SILENCE OR SUBMISSION?
A Citizen’s Right to Refuse Voice Samples and Biometric Data Under the BNSS, 2023
INTRODUCTION
The question of whether a citizen can rightfully refuse to give biometric data or voice samples to law enforcement touches on the fundamental constitutional relationship between the individual and the State in India. The tension between the investigative requirements of law enforcement and the fundamental rights of individuals has increased in significance with the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the Criminal Procedure (Identification) Act, 2022 (CPIA), and the Bharatiya Sakshya Adhiniyam, 2023 (BSA). Together, these instruments create an updated structure of criminal procedure and evidence law in India.
The existing framework, the Code of Criminal Procedure, 1973 and the Identification of Prisoners Act, 1920, possessed a limited range. Section 311A of the CrPC empowered a Magistrate to solicit specimen signatures or handwriting, whereas the Identification of Prisoners Act, 1920 allowed for the collection of fingerprints, photographs, and footprints. Nonetheless, the digital age has significantly hindered these classifications. Voice recordings, eye tests, iris data, genetic details, and various biometric markers have emerged as essential resources in forensic analysis. The legislative action, specifically the CPIA 2022, has significantly expanded the types of data that the State is allowed to legally acquire.
The primary question this article investigates is: can a citizen refuse legally? The answer is not merely affirmative or negative. It is found where Article 20(3) forbids compelling a person to incriminate himself; Article 21 explicitly encompasses the right to privacy (Puttaswamy, 2017); and the particular legal stipulations in the BNSS and CPIA that permit and in some cases mandate the collection of such data. A meaningful response requires comprehensive examination of constitutional wording, legal structure, and judicial doctrines.
Background and Legal Framework
- ConstitutionalFoundations
Article 20(3)- The Indian Constitution has a rule that says no person who is accused of a crime should be forced to say something that can be used against them. This rule is similar to one in the United States Constitution. In India this rule is very specific. It only applies to people who are actually accused of doing something and it is meant to stop them from being pressured into saying something that can hurt their case. If someone is a suspect and has not been officially charged or if the case is based on things like fingerprints or other physical evidence rather than what someone says they saw then this rule does not apply to them. The Indian Constitution is very clear, about what this rule means and who it protects. The rule is a part of the Indian Constitution and it is meant to make sure that people are treated fairly.
Article 21 says that no person should be stopped from having their life or personal freedom unless the law says so. The Supreme Court made a decision in the case of K.S. Puttaswamy versus the Union of India in 2017. The court had nine judges. They all agreed that the right to privacy is a very important right that is part of Article 21. The Court said that if the government does something that affects peoples privacy it has to follow some rules. The governments action must be allowed by a law that exists. It must also be trying to achieve a goal that the government really needs to accomplish. The action must be necessary to achieve that goal.. It must be proportionate to the goal, which means it must not go too far and it must have proper procedures in place to protect people.
The right to privacy includes things like integrity and informational privacy. This means that people have control over their bodies and their personal information such as voice recordings, DNA profiles and biometric data. The right, to privacy is protected by the constitution. It is very important.
- TheLegislative Matrix: From 1920 to 2022
The existing identification system included the Identification of Prisoners Act, 1920, allowing the collection of fingerprints, footprints, and photographs of convicted or arrested individuals; along with Section 311A of the CrPC, which empowered Magistrates to instruct accused individuals to submit specimen signatures or handwriting for comparison. Sections 53 and 53A of the CrPC authorized the police to request medical examinations of accused individuals in particular offenses. The Criminal Procedure (Identification) Act, 2022 (CPIA) has revoked and substituted the Identification of Prisoners Act, 1920, significantly broadening the range of acceptable identification. The BNSS, 2023 has supplanted the CrPC, maintaining much of the original framework while introducing some changes.
- TheCriminal Procedure (Identification) Act, 2022
The CPIA 2022 is the main legal framework regulating the collection of biometric and physical data. Section 2(1)(b) broadly defines “measurements” to encompass finger impressions, palm prints, footprints, photographs, iris and retina scans, samples both physical and biological along with their analysis, behavioural traits such as signatures and handwriting, and any other assessments mentioned in Sections 53 or 53A of the CrPC (currently Sections 183 and 184 of the BNSS). This definition is intentionally broad, as the term “biological samples and their analysis” could include voice prints, DNA, and future biometric identifiers not yet imagined.
