The Karnataka High Court has issued notice to the Central government in a plea seeking to make the use of the Aarogya Setu COVID-19 tracking app voluntary, and not mandatory.
While issuing notice, a Division Bench of Chief Justice Abhay Shreeniwas Oka and Justice Vishwajith Shetty asked Central Government Counsel Kumar,
"In the new SOP, is it [downloading of Arogya Setu App] made mandatory or voluntary?"
Kumar responded that the app may be downloaded and that the same is not compulsory. In a way, it is advisory in nature, he said. However, Kumar requested to Bench to refrain from taking the above as his submission and that he would get instructions from the Central government.
Acceding to the same, the Bench posted the matter for preliminary hearing on June 12.
The petition filed by cybersecurity activist Anivar Arvind states that by an order dated May 1, the Centre had made the use of the app compulsory for all employees in both the private and public sector. Further, an obligation was cast on all employers to ensure the same and in case of any failure, it was stated that the violators would be proceeded against under the provisions of the Disaster Management Act, 2005.
However, on May 17, the Centre issued another order which only required the employers to ensure the installation of Aarogya Setu App on a "best effort basis."
The plea further highlights directions issued by the Ministry of Railways, the Ministry of Civil Aviation and the Airports Authority of India mandating the use of the app. This is outright discrimination against persons who do not have a smartphone, the petition states.
Moreover, this move also affects the right to privacy of citizens as the app has access to the location of the user, it is stated.
The plea adds that the app has been collecting excessive data, thereby violating the principles of "data minimization and purpose limitation" as envisaged in the Supreme Court's celebrated Puttaswamy Judgment.
Grievance is also raised that as per the terms and conditions of the app, the privacy policy can be changed after data from the user has already been obtained by the government or a third party.
The plea further refers to other apps that were launched in countries such as Australia, Austria, Singapore etc. for contact tracing of persons who were tested positive for COVID-19. It is submitted that these apps are voluntary and, further, that most of these applications across the world use only Bluetooth and do not access the location of the user.
Another concern raised is the apparently inconsistent directions given with respect to whether flight passengers should download the app. It is noted that a May 21 order of the Ministry of Aviation had directed that flight passengers download the app if their devices were compatible.
On the same day, the Airports Authority of India had released a Standard Operating Procedure which made it compulsory for all the departing passengers to download the app and stated that the same would be checked by the airport staff.
Highlighting this inconsistency, the plea reads,
"There is a conflict between the Ministry of Civil Aviation order and the Standard Operating Procedure released by the Airports Authority of India. The SOP makes it mandatory for the passengers to download Aarogya Setu App, thereby excluding large number of passengers who do not use compatible devices or do not have cell phones."
Plea filed in Karnataka High Court
On these grounds, the petitioner seeks directions to make the use of Aarogya Setu app voluntary. This apart, the plea also seeks a declaration that the use of the application cannot be mandated for accessing any government service or facility.
Senior Advocate Colin Gonsalves will appear for the petitioner in the matter. He was briefed by Advocate Choudhary Ali Zia Kabir.
