In a recent ruling striking down Jamaica’s National Identification and Registration Act, which would have allowed collection of biometric information from all citizens to be centrally stored, the Supreme Court of Jamaica relied heavily on Indian SC Justice D Y Chandrachud’s dissenting judgment on the Aadhaar Act last year. Justice Chandrachud had expressed the sole dissenting opinion in a 4:1 verdict that had upheld the Aadhaar Act. Jamaican Chief Justice Bryan Sykes and Justice David Batts chose to go by his view rather than the majority ruling.
Chief Justice Sykes
Biometric systems: CJ Sykes referred to Justice Chandrachud’s observation that when biometric systems are adopted in the absence of strong legal frameworks and strict safeguards, the technologies can pose “grave threats to privacy and personal security” as their application “can be broadened to facilitate discrimination, profiling and mass surveillance”. He also referred to Justice Chandrachud’s observations about recent trends indicating “reluctance of developed countries to deploy biometric technology”, including scrapping of the National Identity Register and ID cards in the UK, and Germany’s decision to reject a centralised database when deploying biometric passports.
The Jamaican CJ observed that Justice Chandrachud “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”. Justice Sykes opined that Justice Chandrachud “demonstrated a greater sensitivity to the issues of privacy and freedom that is not as evident in the judgments of the majority”. “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,” CJ Sykes wrote.
Data protection: CJ Sykes relied on Justice Chandrachud’s observation that while the Aadhaar Act creates a “regime of criminal offences and penalties”, the “absence of an independent regulatory framework” renders the Act largely “ineffective in dealing with data violations”.
“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.”
He also cited Justice Chandrachud’s observation that “a fair data protection regime requires establishment of an independent authority to deal with the contraventions of the data protection framework as well as to proactively supervise its compliance”. “The point I take from this passage is the need for a strong independent and autonomous body which has the power to examine the operations of the Authority and report to an institution that is independent of the Authority,” CJ Sykes wrote.
Justice Batts, too, stated that he is inclined “towards the view” of Justice Chandrachud. “This judge, in his dissent, applied the same proportionality test as did the majority but arrived at a different result. His decision is sufficiently important, and so reflective of my own views,” Justice Batts wrote.
Justice Chandrachud had observed that the “proportionality test failed because the Act allowed private entities to use Aadhaar numbers”. Justice Batts wrote: “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.”
Justice Batts added: “The state, said he [Justice Chandrachud], had failed to demonstrate that less intrusive measures other than biometric authentication would not serve the purpose… The state failed to demonstrate that the targeted delivery of subsidies entails a necessary sacrifice of the right to individual autonomy, data protection and dignity. As the Judge said, ‘One right cannot be taken away at the behest of another’.”
Justice Batts observed that Justice Chandrachud “found disproportionate and excessive the effort to link Aadhaar to all account based relationships”. “The provision, he said, operated on the presumption that all account holders were money launderers. There was no distinction made based on the nature of the business relationship, the value of the transaction, or the actual possibility of terrorist or money laundering. He came to a similar conclusion with regard to the attempt to link the Aadhaar number with mobile phone use,” Justice Batts wrote.
Justice Batts concluded that he wishes to adopt Justice Chandrachud’s view as his own, and quoted him: “The technology deployed in the Aadhaar scheme reduces different constitutional identities into a single identity of a 12-digit number and infringes the right of an individual to identify herself or himself through a chosen means. Aadhaar is about identification and is an instrument which facilitates a proof of identity. It must not be allowed to obliterate constitutional identity.”