How Legal Is Government Facial Recognition of Protesters in India?

One of my clients recently had a case which I am explaining below and if you are stuck in such similar situation, here is what to do.

Note: Due to attorney-client privilege, I cannot disclose complete case details or identify the actual parties involved. However, I am sharing the essential facts and legal approach so that if you find yourself in a similar situation, you can understand the available solutions and legal remedies.

TL;DR: Government use of facial recognition on protestors raises serious constitutional questions around privacy and due process. Under Indian law, such surveillance must have a clear legal basis, be proportionate, and not violate Articles 19 and 21 of the Constitution. Any misuse or targeting of peaceful protestors can be challenged through the High Court or Supreme Court.

In early January 2025, a group of citizens took part in a peaceful protest in Andheri West, Mumbai, against a new municipal policy. The local police, using facial recognition software deployed by the Mumbai Police, scanned the crowd to "identify potential troublemakers." The system flagged several peaceful participants, including Mr. Arjun Mehta, a 34-year-old software engineer, and Ms. Kavita Reddy, a college lecturer. They were later questioned at the police station for hours.

Their initial complaints to the police went unheard. Frustrated, they approached the Chamber of Advocate Sudhir Rao. The office reviewed the facts and found the surveillance lacked a specific enabling statute — something crucial, as the Supreme Court has held that privacy is a fundamental right. Advocate Sudhir Rao and his office argued that the mass scanning violated the rights of peaceful protestors. His domain-specific expertise in constitutional remedies helped secure a stay on the use of the facial recognition tool for future protests, pending further court review. The High Court agreed that the state must justify such intrusive action.

Key Facts of the Case

• The protest was peaceful and legally permitted on a public street in Andheri West, Mumbai.
• The police used facial recognition software without any specific law authorizing its use during protests.
• Mr. Arjun Mehta and Ms. Kavita Reddy had no criminal record and were wrongly identified as potential threats.
• No FIR was filed; police acted purely on surveillance-generated alerts.
• The High Court stayed further use of the tool for protest monitoring, citing privacy concerns.
• The state government failed to produce a clear legal framework for the surveillance operation.

The Direct Legal Answer

Is government use of facial recognition on protestors legal?

Not without a proper legal framework. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and the Personal Data Protection Bill (proposed) aim to regulate data collection, but there is no specific law authorizing live facial recognition in public spaces. The Supreme Court's 2017 judgment in Justice K.S. Puttaswamy v. Union of India made privacy a fundamental right under Article 21. Any state surveillance must pass the three-fold test of legality, necessity, and proportionality. Mass scanning of peaceful protestors without reasonable suspicion fails this test.

What about identifying both peaceful and non-peaceful protestors?

The state can use technology for lawful investigation, but only after a crime is committed and with procedural safeguards. Using facial recognition to proactively identify protestors — and especially to tag peaceful participants as potential wrongdoers — creates a chilling effect on speech and assembly. That's a clear violation of Article 19(1)(a) (speech) and 19(1)(b) (assembly). The tool must be used only on specific suspects with a warrant or court order, not as a blanket dragnet.

Advice in Such Cases

Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation to come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

File a formal written complaint with the police and keep a copy. If ignored, approach the High Court under Article 226 for a writ of mandamus or habeas corpus. Also, document every interaction in writing or by audio/video — don't rely on memory alone. This kind of surveillance case requires an advocate who regularly handles constitutional or privacy matters; a general practitioner may miss critical procedural nuances around data protection or court timelines.

Applicable Sections of Law

This case is primarily constitutional, but also touches on criminal and data protection laws. Key provisions include:

• Article 21 of the Constitution: Right to life and personal liberty, interpreted to include the right to privacy.
• Article 19(1)(a) and 19(1)(b): Freedom of speech and expression, and freedom to assemble peaceably.
• Section 318 of the BNS (Bharatiya Nyaya Sanhita, 2023): Unlawful assembly and rioting provisions — these are relevant only if protestors turn violent, not for peaceful assembly.
• Section 242 of the BNSS (Bharatiya Nagarik Suraksha Sanhita, 2023): Power to call for information — used to demand data from tech firms for investigation, but requires a court order for surveillance.

