Chidambaram said the objective of this Bill — “to expand the ambit of powers, to use modern techniques for body measurements and to provide legal sanctions’’ — appear “harmless words’’ but the “harm and mischief lies in these sections’’. Tearing into the Criminal Procedure (Identification) Bill, moved in Rajya Sabha by Union Home Minister Amit Shah, former Home minister and senior Congress leader P Chidambaram on Wednesday called it unconstitutional, illegal and in direct contravention of the Selvi and Puttaswamy judgments of the Supreme Court. He demanded that the Bill be sent to a Parliamentary committee, and passed only after thorough examination. Chidambaram said: “We gave ourselves a Constitution; we are bound to honour the Constitution. But I am sad to say, when a Bill like this is moved and passed in the House, we are wittingly or unwittingly breaking the Constitution every day.” Reiterating the Opposition’s demand that the Bill be sent to a House committee, he said, “If we can wait 102 years to change a Bill of 1920, why can’t we wait for 102 days for the Bill to be brought after examination by the standing committee?” Calling the Bill defective and dangerous, he said there are existing laws that deal with identification of prisoners. CrPC Section 53, 53 (A) and Section 54, he said, were introduced in 1963, and not 1920. “There is also another Act — Identification of Prisoners Act, 1920. There is also another Bill which is pending, DNA Technology Use and Application Regulation Bill, 2019, which I believe has been reported back to the House. Why has the DNA Technology Regulation Bill (been) kept pending since 2019, and why is this Bill being introduced? “What have you found lacking in the criminal procedure court? What have you found lacking in the DNA Technology Regulation Bill, which is sought to be made up by this Bill?’’ Chidambaram said the objective of this Bill — “to expand the ambit of powers, to use modern techniques for body measurements and to provide legal sanctions’’ — appear “harmless words’’ but the “harm and mischief lies in these sections’’. “I want to ask the honourable Home Minister, have you considered the development of laws in the last 20-30 years, especially since 2010? The Constitution is a living document; its sole interpreter is the Supreme Court,” he said. “We can make law, but what we made is interpreted by the Supreme Court…” He pointed at two “historic judgments” of the SC to make his point: the 2010 judgment in Selvi vs State of Karnataka case and the 2017 verdict in Justice Puttaswamy vs Union of India. He said in Selvi case, while examining narco analysis, polygraph tests, and brain electrical activation profile (BEAP), the bench observed, “In our considered opinion, subjecting a person to the impugned techniques, in an involuntary manner violates the prescribed grounds of privacy. In the light of these conclusions, that no individual shall be subjected to any of the techniques in question, whether in the context of investigation in criminal cases, or otherwise.’’ Chidambaram said, “Since 2010, the law in this country is that narco analysis, polygraph tests and BEAP are unlawful and unconstitutional. They violate liberty and privacy.” In the Puttaswamy judgment, the court said that “an invasion of life and personal liberty’’ must meet a threefold requirement — legality, which postulates the existence of a law; need, defined in terms of a legitimate state aim; proportionality, which ensures a rational nexus between the objects; and the means adopted to achieve them. “This law, which the honourable Home Minister has introduced, goes directly against the pronouncement in Selvi (case),” Chidambaram said. “And it fails every one of the three tests laid down in Puttaswamy.” He said the draft law needs to pass the test of the Constitution, as interpreted by SC. Chidambaram said laws are developed in democracies all over the world to protect liberty and privacy — “two of the most cherished rights in a democracy’’. Discussing Section 2(1) (b) of the Bill, which allows police and jail authorities to take measurements, defined to include biological samples and their analysis, behavioural attributes or any other examination under Sections 53, 53(A), 54 under criminal procedure code, he asked, “Do these measurements include narco analysis, polygraoh tests, BEAP and psychiatric examination? If they are not included, let us make it clear. Each one of this is unlawful.” Raising objections to Section 3 of the Bill, which extends the law to “any person”, Chidambaram said: “That includes all of us. I ask all members in this House – active political persons, trade unionists, social activists, a progressive writer – has anyone not violated any law in this country? When police say there is Section 144, you can’t proceed, and you take two steps forward, you are violating a law. If there is an order that you give security for good behaviour, and you don’t give security, you are violating a law. And the punishment for many of these offences is Rs 200 fine, or imprisonment up to one month, or fine. “I ask, is there anyone in this House, who has not violated a law? I ask the honourable Home Minister, who has had an active political career, have you never violated any law? This Section says any person, convicted of offence punishable under any law — so even if you are convicted of offence where punishment Rs 100 (fine), this law applies…if you are arrested for an offence under any law…or detained under any preventive detention law…” He said the draft law extends to detention and arrests even without charge. “Tomorrow if members of TMC, AAP or Congress march from the Gandhi statue to Vijay Chowk and police stop you, they can arrest you; (and) the moment they do that, they can take all your fingerprints, your DNA samples, behavioural samples — that is the law. Let the Home Minister say this is not the law, (that) these sections will be excluded. Then exclude them. Is there any person in this House who can say, ‘I have never violated any law in this country or never will’? … We are not talking about heinous crimes; we are talking about simple laws,’’ he said. Chidambaram questioned Section 4 of the Bill, which allows authorities to store and preserve samples for 75 years and share and disseminate records with any law enforcement agency. “My question is, who is the law enforcement agency? Law enforcement agency is not defined. Law enforcement agency is any authority enforcing law,’’ he said. It could even mean municipal officers or health inspectors, he added. He said that while Section 2 says a person is required to give measurements, Section 5 says a magistrate may direct measurements be taken, and a refusal can be punishable. “Can these measurements be taken without my consent? Against my will? If Section 2 and Section 5 are read together, then this is involuntary confession. This is involuntary testimonial compulsion. This is directly violative of Article 20 and 21. This directly violates Selvi. This directly violates Puttaswamy,” he said.