Jamaica SC Follows Justice Chandrachud's Aadhaar Dissent To Declare Its National Identification System (NIDS) Unconstitutional [Read Judgment]

While the Chief Justice held that the compulsory taking of biographical and biometric data is a violation of privacy rights under the Jamaican Charter, Justice Batts in his concurring opinion observed that with this scheme, 'the danger of a "big brother state" or as the Supreme Court of India called it, a "surveillance state" is real'. Justice Palmer Hamilton, in a brief concurring opinion, observed that unbridled accessibility by public and private sectors is untenable and unconstitutional and would need requisite safeguards in place to ensure that the constitutional rights of the citizens are not violated.

Both the Chief Justice and Justice Batts quoted extensively from Aadhaar judgment delivered by the Constitution bench of the Supreme Court of India, particularly endorsing the dissenting opinion delivered by Justice Chandrachud in the case.

Jamaica CJ on Justice Chandrachud's Aadhaar Dissent

Following are some observations made by CJ Sykes on the dissenting opinion delivered by Justice Chandrachud

"From reading the judgments in this case Dr Chandrachud J, in my respectful view, demonstrated a greater sensitivity to the issues of privacy and freedom that is not as evident in the judgments of the majority or the other judges who delivered concurring judgments. His Lordship had a clear-eyed view of the dangers of a state or anyone having control over one's personal information and generally I preferred his approach to the issue over that of the other judges."

"Unlike the majority in Puttaswamy (September 26, 2018) who seemed to have taken a rather benign view of this aspect of the matter Dr Chandrachud J destroyed the notion that merely because similar or identical information is already in the possession of the state that in and of itself makes taking of such information again legitimate. His Lordship clearly understood the implication of collecting biographical information, combining it with biometric then automating the process with supporting algorithms."

"What is important to note is that the majority and Dr Chandrachud J proceeded on the premise that oversight of the data controller was necessary. The difference was that the majority thought that the existing structure was sufficient and Dr Chandrachud J thought that it was not. While respecting and understanding the view of the majority I prefer Dr Chandrachud J on this aspect. "

"Respectfully, the majority in Puttaswamy (September 26, 2018) did not seem to have a full understanding of this and its implications in the say that has been demonstrated by Dr Chandrachud."

Justice Batts View On Aadhaar Dissent

Justice Batts observed as follows:

Notwithstanding the far reaching decision of the majority (a detailed summary of which is at paragraphs 446 to 448 of the majority judgment), I am inclined towards the view of Dr. Dhananjaya Y Chandrachud J in his dissenting judgment. That learned Judge recognised that technology has caused our institutions of governance to face new challenges.

The Constitution of India, unlike ours, has no express statement of the right to privacy. Their Judges implied the right. Also, unlike ours, their Constitution allows for "fair just and reasonable" exceptions to the rights guaranteed. These differences notwithstanding, the decision of the majority as well as the reasoning of the minority, are of great assistance and relevance.

I respectfully wish to adopt as my own, the learned Judge summarised the overall constitutional failings of the Aadhaar scheme

This learned Judge, in his dissent, also decided that the proportionality test failed because the Act allowed private entities to use Aadhaar numbers. This he said would lead to commercial exploitation of the personal data and profiling without consent. Profiling can be used to predict market behaviour and preferences and even influence the choice for political office. These are contrary to privacy protection norms. Susceptibility to communal exploitation renders the relevant provisions arbitrary. The failure to define "services and benefits" also was unreasonable and disproportionate.

Why NIRA is Unconstitutional

According to CJ Sykes, the scheme is unconstitutional for the following reasons.

• They do not provide sufficient safeguards against misuse and abuse of the data collected. There is no independent oversight body that is mandated to conduct an audit of the Authority and take action where it is found that employees individually or the Authority as an institution has violated NIRA.
• Compulsory taking of biographical and biometric data is a violation of privacy rights under the Jamaican Charter.
• It enables third party access to the Database without adequate safeguards against misuse and abuse by the third party. In addition, no justification has been advanced showing why third parties need to have access to the Database.
• Mandatory legal obligation by Jamaican and ordinary residents to produce a NIN or NIC when seeking to access goods and services from public bodies while not placing the same legal obligation on foreigners to produce some form of identification amounts to unequal treatment.

Justice Batts held that the NIRA is unconstitutional null and void insofar as it is intended to make compulsory the taking of biometric and other data so as to provide a national identification number and card for every citizen and resident of Jamaica. The involuntary nature of the policy infringes guaranteed constitutional rights, the judge said. Following are his conclusion:

• Furthermore, the statute seeks to prevent access to services both public and private, or to make possible the denial of such services, to citizens who fail to obtain the said national identification. There is further no, or no adequate, mechanism to prevent the utilisation of the data obtained for other purposes such as the creation of profiles. The danger of a "big brother state" or as the Supreme Court of India called it, a "surveillance state" is real. The wide ranging provisions for information sharing and verification, as well as identity confirmation by public and private sector, adds to that reality.
• Policymakers and social scientists should, if they have not already done so, consider the manner in which policies of control reminiscent of the plantation impact the trust level between citizen and state. They may find that programmes, which liberate not restrict and which uplift not suppress, do more to repair existing deficits of trust. Those are, however, matters for the policy maker not the judge. I therefore end this judgment, as I began, with words which that icon of reggae music addressed to us all: "Emancipate yourself from mental slavery, none but ourselves, can free our minds".

Read Judgment