While hearing a petition arguing against making Aarogya Setu mandatory for rail and air travel on Wednesday, the Karnataka High Court dismissed an application for intervening that exalted the app, Live Law reported and one of the lawyers for the petitioner confirmed to MediaNama. The division bench said that the question was not about the quality of the app, but whether services could be denied to citizens on the basis of its installation and use.
“In this petition, this court is not concerned with the question whether the Aarogya Setu application is good or bad and the nature and extent of services available to those who use this app. The issue at this stage is whether the state or its agencies and instrumentality can make downloading of the app mandatory to enable citizens to avail of services or privileges, which they are entitled from the state and agencies/instrumentalities of the state,” the division constituting Chief Justice Abhay Oka and Justice Ashok S. Kinagi said, as per the report. The bench has raised this point at least thrice during the course of this case — twice today and once in the order issued on August 3.
Rajkumar V.C., an advocate, had filed the application for intervening wherein he argued that he was a user of the app and found the app to be “very useful” as it helps “the public be cautious”. He further said that 14 crore citizens were using the app.
The bench will now decide on the interim relief that the petitioner, Anivar Aravind, a public interest technologist and part of SFLC.in’s advisory board, has sought which includes directing different government agencies to not deny services to a citizen if they don’t have the app installed. Aravind was represented by Senior Advocate Colin Gonsalves, the founder of Human Rights Law Network, along with lawyers from SFLC.in.
The bench has directed all the respondents (including the Ministries of Home, Railways and Civil Aviation, Airports Authority of India (AAI), MEITY and National Informatics Centre), to file their objections by September 1, and the matter will next be heard on September 3.
Court to decide on the larger question of making the app mandatory/voluntary
When Gonsalves pointed out that while the Ministry of Railways and Aviation have made it voluntary to use the app, the Department of Personnel and Training had made it mandatory for all its staff to download the app. “This like a game of cat and mouse where we finda circular and we come to court,” he said. He also reminded the court that under the Puttaswamy judgement, without a law, the government cannot cannot collect data even on a voluntary basis.
As a result, the bench said that it would not decide on individual standard operating procedures that have been issued by different government departments, but on the larger question of whether Aarogya Setu could be made a condition for providing services to citizens.
‘Aarogya Setu not mandatory for air travel,’ AAI tells HC
The Airports Authority of India once again told the Court that Aarogya Setu is not mandatory for passengers, At least twice during the hearing, the division bench, that the question before the court was whether the state could make the use of Aarogya Setu a mandatory condition for providing services to citizens, as per the report.
AAI had been directed in the August 3 hearing to clarify this again since it had released new guidelines that was “a compendium of the regulations of various States”. The Court had then directed the state government “to clarify on this aspect and state before the Court whether any direction has been issued by the State Government making it mandatory for the passengers travelling by air from any of the airports in the State to download Arogya Setu app”.
‘Petitioner’s challenge to draft SOP is premature,’ says Bengaluru Metro Rail Corporation
Bengaluru Metro Rail Corporation (BMRC) told the court that the standard operating procedure (SOP) that the petitioner had cited was a draft created on the basis of advisory from the Union Ministry of Housing and Urban Affairs. Since a final SOP would be issued when operations restart, the challenge raised by the petitioner is premature, BMR said according to the Live Law report. BMRC, however, did not say that the app wouldn’t be made mandatory in the final SOP.
***Update (August 20 2:48 pm): Added that the petitioner was also represented by SFLC. Originally published on August 19, 2020 at 6:04 pm.