'Aarogya Setu App Does Not Detect COVID-19 & Is Meant For Intensive Surveillance', Says Plea In Bombay HC [Read Petition]

The Petitioner, through Advocates Shashwat Anand, Shrinivas R. Khalap and Chintan Nirala, has contended that usage of the Aarogya Setu App is not backed or mandated by any law. Thus, its imposition, in any way, is wholly arbitrary and unconstitutional, and amounts to invasion into the citizens' privacy.

It has been submitted that "infringement of the right to privacy cannot be impinged without a just, fair and reasonable statutory law, for which it has to fulfill and must meet the threefold requirement viz. (i) existence of a law; (ii) must serve a legitimate State aim; and (iii) proportionality" as laid down by the 9-Judge bench of the Supreme Court in KS Puttaswamy (Retd.) & Anr. v. Union of India & Ors., 2015 (8) SCC 735.

Further it has been contended that the impugned order overlooks the fact that a majority of persons don't own such smartphones as may be able to run the App and thus, it is highly derogatory of the equality principle as enshrined under Article 14 of the Constitution

"It discriminates between people who own and those who don't own smartphones in according them entry into the premises of the Collectorate, Margao, Goa," the plea states.

It is asserted that restricting entry into the Collectorate "militates" against the Right to Move Freely as envisaged under Article 19(1)(d).

The Petitioner has also drawn the Court's attention towards the Terms of Service of the App as per which the app is neither a substitute for medical diagnosis/ epidemiological measures necessary to combat COVID-19 not it is accurate in identifying persons in one's proximity, who have tested positive to COVID-19.

On this note the Petitioner has contended that "it is picturesque that the Aarogya Setu does not detect/diagnose the COVID-19, and presumably, is an App meant merely for intensive surveillance and collecting data."

The plea therefore seeks that the impugned order be quashed as being misconceived, discriminatory, arbitrary, and bad in both law and fact, unconstitutional and void.

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