Use of Facial Recognition Technology in India: A Function Creep Breaching Privacy

by | Jan 11, 2021

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About Rakshitt C Bajpai and Shivang Yadav

Rakshitt C Bajpai is a student of B.A., LL.B. (Hons) at Dr Ram Manohar Lohiya National Law University. He has keen interest in Human Rights and National Security and aspires to work in the field of Public Policy and International Law.

Criminal investigation has become convenient for the law enforcement agencies after the advent of “Facial Recognition Technology” (FRT) in India. Regardless of its benefits, it’s a threat to privacy and basic human rights of the citizens. Use of such technology in the absence of any regulatory authority or law will lead to abuse of power by the authorities and consequent function creep.

FRT refers to a method of identifying or verifying the identity of an individual using their face. Despite  limited understanding of what it entails, FRT’s potential is being widely explored in India, especially in enhancing national security. The government is planning on establishing a large FRT network, known as Automated Facial Recognition System (AFRS), which aims at simplifying the process of CCTV monitoring by extracting facial biometrics from videos and matching it with the images housed in a database. It has been used in several cases by investigating agencies. Recently, it was used to track down protestors during the Anti- CAA protests.

Use of AFRS clearly abridges an individual’s exercise of his right to privacy enshrined under Article 21 of the Indian Constitution. If someone protests against the government, even in a peaceful manner, this technology will enable the government to record the details of all such individuals, which might lead to individual targeting of protestors. This will cast a chilling effect on an individual’s freedom of speech and expression, right to protest, and right to movement under Article 19. The use of this technology does not satisfy the threshold set up by the Supreme Court in Justice K.S. Puttaswamy (Retd.) v Union of India. Here, the Supreme Court had ruled that privacy is a fundamental right, even in public spaces. If such this right is to be infringed, the government must show that its action is sanctioned by law, proportionate to the need for such interference, and in pursuit of a legitimate aim.

As far as the legitimacy of AFRS is concerned, the IT Act of 2000 classifies biometric data as sensitive personal data, and contains rules for collection, disclosure and sharing of such information. But these are only applicable to “body corporates” and not to government’s use of biometric facial data. Such surveillance is also unethical as it requires the deployment of FRT on citizens without their consent. The distrust among civil society also stems from the fact that the government is trying to set up this system without prior discussion or consultation regarding its implications.

In its landmark Aadhaar Judgment, while rejecting the justification of countering black money, as the basis for mandatory linkage of Aadhaar (India’s national biometric ID) with bank accounts, the Supreme Court had noted that imposing such a restriction on the entire population, without any evidence of wrongdoing on their part, would constitute a disproportionate response. The Court’s concern here clearly shows how AFRS can be misused by the government.

Furthermore, the accuracy of this technology is also unpredictable and might lead to unfavourable consequences in investigation. Therefore, deployment of AFRS without any legitimate checks and balances will lead to a function creep in India with serious repercussions. The government should constitute an efficient legal framework and an independent oversight committee to regulate the use of this technology, and also to bring about accountability within the framework of governance.

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