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Posted On : Sat, April 20, 2024 - 10:37:53

Author : Allen David Simon

The Perils of an Information-State

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By: Allen David Simon, Third Year (PLSA), Roll No. 0123

While the repeal of a colonial law and its replacement by an updated, indigenous legislation is good cause for euphoria amongst the Indian public, the swift substitution of the Identification of Prisoners Act, 1920 with the proposed Criminal Procedure (Identification) Act, 2022 prompts reason for grave concern. A hammer might have been replaced with a wrecking ball.

A tool of state surveillance against the Indian Nationalist Movement in pre-1947 India, the Identification of Prisoners Act, 1920 survived independence as an investigative and record keeping sanction in collect identifiable information from convicted criminals; primarily, pictures and handprints. Its replacement has expanded the required “measurements” to include finger, palm and foot impressions, photographs, iris and retina scan, physical, biological sample (including semen and blood), as well as behavioral attributes including signatures and handwriting. This extensive detail of record for any arrestees (in judicial or police custody)or convicts indiscriminately, without regard for the nature of their accusation, goes over and beyond the justification by the government to employ the act. The Act simply super cedes the reasonable limits to its clientele to empower any police or prison officer, as authorized by an executive or judicial magistrate, to seek such “security” from both a convict murderer and an arrested pickpocket. The missing limitations in the Act hides behind layers of unanswered provisos to empower the coercive and surveillance arms of the police. 

While Article 21: Protection of Life and Personal Liberty, has been repeatedly upheld by the Supreme Court as a sacrosanct right of Indian citizens, unstainable by state limitations, legal truth may not necessarily translate to political reality. A convict, far less an accused is any less human that you or I. In custody, individuals don’t forfeit their citizenship and thus cannot be deprived of their freedoms – central to which lies their personhood and privacy. The law by imposing a blanket obligation for “measurements” to all in conflict with law or under investigation infringes upon their sanctity of personal information. This is consciously conceived breach sanctioned by legal legitimacy. 

Moreover, the Act would obligate the central nodal policy agency – the National Crime Records Bureau (NCRB), to retain such “measurements” for 75 years, with state records that may even be given under the stewardship of private enterprise as determined by the states. Such records remail readily accessible to any law enforcement agency. The faulty and lucid system for the protection of citizen’s data – forgoing standard safeguards to privacy and security is glaring. Not only is it vain to keep records for a tenure that exceed the average life expectancy of an Indian citizen, indiscriminate records of every individual who ever interacted with law enforcement stare daggers into every citizen – adversely affecting any opportunity that undergoes a background check, limiting their chances in education, employment, and basic functionaries like application of passports and visa, bank loans or a house on lent. The record would act as a hindrance for reformed convicts to begin new life, juvenile delinquents to remove their long-ago conflicts with law, and ordinary citizens from applying to government service. Such expedited record open to viewership will crush the post-reformed life of arrestees, convicts, and their families. The citizen’s profile may well become their living nightmare, living forever in infamy. 

The claimed ‘noble purpose’ of the Act does little to sanctify a flawed instrument against crimes and rather a rogue threat against dissent. Its misuse is eminent, and its principal customer – opposition voices against the ruling clique. The retroactive Section 186 (obstruction the discharge of duties by public officials) would even place proceedings on defendants who were acquitted of their principal charge. Ostentations criminal record will become a punitive tool against dissenters by extracting personal information from opposite thinkers and doers in order to keep them on leash. An all pervasive, intrusive power of surveillance is being gifted to the police, an institution of regular excesses, brute prejudices and brash temper – a gross misplacement indeed. The record will only prove to be a noose on democratic discourse in the country, stamping out any contention against the ruling order. This could become a brute tool of harassment and intimidation against protesting resistance.The scanty excuse that the Act bears measures to deter criminal activity, especially organized crimes or crimes that threaten national security, is confounded, and assumed. The threat of swift investigation through the use biometric personal data will dissuade neither organized criminals whose business does not fret arrest or imprisonment, the radicalized terrorists who have forsaken humanity for their preordained and ‘divine’ venture, nor the hunger thief who steals bread for his family to survive till next morning. The Act is no natural discouragement against crime. 

Even if the Act withstands moral, social and legal questioning, its practicality is defeated by the Act’s glaring incomprehensiveness. While inspired by the criminal database systems erected by the USA and UK, the Act neither accounts for India’s lack of forensic and cyber infrastructure to withstand such an endeavor, nor does it provide additional financing to the Nodal Agency – NCRB and forensic wing, for the Indian police to convert the policy into application. The Act marks a disjuncture between reality and legislation, a means to expand control into and beyond the personal sphere. Inzzam and dushnaam are all in attempted to discipline citizens into more obedient creatures to the liking of the strong. Even as governments globally find themselves a repository of citizen data, justified as a necessity in administrative functioning, the present Modi-government has taken unprecedented and keen interest in citizen profiling, despite its more libertarian ‘more governance, less government’ credentials. From the Aadhar Card, NRC, and now the Criminal Procedure (Identification) Act, 2022. It begs us to wonder whether the Orwellian state the natural destiny of all states or the propensity of power bearers to cumulate more and more?

In such case of a state-in-Orwellian-excess is not mere fact of the evolving state, but a conscious and intent progression of state surveillance and control over the citizenry by intent powers-that-be. However, in distinct hypothesis, these expanses of the state can also be seen as competing claims to personal data as against the ‘meta’-media corporations of the market, locating this trend in justifying continued state authority even as sovereignty stands diluted in post-modern globalist internationalist order. Here, culmination of state urgency to accumulate citizen data is a necessity in claiming raison d’etre in the digital world of the 21st century and its role in management of cyberspace - cyberidentity. These compounding state reasons and government interests in conscious exercises of pervasive controls is not necessarily a uni-causal outcome of the intent(s) person or party or solely the pressures of world mélange, but both in convergence. The Act is a clear illustration of these strains of power – political compulsions and aspirations of statecraft, not confined to colonial pasts but a hardy perennial of power-politics and its acts of nature and response to circumstance.  

 

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