The Watchful Eye: Facial Recognition and the Fragile Right to Privacy

Abstract

Facial recognition technology (FRT) is rapidly expanding across India, offering efficiency and security but raising serious concerns about privacy, ethics, and legal safeguards. Despite its potential, FRT operates in a regulatory vacuum, risking misuse and discrimination. The right to privacy, affirmed under Article 21 and landmark cases like Justice K.S. Puttaswamy  v. Union of India, remains fragile in the face of unchecked surveillance. Biometric data, once compromised, is irreversible—making ethical deployment critical. As India embraces digital innovation, it must ensure that FRT is governed by robust laws, inclusive policies, and a commitment to civil liberties and human dignity.

Introduction

India is rapidly embracing facial recognition technology (FRT) across sectors—from airport security and railway stations to mobile apps and public surveillance. This powerful tool can identify people based on their facial features, offering benefits like faster verification, crime prevention, and smoother services. But as its use grows, so do concerns about privacy, ethics, and the potential for misuse.

The right to privacy Is a fundamental right under Article 21 of the Indian Constitution, as affirmed in the landmark Justice K.S. Puttaswamy v. Union of India case. Yet, the legal system is still catching up with the challenges posed by technologies like FRT. India lacks a dedicated law to regulate how facial data is collected, stored, and used. Existing laws like the Information Technology Act (2000) and Aadhaar Act (2016) offer limited protection and don’t fully address the risks of mass surveillance or data misuse.

Ethically, facial recognition raises serious questions. Algorithms can be biased, especially if trained on limited or skewed datasets. This can lead to false matches or discrimination—especially against women, minorities, or people with disabilities. Without proper checks, FRT could be used to track individuals without consent, profile citizens, or suppress dissent.

As India moves forward in its digital journey, it must strike a balance between innovation and individual rights. Strong laws, ethical safeguards, and public awareness are essential to ensure that technology serves the people—without compromising their freedom or dignity.[1]

THE FACIAL RECOGNITION TECHNOLOGY (REGULATION OF POLICE POWERS) BILL, 2023

Defined under Sec 2(a)“facial recognition technology” means an algorithm based automated or Semi-automated technology which is employed to identify, verify, map and match Individual’s facial features, including 1:1 identification and 1: N verification system, to Infer emotions, associations or activities of the individual;[2]

Article 21 in Constitution of India

Protection of life and personal liberty

No person shall be deprived of his life or personal liberty except according to procedure established by law.[3]

K.S. Puttaswamy v. Union of India (2017) (privacy judgment) the Supreme Court recognized the right to privacy as a fundamental right protected under Article 21. The court held that privacy is an essential aspect of personal liberty and dignity and is intrinsic to the entire constitutional scheme[4] [5]

 Facial Recognition and Biometric Data

Understanding Facial Recognition

Facial recognition is a form of biometric identification that uses AI to analyze and match facial features. It’s not just about spotting a face—it’s about decoding patterns like the distance between eyes, the shape of cheekbones, and the contour of the jaw. These features are converted into a digital signature that can be compared across databases. What makes it powerful is its ability to work remotely and passively—no need for physical contact or active participation. But this convenience comes with a trade-off: it can be used without consent, raising serious ethical and legal questions.

Legal and Ethical Implications

The use of facial recognition and biometric data demands a robust legal framework. Without clear laws, these technologies risk violating privacy, autonomy, and even fundamental rights. Globally, responses vary—some countries embrace it for security, while others impose strict regulations. In India, the legal landscape is still evolving, with debates around consent, data protection, and surveillance. The key challenge is balancing innovation with accountability. Human rights must guide the development and deployment of these tools, ensuring that AI serves society—not controls it.[6]

Right to Privacy under Article 21 – 14 Landmark Cases

A.K. Gopalan v. State of Madras (1950) The court took a narrow view of personal liberty, focusing only on procedure. Privacy wasn’t considered a fundamental right yet.[7]

Kharak Singh v. State of U.P. (1962) Police surveillance raised privacy concerns. Majority didn’t fully recognize privacy, but Justice Subba Rao’s dissent laid early groundwork.[8]

Gobind v. State of M.P. (1975) Privacy was acknowledged as a fundamental right, but not absolute. It can be restricted for public interest if justified.[9]

Maneka Gandhi v. Union of India (1978) Expanded the meaning of “personal liberty” under Article 21. Privacy became more closely linked to dignity and freedom.[10]

