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Without law, govt cannot deny services for not installing Aarogya Setu: Karnataka High Court

Aarogya Setu

In the absence of a law, central and state government agencies cannot deny any benefit to citizens if they don’t install Aarogya Setu, Karnataka High Court ordered on Monday. This is the first time that the Court passed such an order even though its has acknowledged the issue in different ways in the past. The division bench, comprising of Chief Justice Abhay Oka and Justice Ashok Kinagi, was hearing Anivar A. Aravind’s petition which is seeking a permanent order against the use of the contact tracing app.

The Court also granted the Central government counsel M.N. Kumar time until November 3 to file the government’s objections, the last such extension. In the September 22 hearing, the Court had directed the central government to specify whether the government of India is collecting and using data of individuals through Aarogya Setu. The government had also been directed specify the purpose for which the app is collecting data and under the authority of which law. The Central government missed two deadlines to file its objections. The case will next be heard on November 10.

Senior Advocate Colin Gonsalves, on behalf of the petitioner, reiterated that at the moment, he is only asking the government to not deny services to citizens for not installing the app, and a directive against the app itself.

Aarogya Setu is NOT compulsory for govt employees: Central govt

Central government counsel Kumar repeatedly said that no government authority had made the app mandatory or denied services to people on the basis of that. Gonsalves pointed out that Aarogya Setu was made mandatory for all central government employees by the Department of Personnel and Training (DOPT). Kumar clarified that the order was dated April 29 and was superseded by later National Executive Committee’s (NEC) guidelines dated May 17 that made the app voluntary. “All those orders [that made Aarogya Setu mandatory] were superseded by the NEC orders,” Kumar said.

‘What happens if people don’t use mobile phones by choice?’ asks HC

“There are many people today who do not use cell phones,” Chief Justice Oka pointed out, clarifying that this is by choice, not because they do not have money to buy mobile phones. “What happens then?” he asked the central government counsel. Kumar replied that for such people, the government has set up an IVRS (interactive voice response system) which replicates the app.

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The IVRS system allows anyone in the country can call 1921 and take a self-assessment test, whose results, along with recommendations (such as self-isolation, getting tested) are sent to the person via SMS. However, readers should note that the IVRS works rather opaquely. A graphic shown by the Ministry of Electronics and Information Technology in a May 2020 conference showed that self-assessment data gathered via IVRS is sent from the Aarogya Setu server to Ayushman Bharat and the latter sends back validated data. Despite repeated queries by MediaNama, MEITY has not clarified why and how the national health insurance provider “validates” symptom data collected via the Aarogya Setu IVRS.

Aravind’s original petition had raised the question of digital exclusion in a country where less than 35% of the population has access to smartphones. His original plea, filed on June 2, wanted the app to be made voluntary and specifically targeted the Ministry of Railways and Airports Authority of India, which, at that time had released standard operating procedures mandating the app’s installation. Ultimately, both the Central government had submitted that the app is voluntary for both rail and air passengers.

The petitioner, a public interest technologist and a board member of digital rights advocacy firm SFLC.in, had later revised his petition seek a permanent injunction against the use of the app and raise concerns about Aarogya Setu’s Open API Services Portal.

Apart from Gonsalves, Aravind is also represented by lawyers from SFLC.in, some of whom were present during Monday’s hearing.

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