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‘MEITY’s Data Access Protocol is not a legislative backing for Aarogya Setu’: Petitioner in Kerala HC

Aarogya Setu, Constitutional Law
Credit: Aditi Agrawal

You're reading it here first: "[The] Protocol is not a statute, and nor does it offer any legislative foundation for the Aarogya Setu Mobile Application, and therefore the primary issue of Aarogya Setu lacking legal basis, as raised in the captioned writ petition, is still alive and unaddressed," Jackson Mathew has said in his affidavit filed in the Kerala High Court today. The affidavit argues that the Aarogya Setu Data Access and Knowledge Sharing Protocol, 2020, issued by the Ministry of Electronics and Information Technology, is not a "statutory authorisation" that can be used to infringe upon fundamental rights granted under the Constitution. The affidavit has also cited Justice B.N. Srikrishna's comments, as per which, the Protocol was "akin to an inter-departmental circular" that "was not adequate to protect privacy". Justice Srikrishna also said that the government's push to mandate Aarogya Setu is "utterly illegal", as quoted in this Indian Express article. Mathew had filed a writ petition in Kerala High Court 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. Empowered Groups do not have the power to legislate: As per the affidavit, the 11 Empowered Groups created to contain the pandemic — of which Empowered Group 9 on Technology and Data Management developed this Protocol — do not have the power "to formulate laws or even binding guidelines". The Protocol…

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