a majority of those arrested would be covered under the act, a clause appears to allow those arrested for offences other than those against women and children or those punishable with imprisonment for less than seven years the right to refuse to give their prints, though this is expressed in vague terms at best. We found at least eight to nine percent—about 1.5 million people over these three years—fell under identified crimes against women and children, and those punishable by seven years or more, but this is much higher if you were to count other offences where the victim was a woman or child. It is not clear whether the law extends to these, effectively leaving the decision to the wisdom of the police.
Moreover, considering that the accused are relatively powerless in our criminal justice system, the right to refuse is likely to remain on paper. This could potentially cover over ten million people if you just considered three years. The data that is collected is immutable, becoming part of the state’s permanent database. And given the lack of robust protection guarantees—or even with it—this data is susceptible to misuse by the state beyond what the individual can foresee.
In the absence of strong data-protection laws, it is fair to expect that there should be a safeguard within the legislation to limit this invasion to the least necessary number of people. But look closer and you will find that the safeguard is a leaky tap. According to NCRB reports, 13.5 million individuals had proceedings under Section 117 of the Code of Criminal Procedure undertaken against them between 2018 and 2020. This section is invoked when, following an inquiry, an executive magistrate finds that a person in their jurisdiction is likely to disturb peace or public tranquillity, might disseminate seditious matter, conceal their presence to commit a cognisable offence or be a habitual offender. If the magistrate finds that it is necessary to maintain peace, they can order the individual to execute a bond for up to three years.
The inquiry, even on paper, poses a problem, as it follows minimal processes of a summons’ case and is presided over by not a judge but an executive, sometimes police officials themselves. There is no channel for appeal against the decision, and the only remedy may be to approach the high court, access to which is severely difficult for most people. For most cases, even minimal safeguards are not followed, and because of what is perceived to be a low cost to the summoned person—as opposed to the possibility of fine or imprisonment following criminal trial—they are barely ever resisted, and the cases are decided by automatic rubber stamps. People are seldom given a chance to present their case, let alone access legal representation.
While the NCRB has not released the data for the number of people found required to actually execute bonds, data from Rajasthan tells us about ninety percent of all people given a notice are asked to execute these bonds. This would bring a vast number of people under the fold of the surveillance programme over just three years. Certainly, the number of arrests or the people against whom proceedings have been undertaken do not translate well to the number of unique individuals this covers. The same person is often arrested multiple times, or might have proceedings against them initiated in multiple jurisdictions.
However, the number of people against whom proceedings were undertaken every year has been surging. Between 2017, the first year this was published by NCRB, and 2019, the number grew by 28 percent, from 3.9 million to five million. Between 2011 to 2021, the annual number of cases in Madhya Pradesh nearly doubled, from 0.4 million to 0.8 million. It was reported earlier this year that, in Uttar Pradesh’s Muzaffarnagar district alone, over forty-four thousand people were made to sign surety bonds ahead of the assembly election.
These provisions are also used arbitrarily against protesters. For instance, during the protests against the Citizenship (Amendment) Act, some people, including those who say they were not involved in protests, were asked to sign bonds, promising “good behaviour,” worth Rs 50 lakh. This allowed the police to avoid “formal cases and evidence” while serving the goal of chilling free speech and expression. Two thousand people in Aligarh, mostly Muslims, were sent such notices. More reports indicate that the same was invoked against anti-CAA protestors in Mumbai and farmers in Madhya Pradesh. As district administrations resort to these provisions against protesters more and more, instead of formal complaints requiring a more thorough process, more people will find themselves under the purview of the 2022 act. Since this is an almost unrestrained and unchecked power within the executive’s domain, there is no limit on the number of people who can be covered by surveillance systems, and this could encourage the use of these provisions even further.
The act also allows taking measurements from those detained under preventive-detention laws, another class of laws enabling the executive to exercise extraordinary powers. And so, over the next decade, we are looking at a massive database of biometric details of Indian residents, perhaps competing with the database of the US department of homeland security, which is expected to have iris and facial scans as well as fingerprints of 259 million individuals, the second-largest biometric database in the world after Aadhaar.
It is known that the use of forensic science in criminal, civil, and regulatory issues in the United States coincided with the “war on drugs” and “tough on crime” policies adopted by the presidents Richard Nixon and Ronald Reagan. Today, the United States has the largest incarcerated population in the world, with millions of people behind bars. The hyper-incarceration and criminalisation policies adopted by the US criminal-justice system has disproportionately affected Black and Hispanic communities for several generations. The complicity of flawed forensic evidence in a punitive system has come to light in recent years, with the exoneration of thousands of individuals in post-conviction proceedings.
