“If the High Court staff do not download the Aarogya Setu app, would the Registrar or the Chief Justice be prosecuted?” Santhosh Mathew asked Justice Gopinath Puzhankhara in a Kerala High Court hearing on May 12. Mathew pled for an interim order that stays any prosecution of employers for failures on part of an employee to download the contact-tracing app. While Justice Gopinath did not stay the order, he instructed advocate Jaishankar V. Nair, who appeared on behalf of the Ministry of Electronics and Information Technology (MEITY), to get instructions from the Home Ministry and MEITY on how the government proposed to implement this requirement. The matter will be heard with two similar cases (which are public interest litigations) on May 18.
Mathew was arguing on behalf of Jackson Mathew, Managing Partner at Leetha Industries, who has filed a writ petition challenging the Ministry of Home Affairs directive that holds employers liable for ensuring that all their employees download Aarogya Setu on the grounds that it fails the tests laid down in the Puttaswamy judgement on right to privacy. Justice Gopinath assured the petitioner that “nothing would happen until Monday” in terms of prosecution of employers.
‘Employees don’t have smartphones, make the move voluntary,’ says petitioner
“The total population of India is 137 crore. The Aarogya Setu app has been downloaded by, as per the data today [on the app] 9.9 crore,” S. Mathew reminded the court. He said that he was currently not arguing the legality of the move in the absence of legislative anchoring as “it is a larger issue which can be considered later”. However, since Nair had said that if more people do not download the app, the system will fail, Justice Gopinath said, “The situation probably required drastic action”.
Arguing that the app should be made voluntary, S. Mathew said that not all employees have smartphones. “There are only 225 million people, or 25% of the population, who has got smartphones. Now, not all my employees have smartphones. If it is made obligatory for me to have all my employees download the Aarogya Setu app, I first have to buy a smartphone for my employees which is not practical. I have a concern where I have 50 employees but 50% don’t have smartphones,” S. Mathew said.
Furthermore, it is impossible to monitor employees’ actions, S. Mathew argued. “When they are not even coming to the factory and I am required to operate the factory with 50% workforce, I cannot go to an employee of mine and insist that he should download this app. And the consequence is this. There are 135 government pleaders, if they don’t download it, who is the employer. Similar number of central government counsels are also there. If the HC staff don’t download the Aarogya Setu app, would the registrar or the chief justice be prosecuted?” he asked.
Justice Gopinath agreed that S. Mathew had a “valid point”. “If you don’t have smartphones, how do you manage this?” he asked Nair. “How do you implement this practically? … Because even in High Court, some workers might not have smartphones. Technically, they are liable for prosecution, going by what you [Nair] have said. That part is problematic,” Justice Gopinath said.
S. Mathew also reminded the court that Justice B.N. Srikrishna, who headed the committee that drafted the Personal Data Protection Bill, 2018, on the basis of the Puttaswamy judgement, had also said that “without a law, it [mandating an app] is not possible”.
‘App gives immediate alert on contact with an infected person,’ argues govt
Nair reiterated a number of his arguments from the earlier case but also said, “If a person who downloads this app, if he comes in contact with another person who has been detected [with COVID-19] or who is not keeping well, the app will immediately give you an alert.” Readers should note that the app does not give immediate alerts. Such data would first have to be collected by government servers. Readers should note that the app does not diagnose infected patients.
Nair further said that the app has a dashboard wherein, “if I search, I can find out how many people in my locality, around 500m, 1 km, 2km, who has downloaded the app, and how many persons are keeping unwell, who are taken with COVID-19 cases.”
The government is using the app to identify potential hotspots and lock those down, and people who are more vulnerable to the disease. “The app also helps the government to find out if an area has to be declared as a hotspot or is it a vulnerable area as far as the pandemic is concerned. Using this app, the government has identified at least 130 hotspots throughout the country,” he said. Please note that during a press briefing on May 11, MEITY Secretary Ajay Prakash Sawhney said that 697 potential hotspots had been identified using location data from Aarogya Setu.
“The difficulty that the government is facing is that the number of people who download this app has to be brought up otherwise the purpose will fail. Because it’s a larger public interest that’s concerning the government. Everywhere, we cannot go and test people. People have to download and find out and tell us that I am not keeping well. At least that way, we will be able to identify people who are vulnerable to this virus attack,” Nair argued.
Nair hinted that Aarogya Setu was crucial to easing the lockdown: “We intend it for the working community because they are now under the risk now that we are promoting more movement.”
Order dictated by Justice Gopinath: “The ASG accept notice on behalf of the respondents 1 [Union of India], 3 [MEITY] and 4 [Ministry of Health and Family Welfare], government pleader accepts notice on behalf of second respondent [State of Kerala]. The ASG shall positively obtain instructions and file a statement on or before 18.05.2020. Listed along with WP (C) No. 9806/2020
Apart from Mathew’s team and Nair, Internet Freedom Foundation’s Vrinda Bhandari and Devdutta Mukhopadhyay were also present during the Zoom hearing. IFF later tweeted that Bhandari, Mukhopadhyay, Sidharth Deb, Gautam Bhatia and Abhinav Sekri assisted in drafting the writ petition.