A Guide to Litigating Identity Systems CONSENT IN DATA COLLECTION AND USE 56. Without robust data protection requirements that include an individual’s consent to their data’s collection and use, a national identity system fails to adequately protect subjects of the system. a) The absence of consent renders the Aadhaar system unconstitutional in the eyes of the dissenting opinion from the Indian Supreme Court. With respect to the Section 59 savings provision of the system’s enacting legislation, which would have retroactively validated the actions of the Central Government taken before the Aadhaar legislation was passed, the dissent finds that the failure to obtain informed consent and the lack of procedural safeguards in the system between 2009 and 2016 make that provision unconstitutional.213 Section 29(4) of the legislation, which prohibited the publishing of data collected under the scheme except where allowed under the governing regulations, is also found unconstitutional by the dissenting opinion because of inadequate informed consent in the collection of biometric data under the regulations specifying when an individual’s data may be published, displayed, or posted.214 More generally, the dissent finds that the absence of a comprehensive data protection framework leaves the identity system vulnerable to serious violations of privacy.215 The existing data protection laws at the time acknowledged the importance of consent, but failed to adequately address the breadth of the system and its privacy right implications.216 b) The issue of consent underwrites much of the Jamaican Supreme Court’s analysis of the constitutionality of a proposed Jamaican national identity 213 Aadhaar Judgment, ¶ 304 of dissent. 214 Aadhaar Judgment, ¶ 339(9) of dissent. 215 Aadhaar Judgment, ¶ 306 of dissent. 216 See Aadhaar Judgment, ¶ 306 of dissent. 50