According to the National Registry of Exoneration, “False or Misleading Forensic Evidence” makes up 23 percent of exonerations in the United States, whereas “Official Misconduct” stands at 56 percent. Both these factors point to the lopsided nature of investigations, reckless and criminal handling of delicate forensic evidence by forensic analysts and the role of prosecutors, among other things, that result in innocent people being convicted. NRE researchers have identified four themes emerging out of what they call “forensic frauds”: false forensic matches, concealed tests that excluded the defendant from suspicion, planted evidence and various lies by analysts.
In light of the growing concerns over misuse of forensic evidence and scandals breaking out in crime laboratories, several high-level committees were formed by the US government to ensure the validity of forensic evidence. With less than three percent of cases going to trial, constitutional issues related to forensic evidence have not been litigated enough. Nonetheless, in important cases such as Brady v Maryland, Giglio v United States, and Strickler v Greene, the US Supreme Court laid down a constitutional framework that imposed a duty on the prosecutors to disclose all exculpatory, impeaching and mitigating information to the defendant, which, among other things, includes forensic evidence. These developments have contributed towards greater transparency and accountability of the prosecution, while also leading to an increase in post-conviction exonerations due to forensic frauds.
As far as India goes, there is no guarantee that if the police finds that forensic evidence collected under the law exonerates the accused, it will present this to the defence and the courts. There is no constitutional duty to disclose vital trial-related information to the defence. The law on the use and regulation of forensic data in criminal investigations and trials remains unexplored. But it seems that the state holds all the keys to a person’s personal data and its use under the criminal-justice system.
While it is debatable whether forensic science has led to better investigations in the United States, there is a great amount of evidence to show that the personal data collected by the police and other law-enforcement agencies has led to disproportionate surveillance of communities of colour, which only confirms and perpetuates existing societal prejudices. Historically, the Federal Bureau of Investigation and the Central Intelligence Agency have extensively surveilled, profiled and been involved in targeted violence against Black activists, such as during the civil rights movement. Neighbourhoods of Muslim, Black and Hispanic communities are subjected to intrusive surveillance methods. Further, studies have shown how forensic data can be used to construct and perpetuate the association between race, genetics, and violent crimes. Stop-and-Frisk data shows Black people are five times more likely than white people to get stopped by the police.
India, too, has a long history of intrusive and targeted surveillance. The Thuggee Act and the Criminal Tribes Act formalised a system of surveillance of certain forest-dwelling and nomadic communities with provisions of roll calls, forced entry to homes and forced sedentarisation. With these, the British set up a colonial caste-based surveillance system that continues to flourish in practices and crime registers of the Indian police. Research, such as that carried out by Criminal Justice and Police Accountability Project, shows that digitisation of these crime registers lends permanence and legitimacy to the prejudices of the Indian police against people from Vimukta (Denotified Tribes) and other marginalised communities. This makes the use of these databases for predictive policing an entirely discriminatory exercise and one that will extend societal casteist mindsets.
It is almost certain that the NAFIS and NAFRS will continue to carry this bias against Vimukta communities, particularly when the state has almost infinite power over who is subject of the law. Similarly, Muslim, Adivasi and Dalit communities, whose dissent is being increasingly criminalised, will also be disproportionately impacted by the act. This is not to say the law will necessarily change police practices—extant practices themselves make the threat to civil liberties clear. However, if only speculatively, corporate interest in profiting off selling surveillance technologies and capacities, and state interest in controlling a class of citizens, does provide the impetus to collect and store measurements of as many people as possible. At the same time, the claim that the collection of forensic evidence comprised of fingerprints, face scans, DNA and other personal details leads to greater conviction rate, without fair rules governing admission and veracity of the evidence in the courtroom, and systematic research on forensic evidence, is not just tenuous but outrightly dangerous.
Bindu Doddahatti is associated with the School of Policy and Governance at the Azim Premji University, Bangalore as well as Prisons Forum, Karnataka. Ameya Bokil is a legal researcher based in Bhopal. He is a co-founder of the Criminal Justice and Police Accountability Project.
https://caravanmagazine.in/law/criminal-procedure-act (Please subscribe to and support “The Caravan”)
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