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Stop Tamil Nadu police from using facial recognition: Chennai resident’s plea before Madras High Court

Shocked at being photographed by the police near Beasant Nagar, a Chennai resident filed a plea to cease Tamil Nadu police’s use of facial recognition technology for policing

Restrain Tamil Nadu police from using facial recognition technology (FRT) for policing purposes, requested a Chennai resident in a plea to the Madras High Court requesting for an interim injunction. The court has issued a notice to the state government that has since been accepted. This is the second petition filed by a citizen of India, objecting to the use of facial recognition technology by administrations. However, while the first challenged its use in academic spaces like universities, this petition raises concerns about the use of FRT by law enforcement agencies.

Chennai police scanning citizens at random: Readers may recall how, in December 2022, the Greater Chennai police had confirmed scanning the faces of random citizens near the Thillai Ganga Nagar subway and running them through an FRT system. At the time, the police had said this was done to “verify” the persons moving around at night hours and that there was “nothing to worry” about. As it turns out, Chennai police have been screening people in such a manner since much earlier.

Concerns of data used by police without consent: Resident Akhilesh Kumar Kandasamy, in his plea, said that he and his brother were stopped and photographed similarly by two police officers on March 7, 2022, near Beasant Nagar. The police did not ask for either individual’s permission while doing so, nor did they provide a reason for such actions, calling it a “formality.”

“I am concerned that the Respondent has uploaded photographs of my brother and me, taken on March 7, 2022, using facial recognition software, and stored them in their database for potential future use. Additionally, I have come across news reports detailing the use of facial recognition software by the Tamil Nadu Police, suggesting that our photographs may have been stored on state-wise databases maintained by the Tamil Nadu Government,” said Kandasamy in his affidavit cited in the plea.

Chennai police using FRT since October 2021: Trying to resolve his concerns, Kandasamy filed RTIs to various police authorities asking for the details of the FRT practice. On September 23, PIOs/DCPs of St. Thomas Mount and Anna Nagar districts replied, stating that the city police uses a mobile application, Face Recognition Software V 1.1, to take photographs and document citizens, suspects, or individuals.

“[Chennai police] have been using FRT since October 4, 2021, and police officers use the software to capture an image,” said the RTI response.

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Police claim law permits the use of FRT for policing: Kumar then sent an RTI to the State Crime Records Bureau (SCRB) in Chennai. Responding to his query on October 25, 2022, the Deputy Superintendent of Police of the department said that state police were authorized to use such technologies for policing purposes under the Tamil Nadu District Police Act of 1859 and the Criminal Procedure Code, 1973. The SP wrote:

“a. Section 21 of the Tamil Nadu District Police Act, 1859 and Section 41(1) and 42 of the Criminal Procedure Code, 1973 authorises Tamil Nadu Police to use FRT. To implement FRT, the government has not changed existing laws pertaining to policing/police procedures.

  1. The Face Recognition Software (“FRS”) for the Tamil Nadu Police was launched by the Hon’ble Chief Minister of Tamil Nadu on 04.10.2021 and is functioning across the State.
  2. FRT is a standard technology used across the world and instructions have been issued to field officers regarding the use of FRS.
  3. FRS operates on images available with the Tamil Nadu Police Database maintained at the State Data Center [“SDC”], Chennai. Only Tamil Nadu Police has access to this database.
  4. Tamil Nadu Police use FRT to verify antecedents of all suspects, arrested accused, passport applicants and for police verification services.
  5. FRT is also being used to identify dead bodies, search photos of missing persons, and upload clear photographs of wanted / absconding/ on the lookout for accused individuals to trace them.”

Neither law refer to FRT: Responding to the SP’s explanation, the plea argued that Sections 41(1)(i) and 42 of the CrPC deal with the powers of arrest and “do not provide any legal basis for the collection, storage, and processing of biometric data drawn from a person’s facial features.”

