Madhewoo v The State of Mauritius and another

Compulsory fingerprinting for a universal national identity-card scheme interferes with the constitutional protection against search, but may be justified where authorised by law, directed to public order, and reasonably justifiable in a democratic society. Proportionality requires consideration of the importance of the aim, rational connection, less intrusive alternatives, and the balance between infringement and benefit. A general constitutional privacy right cannot be created by combining provisions whose wording does not contain it. Identity-card production does not itself restrict liberty or movement where it operates alongside an existing lawful power to ascertain identity. Maximum statutory penalties do not require maximum sentences.

The appellant, a citizen of Mauritius, challenged the constitutional validity of the biometric identity-card scheme introduced by the National Identity Card (Miscellaneous Provisions) Act 2013, which amended the National Identity Card Act 1985. He challenged compulsory fingerprinting, storage of biometric data, compulsory production of the card to police, and the potential penalties for non-compliance.

The Supreme Court of Mauritius held that compulsory fingerprinting interfered with section 9(1) of the Constitution but was justified under section 9(2). It held that storage and retention of fingerprints were not reasonably justifiable and the statutory scheme was altered. The appeal concerned the remaining challenges and the form of the Supreme Court’s order.

Disposition. Lord Hodge delivered the judgment of the Board. The appeal was dismissed, subject to correcting paragraph 5 of the Supreme Court’s order. Costs were left open for written submissions.

1. The Constitution requires a generous and purposive interpretation of fundamental rights, but that approach cannot create rights which the relevant constitutional provisions do not contain. Only section 9 was engaged. Section 3(c) was freestanding, but gave no wider protection than section 9(1) and did not create a general private-life right equivalent to article 8 of the ECHR.
2. The obligation under section 7(1A) of the National Identity Card Act 1985 to produce an identity card applied only to a request under section 7(1)(b) by a person otherwise empowered by law to ascertain identity. Any interference with liberty or movement would arise from the underlying police power, not the production obligation. Section 7(1A)(b) allowed production within a reasonable period and did not authorise detention.
3. Compulsory fingerprinting and extraction of fingerprint minutiae constituted an interference with section 9(1). The relevant question under section 9(2) was whether the interference was authorised by law, pursued a legitimate aim, and was reasonably justifiable in a democratic society. The proportionality inquiry included the importance of the objective, rational connection, less intrusive alternatives, and the balance between impact and benefit. The Board would scrutinise the justification but was slow to interfere with a local court’s evaluation of local conditions.
4. The biometric scheme pursued public order by improving identity verification and preventing identity fraud. The universal requirement did not imply criminality or undermine the presumption of innocence. The maximum penalties in section 9(3) were maxima and did not mandate their imposition. The Supreme Court’s conclusion that compulsory fingerprinting was justified was therefore upheld.
5. The remaining constitutional claims failed. The right to life, protection against torture or degrading treatment, personal liberty, freedom of movement, and non-discrimination were not engaged or had not been properly raised. Article 22 of the Civil Code did not create rights directly enforceable under section 17 of the Constitution.
6. Future changes to biometric storage or information prescribed for the card might affect proportionality, but those proposals were not before the Board. The Supreme Court’s storage and retention ruling was accepted and was not in issue. Paragraph 5 of its order was amended to state that storage and retention constituted a permissible derogation in principle.

• Privy Council: dismissed the appeal subject to amendment of paragraph 5 of the Supreme Court’s order: [2016] UKPC 30.
• Supreme Court of Mauritius: judgment dated 29 May 2015 held that compulsory fingerprinting interfered with section 9(1) but was justified under section 9(2), while storage and retention of the biometric data were not reasonably justifiable.