Rajagopal v. State of Tamil Nadu (1994) Media’s right to publish vs. individual’s privacy. Court upheld privacy unless the person is a public figure or the info is already public.[11]

PUCL v. Union of India (1997) Telephone tapping was ruled a violation of privacy unless done under legal safeguards. Strengthened procedural protection.[12]

Sharda v. Dharmpal (2003) Court allowed medical tests in divorce cases, saying privacy can be limited if it serves justice and is done fairly.[13]

District Registrar v. Canara Bank (2005) Held that even private documents in banks are protected. State can’t access them without proper legal authority.[14]

Selvi v. State of Karnataka (2010) Narco-analysis and brain mapping without consent violate mental privacy and self-incrimination rights.[15]

Naz Foundation v. Govt. of NCT Delhi (2009) Privacy was used to support LGBTQ+ rights. Though initially overturned, it laid the foundation for later victories.[16]

Justice K.S. Puttaswamy v. Union of India (2017) A landmark case. Supreme Court unanimously declared privacy a fundamental right under Article 21—covering body, mind, and data.[17]

Puttaswamy (Aadhaar) Case (2018) Upheld Aadhaar’s validity but imposed limits. Data must be protected, and consent is key. Privacy can’t be compromised for convenience.[18]

Navtej Singh Johar v. Union of India (2018) Decriminalized homosexuality. Privacy was central to protecting identity, dignity, and personal choices.[19]

Joseph Shine v. Union of India (2018) Struck down adultery law. Court said state shouldn’t interfere in private relationships—privacy includes autonomy in personal life[20] [21]

Key Recommendations on Facial Recognition Technology

1.Improve Technical Performance

Algorithms must be tested for accuracy across different demographics to avoid bias.

Developers should focus on reducing false positives and false negatives, especially in real-world conditions.

Standardized benchmarks and independent evaluations are essential to ensure reliability.

2.Promote Inclusive Governance

Policymaking should involve diverse voices—tech experts, legal scholars, civil rights advocates, and the public.

Ethical frameworks must guide deployment, especially in sensitive areas like policing or immigration.[22]

Conclusion

Facial recognition technology stands at the intersection of innovation and intrusion. In India, its growing adoption—from public spaces to digital platforms—signals a shift toward tech-driven governance. Yet, without a dedicated legal framework, this shift risks undermining the very rights it aims to protect. The Supreme Court’s recognition of privacy as a fundamental right under Article 21 provides a constitutional shield, but enforcement remains patchy. Landmark judgments—from Maneka Gandhi to Puttaswamy—have expanded the scope of personal liberty, yet the law hasn’t fully caught up with the pace of AI-powered surveillance.

Ethically, FRT demands scrutiny. Bias in algorithms, lack of consent, and opaque data practices can lead to profiling, exclusion, and suppression of dissent. The 2023 Facial Recognition Technology (Regulation of Police Powers) Bill is a step forward, but broader safeguards are needed. India must prioritize transparency, accountability, and inclusive governance in deploying FRT. Public awareness, independent audits, and ethical standards should guide its use—not just technical efficiency.

Ultimately, technology must serve people—not control them. A rights-based approach to FRT can ensure that India’s digital future is not only smart but just, where innovation coexists with dignity, freedom, and trust.

 Reference(S):

