The Tussle over Aarogya Setu Decree

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This post has been written by Khushi Agarwal, a second-year law student from ILS Law College, Pune.

Introduction

Aarogya Setu, a mobile application, was introduced by the Government of India to connect the people of the country with essential health services in the collective fight against pandemic (COVID-19) outbreak.

Quoting the Office Order of Delhi High Court dated 13.04.2020, “The mobile application is aimed at augmenting the initiatives of the Government of India, particularly the Department of Health, in proactively reaching out to and informing the users of the application regarding risks, best practices and relevant advisories pertaining to the containment of COVID-19. It also helps significantly in contact-tracing and curbing the spread of Covid-19.[1]

Subsequently, on April 29, the Centre had directed that “All the officers, staff (including outsourced staff) working in Central Government should download ‘Aarogya setu’ App on their mobile phones, immediately.”[2]

Further, Clause 15 of Annexure 1 of the lockdown guidelines issued by the Ministry of Home Affairs on May 1 stated that under the National Disaster Management Act, “Use of Aarogya Setu app shall be made mandatory for all employees, both private and public. It shall be the responsibility of the Head of the respective Organisations to ensure 100% of this app among all employees“.[3]

However, this metamorphosis from “voluntary” to “voluntary-mandatory” to “effectively mandatory” and hence, an arbitrary imposition of Aarogya Setu through an executive decree suffers from serious legal problems and thus, invited criticism from the legal fraternity and general masses as well.

These National Directives were challenged in a Writ Petition[4] filed by John Daniel, General Secretary of Thrissur District Congress Committee, in the High Court of Kerala as violative of right to privacy and personal autonomy, as explained by the Supreme Court in the K S Puttaswamy[5] decision. Similarly, Former Supreme Court Judge B N Srikrishna, who chaired the committee that came out with the first draft of the Personal Data Protection Bill[6], termed the government’s push mandating the use of Aarogya Setu app “utterly illegal” on the ground that it was not backed by any law.[7] This article is an attempt by the author in pointing out the legal shortcomings of the National Directive by the Central Government.

Legal Shortcomings

Autonomy guaranteed by the Constitution of India grants the citizens an individual freedom not to take part in activities that they do not approve of. However, the Clause 15 of the National Directives in Exhibit P2 Order mandating the use of the application[8]Aarogya Setu takes away the right of a person to decide and control the use of information pertaining to him when he is forced to give away data to a system which he may or may not approve of.

Moreover, the Government order has vaguely used the term “workplace” which needs to be interpreted in terms of the Kerala High Court judgment in Essar Telecom Infrastructure Pvt. Ltd v State of Kerala[9] where it was held that “Going by the concept of worker, either he must be employed in a manufacturing process or in cleaning any machinery or premises used for a manufacturing process or any work which is incidental or connected with the manufacturing process.” Thus, the executive decree in this case appears to be a highly ambiguous order which was hastily released.

Thirdly, Section 58 of the Disaster Management Act 2005[10] imposes penal action upon employers of enterprises if their employees do not comply with the directive of usage of Aarogya Setu. This is arbitrary to the extent that under the Criminal Justice System, no penal action can be imposed upon anyone having no mens rea. In this case, an employer who has only a work relationship with an employee cannot compel the latter to install a mobile application and to provide his personal information to the domain.

At the heart of the viability of Aarogya Setu app is its accessibility. Unlike other countries, the Aarogya Setu app also operates in a country where smartphone penetration is extremely low[11] and the extensive usage of smartphones, if available, is plagued by poor data connectivity and frequent electricity outages, particularly in the more remote regions of rural India.

Further, as of now, there are no clearly defined legal mechanisms to protect citizen’s right to privacy and personal data in India and no legislation that can hold the government accountable for using our data. Although, the Personal Data Protection Bill was introduced by the Indian government in 2019 to safeguard the privacy rights of citizens, however, it still needs to be assessed by the Joint Parliamentary Committee.

There is also a serious absence of an anchoring legislation, i.e., a legislative framework to safeguard the interest of its users in a case when their consent is being obtained forcefully. In this light, the government does not have any legal backing to issue a direction to use Aarogya Setu App compulsorily as it has been clearly held in the Aadhaar Case judgment[12] that “without explicit backing of law right to privacy enshrined under Article 21 of the Constitution of India cannot be restricted especially when right to consent is taken away.”

In light of the aforementioned serious procedural violations and flaws, blithely mandating Aarogya Setu in one sentence through an executive decree tears the constitutional architecture to shreds and hence, the present case is a textbook example of rule by the executive, instead of the rule by and of law.

Questions Left Answered

The government directive mandating Aarogya Setu for all public and private employees suffers from serious legal defects. In light of the recent developments, the words of the UN Privacy Chief Joseph Cannataci again hold importance, “Dictatorships and authoritarian societies often start in the face of a threat. That is why it is important to be vigilant today and not give away all our freedoms.”[13]

In the present case, it is highly unclear that if there is a breach of data, who will be answerable, who will be held accountable and what action will be taken against them. While the app may help us fight COVID 19, it also has the very real potential to produce anti-democratic, exclusionary, discriminatory practices and structures at a larger scale. And these challenging times, even an impression that the basic principles of the Constitution and the rights of the citizens are being compromised by an executive decree, can seriously damage the public trust and confidence on which rests the reputation of the democratic governments.

Once that is lost, there will be no value in the system left.

[1] Office Order No. No. R- 40 /RG/DHC/2020.

[2] Department of Personnel & Training, Office Memorandum, F.No. 11013/9/2014-Estt (A-Ill), Dated 29.04.2020.

[3] Ministry of Home Affairs, Order No. 40-3/2020-DM-I(A), Dated 01.05.2020

[4]K.C. Gopakumar,  Plea in Kerala HC against Centre’s directive on Arogya Setu app, available at:

https://www.thehindu.com/news/national/kerala/plea-in-kerala-hc-against-centres-directve-on-arogya-setu-app/article31535285.ece, last accessed: 20/07/2020.

[5] Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors, (2017) 10 SCC 1.

[6] Introduced in Lok Sabha on 11.12.2019.

[7] Apurva Vishwanath, Mandating use of Aarogya Setu app illegal, says Justice B N Srikrishna, Available at:

https://indianexpress.com/article/india/aarogya-setu-app-mandate-illegal-justice-b-n-srikrishna-6405535/, last accessed: 24/07/2020.

[8] supra note 3.

[9] 2011 SCC OnLine Ker 3925 : (2011) 2 KLJ 335 : (2011) 105 AIC (Sum 20) 9 : (2011) 2 KLT 516.

[10] Offence by Companies.

[11]Agence France-Presse, Smartphone Penetration Just 24 Percent in India, Claims Survey, available at: https://gadgets.ndtv.com/mobiles/news/smartphone-penetration-just-24-percent-in-india-claims-survey-1989169, last accessed: 23/07/2020.

[12] supra note 5.

[13] Andy Gregory, ‘Dictatorships often start in the face of a threat’: UN privacy chief warns against long-lasting theft of freedoms amid coronavirus surveillance, available at: https://www.independent.co.uk/news/world/coronavirus-lockdown-surveillance-tracking-dictatorship-authoritarian-united-nations-privacy-a9438561.html,, last seen on 19/07/2020.

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