Tushar BurmanMay 22, 2020 16:01:50 IST
Despite the government’s contact tracing smartphone app Aarogya Setu not being mandatory, on 21 May, the Airports Authority of India (AAI) made it a requirement if one wants to travel by air. A notice tiled “Standard Operating Procedure (SOP) for Recommencement of Domestic Flights” published by the AAI states in point #5, “All the 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. However, Aarogya Setu is not mandatory for children below age of 14 years.”
On 17 May, a small, but significant change was made among the various guidelines for Lockdown 4.0, which made the use of Aarogya Setu ‘advisable’ instead of mandatory. In previous guidelines, the government proposed to make it mandatory for people living within the containment zones, and for private sector employees on pain of criminal penalties. The government now stipulates that the use of the app must be on a ‘best effort basis’. Employers are encouraged to have their workers install the app, though this is ‘advised’ and has no criminal penalties attached to non-compliance.
When we spoke to Vrinda Bhandari, one of the counsels that assisted the Kerala petition, she explained “while this is a small victory, it does not resolve the situation. If the app is ‘advisable’ and private organisations mandate it for employees, it would then be advisable for the government to intervene against this mandatory nature.”
Nevertheless, the mandatory-by-default nature of the app continues unabated. On 17 April, News18 reported that the Jharkhand high court granted bail to six persons upon conditions of donating Rs 35,000 each to the PM-CARES fund and downloading the Aarogya Setu app.
And as of today, it is impossible to take a flight without using the app.
This also raises questions about exclusion. Will those using feature phones — that cannot install the Aarogya Setu app — be barred from flying?
The Internet Freedom Foundation has been at the forefront of organising a response to Aarogya Setu and it’s mandatory usage. On 2 May, they published an update announcing that they had sent a joint representation along with “45 organisations and more than 100 prominent individuals” to the Prime Minister’s Office, against mandating the use of the app. The reasons articulated included infringement of users’ data privacy, exclusion of those without smartphones, among others. This was a significant representation, as there were criminal liabilities for not using the app. The foundation also wrote to the Standing Committee for IT on 8 May in this regard.
There have also been legal challenges to the mandatory requirement of Aarogya Setu. On 11 May, one Jackson Mathew, Managing Partner of Leetha Industries, filed a writ petition against the mandatory use of the app. Mathew was assisted by IFF-retained counsel. After the petition was filed, the Ministry of Electronics and Information Technology (MeitY) released a “data access and knowledge sharing protocol” for Aarogya Setu.
Subsequently, the IFF posted an analysis of this protocol on May 13, highlighting its shortcomings in terms of legality, necessity, and proportionality.
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