How 'Aarogya Setu' Can Be Made Mandatory When Many Workers Have No Smartphones, Kerala HC Asks Centre

The High Court of Kerala on Tuesday orally raised doubts about the practicality of the mandatory condition imposed on employers to make their employees download 'Aarogya Setu', the contact tracing app developed by the National Informatics Centre amid the COVID-19 pandemic.

"There are valid concerns about the mandatory condition on the employers. Many have no smartphones. How do you propose to implement this?", asked a single bench of Justice P Gopinath.

The judge also remarked that the mandatory condition was "problematic", and asked the Central Government to file a statement on the aspects raised by the bench by May 18.

The Court was hearing a writ petition filed by one Jackson Mathew, Managing Partner of Leetha Industries, who challenged the Central Government directives making the use of app mandatory by all employees. 

The petitioner, represented by Advocate Santhosh Mathew, submitted that the immediate concern was regarding the penal action proposed against employers for failing to ensure that all their employees download the app.

This condition is not practical, given the fact that many workers have no smartphones, he submitted. Also, as all workplaces are working with 50% strength, it is not possible to ensure the compliance of the mandatory condition by those workers who do not turn up for work.

"Not all my employees have smart phones. To enforce this condition, I have to buy a smart phone for all employees. That is not practical. Employer cannot be penalised for this" : Adv Santhosh Mathew submitted.

"Employer is working with 50% staff. How can it be ensured that employees who don't come to work downloads the app? Can the HC Registrar or the Chief Justice be made criminally liable if all the HC staff do not download the app?", the counsel urged.

The counsel also pointed out that Justice B N Srikrishna, who had prepared the draft bill on Personal Data Protection, has aired his views against the mandatory imposition of the app, in view of its privacy concerns.

The Central Government Counsel submitted that unless the app is downloaded by maximum number of persons, it will not be effective. The mandatory condition is imposed to ensure maximum proliferation of the app, CGC told the bench.

Prima facie agreeing with the concerns raised by the petitioner about the coercive actions proposed against employers, the bench adjourned the hearing till May 18. Justice Gopinath however said that he was not inclined to pass any interim order at the moment, before seeing the statement of the Centre.

Earlier in the day, a division bench, while considering a Public Interest Litigation, had directed the Centre to file a statement on the privacy safeguards of the app. The division bench had however declined to stay the mandatory condition observing "extraordinary situations call for extraordinary measures".

The present petition was listed before the single bench, as the petitioner was stated to be personally aggrieved.

The single bench has now posted this petition along with the PIL pending before the Division Bench.

On April 29, the Centre had directed that "All the officers, staff (including outsourced staff) working in Central Government should download 'Aarogyasetu' App on their mobile phones, immediatey"

Further, the lockdown guidelines issued by the Ministry of Home Affairs on May 1 stated "Use of Arogya Setu app shall be made mandatory for all employees, both private and public. It shall be the responsibility of the Head of the respective Organisations to ensure 100% of this app among all employees".