Jamaican Supreme Court Strikes Down National Identification Act, Praises Justice DY Chandrachud's Dissent Judgement in Aadhaar case!
Moneylife Digital Team 15 April 2019
In a far-reaching judgment, the Constitutional Court in Jamaica has unanimously declared the National Identification and Registration Act (NIRA) as 'unconstitutional, null, void and of no legal effect'. In the judgement, the Constitutional Court widely referred to judgements passed by Indian Supreme Court, especially of Justice Dhananjay Y Chandrachud in the Right to Privacy and Aadhaar cases. 
The three-judge bench of Chief Justice Bryan Sykes, Justice David Batts and Justice Lisa Palmer Hamilton,said, "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.” 
“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," the Court said.
In the judgement, Chief Justice Sykes, specifically mentioned he preferred views of Justice Chandrachud than the majority from the Aadhaar judgement of September 2018. "From reading the judgments in this (Aadhaar) case, Justice Dr Chandrachud, 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 (26 September 2018) (Aadhaar case), who seemed to have taken a rather benign view of this aspect of the matter Justice Dr 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. His Lordship clearly understood the implication of collecting biographical information, combining it with biometric then automating the process with supporting algorithms. Add to that the possibility of profiling. This scenario translates into great power over the lives of persons especially when that data and technology are in the hands of the state and powerful private actors as in Google, Amazon and the like. Of course, with the latter, the engagement is consensual or at the very least the person can opt out after sometime. What NIRA is proposing is control over vast amounts of data, no opt out and linking the data held in different silos by a unique identification number, thereby reducing anonymity even further and increasing the possibility of profiling and generating new information about the data subject," Chief Justice Sykes added.
The Constitutional Court in Jamaica also observed that the majority judgement in the Aadhaar case did not fully understand technological aspects of the UID in India. It stated, "The combination of all that data with algorithms in the age of artificial intelligence makes it possible to now generate facts that would not otherwise be known about the individual and those facts are not relevant to the purpose of identification. We are now in the era of ‘self-learning’ machines that is machines that can itself create new knowledge without any programming. These machines are able to do this from the data it already has. Respectfully, the majority in Aadhaar case did not seem to have a full understanding of this and its implications in the say that has been demonstrated by Justice Dr Chandrachud."
"Notwithstanding the far reaching decision of the majority, I am inclined towards the view of Justice Dr Chandrachud in his dissenting judgment. That learned Judge recognised that technology has caused our institutions of governance to face new challenges. 'Technology questions the assumptions which underlie our processes of reasoning. It reshapes the dialogue between citizens and the state. Above all, it tests the limits of the doctrines which democracies have evolved as a shield which preserves the sanctity of the individual'. At paragraph 3 of his judgement he starkly sets forth the import of the decision: 'Technology, confronts the nature of freedom itself'. 'The case', he asserts at paragraph 5, 'speaks to the need to harmonise the commitment to social welfare while safeguarding the fundamental values of a liberal constitutional democracy'," the bench said.
On the proportionality test as well, the Jamaican apex court found Justice Chandrachud more reasonable than the majority. "This judge (Justice Dr Chandrachud), 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." 
"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," Chief Justice Sykes said.
"In words, which I respectfully wish to adopt as my own," the Jamaican Chief Justice said, "the learned Judge (Justice Chandrachud) summarised the overall constitutional failings of the Aadhaar scheme thus, 'Identity is necessarily a plural concept. The Constitution also recognises a multitude of identities through the plethora of rights that it safeguards. 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.”
Last year on 26th September, the Supreme Court of India, in a majority judgement, had held validity of Aadhaar for welfare schemes. The Constitutional Bench also said Aadhaar cannot be mandated for opening of bank accounts or for mobile connections and the notification issued by department of telecom (DoT) for making Aadhaar linking to mobile phones mandatory is unconstitutional.  
4 years ago
contempt of court on the jamaican supreme court?
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