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The High Court of Kerala today queried after the practicality in compelling employers to ensure that their employees download the 'Aarogya Setu', the contact tracing app to track COVID-19 in India (Jackson Mathew v. Union of India).
The Court was dealing with a plea filed a person stated to be personally aggrieved by the mandatory imposition of the app, given the coercive measures that an employer may have to face with his employees do not download the app as per recent guidelines.
Appearing for the petitioner, Jackson Mathew, Advocate Santhosh Mathew submitted that there is a mandatory requirement for all employees to download the Aarogya Setu app in their mobiles.
If there is any failure of the same, the employer will be prosecuted by applying the principle of vicarious liability, Mathew pointed out. This is the immediate concern right now, Mathew highlighted.
He argued that the downloading the Aarogya Setu App should be made voluntary and not obligatory, especially given that not all employees may have the facilities to install the app. In this line, Mathew contended,
"Not all of my employees have smartphones. Now there is a requirement for all my employees to have smartphones. This means that I should buy smartphones for all my employees. That is not practical."
He further added, "can the High Court Registrar or the Chief Justice be made criminally liable if all the High Court staff do not download the app?"
Moreover, employers will not be able to insist their employees to download the app when only 50% of the workforce are coming to the workplace, Advocate Mathew pointed out.
"This issue is having a coercive action for the failure of an employee which I (employer) cannot monitor", Mathew added.
Justice Gopinath P, in turn, orally observed,
"....the petitioner has raised a valid concern. How do you [Centre] practically implement this?
Kerala High Court
In response, the Counsel appearing for the Centre, Jaishankar stated that number of people who download the app should increase.
This will enable the government to know about the number of persons who are not keeping well as well as find out if there are any hotspots/new cases of COVID-19 in localities, the Court was told.
He further submitted that the app was aimed for the working community as they are under higher risk.
After hearing these submissions made this evening, Justice Gopinath went on to direct the Central Government to positively obtain instructions on the concerns raised by the Court and place it on record on May 18.
During the course of submissions, Jaishankar informed the Court that he would get instructions on the issue from the Ministry of Home Affairs (MHA) as well.
In doing so, the Bench of Justices Anu Sivraman and MR Anitha also declined to grant any interim relief in the plea. Responding to concerns that there was no law backing the Aarogya Setu app, the Bench orally observed that, "It is in extraordinary circumstances, we will come back to it in normal circumstances.”