• Shantanu Dubey

National identification system unconstitutional: Jamaica SC impressed with the Aadhar’s dissenting o

The supreme court of Jamaica has inclined its judgement on the viewpoint of Justice DY Chandrachud’s dissenting opinion in the landmark Aadhar case in order to rule out its National Identification and Registration Act as null and void along with being unconstitutional pertaining to the privacy issue of the Act.

National Identification and Registration Act that was introduced by the government of Jamaica to provide a  ‘comprehensive and secure structure to enable the capture and storage of personal identity information for citizens and persons ordinarily resident in Jamaica.’ The act was enacted in 2017 but wasn’t brought in force yet. The legality and constitutionality was questioned by Julian Jay Robinson, who is a member of parliament and the general secretary of the people national party that forms a opposition in the Jamaican parliament.

The bench compromising of Chief Justice Bryan Sykes, Justice David Batts and Justice Lisa Palmer Hamilton held that the procedure of mandatory collection of biographical and biometrical data violates the privacy rights under the charter of Jamaica. Citing the example from the Indian supreme court judgement of the Aadhar case justice Batts observed that, the danger of a “big brother state” or as the Supreme Court of India called it, a “surveillance state” is real’ with the enactment of this scheme.

The Chief Justice and Justice Batts drew a wider part of their conclusion from the reasoning attributed by Justice DY Chandrachud in his dissenting opinion in holding the Aadhar unconstitutional. The apex court of Jamaica was very much satisfied with Justice Chandrachud opinion on the privacy issue that the aadhar issue carried. Chief Justice Bryan Sykes in relation to the dissenting opinion of Dr. Chandrachud said that,

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.”

Along with delivering the above opinion he also illustrated the reason of considering the above discussed scheme unconstitutional. Firstly he stated that the scheme has no provision of providing safeguard regarding the use and misuse of the data that are collected for the scheme. Secondly, the mandatory collection of biographical and biometric data violates the privacy provision under Jamaican charter. Also the lack of justification as to why a third party need to have an access to the data information, unequal treatment resulting from mandatory obligation for Jamaican residents to provide NIN/NIC for the access of goods unlike the foreign residents further validates his reasoning as concrete.

The learned judges also mentioned that in the constitution of India there is no explicit mention of right to privacy unlike their constitution but the privacy issue was implied and given importance. Hence the policy making bodies of any government should keep in mind the importance of the trust that should exist between citizens and state. ‘They may find that programmes, which liberate not restrict and which uplift not suppress, do more to repair existing deficits of trust.’

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