Resolving three weeks of confusion about whether or not Aarogya Setu is mandatory for air passengers with compatible phones, the central government’s counsel finally said that it is voluntary in Karnataka High Court on June 12. The Additional Solicitor General of India for the Karnataka High Court, M.B. Nargund said that “A person can travel by air without having downloaded the Aarogya Setu app and the same thing applies for travel by railways. A self-declaration though will have to be given by the passenger. It is advisable to download the Aarogya Setu application. If they want to have it, have it; if they don’t want to have [it], don’t have it.”LiveLaw had first reported the development.

Prasanth Sugathan, the legal director of SFLC.in which is representing the petitioner in this PIL, confirmed the development to MediaNama. “We argued that as per Railways’, Airports Authority of India, and Ministry of Civil Aviation latest orders, downloading Aarogya Setu is mandatory for availing these services. At that time, the central government counsel said that it is not mandatory,” Sugathan said.

The division bench, constituting Chief Justice Abhay Oka and Justice E.S. Indiresh, was hearing a PIL filed by Anivar Aravind, a public interest technologist and part of SFLC.in’s advisory board, that argued against mandating Aarogya Setu for rail and air travel. Aravind was represented by Senior Advocate Colin Gonsalves, the founder of Human Rights Law Network, and Senior Advocate Ravi Verma. The PIL had been filed on June 2.

Ahead of the hearing on June 12, in a counter filed by the counsel for the central government (including the Ministries of Home, Railways and Civil Aviation, Airports Authority of India, MEITY and National Informatics Centre), the government had said that the guidelines issued by the Ministry of Railways/IRCTC had been amended to read “Dear passengers, it is advisable to download Arogya Setu App [sic] on your mobile phone, before commencing Rail journey”. It also quoted the Ministry of Civil Aviation’s order and said that because of these two notifications, “the writ petition is misconceived and does not survive for consideration” and should thus be dismissed. The counter, that we have seen a copy of, itself did not clarify whether or not people who choose to travel by air must also download the app on their compatible devices.

“The Puttaswamy judgement has permitted that if it is in the larger interest of the society, the individual interest may [take a back seat]. Individual liberty is always good, but proportionality and reasonableness are important,” Nargund told us. He further said that if the test laid down in the Puttaswamy judgement is applied to Aarogya Setu, in his personal opinion, the app can “definitely” “sustain on it own”. The PIL contends that without an enabling law, by using centralised methods of data collection, and by violating the principle of data minimisation, the app fails the principles of legal backing, necessity and proportionality.

Plans to amend the PIL since part of code has been open-sourced

The PIL had also asked the court to issue a direction to make its source code open source. Since the source code, at least for the Android app client, was open sourced on May 26, the PIL will be amended, Sugathan said.

“The PIL was drafted before the code was open-sourced. Even now, we are amending the petition to reflect what has happened after filling it. One aspect here is that although it is open-sourced, it is only the Android version that is open-sourced and that too not the version that they have released. We don’t know about the version that they have open-sourced. Also, what is more, important is the server-side [code]. That is why, at that time, we had asked for the complete and corresponding source code. So it’s not a submission for just the Android source code. That does not serve the purpose. You take the complete code of the application including the server-side,” Sugathan told us.

The court has permitted the petitioner to amend the application and to bring the matter up for urgent hearing if the need arises. The case will next be heard on July 10, by when the central government has to file its objection and will have to tell the court if the introduction of the app is supported by law, Nargund told us.

What the PIL wants

Aravind wants the app to be made voluntary. He has petitioned the court to ensure that Aarogya Setu cannot be mandated for accessing government services and facilities. The Ministry of Railways had made the app mandatory on May 12. In addition, the PIL argued, that a bare reading of Ministry of Civil Aviation’s order dated May 21 did not make it clear whether “a passenger with a compatible device but unwilling to download Aarogya Setu will be forced to download Aarogya Setu at such counter”. Bare reading suggests that it is mandatory for passengers with compatible devices. If that was not enough, Airports Authority of India’s SOP dated May 21 mandated the use of the app for all people.

Petitioner’s arguments:

  • Digital exclusion juxtaposed with exclusion from using railway or air services worsens the situation: Less than 35% of the Indian population has access to smartphones, the PIL argues. By restricting people’s right to movement without the app, it affects their right to carry on a profession, their right to life and their right to education. The app then becomes an “entry pass or a passport for enjoying fundamental rights”. Directions by the Ministries of Railways and Civil Aviation and Airports Authority of India are thus discriminatory.
  • Excludes the disabled: The app is not designed for the disabled and not accessible to people with disabilities, especially those with hearing and visual impairments, the PIL has said. It cites an April 27 letter by Social Justice Ministry’s Department of Empowerment of PwD to supports its claims. Similarly, Smarthyam, an NGO, in a report said that Aarogya Setu is in contravention of Rights of Persons with Disabilities Act, 2016.
    – No need for location data; Robert Baptiste and triangulation
  • Excessive data collection, not legal without enabling law: The app collects excessive data, especially by collecting location data, thereby going against the principles of data minimisation and purpose limitation prescribed in the Puttaswamy judgement. Moreover, there is no law that enables such collection of location data, health data and personal information of users.
  • Mandating installation of an app violates personal autonomy: Mobile phone is a personal device owned by the individual and the government does not have authority to direct installation of any app on such a device, the PIL argues. This is a violation of personal autonomy of the citizen.
  • MEITY’s Protocol for Aarogya Setu is not a law: Although MEITY released Aarogya Setu Data Access and Knowledge Sharing Protocol on May 11, the PIL argues that this Protocol is not a law. The same argument was also made by a writ petitioner in the Kerala High Court that the Protocol is not a statute and has no legislative backing. Furthermore, Aravind argues that there is no clarity “on the constitution of the empowered groups or their authority to come up with such a protocol. Thus, the legal basis for issuing such a protocol itself needs to be established by the respondents 1 to 3”.
  • Effectiveness of contact tracing apps not established as they can yield a number of false positives, and are useless without a concomitant increase in testing.