Bringing laws to legalise Biometric Recognition

India as a society is going through major transformations with the laws that are being pushed through the parliament. Laws are not being debated enough but being enacted through the parliament, leading to protests on streets. As a society we are increasingly ignoring to follow rule of law as well, the police in the country especially are using techniques and means which no existing law allows them to do. Take the case of facial recognition itself, there is no law which allows the police to use it, but they would claim there is no law which restricts them not to do so either.

According to a report by The Ken the government is considering to amend a law, Identification of Prisoners and Arrested Persons Bill, 2020 to allow the police department to use facial recognition. The bill is likely to be tabled in the monsoon session when the data protection bill is also expected to be considered for passing. The bill is expected to give legitimacy for the police departments use of facial recognition and further allowing them to collect other biometrics like fingerprints, iris of retina, DNA, blood samples, foot and handprints, voice samples and host of data for forensic analysis.

The use of biometrics in policing in India has a rich history with the Indian Evidence Act of 1872 allowing the collection of fingerprints as evidence. It is under this law the police even evolved forensic techniques of collecting DNA at crime scenes. The Identification of Prisoners Act of 1920 allowed the police to further collect fingerprints and photographs of convicts and anyone who is also arrested under suspicion of committing a crime. These laws over the years helped the police department document and solve crimes.

But with the rising population and the difficulty to maintain physical records, the police have upgraded their procedures and capacity with the help of IT. The ubiquitous use of biometrics part of Aadhaar meant, the police could source fingerprint scanners easily and develop their own fingerprint recognition systems. The Hyderabad Police were one of the first to acquire these systems part of the Ministry of Home Affairs (MHA) pilot implementations under Crime and Criminal Networks and Systems (CCTNS) project.

CCTNS is essentially a network of databases linking all police departments and allowing them to share information of crime records and criminals. Under CCTNS umbrella is where the government is building a host of new systems like the National Automated Facial Recognition System and Automated Fingerprint Identification

The use of biometrics in policing in India has a rich history with the Indian Evidence Act of 1872 allowing the collection of fingerprints as evidence. It is under this law the police even evolved forensic techniques of collecting DNA at crime scenes.

System. These biometric recognition systems will thus be accessible to every police department in the country through CCTNS. The system is designed to find and track people throughout the country by having a centralised database of wanted persons.

If one where to understand how these national systems could change policing practices across India, the best place to look at is Hyderabad. The Hyderabad Police has been implementing all the pilots for the CCTNS system including the fingerprint recognition system and facial recognition. These pilots have led to people randomly being harassed on the streets of Hyderabad to be photographed or to give their fingerprints to identify if they are a criminal. The police have been detaining anyone whom they couldn’t identify or where not carrying their identity documents when going out of their house. With no law or rules being framed to regulate the use of these systems, the police have gone overboard in using them everywhere and on anyone.

The problem building such surveillance systems is the lack of law or criminal codes which safeguards citizens and limit arbitrary use of these systems, forcing one to approach courts. The MHA and National Crime Records Bureau (NCRB) which is maintaining the CCTNS project intends to fix it by amending the Identification of Prisoners Act. The hope is that since facial recognition is only being used to find criminals and wanted persons, amending this act would give the police department the power to do this legitimately. The idea sounds great but could fall apart if the law is subjected to the proportionality test under the fundamental right to privacy judgement, Puttaswamy Vs Union of India.

The Supreme Court in its judgement on privacy has clearly demanded the government bring a law on surveillance and that the term “national security” be defined. With no clear definition of national security, the government has power to conduct surveillance of any innocent who is not accused in any crime. This has been the case if one looks into the people who were under surveillance using the pegasus spyware. The entire list of people subject to this draconian form of surveillance is not known, but the individuals whom whatsapp informed were all human rights activists, academics, lawyers demanding accountability

of the state.

Surveillance and Police reforms are a need of the hour for our society with police acting with impunity and no checks with the recent events on CAA protests. Any such reforms before they are even proposed need to understand the capabilities of police and intelligence agencies in India. If the parliament and state assemblies continue to allow these invasive systems in the country and their states, ignoring the supreme court judgement on privacy, we would be looking at a police state.

Several cities across the world are banning facial recognition systems with the disproportionate amount of power they give to police departments. Surveillance has its benefits when targeted against individuals of power who can harm our society under court orders.

Without any supervision on police and no accountability to the public at large, these ubiquitous systems available to every beat cop could just mean police harassment. It is known holding police accountable is near impossible in this country with the power of violence they have produced with sanctions from the state. The illegal encounters seem small when biometric recognition systems are used on the entire society to police their bodies every second.