Another Plea In Kerala HC Against Mandatory Usage Of Aarogya Setu App [Read Petition]

The petition has been filed by social activist Shameer PS seeking issuance of general guidelines to check alleged privacy violations and to fix the parameters within which personal information obtained from the app may be used by the Government.

He has also sought that the directive mandating the use of Aarogya Setu App by employees should be declared unconstitutional and violative of Article 19 and 21 of the Constitution.

Right to Privacy & Data Protection

It is alleged that the impugned GO is violative of the mandate in Justice KS Puttaswamy & Ors. v. Union of India & Ors. (2017)10 SCC 1, inasmuch as it "oversteps" the reasonable safeguards entailed in the judgment. It is submitted that the data so collected therein and its end use is unknown to the persons from whom the data is so collected.

"The final analysis or synthesis of the data and its end use is without the informed consent of the person parting with such sensitive personal information. The person so parting with the data is also not given an opportunity to opt out of the same through an informed decision making process," the Petitioner has submitted.

The plea further states,

"Even going by the discussions on the extent to which the State may encroach into the right of privacy of the individual, the issue of consent is cardinal and cannot be overlooked. However, the judicial pronouncement on the rights of privacy carefully carves out an exception for legitimate actions by the State in furtherance of public interest. Even in that case the reasonable procedural safeguards are not liable to be forgone. Therefore, on the said count alone the actions of the 1 respondent suffer from gross arbitrariness."

Legislative Competence

The Petitioner has further pointed out, in terms of the observations made in Aadhar case that the Government lacks legislative competence to impinge upon the right to privacy, in the absence a legislative enactment.

"The 1^st respondent does not have any legal backing to issue a direction to use Arogya Setu App compulsorily. The 1^st respondent relies on Section 10(1) of the Disaster Management Act, 2005, this only confers general powers to issue directions. In K.S.Puttaswamy v Union of India (Aadhar case) it is clearly stated without an explicit backing of law right to privacy enshrined under Article 21 of the Constitution of India cannot be restricted especially when right to consent is taken away," the plea states.

Test of Proportionality

It is submitted that the impugned GO does not pass the proportionality test evolved by the Supreme Court in the Aadhar case. As per the said judgment, an action which may intrude the right to privacy of an individual must:

• be sanctioned by law;
• be necessary for a legitimate aim;
• the extent of such interference must be proportionate to the need for such interference;
• there must be procedural guarantees against abuse of such interference.

Workplace

Lastly the Petitioner has submitted that the impugned GO states the conditions will apply to public spaces and "workplaces". This, he has contended should be interpreted in terms of a Kerala High Court ruling in Essar Telecom Infrastructure Pvt. Ltd v. State of Kerala, 2011(2) KHC 171, whereby it was held that "Going by the concept of worker, either he must be employed in a manufacturing process or in cleaning any machinery or premises used for a manufacturing process or any work which is incidental or connected with the manufacturing process."

In this backdrop the Petitioner has prayed the court to declare that "workplace" as stated in Clause 15 of the GO includes only those places where manufacturing takes place.

In the interim he has sought a direction to make the use of app voluntary and a further direction to the Government to not take any coercive steps for violation of the impugned GO.

Counsels for the Petitioner- SK Adhithyan, Keerthi S Jyothi and Gokul D. Sudhakaran

A similar plea has also been filed by Managing Partner of Leetha Industries, Jackson Mathew, seeking constitution of a High Powered Committee with independent members to examine the privacy practices and security architecture of the Aarogya Setu app.

Last week, the High Court had sought the response of the Central Government in a similar petition. A division bench comprising Justices Shaji P Chaly and M R Anitha had posted the matter on May 12.

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