The petitioner in Karnataka High Court, who had challenged the mandatory nature of Aarogya Setu for air and rail travel, is now seeking a permanent injunction against the app, as per his amended petition in the Court. Anivar A. Aravind, a public interest technologist, has been allowed by the Karnataka High Court to amend his petition and place on record his concerns about Aarogya Setu’s Open API Services Portal.

“In the app, there is a new function introduced which allows the govt to give the data of all employees to the employers which is a terrible invasion of privacy. Not only personal data but also location data every 15 minutes,” Senior Advocate Colin Gonsalves submitted on behalf of Aravind. The division bench constituting Chief Justice Abhay Oka and Justice Ashok Kinagi allowed the petitioner to amend the petition to challenge function creep via the API services introduced on August 22. The case will next be heard on September 16. The petitioner has been granted a week to circulate copies of the amended petition to the respondents that include the Ministry of Home Affairs, Bangalore Metro Rail Corporation Limited (BMRCL) and others.

App is not mandatory for metro services

Gonsalves reminded the court that in the previous hearings, it was established that the app is not mandatory for air travel, rail travel or the health department of the central government. “On the last occasion, there was a statement made and an affidavit filed by the counsel for Metro Rail saying that it is mandatory. But day before yesterday, the central government held a meeting and issued a circular that for metros all across the country, passengers are only encouraged to use of Aarogya Setu app. My colleague for the metro rail may already have those instructions by now. It was only on second of September that that was passed,” he said.

As per the standard operating procedure guidelines issued by the Union Ministry of Housing and Urban Affairs (MoHUA) yesterday, the use of Aarogya Setu is “to be encouraged”. The Bangalore Metro Rail Corporation Limited (BMRCL) also reportedly said, “Commuters are encouraged to use Arogya Setu App, though it is not mandatory. [sic]”

Basavaraj V. Sabarad, who represented BMRCL, said that as per the Home Ministry guidelines for Unlock 4.0,  MoHUA was to issue fresh SOPs for resumption of metro services. Chief Justice Oka pointed out that the Union Ministry has already said that it is not required. M.N. Kumar, the counsel for the central government said, “There cannot be mandatory usage because we cannot travel beyond the order of MHA.”

Mandatory or not?

The question of whether this app can be used to deny services to citizens still remains open. Chief Justice Oka acknowledged it and said it would be taken up in the next hearing.

In its previous orders on August 3 and August 19, the division bench had said that it would consider the petitioner’s appeal that Aarogya Setu not be made mandatory for accessing any government service or facility. In the previous hearing, the bench had said, “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.” It had also 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. They reiterated this concern today as well.

Another advocate, Mohan G.R. started to make submissions but was not legible because of his internet connection. He was saying something about contact tracing and Aarogya Setu to which Chief Justice Oka said, “As far as contact is concerned, contact with a COVID-19 positive patient cannot be avoided when we have 3,000 cases in city of Bangalore every day.”