Similarly, Section 21 of the 1859 Act lists the general duties of police officers, for instance, “to detect and bring offenders to justice; to collect and communicate intelligence affecting the public peace.” It does not talk about the use of specific identification technology like an FRT system.

Other arguments in the plea to stop use of FRT for policing

Kandasamy argued that the use of FRT by police officials violated various parts of the Indian Constitution, including the right to privacy in the following manner:

FRT is discriminatory and violates various fundamental rights: The plea argued that FRT “compounds already-existing discrimination, as the initial database is made of people who are already treated as suspects.” Claiming that these initial suspicions are not neutral either, it said that certain groups are marked out as more suspicious and, therefore, targets of surveillance.

The plea argued that the use of FRT without a prior impact assessment or similar steps to address the issue of discriminatory effect violates the right to equality under Articles 14 and 15 of the Constitution. It also accused FRT usage by the police of violating the right to life under Article 21.

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Even in public areas, FRT infringes on privacy: The right to privacy “attaches to people and not places,” and so cannot be “lost” in a public space as per the Puttaswamy judgement of 2017. Accordingly, the constitutionality of people’s photographing without permission must be tested on the principle of legality, and on the standard of proportionality, said the plea.

“The fact that an individual’s facial features are “manifest in public” does not in any way dilute their “intrinsically private” character or undermine the individual’s right to be protected against unlawful and unconstitutional collection, storage, and processing of their sensitive personal information (R (Bridges) vs Chief Constable of South Wales, supra),” said the plea.

Use of FRT for policing fails the rationality test: Kandasamy argued that the SP’s reasoning for FRT usage under the 1859 Act and the CrPC is “too broad and vaguely worded to pass the rationality test.”

“To successfully defend FRT on the touchstone of suitability/rationality, the [state police] must bear the burden, at the very least, of first field-testing the technology and checking for error rates before sanctioning its use as a general law-enforcement measure. Its failure to do so ipso facto renders FRT void under the suitability/rationality prong of the proportionality standard,” said the plea.

FRT usage does not pass the necessity stage: Kandasamy argued that the police had not given any indication in the three RTIs he sent to show that it had considered other alternatives to FRT.

The state police “has provided no explanation why nothing short of a blanket, dragnet surveillance procedure – where the photographs of perfectly innocent citizens (like Kandasamy) are taken, stored in a centralised database, and then processed against another database of (presumably) known criminals – is required for it to fulfil its goals,” said the plea.

FRT for policing fails the balancing test: The fourth prong in the proportionality standard asks that there be a balance between the extent and intensity of the infringement and the State goal. However, the police’s use of FRT presumes the criminality of every citizen rather than a reasonable cause for suspicion.

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Moreover, this test also considers issues around storage limitations. In the absence of express storage limitation provisions, even after the passing of the data protection law in India, data captured using the FRT process may be stored indefinitely.

No safeguards against abuse: Referring to the Puttaswamy judgement, the plea said when the government wishes to “non-consensually collect, store, and process personal information, it must – through legislation – ensure that at each stage, there are safeguards to prevent unconstitutional abuse, as well as to protect the sanctity of the information itself.” These would include:

  1. The specificities of when, where, how, and how much data is to be collected.
  2. Data storage and its and safeguarding its sanctity.
  3. Circumstances stating when data can be processed.

Neither of the two laws, referred in the RTI reply ensure these safeguards.

MediaNama’s take: While the plea seeks to stop the usage of FRT by police under the grounds of constitutionality, similar pleas in future can be affected by the passing of India’s data protection law. Provisions of the Digital Personal Data Protection Act, 2023, are at odds with many of the arguments mentioned here. For example, certain provisions of the Act may permit government departments or similar entities to use facial data collected by CCTV cameras in a public space. Moreover, the government has also been granted many exemptions under this law. This means that in coming years, such challenges will have to cite rights violations while navigating the provisions of this law.

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Written By

I'm interested in the shaping and strengthening of rights in the digital space. I cover cybersecurity, platform regulation, gig worker economy. In my free time, I'm either binge-watching an anime or off on a hike.

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