Section 3 permits a police officer (at least of the rank of Head Constable) to take measurements of: (i) all convicted individuals; (ii) all individuals arrested for an offence punishable by one year or more of imprisonment; and (iii) all individuals held under any preventive detention law without the need for prior approval from a magistrate. Section 4 allows a Magistrate to instruct another individual to provide measurements for investigation or legal proceedings. Section 5 authorizes a police officer to employ reasonable force to obtain measurements from an individual who opposes or declines, and categorizes such opposition as an offense subject to punishment under what was Section 186 of the Indian Penal Code, 1860, now Section 223 of the Bharatiya Nyaya Sanhita, 2023. Section 8 states that the National Crime Records Bureau (NCRB) must keep records for 75 years starting from their creation date.
Main Analysis and Case Studies
- TheTestimonial-Physical Distinction: State of Bombay v. Kathi Kalu Oghad
The constitutional basis of this entire area relies on State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808, where an eleven-judge Constitution Bench definitively interpreted the extent of Article 20(3). The Court established a crucial and lasting difference between “being a witness” in terms of testimony and “providing evidence” in a physical manner. It stated that generating documents, providing thumb impressions, footprints, blood samples, or handwriting specimens does not equate to “being a witness against oneself” under Article 20(3). The protection is limited to forced testimonial self-incrimination forcing a defendant to provide a statement based on personal knowledge or experience that directly implicates him.
The Kathi Kalu Oghad ratio suggests that the majority of physical biometric information such as fingerprints, photos, iris scans, and possibly voice samples are not directly sheltered by Article 20(3). This differentiation, while challenged by academic experts as overly formal and not adequately recognizing the coercive nature of forensic compulsion, has never been overturned and continues to be the dominant constitutional principle.
- TheConsent Imperative: Selvi v. State of Karnataka
In Selvi v. State of Karnataka, (2010) 7 SCC 263, a three-judge bench unanimously invalidated compulsory narco-analysis, polygraph examinations, and Brain Electrical Oscillation Profiling (BEOP) for violating Articles 20(3) and 21. The Court determined that these methods force the retrieval of information via the accused’s own cognitive and mental faculties, thus surpassing the threshold of testimonial compulsion. More importantly for the current discussion, the Court established a separate principle: even if a method does not inherently breach Article 20(3), the lack of free, informed, and voluntary consent makes the procedure a violation of personal liberty rights under Article 21. The Selvi ruling establishes a strong doctrinal basis for contesting the coercive framework of the CPIA 2022. The permission for coercive collection and the penalization of opposition in Section 5 completely remove genuine consent. The Court’s emphasis in Selvi on voluntary consent as a standalone constitutional necessity rather than just a procedural formality directly conflicts with this legal framework.
- TheInformational Privacy Doctrine: K.S. Puttaswamy v. Union of India
In K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, the nine-judge bench confirmed that privacy is fundamental and recognized informational privacy the individual’s right to manage information about themselves as an essential aspect of that right. Biometric identifiers fundamentally represent informational data: they are unique, enduring, and may be used in manners that go well beyond the specific inquiry for which they were gathered.
When applied to the CPIA 2022, the proportionality test is satisfied only in part. The requirement of legality (a legitimate law) is met. Nonetheless, the necessity standard is challenged by the enforcement of the CPIA on any arrest for any crime that carries a one-year prison sentence a level that includes a broad spectrum of lesser offences completely unrelated to the biometric information being gathered. The proportionality criterion is additionally challenged by the 75-year data retention duration, the failure to enforce mandatory deletion after acquittal, and the absence of independent oversight.
Critical Analysis and Evaluation
- TheConsent Deficit and Section 5 of the CPIA, 2022
Section 5 of the CPIA 2022 faces the greatest risk of constitutional challenge. By permitting the application of reasonable force for measurement collection and designating resistance as a crime under Section 223 BNS, it effectively removes the possibility of informed consent. This is challenging to align with the Selvi principle that the lack of voluntary consent constitutes a violation of Article 21, not just as a procedural gap but as a fundamental constitutional shortcoming.
