Are You Using Data Of Individuals Collected Through Aarogya Setu Application? Karnataka HC Asks Central Govt

A division bench of Chief Justice Abhay Oka and Justice Ashok S Kinagi said "Since it is an app developed by Government Of India, the first question is whether data collected is used by the state. If the answer to this question is YES, then under what authority of law and for what purpose is this data being used. This is a very simple thing which we will have to decide while considering interim relief."

The clarification is sought while hearing a petition filed by Anivar A Aravind who has challenged the mandatory use of Aarogya Setu application for accessing public services.  

Senior Advocate Colin Gonsalves, appearing for the petitioner, apprised the court about the interim relief sought in the petition. He said "I am pressing for interim reliefs 2 and 3." The reliefs sought are, not to deny any service to citizens for not installing the Aarogya Setu application. Secondly, an order restraining the respondents during the pendency of this petition from proceeding with the Aarogya Setu App and with the data collected, in any manner, whether the collection of data from members of the public is stated to be voluntary or involuntary.

During the hearing, the court asked the petitioners to explain what it meant by seeking to restrain the respondents from proceeding with the app.

Gonsalves replied by saying "That is to say the respondents do not process data, transfer data in any manner whether collection of data from the public is either voluntary or involuntary."

He added that "Even if the collection of data is said to be voluntary, but in India it is not really voluntary, the use of that data will not be valid in the absence of a law, to process the data."

Central Government Counsel M N Kumar sought two weeks' time to file the statement of objections. He submitted that "We (Central Government) have not filed a reply to the entire petition as there were two to three amendments carried out during the course of hearing. We will address all issues raised. According to me, on taking instruction from the departments what I have learnt that prayers are misconceived and do not survive for consideration." He also submitted that in the counter reply which will be filed by the Central Government all the issues raised by the court will be clearly addressed.

The bench observed "As far as prayer 2 is concerned nobody should have any objection. The reason is there is no law which states that use of application is mandatory." Kumar agreed to it and said a statement has been made to that effect, earlier.

The bench allowed the request made by the Central government and directed it to file the statement of objections by October 3 and posted the matter for further hearing on October 5 for considering interim relief.

The petition states that the National Directives for COVID Management which mandate the use of the app as mandatory for all employees both public and private violate fundamental rights under Articles 14, 19 and 21 of the Constiution.

The Chairperson of the Empowered Group on Technology and data management has issued an order dated May 11, notifying the Aarogya Setu data access and knowledge sharing protocol. According to the petitioner, this is not in the nature of a law and this protocol cannot be an excuse to mandate the use of Aarogya setu app without any enabling law. The app has been collecting excessive data and this goes against the principles of data minimisation and purpose limitation as enshrined in 'Puttaswamy Judgement'.

It is also argued that the Aarogya setu app that was promoted by the government as voluntary has become de-facto mandatory.

On June 12, the Centre had told the Court that the use of the app was not mandatory.