“Extraordinary situations call for extraordinary measures,” Justice Anu Sivaraman of the Kerala High Court said at least thrice during a five-minute Zoom hearing on a petition against making Aarogya Setu mandatory for all employees earlier today. She instructed advocate Jaishankar V. Nair, who appeared on behalf of the Ministry of Electronics and Information Technology, to file a statement that says that “this app and the data collected will not be used for any other purpose”. The matter is now listed for May 18.

‘Best app in the world to fight COVID-19’: MEITY Lawyer

“We have already developed an app which is regarded as the best app in the world at the moment for fighting COVID. I have inputs saying that 130 hotspots were identified using this app. Now 10 crore people have downloaded it. We are expecting lakhs and lakhs of people to download it everyday. Unless everybody downloads this [it won’t work]. I can explain, because if I am sitting in High Court, I can find out how many people are keeping unwell, who have registered on this app, using Bluetooth and other technical aspects of this app,” Nair argued. Please note that during a press briefing yesterday, MEITY Secretary Ajay Prakash Sawhney said that 697 potential hotspots had been identified using location data from Aarogya Setu.

Nair further said that a protocol was released yesterday “that said that the data will be anonymised” as per “hard anonymisation standards”. He was referring to the Aarogya Setu Data Access and Knowledge Sharing Protocol, 2020 which was released by MEITY yesterday, but readers should note that the “hard anonymisation” standards will be developed by a special committee only for sharing data with Indian universities and research institutes registered in India, not for sharing data with other third parties.

‘Why hold employers culpable for actions of employees?’ asks the petitioner

Anupama Subramanian argued on behalf of the petitioner John Daniel that an employer has no control over the use of mobile applications by their employees, no mens rea (criminal intent) either. In such as a scenario, making them “penally liable” is an issue.

Justice Sivaraman reminded that this was an “extraordinary situation” and the matter would be heard after the holidays along with another public interest litigation filed by Shameer P.S. against the app that hasn’t yet been admitted to the Kerala High Court.

Subramanian asked the bench to pass an interim order “to not impose any penal action thereupon” and the matter could be listed at any time. “The problem is with linking Section 58 of the Disaster Management Act with this,” she argued. She said that they had no issues with “permitting people to download the app”, but “penal action may not be taken in this regard”.

“These particular guidelines do not have the backing of any law,” Advocate S.K. Adithyan, who is representing the Shameer P.S., argued. Justice Sivaraman reminded him that “these are extraordinary circumstances” and the matter will be taken up after vacation.

The writ petition was heard by a division bench of Justices Sivaraman and M.R. Anitha. It was filed by John Daniel, the General Secretary of the Thrissur District Congress Committee, and he was represented by advocates Anupama Subramanian, K.R. Sripathi and Sriram Parakkat. Nair represented the government. Two other lawyers — S.K. Adithyan and Santhosh Mathew — who have filed two different cases against making the app mandatory were also present. Justice Sivaraman allowed Mathew to pursue his case before a single judge later today. Two lawyers from Internet Foundation — Vrinda Bhandari (Of-Counsel) and Devdutta Mukhopadhyay (Associate Counsel) also attended the hearing.

Correction (May 18, 2020 10:44 am): The petition filed by Shameer P.S. was incorrectly called a writ petition. It is a public interest litigation. The error is regretted. Originally published on May 12, 2020 at 3:53 pm.