Punishment and Penalties

Facial recognition surveillance itself is not a crime under BNS, but its use without authority could lead to:

• Misuse of official position: Could fall under Section 211 BNS (false charge of offence) or disciplinary action under service rules.
• Data breach: Under the Information Technology Act, 2000, Section 72, unauthorized disclosure of personal data may attract imprisonment up to three years or fine.
• Offence: Non-cognizable and bailable in most cases, unless linked to a violation of an FIR.
• Compoundable: Only if the matter is settled between parties — not applicable to state action.

Jurisdiction — Where to File the Case

For a constitutional challenge against government surveillance, the High Court of the state where the incident occurred — here the Bombay High Court — has territorial jurisdiction under Article 226. If the matter involves a national policy, you can go directly to the Supreme Court under Article 32. For criminal proceedings against police misconduct, the jurisdictional Magistrate or Sessions Court in Andheri West (Mumbai) would have power. Pecuniary jurisdiction is not usually an issue in writ petitions. Jurisdiction matters because filing in the wrong court delays relief by weeks.

What if Police Refuse to File FIR?

If the police refuse to register an FIR about illegal surveillance or wrongful detention:

• Approach the Superintendent of Police under Section 173(4) BNSS for a direction to the local station.
• File a private complaint before the Magistrate under Section 175(3) BNSS.
• If the complaint is dismissed, file a criminal revision before the Sessions Court.
• As a last resort, file a writ petition in the High Court under Article 226 for a mandamus.

Rights of the Accused

If you're wrongly targeted by facial recognition surveillance:

• Right to silence: Article 20(3) of the Constitution protects against self-incrimination.
• Right to legal aid: Article 22(1) gives you a right to consult a lawyer of your choice.
• Right to know grounds of arrest: You must be told why you're being held, under Section 142 BNSS.
• Right to be produced before Magistrate: Within 24 hours of arrest, under Section 169 BNSS.
• Right to copy of FIR: You can get a free copy under Section 174 BNSS.

Bail Provisions

If arrested under Section 318 BNS (unlawful assembly) or similar:

• Section 318 BNS is generally bailable if no violence or injury results.
• Regular bail under Section 480 BNSS applies to all bailable offences. For non-bailable sections, apply under Section 483 BNSS.
• Anticipatory bail under Section 482 BNSS is available if you fear arrest for a non-bailable offence.
• Bail conditions often include a personal bond and surety of Rs. 25,000 to Rs. 1 lakh.
• Strategy: Apply for anticipatory bail immediately after receiving a notice, never wait for arrest.

Quashing of FIR / Case

Quashing is a powerful remedy:

• High Court can use inherent powers under Section 528 BNSS to quash an FIR if it lacks prima facie evidence or is an abuse of process.
• Grounds: No offence made out, false implication, or compromise in a compoundable case.
• For a facial recognition case, quashing applies only if the FIR was filed based purely on automated alerts without human verification.
• It's a viable strategy before the chargesheet is filed, to avoid trial.

If You Are the Victim

• Preserve all evidence — screenshots of surveillance, police notices, and any communication from authorities.
• File a written complaint with the local police and keep an acknowledgment.
• Write to the State Information Commission under the RTI Act, 2005, about the surveillance tool and its legal basis.
• Approach the High Court with a writ petition for violation of fundamental rights.
• Engage a lawyer who has experience in data privacy and constitutional law, not just criminal practice.

Documents You Must Keep Ready

• Aadhaar card or voter ID for identity verification.
• Copies of any police notices or memos served on you.
• Mobile phone records, GPS data, or witness statements proving you were at a peaceful protest.
• CCTV footage or photographs of the protest (if available).
• Any RTI responses regarding the facial recognition system.
• Online petitions or newspaper articles about the protest (as proof of its peaceful nature).
• Letters or emails to the police and their replies (or proof of non-reply).

What Evidence Is Required?

• Primary evidence: Direct proof — photographs showing your presence at the protest without violence, witness affidavits, and police records.
• Secondary evidence: Certified copies of the FIR (if any), call detail records, and technical logs of the facial recognition tool (if obtained via court order).
• Circumstantial evidence: Police statements alleging you were flagged by the tool.
• Documentary evidence: Any written communication from authorities.
• Expert evidence: An IT expert's report on how the tool functions and its error rate.
• Judicial notice: Courts can take notice of widely reported facts, like the tool's deployment without law.

