A Guide to Litigating Identity Systems
established under the legislation to implement the identity system) or a
person authorised by it, was unconstitutional because it barred individual
citizens from seeking judicial remedies for breach of data.319 Similarly, the
Mauritian Supreme Court rejected the Mauritian identity system’s storage
regime partly because of the lack of judicial oversight for data sharing.320 The
dissenting opinion of the Indian Supreme Court also holds that the
government’s brazen disregard of the Supreme Court’s interim orders to stop
the expansion of the Aadhaar project when the constitutional challenge to
Aadhaar was being heard signalled a disrespect for the principle of
separation of powers rooted in the rule of law and affected the rights of
citizens who rely on judicial institutions for the protection of their rights.321
These courts, by asserting the judiciary’s role in securing individual rights
within an identity system, suggest that the effective judicial remedies and
access to justice for violation of rights are crucial to the framework governing
identity systems in countries committed to democracy and the rule of law.
319 Aadhaar Judgment, ¶ 353 at 427.
320 Madhewoo v. The State of Mauritius and Anor, 2015 SCJ 177 http://ionnews.mu/wpcontent/uploads/2015/05/Biometric-ID-Card_Madhewoo-vs-State.pdf at 32–33.
321 Aadhaar Judgment, ¶ 337 of dissent.
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