By Sujit Bhar
A protest is one of the most visible forms of democratic expression. Citizens gather in a public place, raise slogans, display placards and make their disagreement with those in power visible. But, what happens when, alongside the police personnel managing the crowd, an invisible technological apparatus begins to watch every face, record every movement and potentially identify every individual?
That is the question now confronting Delhi after reports of extensive surveillance during recent protests, including the alleged use of AI-enabled facial recognition, surveillance vans and wearable smart glasses. At Jantar Mantar, Delhi Police have acknowledged the use of facial-recognition technology, saying it is intended to identify wanted criminals and other persons already in police databases. Reports have also described the deployment of the Ikshana surveillance vehicle, equipped with 360-degree cameras and AI-assisted facial recognition.
Reports of police personnel wearing AI-enabled smart spectacles have added another dimension to the controversy. Such glasses can potentially record photographs and video while allowing the wearer to remain almost indistinguishable from an ordinary police officer. Reports have said Delhi Police used AI-enabled smart spectacles with facial-recognition and thermal-imaging capabilities during Republic Day security arrangements earlier this year.
The issue, therefore, is no longer simply whether the police may record a protest. Of course they may, subject to law. The more profound question is: what kind of surveillance the State is entitled to conduct over citizens exercising constitutional rights?
A FUNDAMENTAL RIGHT
The Supreme Court’s nine-judge bench in KS Puttaswamy recognised privacy as a fundamental right. But that right is not absolute. The Court has subsequently made it clear that an invasion of privacy must satisfy legality, a legitimate State aim and proportionality. In other words, the State cannot simply say that something is necessary for law and order and consider the constitutional inquiry finished.
This distinction is crucial in the present controversy.
The government’s argument that protests in public places can routinely be videographed is not, by itself, an answer to the privacy question. Indeed, the centre recently defended the recording of protests before the Delhi High Court by arguing that every protest is videographed as a routine law-and-order measure and that claiming privacy in a public place is “ironic”.
However, privacy does not disappear merely because a citizen steps into a public place.
There is an enormous difference between a police officer recording an incident with a conventional camera and an automated system capable of identifying, classifying and potentially tracking thousands of individuals. A photograph is an image. Facial recognition can turn that image into a biometric identifier and compare it against a database. That changes the nature of surveillance.
It is this technological leap that demands a much higher level of legal scrutiny.
India, as the Delhi High Court proceedings have highlighted, does not currently have a dedicated statutory framework specifically regulating facial-recognition technology and AI surveillance by law-enforcement agencies. The Digital Personal Data Protection (DPDP) Act, 2023, does provide a general framework for digital personal data, but it also contains significant exemptions, including processing necessary for prevention, detection, investigation or prosecution of offences and certain State processing.
It, therefore, cannot simply be assumed that the DPDP Act, by itself, resolves the constitutional questions surrounding police facial recognition at protests.
A REGULATORY GAP
This produces a particularly disturbing regulatory gap.
A citizen generally knows when an officer is holding a conventional camera or a phone and recording a demonstration. A wearable device is different. A person wearing smart glasses may be recording continuously without those around him knowing when the camera is operating, what is being recorded or whether the recording is merely stored as video or simultaneously subjected to AI analysis.
The citizen cannot meaningfully understand the extent of surveillance. Nor does the problem end with collection. What happens to the data?
Is it retained for hours, days, months or years? Is it matched against criminal databases? Can it be shared with other agencies? Can an image captured at a protest later become part of a police intelligence database? What happens to people who are incorrectly identified? Is there an audit trail? Who authorises the technology? Who can access the resulting data? Who deletes it, and when?
These are not technical questions. They are constitutional questions.
The danger becomes greater because surveillance can produce a chilling effect even without a single arrest. A student who knows that his face may be identified and stored may decide not to attend a demonstration. A journalist may hesitate before entering a protest. A political activist may fear that participation could later be associated with him in a government database.
The Supreme Court itself has recognised the connection between informational privacy and democratic freedoms. In a later judgment discussing Puttaswamy, the Court noted that informational privacy can be connected to political speech, protest and political association.
This is why the phrase “surveillance state” cannot simply be dismissed as alarmism. A surveillance state is not created overnight by the installation of one camera or deployment of one surveillance van. It develops incrementally: more cameras, larger databases, facial recognition, automated analytics, wearable devices and increasingly invisible forms of monitoring.
The question is whether democratic institutions permit that incremental expansion without corresponding safeguards.
There is, however, an important distinction. The present reports do not establish that Delhi has become a surveillance state, nor that every officer using such equipment is acting unlawfully. The police have stated that facial recognition is being used to identify wanted criminals and maintain law and order. The issue is whether such objectives are being pursued through a system that satisfies constitutional requirements of legality, necessity, proportionality and accountability.
A QUESTION OF REMEDY
That is precisely where the courts must intervene.
Peaceful protesters are not without remedies. Affected citizens can approach the High Court under Article 226, seeking judicial review of surveillance practices, disclosure of applicable standard operating procedures, safeguards governing data collection and retention, and, where appropriate, deletion of unlawfully collected personal or biometric data. A public-interest petition can also seek guidelines until Parliament or the competent authority creates a comprehensive statutory regime.
Citizens can use the Right to Information Act to seek information about applicable SOPs, authorisations, procurement and retention policies, subject to legitimate statutory exemptions. The Delhi High Court has already indicated that the existing legal framework and police SOPs need examination in the ongoing controversy.
Most importantly, courts can insist that “public place” cannot become a constitutional black hole.
The State has a legitimate duty to prevent violence, identify offenders and maintain public order. But technological capability cannot itself become legal authority. The fact that a machine can identify every face in a crowd does not mean that the State automatically has the right to identify every face in a crowd.
India has already crossed the technological threshold. The law must now catch up.
The real test of a democracy is not whether the State can watch its citizens. Modern technology makes that increasingly easy. The test is whether the State can be required to explain why it is watching, under what law, for what limited purpose, for how long, with what safeguards—and what happens to the information afterwards.
Until those questions have clear answers, surveillance at a peaceful protest should not be treated as merely another routine policing exercise. It should be treated as a constitutional issue demanding the highest level of transparency and judicial scrutiny.
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