Mandating download of Aarogya Setu may be unconstitutional, say experts

Venkatesh Ganesh, Forum Gandhi Mumbai | Updated on May 25, 2020

Even as confusion reigns over whether the Aarogya Setu app will be made mandatory for airline travel, legal experts and cyber activists say that any efforts to make it compulsory would be anti-constitutional.

On May 17, the government revised its earlier directions and notified that it is no longer mandatory. However, in the guidelines laid out by Ministry of Civial Aviation (MoCA), the authority has said that only those with the Aarogya Setu app will be allowed to fly.

Guidelines issued by Airports Authority of India (AAI) state: “All departing passengers must compulsorily be registered with Aarogya Setu App on their mobiles and the same shall be verified by CISF/Airport staff at the entry gate. If a passenger’s status on the app wasn’t ‘Green’, they would not be allowed to enter the airport.”

However, Minister for Civil Aviation Hardeep Puri in a press conference on May 21 said that if a person didn’t have the app or the app wasn’t compatible with their phone, then this would not mean that the person would be deprived of their right to travel, and that instead a different procedure would be followed, such as a self-declaration or thermal checking.

So, the question arises whether the app should be made selectively mandatory by authorities?

Privacy rights

The first obvious reason against this is that it can be challenged on unconstitutional grounds, which legal experts like former Supreme Court judge Justice BN Srikrishna have openly said.

It is not legal as there is no law passed by the Indian government which allows mandating of such app for fliers, stated Pavan Duggal, advocate, Supreme Court of India.

So far, about 9.8 crore people have downloaded Aarogya Setu and it would soon be made available in feature phones. In 2019, India crossed the 50-crore smartphone user base, which is around 38 per cent of the country’s population, pointing to the continued dominance of feature phones.

On its part, the Centre has stated that Aarogya Setu is used to ensure effective implementation of its health response to Covid-19, and should be looked upon at the same level as other recent orders invoked under National Disaster Management Act (NDMA). The NDMA allows for issuance of guidelines and directions aimed at addressing disasters.

Some believe that this was the right decision. Rahul Goel, Partner, IndusLaw said: “The debate is between larger public good and safety versus privacy. At this stage, most of the people would not like to negotiate with safety and give priority to privacy as a right. It can be argued that in certain situations, fundamental rights can be suspended, and therefore the DGCA can mandate installation of this app.”

Logic behind the move

“Even going with the larger public good logic, the move by the Ministry of Civil Aviation is not rational. For instance, it only requires a person to have the app installed at the time of entering the airport. One can do so simply on the way to the airport, and therefore it fails to achieve the objectives,” said Nirupam Lodha, Partner, L&L Partners.

Ritesh Bhatia, a cyber expert, agreed with this point. “There is no point in just having the app without the Bluetooth switched on. While it can be effective in a closed group, provided everybody has Bluetooth on, I still have reservations on whether privacy is protected.”

The analysis of the Aarogya Setu app is based on the data of less than 13,000 users who tested positive; alerts were sent to about 1.4 lakh users.

Others pointed out that the app is not in compliance with the Information Technology Act, 2000. “The terms and conditions and privacy policy of the Aarogya Setu app clearly does not show as to how the said app complies with the Indian cyberlaw, and the triple test laid down in Puttaswamy judgment on Aadhaar by the SC,” stated Duggal.

The question of whether Aarogya Setu is a valid authority to make a healthcare-related decision is also being questioned. “What if someone is denied entry based on the data of the app but he holds a Covid-negative test certificate?” asks Lodha. There are also arguments that if the social distancing aspects have been done away in flights for commercial consideration, then what purpose does mandating the app serve?

Published on May 25, 2020

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