Arogya Setu App, Kerala HC
Arogya Setu App, Kerala HC
Litigation News

Downloading Aarogya Setu App only an optional requirement for domestic travel: Airport Authority assures Kerala HC

The Airport Authority of India submitted to the Kerala High Court that the Aarogya Setu's download was not mandatory in the Revised Guidelines applicable to Airports in Kerala.

Lydia Suzanne Thomas

A petition has been moved in the Kerala High Court challenging directions requiring the mandatory installation of the Aarogya Setu app for domestic air travel (Jackson Mathew v. Union of India and Ors.).

The petitioner has challenged a clause in the Airport Authority's May 21 Standard Operating Procedure for air travel that, "All the departing passengers must compulsorily be registered with 'Aarogya Setu' App on their mobile phones..."

The challenged condition in Airport Authority of India's Standard Operating Procedure.
The challenged condition in Airport Authority of India's Standard Operating Procedure.

On Monday, Standing Counsel for the Airport Authority of India (AAI) V Santharam submitted before Justice Anu Sivaraman that the App’s download was not mandatory in the Revised Guidelines applicable to Airports in Kerala. A ‘self-declaration’ form in lieu of the application was sufficient to certify a passenger’s health, it was submitted.

The Court recorded the AAI's submission that the revised guidelines state that “passengers are expected to certify the status of their health through the Arogya Setu App or a self-declaration form."

Additionally, the Court was informed that passengers travelling to and from Kerala Airports were required to register their details on the Kerala Government’s Jagratha Portal and obtain an e-pass.

Justice Sivaraman, finding that the petition was in the nature of a Public Interest Litigation, directed that the case be posted with connected cases challenging the imposition of the app.

The plea, moved by Jackson Mathew through Advocate Santhosh Mathew, challenges the mandatory imposition of the app on air passengers for domestic air travel.

Citing the AAI’s Standard Operating Procedure dated May 21 that makes registration on the app ‘compulsory’, the petition assails the imposition of the app as violative of the rights to privacy and liberty. It is contended that hinging the free exercise of the rights to travel, movement and trade on the app’s installation is unconstitutional and illegal.

Further, such a condition is exclusionary against sections of the population without smartphones, who would be unable to enter an airport without the app, it is stated.

The plea also raises doubts around the efficacy of the app, particularly for its use in air travel. Concerning this, the petition recites:

“… a passenger with a false positive red or orange status on the Aarogya Setu app will be prohibited from boarding an aircraft and making their important journey for work/personal reasons (during the COVID-19 period), without any recourse or right to appeal.”

Terming the mandatory imposition of the app as a ‘disproportionate invasion of constitutional rights’, the plea contends that:

  • The imposition of the app and the resulting restrictions on fundamental rights is not grounded on legislative sanction, since they are based on executive instructions,

  • The app provides no legal certainty about how sensitive personal data gathered will be used, stored, and disposed. The only safeguards, as provided in the App’s Terms of Service, can be changed unilaterally.

“Thus, the fundamental right to privacy pf the petitioner is subject to a one-sided contract that he has been forced to enter into with Respondent No. 1 (the Central Government), under the threat of restriction sanctions", it is asserted.

The petitioner also challenges the shift in the app’s purpose from “contract tracing” to a range of other services such as “access to convenience services, display of a government-issued ePass” and "the option of permitting third-party apps to access a user’s health status", for telemedicine services, for instance.

This would go against the principle of purpose limitation enunciated by the Kerala High Court in the Sprinklr case, and the Supreme Court’s ruling against the ‘State-sanctioned sharing of personal data with private parties (even if voluntary) using State apparatus and infrastructure,’ it is argued.

Apart from these, the installation of the app does not constitute the least restrictive alternative because a self-declaration of health status would suffice, the plea submits. Additionally, more data than is required for a contract tracing app is collected through the app, it is stated.

“There is no sunset clause to the use of the app, which gives rise to concerns of function creep, especially when the app has served as a soft launch for the Swasth Alliance, for teleconsultation", the plea states.

In light of conflicting directives from the Centre on whether the app's installation is mandatory, a declaration that its use is optional for air travel has also been sought.

These are some of the other reliefs prayed for in the plea:

  • The use of a self-declaratory form for domestic air travel,

  • An injunction against the State from sharing data collected via the app with third parties such as convenience services or for the issuance of e-pass, and,

  • A Direction to the Central Government and the AAI to widely publicise that Aarogya Setu is not a pre-requisite to domestic travel.

The same petitioner had also filed another Writ Petition earlier challenging the mandatory imposition of the App for persons in containment zones and public and private sector employees, where the head of the organisation was tasked with ensuring compliance.

The legal team in both the cases, Ninan and Mathew Advocates, was assisted by Internet Freedom Foundation.

Similar challenges are pending before the Karnataka High Court and the Bombay High Court.

Read the Order here:

Jackson Mathew v. Union of India and Ors. - Interim Order dated August 24.pdf
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