How the Police Behave in Such Cases

Police typically treat facial-recognition alerts as "intelligence inputs" and may detain people for questioning without filing an FIR. They often rely on informal memos rather than formal charges. In our client's case, officers at the Andheri West police station pressured Mr. Mehta to admit he was "identified as a potential disruptor." But since no FIR was filed, there was no judicial oversight. The police attitude is often to treat the technology as infallible, but courts now require human verification and due process before any arrest or detention.

Timeline of Legal Process

• Filing a complaint with police: 1–2 days.
• Police response (or inaction): 7–14 days.
• Filing complaint before Magistrate under Section 175 BNSS: 3–5 days.
• Writ petition in High Court: 2–4 weeks for interim relief (stay on surveillance).
• Notice to state government: 4–6 weeks.
• Affidavits and hearings for final order: 4–8 months.
• Appeal to Supreme Court: 6–12 months after High Court order.
• Note: This timeline can shorten dramatically if the court issues an urgent interim order within days.

How Long Will the Investigation Take?

For a facial-recognition misuse case, the police investigation under BNSS Section 193 (if an FIR is registered) typically takes 3–6 months to file a chargesheet. If the complaint is only about wrongful surveillance without any criminal offence, the High Court may issue an order within 2–3 months without a full investigation. The key factor: whether the police decide to register an FIR or treat it as a non-cognizable complaint.

Understanding the Costs

The total cost of a matter like this varies significantly from one case to the next — it depends on the complexity of the dispute, the forum involved, the number of hearings, and the specific facts of your situation. There is no single fixed figure that applies to everyone.

A professional advocate can give you an accurate estimate only after reviewing all your facts and documents in a consultation.

Can the Matter Be Settled Out of Court?

Yes, but with limits. For state action like surveillance, the government cannot simply "settle" — the issue is constitutional. However, if the protestor's grievance is limited (e.g., no compensation or formal apology), the government may offer a settlement in a writ petition through mediation. The matter can be referred to Lok Adalat under the Legal Services Authorities Act, 1987, if both parties agree. For purely criminal complaints (e.g., wrongful arrest), the offence under Section 318 BNS is non-compoundable, so criminal settlement won't quash the case. Settlement is advisable only when the state admits misconduct and agrees to reform — rare but possible.

Common Mistakes People Make

• Posting on social media about the protest without caution: Screenshots can be used against you in court.
• Speaking to police without a lawyer present: Anything you say can be used as evidence.
• Destroying phone data or deleting photos: Spoliation can weaken your case.
• Engaging an advocate without domain-specific experience: A general practitioner may not understand privacy law nuance — procedural strategy, data protection timelines, and writ petition drafting require specialised knowledge.
• Failing to preserve evidence of peaceful assembly: Without witness statements or media reports, your defence becomes weaker.
• Waiting too long to file a complaint: Delay can lull the court into thinking the issue is not urgent.

FAQs People Normally Have

Can the government use facial recognition without my consent?

Not legally. The Right to Privacy judgment makes consent essential. But in practice, the government may argue it's for "public safety." Courts now require a law before such surveillance can be deployed.

What if the facial recognition tool wrongly identifies me?

That's a violation of your Article 21 rights. You can file a writ of habeas corpus if you're detained, or a complaint for malicious prosecution if an FIR is registered.

Can I get compensation for being wrongly targeted?

Yes. The High Court can award compensation in a writ petition for violation of fundamental rights. The quantum depends on the duration of detention and harassment.

Is there a specific law regulating facial recognition in India?

Not yet. The Digital Personal Data Protection Act, 2023 (passed but not fully notified) may regulate some aspects, but there's no standalone surveillance law. The Information Technology Rules, 2021, govern data intermediaries but not state surveillance.

What should I do if police show up at my home after a protest?

Don't panic. You have the right to remain silent and to have a lawyer present. Ask for a written notice if they want to question you. Do not sign anything without your lawyer reading it.

This article is general legal information, not legal advice. Consult a qualified advocate about your specific situation.

Advocate Sudhir Rao, Supreme Court of India