The Central Government on 2nd April 2020 launched a digital mobile app, namely Aarogya Setu. The name is made up of two Sanskrit words. If loosely translated, it means ‘Health Bridge’ or ‘bridge to being healthy’.
By Arjun Dewan
The Central Government on 2nd April 2020 launched a digital mobile app, namely Aarogya Setu. The name is made up of two Sanskrit words. If loosely translated, it means ‘Health Bridge’ or ‘bridge to being healthy’. The architecture of the application enables the Government to determine if the user has been in contact or in close proximity with someone who is infected with Covid-19. The Application also helps the user identify his or her own status with relation to contacting someone infected. The application works using location based data of the user and Bluetooth technology. After installation of the App, it requires the user to give consent for use of location information and Bluetooth services, and also requires certain personal information of the user. Countries like South Korea, China, and now European Countries are also using or are in the process of building their own contact tracing applications.
Whilst Bill Gates has lauded India and Prime Minster Narendra Modi, for use of technology through development of ‘Aarogya Setu’, questions have been raised domestically, regarding the legality and usage of the digital application. Some opposition leaders have called the Aarogya Setu a ‘sophisticated surveillance system outsourced to a private operator with no institutional oversight’.
The debate regarding its legality, usage and enforcement has escalated with every passing day. The same is unlikely to die out anytime soon with the Government(s) making the usage increasingly mandatory. The Central Government has directed that all private and government employees and people living in Covid-19 containment zones must download and use the app. On 5th May 2020,Mr. Akhilesh Kumar, DCP, Law and Order, NOIDA, has more or less mandated that all residents of the area having a smart phone must download the app and failure to do so may attract penal provisions. It is also widely reported that only those persons will be permitted to use the Delhi Metro who have downloaded the application once the metro services have resumed.
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Civil rights advocates and activists have questioned the mandatory usage of the app on grounds of breach of privacy and absence of legislative sanction. It is argued that it is a surveillance tool which permits the Government to track the movement of individuals and further gather and store sensitive personal information. Some have questioned this on the grounds of its enforcement. Companies have raised concerns regarding the management being saddled with the responsibility of ensuring that their employees have downloaded the app. Issues have also been raised about the storage and retention of data generated from the app installed on the mobile phones of its users. Issues have been raised regarding the rudimentary terms and conditions of the app, specifically the liability clause, which indemnifies the government from any unauthorised access to the information of the user. They have further argued that user consent has become inconsequential with the mandated usage of the app and also the comparison with other apps also collecting similar user information is misconceived as they are consent-based and not mandatory. Some French ‘ethical hacker’ has also warned that the ‘privacy of 90 million Indians is at stake’. The Government has though claimed that no data or security breach has been identified.
The Government and the supporters of the application, on the other hand, have supported the mandatory use of the app. Their support is premised on the argument that the app is an extremely effective tool to contain the spread of COVID–19. Rightly so, it is argued that it is impossible to manually carry out contact tracing considering the size and population of India. The Law Minister has also very recently stated that the data shall be used for limited purposes and is stored only for a limited duration. The Law Minister has further clarified that the data is completely encrypted. It is reported that the data is deleted within 45 days for non-risk users and 60 days from date of discharge/cure for Covid-19 patients.
Even with the assurances extended from the Government, it is unlikely that the issue will rest there. It is likely that the same is going to be adjudicated by the Courts. The legality of Aarogya Setu will be tested on the parameters laid down by the Hon’ble Supreme Court in K.S. Puttaswamy’s case, also known as the Aadhar Case. In the said case, the Supreme Court in a unanimous decision of nine judges recognised that the ‘Right to Privacy’ is a fundamental right. There cannot be any doubt that the State has a legitimate interest [one of the parameters] in making this app mandatory [at least in certain circumstances] in order to contain the spread of Covid-19. There is also no doubt that the app does affect a user’s right to privacy.
However, whether the app can be or ought to be made mandatory without any legislative authorization is the question which will require serious consideration. The Supreme Court of Israel has already held that their Government cannot use surveillance techniques without legislative sanction, however, the nature of the incumbent government was also one of the considerations before the Court.
While the debate will certainly continue in the public or maybe before the Courts of Law, one thing is evident, trust deficit is the principle issue here. The Government can bridge that to a large extent by providing clear information regarding all aspects of the app by introducing a formal framework paper in the public domain or holding extensive press conferences. We can’t avoid technology in such circumstances but we can also not ignore the concerns of the citizens.
(The author is Advocate, Delhi High Court. Views expressed are personal.)