The State’s counterargument that Selvi dealt with methods for extracting cognitive content, while biometric collection focuses solely on physical traits has significantly weakened following Puttaswamy. Biometric information is private personal data that could enable continuous monitoring. Its forced acquisition and perpetual storage involve informational self-determination in a way that the physical-testimonial dichotomy established in 1961 cannot sufficiently encompass. Courts will progressively require the application of the Puttaswamy proportionality test, rather than just the Kathi Kalu Oghad distinction, when evaluating the constitutional legitimacy of the CPIA framework.
- Absenceof Independent Oversight
Section 3 of the CPIA 2022 empowers a police officer ranked Head Constable or higher to directly obtain measurements from apprehended individuals without the need for magistrate approval. The legal protection in Section 4 is applicable solely to individuals who do not fall under Section 3 regular citizens who are not detained. This unequal treatment results in a structural inconsistency: individuals who have already lost their freedom due to arrest receive less judicial protection, not more, than those who stay free. In a system where arrest serves as a reason for diminishing procedural protections instead of enhancing them, the constitutional reasoning is reversed.
The forsaken DNA Regulatory Board framework embodied a more constitutionally stringent method: autonomous, interdisciplinary supervision, consent stipulations, purpose restrictions, and obligatory deletion upon exoneration. The CPIA 2022 rejects this model in favor of executive oversight, designating the NCRB an entity of the central government as the exclusive guardian and gatekeeper of biometric data.
- TheLegal Position on Refusal: A Synthesis
The current legal state can be articulated in this way by merging the constitutional regulations with the legislative framework. An individual legally arrested for an offense carrying a penalty of one year or longer does not possess an unconditional right to decline providing voice samples or biometric information: Section 5 of the CPIA 2022 permits compulsory collection and classifies noncompliance as a criminal offense. Additionally, a defendant maintains the right to dispute any unjust or disproportionate order before a Magistrate or the High Court, especially when: (a) the requested biometric data has no reasonable connection to the alleged crime; (b) the collection is utilized for widespread intelligence purposes rather than the specific inquiry; or (c) the method of collection infringes upon personal dignity. Third, the authority of the Magistrate under Section 4 CPIA and Section 349 BNSS must be utilized with care and intention, rather than as an imprecise or uncertain endeavor. Fourth, individuals who are acquitted or released possess a robust constitutional basis, rooted in the Puttaswamy proportionality principle, to request the removal of their stored biometric data, despite the lack of an explicit legal right.
- SuggestedReforms
The existing framework necessitates immediate legislative adjustment. Parliament must create precise laws regarding voice samples as mandated by the Supreme Court in Ritesh Sinha, outlining objectives, protections, and restrictions. The CPIA 2022 ought to be revised to mandate Magistrate approval for biometric collection from all individuals who are arrested, rather than just those not covered by Section 3. Compulsory deletion of biometric records following acquittal or discharge should be implemented, in line with the international standard demonstrated by the Protection of Freedoms Act 2012 (UK). An autonomous regulatory entity similar to the suggested DNA Regulatory Board should be established with authority for consent oversight, auditing, and orders for data destruction. Ultimately, the description of “biological samples” in Section 2(1)(b) needs to be precisely defined and thoroughly listed to avoid unlimited expansion by executive authority.
Conclusion
The question of whether a citizen can legally decline to provide voice samples or biometric data to law enforcement under the BNSS and CPIA framework is both legally complex and constitutionally debated. Under the current legal framework, a citizen who has been lawfully apprehended cannot fully decline the collection of voice samples or biometric data without facing criminal consequences according to Section 5 of the CPIA 2022 in conjunction with Section 223 of the BNS, 2023.
Nonetheless, the legal incapacity to decline is not equivalent to constitutional acceptance. The jurisprudential trajectory spanning Kathi Kalu Oghad’s distinction between physical and testimonial evidence (1962), Selvi’s requirement of consent (2010), and Puttaswamy’s doctrine of informational privacy and proportionality (2017) firmly indicates that the CPIA 2022’s coercive, consent-exempt framework stands on constitutionally precarious ground. The lack of required judicial review for individuals who have been arrested, the 75-year data retention period regardless of acquittal, and the broad definition of “biological samples” together create a structure susceptible to effective constitutional challenge.
