FACIAL RECOGNITION IN INDIA – SOME

LEGAL CHALLENGES

BY
DR. PAVAN DUGGAL
ADVOCATE, SUPREME COURT OF INDIA
CHAIRMAN, INTERNATIONAL COMMISSION ON CYBER SECURITY LAW

Automated facial recognition is a technology which allows the capturing of facial features and
contours of persons for the purposes of preparing database for potential comparison tomorrow.
Facial recognition as a 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 been used in Airports. While on
paper, this technology tends to show lot of potential, 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 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 has no reference to the facial recognition. As such, for a
long term deployment of these technology, it will be imperative, that the Parliament should pass
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 move forward in the deployment of new
technologies.

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. 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 other. 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, cyber security 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
cyber security of such data to be protected and preserved in order to protect the rights and liberty
of people.

These and other variety 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
lot of benefits. India needs to be create 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 Dr. Pavan Duggal, Advocate, Supreme Court of India, is an internationally renowned
expert authority on Cyberlaw and Cybersecurity 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. More about Dr. Pavan
Duggal is available at www.pavanduggal.com.