Mauritius: Decision Of The Judicial Committee Of The Privy Council On Smart ID Card

Last Updated: 9 January 2017
Article by Ammar Oozeer

Madhewoo v. The State of Mauritius and another [2016] UKPC 30

There is a legal obligation on every person who is a citizen of Mauritius to have an identity card within six months of reaching the age of 18. The National Identity Card Act ('the Act') was amended in 2013 to implement a scheme for a new smart identity card for Mauritian citizens. Under the new law, every adult citizen of Mauritius is under an legal obligation to apply for a new biometric identity card to replace the previous one. To obtain the new identity card, a person must provide biometric information, namely their fingerprints and photograph. The minutiae of the fingerprints are extracted and such data are recorded and stored in a central database kept and managed by the Registrar of Civil Status. Ammar Oozeer, Barrister at Law at BLC Robert & Associates, discusses in detail a case before the Supreme Court relating to the compulsory requirement to take and record a Mauritian citizen's fingerprints as required under the Act.

Before the Supreme Court

The matter was heard before three judges and the decision was delivered on 29 May 2015. Their Lordships held that: (a) the law which imposes the compulsory taking and recording of fingerprints of an adult Mauritian citizen for the purposes of his/her national identity card discloses an interference with Mr Madhewoo's right against the search of his person guaranteed under Section 9(1) of the Constitution; (b) the law which enforces the compulsory taking and recording of fingerprints for the purposes of a national identity card constitutes a permissible derogation, in the interests of public order, under Section 9(2) of the Constitution; (c) the law providing for the storage and retention of fingerprints and other personal biometric data regarding the identity of a person constitutes a permissible derogation, in the interests of public order, under Section 9(2) of the Constitution; and (d) the provisions in the Act and the Data Protection Act 2004 for the storage and retention of fingerprints of the biometric identity card of a citizen of Mauritius are unconstitutional.

Before the Judicial Committee of the Privy Council

On 24 November 2015, Mr Madhewoo ('the Appellant') was granted leave by the Supreme Court to appeal before the Board of the Judicial Committee of the Privy Council ('the Board').

The Appellant challenged the constitutionality of (a) the legal obligation imposed by the State to provide fingerprints and other biometric information under Section 4 of the Act; (b) the storage of the identity card data on a database; (c) the compulsory production of an identity card to a policeman who makes a request for production; and (d) the penalty provided for non- compliance with a request for production of an identity card by a policeman.

As regards Section 4 of the Constitution, which protects the right to life, the Board held that this section is not engaged as it is concerned with the deprivation of life and "not with any suggested diminution in the quality of life resulting from having to provide fingerprints and biometric information."

The Board further held that Section 7 of the Constitution, which protects against torture and inhuman and degrading treatment, is not engaged. It was argued on behalf of the Appellant that he felt he was treated as a criminal when compelled, under criminal sanction, to provide fingerprints. Their Lordships stated that "the Appellant's fear of degradation and stigmatisation because he saw himself as being treated in the same way as a criminal has to be [balanced] by a recognition that every citizen over 18 years of age in Mauritius is required to provide his or her fingerprints for the purpose of the identity card."

The Board confirms the decision of the Supreme Court that the compulsory taking of fingerprints and the extraction of minutiae involve an interference with the Appellant's right under Section 9(1) of the Constitution not to be subjected to bodily harm except with his consent. It is to be noted that this right is not absolute. A limitation to the right not to be subjected to bodily search is permissible, under Section 9(2) of the Constitution, if provided by law in the interests of, inter alia, public order. The exception would be permissible, in the words of the last part of Section 9(2) of the Constitution, 'except so far as that provision or as the case may be the thing done under its authority, is shown not to be reasonably justifiable in a democratic society.' In addressing whether the obligation to allow an individual's fingerprints, and other biometric information about himself/herself, to be taken and recorded, constitutes a justified interference under Section 9(2) of the Constitution, the Board approves the test used by the Supreme Court, namely whether the measure pursued a legitimate aim, whether the reasons given by the State for the interference in pursuit of that aim were relevant and sufficient, and whether the measure was proportionate to the aim pursued. The Board did not have issue with the Supreme Court's assessment that the taking of fingerprints within the applicable legal framework pursues a legitimate purpose of "establishing a sound and secure identity protection system for the nation and thus answers a pressing social need affording indispensable protection against identity fraud." Their Lordships of the Supreme Court observed that such a purpose "is vital for proper law enforcement in Mauritius." Their Lordships went on to state that taking into account the appropriate safeguards in the taking of the fingerprints for their insertion on the smart identity card, and the relatively limited degree of interference involved, such interference is proportionate to the legitimate aim pursued.

As regards the storage and retention of fingerprints and other biometric data, the Board held that a law which provides for the storage and retention of such information regarding the identity of a person in principle constitutes a permissible derogation, in the interests of public order, under Section 9(2) of the Constitution.

Originally published by Data Protection Leader.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions