Petition filed in Kerala HC against mandatory download of Aarogya Setu

A petition was filed on Thursday in the Kerala High Court against mandating the download of Aarogya Setu, the Central government's contact-tracing app for Covid-19. The plea said the order "takes away the right of a person to decide and control the use of information pertaining to him".

The petitioner is the General Secretary of the District Congress Committee, Thrissur, John Daniel. 

The Ministry of Home Affairs had on May 1 said through an order that the download of Aarogya Setu was mandatory for public and private employees, and also for people in what are identified as containment zones. The order also imposed penal action if the directives for download were not complied with. 

Daniel said in the petition that even in times of emergency, people's privacy needs to be protected. "This law stems from the Hon’ble Supreme Court of India’s landmark judgement in KS Puttaswamy (Retd) and Anr v Union of India [ (2017) 10 SCC 1]. Specifically, it clearly states that even when responding to an epidemic or public health crisis, there is an onus on the state to use people’s health information in a manner which preserves their “anonymity”," the petition says. 

He further says that the app does not specify which department, ministry or officials would be accessing the data required by Aarogya Setu, which include the person's name, age, sex, phone number, profession, countries visited in the last 30 days, and whether the person is a smoker. Some of these classify as sensitive personal information. 

Further, the petitioner points out that the role of the Ministry of Health and Family Welfare is not primary in the data collected and processed by Aarogya Setu. The committees formed to assess the impact and use of technology and AArogya Setu do not suggest involvement of the health ministry but has members from NITI Aayog, Ministry of Electronics and IT, Ministry of External Affairs, MHA and others.

"The absence of healthcare officials in a committee like this which is accessing data from the Aarogya Setu application is particularly concerning and raises suspicions about the actual usage and application of the same. It raises concerns of a surveillance system being set up. The Committee cited here is reportedly mulling recommendations to expand the Government’s powers in using technological tools-- like the Aarogya Setu application. In fact it has reportedly already made a specific recommendation to extend and expand the scope of the application post the lockdown," the petition says. 

The app also has a disclaimer that the Government cannot be held legally responsible should the Aarogya Setu app and accompanying services lead to errors in accurately identifying people who have tested positive for COVID-19, which has been flagged by Daniel in the petition. 

He has requested the Court to strike down the mandatory download clause for Aarogya Setu in the government's order. He has further asked for an "order or direction clarifying that the usage of the mobile application by the name, Arogya Setu is subject to the personal discretion of each citizen".