A Guide to Litigating Identity Systems
demonstrates an effective use of this argument to show an implication of
the right to privacy.
b) The majority of the Indian Supreme Court does not discuss biometric data
collection as a physical search, but the court does express the
importance of the physical aspect of privacy in understanding the right to
privacy.60 Physical privacy of the person is conceived of as one of the
three forms of privacy protected by the right to privacy. 61 Searches have
jurisdictionally specific legal definitions, so although the Indian court does
not engage in an analysis of biometric data collection as a search, that
does not diminish the importance of the physical component of privacy.
Rather, it means physical privacy is considered under a different legal
framework – the right to privacy framework analysed in the Aadhaar
judgment.
c) Justice Sykes of the Jamaican Supreme Court suggests that the
compulsory taking of biometric data is a violation of the right to privacy
of the person because human beings have an inherent right to bodily
integrity62 and because biometric data can reveal sensitive health
information, such as an individual’s specific medical conditions.63
33. The mandatory collection of personal data as part of an identity system
implicates the right to privacy because it interferes with the informational
privacy of the individual.
a) The dissenting opinion in the Aadhaar judgment references informational
privacy specifically in its discussion of what it conceives as an
unconstitutional violation of the right to privacy.64 The dissent describes
60
See Aadhaar Judgment, ¶ 83 at 164.
61
Aadhaar Judgment, ¶ 232 at 302.
62
Opinion of Justice Sykes, ¶ 247(A)(10).
63
Opinion of Justice Sykes, ¶ 55.
64
Aadhaar Judgment, ¶ 31 of dissent.
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