To file non-urgent matters at the Saket Court Complex in Delhi, petitioners and their lawyers must have Aarogya Setu downloaded on their phone, according to the protocol for physical filing of non-urgent/ordinary matters issued by District and Sessions Judges Neena Bansal Krishna (South-East) and Poonam A. Bamba (South) on July 15. Rights group, the Internet Freedom Foundation first tweeted about this.

According to the protocol, all advocates, parties in person, advocates’ clerks who enter the Saket Court Complex will undergo mandatory thermal screening, and no one with symptoms of cough, fever, running nose, etc. will be allowed entry. Naveen Siwas, the Junior Judicial Assistant for South District, and Manju Kanojia, the Senior Judicial Assistant for South East District, told MediaNama that the app is mandatory for all court staff too. “We received a circular about it [being compulsory for court staff],” Kanojia said.

Siwas said that phones are not checked every day while Kanojia said that they are not checked at all. Both maintained that the app is “for our own safety”. When we asked Siwas if journalists would also need the app, he said that for entrance to all government buildings, Aarogya Setu is compulsory.

Siwas said that for urgent matters, even people without smartphones, that is those who cannot download the app, would be allowed entry. On reminding him that this is the protocol for non-urgent matters, he said, “Today, all lawyers have smartphones.” When we asked him what would happen if petitioners did not have a smartphone, he said that he did not know. People with smartphones who do not have the app will be asked to download it, he said. He couldn’t tell us what would happen if such people refused to download the app. Kanojia also said that so far, she had not come across any cases where people did not have a smartphone or despite having a smartphone, refused to download Aarogya Setu.

In its statement against making the app mandatory in Delhi’s District Courts, the Internet Freedom Foundation wrote that such a requirement acts as:

  • A barrier to justice as people without smartphones, especially those who visit legal aid centres, would not be allowed inside.
  • A risk to privacy and surveillance since the risk categorisation by the app may include positives or negatives. Moreover, the technical framework has not been audited as per IFF.
  • A threat to advocate-client confidentiality as it collects sensitive personal data (including location of the user) which may be abused, and such data is shared with unspecified government entities and third parties.
  • In conflict with central government’s latest guidelines, issued on June 29, as per which employers should ensure that Aarogya Setu’s is installed by all employees with “compatible mobile phones” on a “best effort basis”, and that district authorities “may advise individuals” to install the app.

It is interesting that a district court in Delhi has made Aarogya Setu mandatory. When the Kerala High Court heard a petition against making the app mandatory for all employees on May 12 (through Union Home Ministry’s order dated May 1), Santhosh Mathew, the advocate for the petitioner had asked, “If the High Court staff do not download the Aarogya Setu app, would the Registrar or the Chief Justice be prosecuted?” to which Justice Gopinath Puzhankhara had agreed and said that was 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 [Jaishankar V. Nair, the central government’s lawyer] have said. That part is problematic,” Justice Gopinath had said.

On May 17, the Union Home Ministry had rescinded its guidelines to make the app mandatory for employees and to hold employers liable for non-compliance.