Written by Shlok Singh, a student at the School of Law, CHRIST (Deemed to be University), India.

Facial Recognition Technology (FRT) is unfolding as one of the swiftly booming innovation, but in the contemporary digital era, it has been widely adopted as a tool for policing, and practices such as check-in and check-out at various public spaces, has created a sense of tension between national security and the right to privacy, which is fundamentally protected under the Constitution. The study addresses the gap in the “National Automated Facial Recognition System”, and hoists concerns regarding the current technology in place and its relevance, as discussed in the Puttaswamy judgment. It examines the opaqueness in the technological operations and argues how the system disproportionally infringes the individual liberty, due to the absence of robust oversight mechanisms. The rapid augmentation in the technology use, and the dependence of the government over it for public order exemptions has diminished the effectiveness of public safeguards, established under the “Digital Personal Data Protection Act.” The legislative ambiguity and the lack of prior judicial oversight on the technologies pertaining to facial recognition has exposed citizens to unregulated data harvesting, compromising with the privacy rights of the individuals. The study analyses the structural challenges of such AI algorithms and emphasises on how these algorithmic mechanisms shape the evidentiary framework and influence the integrity of the Criminal Justice System. 

It primarily assesses that whether the usage of such AI algorithms at a large scale satisfies the ‘tripartite proportionality’ test i.e. the legality, necessity, and proportionality as stipulated in the Puttaswamy judgment. The analysis of the contested executive exemptions under the act, provided an overview of the surveillance structure, sequencing administrative efficiency over constitutional protections. Lack of transparency and ex-ante judicial safeguards, has circumvent the ethics relating to human rights and transformed it into a widespread unaccountable data.

It rigorously assesses the deployment of such technologies by the law enforcement agencies, ensuring that the rule of law conforms to the existing Constitutional mandates. To substantiate, comprehensive policy documents inclusive of the AI governance guidelines and the legislatures must be examined. The systematic evaluation of the Puttaswamy judgment is a prerequisite for benchmarks against the contemporary state practices. Analyzing the statutory exemptions, the synthesis of policy directives and constitutional imperatives provides a robust framework to interrogate in the use of the information. 

The current surveillance apparatus operates within a legal vacuum. This void regulatory exacerbates concerns, as the absence of technical and operational safeguards, lead to the hallucination and misidentification. Consequently the lack of such systems wherein the chances of misidentification, undermines the non-discriminatory safeguards, protected under Article 14 of the Constitution of India.

The act stalls to bridge the gap, as it effectually prioritizes the administrative utility over stern privacy protections, mandated under the Puttaswamy judgment. EU’s GDPR distinctive approach to limit the obtrusive data processing, the DPDP Act’s reliance on ‘public order’ and ‘national security’, furnishes for the state led surveillance, lacking independent oversight. The gap standardizes the perpetual digital tracking as people there are susceptible to profiling hallucinations. The paucity of rigorous  ex-ante accountability mechanisms, primarily corrodes the individual liberty, which the Supreme Court sought to secure in the Puttaswamy judgment.

The tension still hangs in there because the act delivers an extensive exception for the state agencies, effectually sidestepping the constitutional protection of the tripartite test, as settled in the Puttaswamy judgment. To contend with, the legislative reform must mandate an independent administrative body to audit the surveillance algorithms, ensuring their rigorous assessments before deployment in the public spaces. Additionally, establishing clear judicial oversight apparatus, such as issuance of warrants for biometric data processing, is integral to reconcile national security with the fundamental right to privacy, and on the far side of such institutional changes, the unfolding of algorithmic frameworks to alleviate the risk of opacity and systematic bias being affiliated to the automated state action. Investigating into the interdisciplinary aspects is imperative in ensuring the prerequisites for efficacious judicial review, ensuring that such surveillance tools are contested as “black boxes”, nibbling away the democratic accountability.