Facial recognition in India: Some legal challenges

Updated: Oct 25, 2019 5:27 PM

Already, in California, a law has been passed which has banned the use of facial recognition technologies. India needs to examine the Californian legal approach and suitably address the legal challenges and issues raised by such law before moving forward.

Facial recognition, India, legal challenge, Facial recognition technology, legal, policy, regulatory issue, defence newsIt needs to be appreciated that people have a fundamental right to privacy vis-à-vis their right and also their facial features and contours.

By Dr. Pavan Duggal

Automated facial recognition is a technology which allows the capturing of facial features and contours of persons for the purposes of preparing a database for potential comparison tomorrow. Facial recognition as technology has got its own intrinsic benefits. It allows law enforcement agencies to track by comparing facial features of not just offenders but also lost children. Automated facial recognition has been deployed in beta projects in India. Also, it has been reported in the public domain that these kinds of technologies would now be used in Airports. While on paper, this technology tends to show a lot of potentials, the implementation of such facial recognition technologies brings forward large number of legal, policy and regulatory issues.

The direct implementation of such technologies has not been recognized by law. As such, there is a need for having in place detailed legal frameworks passed by the Parliament of India which authorize the implementation and maintenance of such automated facial recognition technologies. Currently, in India, we don’t have specific law which authorizes the deployment of these technologies. The Indian Information Technology Act, 2000 being India’s mother legislation on the electronic format is completely silent on facial recognition. Also even under the rules passed under the Information Technology Act, 2000, there was no reference to facial recognition. As such, for a long term deployment of this technology, it will be imperative, that the Parliament should pass a strong law to not just enable legal implementation of such technologies but also the law should establish the various instances where such technologies can be so implemented.

One of the biggest challenges concerning facial recognition technology is the fact that it would tend to violate people fundamental right to privacy enshrined under Article 21 of the Constitution of India. By virtue of the judgment of Justice Puttaswamy v/s Union of India, the Hon’ble Supreme Court of India has already declared the right to privacy as a fundamental right and such right can only be exercised in accordance with the procedure established under the law. If there is no procedure established under law, any deployment or adoption of such technologies, tantamount to violation of people fundamental right to privacy. The Government needs to specifically keep in mind these factors and parameters into consideration as it moves forward in the deployment of new technologies.

Read| National Automated Facial Recognition of NCRB: Accuracy a cause of concern

It needs to be appreciated that people have a fundamental right to privacy vis-à-vis their right and also their facial features and contours. Hence, as these technologies have a distinct potentiality of intruding into the personal privacy space of people.

Already, in California, a law has been passed which has banned the use of facial recognition technologies. India needs to examine the Californian legal approach and suitably address the legal challenges and issues raised by such law before moving forward.

By simplicitor saying that India as a nation is different and we don’t need to consider the Californian law, may not be the correct approach. India as a nation is known for its unity in diversity. It is also known to learn experiences from others. As a nation, we need to examine the Californian law and then see what the law has provided from the perspectives of India and then evolve Indian customized approaches on facial recognition technologies.

Further, cybersecurity is an important component and aspect of facial recognition technologies. When the automated facial recognition technologies would be deployed, large data sets would be created which will contain the personally identifiable information. There is a need for ensuring the cybersecurity of such data to be protected and preserved in order to protect the rights and liberty of people.

These and other varieties of data issues need to be considered in a holistic manner before India moves forward in the direction of facial recognition technologies. These technologies indeed are having a lot of benefits. India needs to create a harmonious balance between the needs of India as a nation on the one hand and protecting the intrinsic privacy and other fundamental rights and liberties of citizens on the other. It will be interesting to see how the Government approaches these issues as it moves forward in the deployment of autonomous facial recognition technologies.

(The author Advocate, Supreme Court of India, is an internationally renowned expert authority on Cyber Law and Cyber Security law. He has been acknowledged as one of the top four Cyber Lawyers in the world. He is also the Chairman of International Commission on Cybersecurity Law. You can reach him at pavan@pavanduggal.com. Views expressed are personal.)

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