When Shashi Pratap Singh went to buy groceries from Modern Bazaar on May 17 late morning, he was stopped by the guards at the entrance to Select Citywalk and asked to show his Aarogya Setu status. “As soon as I parked my car there, the security guards basically stopped me and said, ‘Sir, agar aap ke paas Aarogya Setu app hai tabhi aap andar jaa payenge. [You can only go in if you have the Aarogya Setu app]’ So I thought they must have been told so by someone to check or something. So I told them, ‘Mere paas nahin hai. Koi rule hai? Aapka kya entry policy banaya hai kisi ne? [I don’t have it. Is there a rule? Do you have an entry policy?]’ He pointed me to a display board which had a graphic about Aarogya Setu app.”
The display board read, “As part of the government directive, we request you to download the Aarogya Setu app … Without this app, entry to the shopping centre is prohibited.” Only people whose self-assessment test displays a “safe” or “low-risk” status will be allowed to enter.
Just installing it was not enough. The guards had also been instructed to open the app and see the main page, which would make sense since the user’s risk status is visible only after they have installed the app, registered on it, and taken the self-assessment test at least once.
Singh, a Delhi-based lawyer, asked the guards for the rules that allowed private establishments to mandate this app, especially while going to buy essential commodities. The guards and their “out managers”, as Singh called them, told him that it was in the government directives that were in the public domain. Since Singh wasn’t allowed to enter, he could not talk to anyone in charge.
In addition to that, at the entrance to the mall, Singh later learnt, the guards were also collecting details of visitors, including their name, phone numbers, where they were coming from, etc. “in a register”. “They were also fumigating people, which is perfectly fine. Nobody minds that,” he said.
“When I came back, I looked at the May 1 guidelines, the May 17 guidelines, as well as the May 18 Delhi government guidelines. There was nothing like that [to allow private establishments to mandate Aarogya Setu],” Singh told MediaNama.
And when he returned to the mall on May 18, after the Home Ministry had relaxed the guidelines, the board was still there. Singh checked with the guard if they were still checking the app, and they indeed were.
This prompted Singh to file a PIL in the Delhi High Court. “I have now filed a PIL whose prayer is that private establishments like Select Citywalk, and Select Citywalk itself shouldn’t have the liberty to make it mandatory when the government directives themselves do not say that,” he told us. “My point is that the guidelines [are] right, and they should be scrupulously followed by everyone. … When the government itself has softened its stance, how can private establishments mandate that?” he asked.
“If you want to make it mandatory, then make it mandatory [in the guidelines]. Then everyone has the right to challenge it. Right now, the rules or the regulations or the guidelines or the act anyway, no directive from the government says that it is mandatory for this purpose [granting entry],” Sing pointed out. And he is not wrong. Even when the Ministry of Home Affairs made it mandatory on May 1, it was mandatory only for public and private sector employees and people in the containment zones, not for everyone. And it was the employer’s responsibility to ensure that, it wasn’t defined as a condition for granting services. These were also relaxed in the May 17 guidelines to a “best effort basis”. However, on a piecemeal basis, different ministries, government agencies and private companies have been mandating the use of the app since then.
“To access my essential commodities, this cannot be made mandatory, especially when it doesn’t say so anywhere in the government guidelines,” Singh reiterated.
Delhi HC tells Singh to write to Home Ministry, Delhi govt directly
Singh’s PIL argues that such a move has no legal backing, discriminates between people with and without smartphones, and is premised on an “illogical inherent presumption” that all people own a smartphone or a mobile phone and carry it all the time. The petition argues that in the absence of any directions from the central and/or state governments, such a move by the mall is violative of Articles 14 and 21. As per the petition, the application itself does not have any legal framework behind it, and concerns about the app being made mandatory are already “abound in the public for a”. The petition has also quoted IT Minister Ravi Shankar Prasad where he said, “If anyone has any issue with the Aarogya Setu app, then do not download it,” to show that “the true intent and purpose behind the use of app is voluntary”.
The PIL was heard earlier today by a division bench of Chief Justice Dhirubhai Naranbhai Patel and Justice Prateek Jalan, where Singh asked the court to issue an order to central and Delhi governments to ensure that Select Citywalk and other such private establishments do not deny entry or service, or access to commodities (essential and non-essential) to individuals who don’t have Aarogya Setu. The judges have told Singh to send a letter to the Home Ministry and Delhi Government before approaching the court.
The Union of India, Government of Delhi and Select Citywalk Mall are respondents in the case. Singh was represented by Ashim Shridhar and Niyati Patwardhan while Additional Solicitor General Maninder Acharya represented the central government. Delhi government was represented by Satyakam, its additional standing counsel
We called Modern Bazaar today to check what needed to be done to enter the store. In addition to face masks and gloves, they said download Aarogya Setu, because without it, we wouldn’t be granted entry. We have reached out to Select Citywalk for comment and information.
Read PIL here.