Update on Anivar A Aravind v. Ministry of Home Affairs, GM PIL WP (C) 7483 of 2020

SFLC.IN's advisory board member Mr. Anivar A Arvind has filed a petition in the Karnataka High Court challenging the voluntary-mandatory imposition of Aarogya Setu and invasion of privacy rights in the absence of specific legislation governing data collection and processing by it. He is represented by Senior Advocate Colin Gonsalves, counsels from SFLC.in, Advocate Clifton D’ Rozario, Advocate Avani Choksi, and Advocate Ali Zia Kabir in the matter.

So far, the Government of India through the Ministry of Railways, Airports Authority of India, and Ministry of Civil Aviation has stated on record that Aarogya Setu is not mandatory to avail rail or air services. The Airports Authority of India also had to revise its state-wise quarantine guidelines which had initially made Aarogya Setu mandatory. Similarly, Bangalore Metro Rail Corporation Limited (BMRCL) withdrew its initial statement that Aarogya Setu was mandatory for metro commuters. The Ministry of Housing and Urban Affairs also amended their draft Standard Operating Procedure (SoP) which had made Aarogya Setu mandatory for metro commuters. The now notified SoP by the Ministry of Housing and Urban Affairs states that the installation of Aarogya Setu is advisable in nature.

In addition to this, the Karnataka High Court, on 19.10.2020 passed an order stating that in the absence of legislation, central or state government or their agencies or instrumentalities cannot deny any benefit or service to a citizen for not installing Aarogya Setu.

Update on Proceedings Dated 10.11.2020

In today’s hearing, Senior Advocate Colin Gonsalves started by countering arguments made by the Union of India in its statement of objections.

1. On voluntary-mandatory nature:

The Union of India, in its statement of objections, has categorically stated that Aarogya Setu is voluntary in nature. To substantiate the same, it has relied upon the Ministry of Home Affairs guidelines dated 17.05.2020 and the subsequent guidelines. These guidelines require the installation of Aarogya Setu on best efforts basis.

Senior Advocate Colin Gonsalves argued that there are still approximately 135 instances where Aarogya Setu has been made mandatory by State or private entities. He relied on the Aarogya Setu tracker maintained by the Internet Democracy Project which has been ordered to be placed on record by the Court. He also said that “best-effort” basis is mandatory only because no employee will refuse to install Aarogya Setu if their employer asks them to install it. He argued that such consent does not amount to informed consent.

He also pressed on the Union of India to advertise and inform the country that Aargoya Setu is voluntary in nature.

2. On lack of specific legislation governing Aarogya Setu:

The Union of India, in its statement of objections, has contended that the Aarogya Setu derives its legislative backing from the National Disaster Management Act, 2005 (hereinafter “the NDMA, 2005”). Section 10(2)(l) of the NDMA, 2005 provides that the National Executive Committee can lay down guidelines for, or give directions to, the concerned ministries or departments of the Government of India/ State Government, etc. regarding measures to be taken by them in response to any threatening disaster situation or disaster.

In addition to this, the Union of India has contended that Aarogya Setu is governed by the Aarogya Setu Data Access and Knowledge Sharing Protocol which was released on 11.05.2020.

Senior Advocate Colin Gonsalves contended that this is in contravention of the Puttaswamy (2017) judgment wherein it was held that “There must be a law in existence to justify an encroachment on privacy is an express requirement of Article 21. For, no person can be deprived of his life or personal liberty except in accordance with the procedure established by law. The existence of law is an essential requirement.” He argued that a protocol is no substitute for law and that the NDMA, 2005 is a general law that does not govern data collection, processing, or sharing, and therefore, is not a valid law for the purposes of governing data collection and processing by Aarogya Setu. Senior Advocate Colin Gonsalves also emphasized on the 11 principles laid down in the Puttaswamy (2017) judgment.

The matter has been listed for hearing on 12.11.2020 at 12:45 PM. We have uploaded the statement of objections filed by the Union of India here. 

Also read our coverage of the matter here:

1. Aarogya Setu is optional for air passengers, Airport Authority of India informs Karnataka High Court

2. Karnataka High Court orders the State of Karnataka to clarify its stance on Aarogya Setu

3. Karnataka High Court allows amendment of petition in Aarogya Setu case: Update on petition challenging Aarogya Setu's voluntary-mandatory nature and lack of a specific legislation

4. Aarogya Setu is not mandatory for air or rail travel

5. Petition Challenging the de-facto imposition of Aarogya Setu in Karnataka High Court