1. National Academies of Sciences, Engineering, and Medicine, Facial Recognition Technology: Current Capabilities, Future Prospects, and Governance (National Academies Press 2024) ch 5 https://nap.nationalacademies.org/read/27397/chapter/7 accessed 9 August 2025.
2. The Facial Recognition Technology (Regulation of Police Powers) Bill 2023, s 2(a).
3. Constitution of India, art 21.
4. Justice K.S. Puttaswamy (Retd.) v Union of India (2017) 10 SCC 1.
5. S. Puttaswamy v Union of India (Aadhaar case) (2018) 1 SCC 809.
6. K. Gopalan v State of Madras AIR 1950 SC 27.
7. Kharak Singh v State of Uttar Pradesh AIR 1963 SC 1295.
8. Gobind v State of Madhya Pradesh AIR 1975 SC 1378.
9. Maneka Gandhi v Union of India AIR 1978 SC 597.
10. Rajagopal v State of Tamil Nadu (1994) 6 SCC 632.
11. People’s Union for Civil Liberties (PUCL) v Union of India (1997) 1 SCC 301.
12. Sharda v Dharmpal (2003) 4 SCC 493.
13. District Registrar and Collector v Canara Bank (2005) 1 SCC 496.
14. Selvi v State of Karnataka (2010) 7 SCC 263.
15. Naz Foundation v Government of NCT Delhi (2009) 160 DLT 277 (Del HC).
16. Navtej Singh Johar v Union of India (2018) 10 SCC 1.
17. Joseph Shine v Union of India (2018) 2 SCC 189.
18. Shivani Kumari, ‘Different Aspects of Right to Privacy under Article 21’ (iPleaders, 5 February 2024) https://blog.ipleaders.in/different-aspects-of-right-to-privacy-under-article-21/ accessed 9 August 2025.
19. ‘Justice K.S. Puttaswamy v Union of India’ (Indian Kanoon) https://indiankanoon.org/doc/1199182/ accessed 9 August 2025.
20. National Academies of Sciences, Engineering, and Medicine, ‘5 Conclusions and Recommendations’ in Facial Recognition Technology: Current Capabilities, Future Prospects, and Governance (National Academies Press 2024) https://nap.nationalacademies.org/read/27397/chapter/7 accessed 9 August 2025.
21. Saurabh Kumar, ‘Facial Recognition Technology: Ethical, Legal and Social Implications’ (2024) National Center for Biotechnology Information (NCBI) https://pmc.ncbi.nlm.nih.gov/articles/PMC11183273/ accessed
22. Akanksha Singh, ‘Facial Recognition Technology and the Right to Privacy in India’ (Lawful Legal, 19 April 2025) <https://lawfullegal.in/facial-recognition-technology-and-the-right-to-privacy-in-india/> accessed 9 August 2025.

[1] Akanksha Singh, ‘Facial Recognition Technology and the Right to Privacy in India’ (Lawful Legal, 19 April 2025) https://lawfullegal.in/facial-recognition-technology-and-the-right-to-privacy-in-india/ accessed 9 August 2025.

[2] The Facial Recognition Technology (Regulation of Police Powers) Bill 2023, s 2(a).

[3] Constitution of India, art 21

[4] Justice K.S. Puttaswamy (Retd.) v Union of India (2017) 10 SCC 1

[5] Justice K.S. Puttaswamy v Union of India’ (Indian Kanoon) https://indiankanoon.org/doc/1199182/ accessed 9 August 2025.

[6] Saurabh Kumar, ‘Facial Recognition Technology: Ethical, Legal and Social Implications’ (2024) National Center for Biotechnology Information (NCBI) https://pmc.ncbi.nlm.nih.gov/articles/PMC11183273/ accessed 9 August 2025.

[7] A.K. Gopalan v State of Madras AIR 1950 SC 27.

[8] Kharak Singh v State of Uttar Pradesh AIR 1963 SC 1295.

[9] Gobind v State of Madhya Pradesh AIR 1975 SC 1378.

[10] Maneka Gandhi v Union of India AIR 1978 SC 597.

[11] R. Rajagopal v State of Tamil Nadu (1994) 6 SCC 632.

[12] People’s Union for Civil Liberties (PUCL) v Union of India (1997) 1 SCC 301.

[13] Sharda v Dharmpal (2003) 4 SCC 493.

[14] District Registrar and Collector v Canara Bank (2005) 1 SCC 496.

[15] Selvi v State of Karnataka (2010) 7 SCC 263.

[16] Naz Foundation v Government of NCT Delhi (2009) 160 DLT 277 (Del HC).

[17] Justice K.S. Puttaswamy (Retd.) v Union of India (2017) 10 SCC 1.

[18] K.S. Puttaswamy v Union of India (Aadhaar case) (2018) 1 SCC 809.

[19] Navtej Singh Johar v Union of India (2018) 10 SCC 1.

[20] Joseph Shine v Union of India (2018) 2 SCC 189.

[21] Shivani Kumari, ‘Different Aspects of Right to Privacy under Article 21’ (iPleaders, 5 February 2024) https://blog.ipleaders.in/different-aspects-of-right-to-privacy-under-article-21/ accessed 9 August 2025.

[22] 1.National Academies of Sciences, Engineering, and Medicine, Facial Recognition Technology: Current Capabilities, Future Prospects, and Governance (National Academies Press 2024) ch 5 https://nap.nationalacademies.org/read/27397/chapter/7 accessed 9 August 2025.