The Supreme Court’s guidance in Ritesh Sinha that Parliament needs to create specific laws with proper protections for voice samples is still, in any significant way, unexecuted. The CPIA 2022, as a legislative answer to the identification issue of the digital age, has emphasized investigative usefulness over personal rights in ways that require immediate and ethical rectification.
A citizen has constitutional options available to them. Issues based on the Puttaswamy proportionality doctrine, the lack of a reasonable connection between the claimed offense and the requested biometric data, the right to informational self-determination as per Article 21, and the necessity of consent under Selvi remain constitutionally relevant and subject to judicial review. The High Courts as per Article 226 and the Supreme Court under Article 32 have complete authority to examine and nullify coercive uses of CPIA powers that exceed constitutional boundaries.
In a constitutional democracy, bodily integrity and informational privacy are not merely afterthoughts for citizens they are essential rights. The State has the responsibility to legally justify each violation of these entitlements by demonstrating a legitimate aim, necessity, and proportionality. The existing legal framework has not completely fulfilled that obligation, and reform is not just preferable: it is a constitutional necessity.
References and Citations
Constitutional Provisions
- Constitutionof India, 1950, Art. 20(3) Right against self-incrimination.
- Constitutionof India, 1950, Art. 21 Right to life and personal liberty (including right to privacy).
Statutes and Bare Acts
- BharatiyaNagarik Suraksha Sanhita, 2023 (Act No. 46 of 2023), Sections 183, 184, 349.
- BharatiyaNyaya Sanhita, 2023 (Act No. 45 of 2023), Section 223.
- BharatiyaSakshya Adhiniyam, 2023 (Act No. 47 of 2023).
- CriminalProcedure (Identification) Act, 2022 (Act No. 9 of 2022), Sections 2, 3, 4, 5, 6, 8.
- Codeof Criminal Procedure, 1973 (now repealed), Sections 53, 53A, 311A.
- IndianPenal Code, 1860 (now repealed), Section 186.
- Identificationof Prisoners Act, 1920 (now repealed).
- DNATechnology (Use and Application) Regulation Bill, 2019 (passed Lok Sabha; lapsed).
Supreme Court Judgements
- M.P.Sharma v. Satish Chandra, AIR 1954 SC 300 (8-judge bench scope of search and seizure vis-à-vis self-incrimination).
- Stateof Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808 (11-judge Constitution Bench physical evidence vs. testimonial compulsion under Art. 20(3)).
- Selviv. State of Karnataka, (2010) 7 SCC 263 (3-judge bench narco-analysis, polygraph, BEOP; consent imperative under Art. 20(3) and 21).
- K.S.Puttaswamy v. Union of India, (2017) 10 SCC 1 (9-judge Constitution Bench right to privacy as fundamental right; proportionality doctrine).
- RiteshSinha v. State of Uttar Pradesh, (2019) 8 SCC 1 (3-judge bench voice samples; purposive interpretation of Section 311A CrPC).
- JusticeK.S. Puttaswamy (Retd.) v. Union of India (Aadhaar), (2019) 1 SCC 1 (5-judge bench informational privacy; biometric data governance).
International Sources
- S.and Marper v. United Kingdom, [2008] ECHR 1581 (European Court of Human Rights indefinite retention of biometric data of acquitted persons; violation of Art. 8 ECHR).
- Protectionof Freedoms Act 2012 (United Kingdom) mandatory deletion of DNA and biometric data of persons not convicted.
- FifthAmendment to the Constitution of the United States of America (comparative source privilege against self-incrimination).
Government and Institutional Sources
- NationalCrime Records Bureau (NCRB), Ministry of Home Affairs, Government of India custodian of biometric records under CPIA 2022.
- Statementof Objects and Reasons, Criminal Procedure (Identification) Bill, 2022, Lok Sabha.
- Statementof Objects and Reasons, Bharatiya Nagarik Suraksha Sanhita, 2023, Lok Sabha.
