Over the past two decades there has been a sustained effort at digitising India’s governance structure in order to foster development and innovation. The field of law enforcement and safety has seen significant change in that direction, with technological tools such as Closed Circuit Television (CCTV) and Facial Recognition Technology (FRT) increasingly being deployed by the government.
Yet for all its increased use, there is still a lack of a coherent legal and regulatory framework governing FRT in India. Towards informing such a framework, this paper seeks to document present uses of FRT in India, specifically by law enforcement agencies and central and state governments, understand the applicability of existing legal frameworks to the use of FRT, and define key areas that need to be addressed when using the technology in India. We also briefly look at how the coverage of FRT has increased beyond law enforcement; it now covers educational institutions, employment purposes, and it is now being used for providing Covid-19 vaccines.
We begin by examining use cases of FRT systems by various divisions of central and state governments. In doing so, it becomes apparent that there is a lack of uniform standards or guidelines at either the state or central level – leading to different FRT systems having differing standards of applicability and scope of use. And while the use of such systems seems to be growing at a rapid rate, questions around their legality persist.
It is unclear whether the use of FRT is compliant with the fundamental right to privacy as affirmed by the Supreme Court in 2017 in Puttaswamy. While the right to privacy is not an absolute right, for the state to curtail this right, the restrictions will have to comply with a three-fold requirement— first, being the need for explicit legislative mandate in instances where the government looks to curtail the right. However, the FRT systems we have analysed do not have such a mandate and are often the result of administrative or executive decisions with no legislative blessing or judicial oversight.
We further locate the use of FRT technology within the country’s wider legislative, judicial and constitutional frameworks governing surveillance. We also briefly articulate comparative perspectives on the use of FRT in other jurisdictions. We further analyse the impact of the proposed Personal Data Protection Bill on the deployment of FRT. Finally, we propose a set of recommendations to develop a path forward for the technology’s use which include the need for a comprehensive legal and regulatory framework that governs the use of FRT. Such a framework must take into consideration the necessity of use, proportionality, consent, security, retention, redressal mechanisms, purpose limitation, and other such principles. Since the use of FRT in India is also at a nascent stage, it is imperative that there is greater public research and dialogue into its development and use to ensure that any harms that may arise in the field are mitigated.
The entire research paper is available here.