Why India must pass the pending Facial Recognition Technology Bill

The concept of modern policing heavily relies on the use of technology to implement the law in the true sense. Modern technological equipment and methods may help in enhancing the efficiency of the police force in the prevention and investigation of crime.

A private member bill named the Facial Recognition Technology (Regulation of Police Powers) Bill, 2023 has been pending since 2023. The Bill was designed to lay down the procedure regulating the use of facial recognition technology for the purpose of enhancing the surveillance capabilities of law enforcement machinery, balancing it with constitutional safeguards. The provisions may help police officials in operating their duties, such as identification of suspects and solving missing report cases coming in on a daily basis. The Bill also restricts unauthorised use of FRT. For proper use, a police officer will take the prior approval of a magistrate.

The Bill has attempted to define key terms like facial recognition technology, calling it an algorithm-based identification system. The term ‘face surveillance’ is defined as technology to track behaviour and analyse the movement of individuals or groups of individuals. It also defines the expression “other remote biometric recognition", which may include voice recognition technology.

The general rule under the FRT Bill prohibits the discriminatory use of technology based on caste, religion, gender, political ideology, etc. It allows exceptions in cases of threats to the national security, unity and integrity of India.

The Bill has assigned the role of collecting, storing, processing and sharing biometric data to the National Crime Records Bureau (NCRB). The data stored may be retained for up to 75 years, with provisions for deletion if the person is acquitted or discharged by the court. Along with this rule, there are certain procedural safeguards, including the right to be heard before deployment of FRT. The power is given to the magistrate to be satisfied with the urgency of the circumstances shown by the investigating agency and then allow for the use of face surveillance or other biometric recognition technologies. The Bill also clarifies that FRT is distinct from “measurements” under the Criminal Procedure (Identification) Act, 2022.

After the Puttaswamy judgment (2017), concerns over privacy violations of citizens, mass surveillance and misuse of technology leading to algorithmic bias and misidentification were raised, because of which a need was felt to bring a well-framed regulation balancing the right of citizens with the right to speedy justice through fair investigation. The lack of a comprehensive data protection framework in India heightened privacy risks. A number of academic discussions have highlighted that FRT was already being used without clear statutory backing, making legal regulation necessary for legitimacy and accountability.

Since it was introduced as a private member's bill, which rarely gets enacted in India, several concerns were shown in relation to over broad state surveillance powers, even with safeguards; insufficient clarity on data protection and oversight mechanisms; and its potential conflict with evolving data protection legislation (like the DPDP Act, 2023 framework).

The main reason may be due to technological uncertainty and lack of infrastructure readiness. Scholarly critiques also point to ambiguity in implementation and enforcement mechanisms as a reason for lack of legislative momentum, which further complicates the establishment of a comprehensive digital surveillance law that could effectively address these issues.

This Bill represents one of the first structured attempts in India to regulate AI-based policing tools. The framework establishes judicial oversight (magistrate control), accountability mechanisms and legal limitations on arbitrary surveillance by investigation agencies. The Bill addresses constitutional concerns by aligning FRT use with privacy jurisprudence. It highlights the need for ethical AI governance and data protection safeguards in the criminal justice system. It also serves as a policy blueprint for future legislation on surveillance technologies.

The new criminal laws have placed strong reliance on the use of forensic science and technology. In this context, an FRT law will play a major role in implementing Section 176 of BNSS, 2023, which demands mandatory forensic investigation for offences punishable with 7 years imprisonment or more. FRT may be used by investigative agencies during search and seizure (Section 105, BNSS, 2023), as videography and photography are necessary for proper documentation of records. 

Under the law, the powers of the police are well-regulated and not expanded arbitrarily. As per the provisions, police cannot use FRT without magistrate approval (except in national security cases), reducing unchecked discretion. The functions of the police regarding the identification of suspects and the search for missing persons are clearly mentioned. Police personnel are required to follow due process of law by avoiding discriminatory targeting by ensuring lawful data collection and usage. The aim is to transform police from unregulated users of surveillance technology to accountable actors within a legal framework.

So, even though the Bill has not yet been passed, it lays the groundwork for responsible AI use in law enforcement. Thus, if the government truly wants to modernise the system, it is the right time to bring FRT law into action. No doubt, by integrating FRT into modern policing, courts and investigators will gain reliable digital evidence.

Dr Sarvesh Kumar Shahi is the HOD, Criminal Law and Criminal Justice System, School of Law, KIIT Deemed to be University, Bhubaneswar, Odisha.