The Airport Authority of India (AAI) told the Karnataka High Court that use of Aarogya Setu Application by passengers is optional and not mandatory.
A division bench of Chief Justice Abhay Oka and Justice Ashok S Kinagi, while recording the statement made by the counsel for AAI, said that it will now decide on the interim relief sought in the petition filed by Anivar A Aravind, instead of deciding on individual Standard Operating Procedures, issued by different government departments.
The interim relief sought in the petition is to direct the respondents, not to deny any service to a citizen for not installing the AarogyaSetu application, pending disposal of this writ petition.
Senior Advocate Colin Gonsalves, appearing for the petitioner argued that “While the Union government counsel has told you (court) for Air/railway and Ministry of Health, use of AarogyaSetu app is voluntary, the Department of Personnel and Training (DoPT) has issued a circular saying all its staff including outsourced staff should download the app immediately. This is like a ‘cat and mouse game’, where we find a circular and we come to court.”
The Central Government had earlier submitted before the Court that the use of Aarogya Setu was not mandatory for travel by air or rail, and that the same was completely voluntary.
The petitioner submitted that many countries across the world launched mobile apps for contact tracing of persons who test positive for COVID-19. Those applications are voluntary and most of these applications across the world use only bluetooth and do not not access the location of the user. However, the application launched on April 2, by the National Informatics Centre for contact tracing and which has been downloaded more than 100 million times by users, has been using location service and bluetooth to track users.
The petitioner also argued that the Data Access Protocol for Aarogya Setu notified by the Chairperson of the Empowered Group on Technology and Data Management on May 11 has no force of law and that this protocol cannot be an excuse to mandate the use of Aarogyasetu app without any enabling law.
The Aarogya Setu app has been collecting excessive data and this goes against the principles of data minimization and purpose limitation as enshrined in ‘Puttaswamy Judgement’, contended the petitioner.
“Without a law you (Government) cannot collect data even on a voluntary basis. You cannot collect or store data, it is prohibited completely.”
The bench thus proposed to hear the petition finally. It has directed the respondents to file their statement of objections if any by September 1, and posted the matter for further hearing, on September 3.
During the hearing counsel for Bengaluru Metro Rail Corporation (BMRCL) submitted the court that “BMRCL has not started its operations. Moreover, the SOP issued by it is a draft based on the advisory issued by the Ministry of Housing and Urban Affairs and a final SOP will be issued when operations recommence. Thus the challenge raised by the petitioners in respect of BMRCL, making use of Aarogya Setu Application mandatory for passengers as condition precedent to enter station premises is premature.
The bench once again clarified that the question before it is whether state government or agencies and instrumentalities of the state can make it mandatory for downloading and use of Aarogya Setu application as a condition precedent to access services. Whether any facility can be denied to a citizen, if he has not downloaded the application.
The bench also disposed of an intervention application filed by a user of the Aarogya Setu application. Advocate Rajkumar V C, who said “I am a user of the app and I find the app is very useful. It helps the public to be cautious. Moreover, around 14 crore citizens are using the application”.
The bench said “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 the 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. Therefore, no case is made out for intervention.”