Courts, Capacity, and Facts: The Constitutional Review of Biometric ID Systems

Abstract

This working paper examines how the Supreme Court of India (SCI) in the Aadhaar case and the High Court of Kenya (HCK) in the NIIMS case have adjudicated technological factual disputes in constitutional challenges to state-developed centralized, national-level biometric identification systems (BIS). By doing so, I hope to shed light on the key role of facts and evidence in the constitutional review of legislation and state action, a subject that has generally flown under the radar of public law scholarship. As information and communication technologies (ICTs) become influential in governance today, constitutional courts must confront questions about the technological architecture of these systems. This is because ICTs tend to give governments immense powers, which means that any constitutional analysis must ask how and to what effect the technology does so. Moreover, as law and technology scholarship has long demonstrated, built in to the architecture of these systems are political choices that have constitutional implications. Factual adjudication of technological architecture, therefore, matters. If courts are to effectively address them, they must have the institutional capacity to rigorously deal with matters of facts and evidence. As I will go on to hypothesize, one factor that shapes capacity is the structure of the judicial system, specifically where the court addressing the factual dispute is located within the system and whether that court has established legal mechanisms to try the factual dispute.

Keywords: Aadhaar; NIIMS; Supreme Court of India; High Court of Kenya; Comparative; Facts; Evidence; Constitutional Adjudication; Institutional Capacity; Constitutional Courts; India; Kenya