Plea in Kerala HC Against Collection Of Call Detail Records Of Covid Patients By Kerala Govt. [Read Petition]

The writ petition filed through Advocate T. Asaf Ali, challenges a Circular dated August 11, 2020, issued by the Kerala State Police Chief, which enables the department to collect CDRs of Covid patients, from BSNL and Vodafone, for contact tracing.

It highlights that the Circular is drafted in a "deceptive manner" without even disclosing the purpose of collecting CDRs, whereas tower location of the mobiles of the COVID-19 positive patients would serve the purpose of contact tracing and no CDR details are necessary for the same.

The Petitioner has asserted that the Circular does not disclose the legal authority on the strength of which it has been issued and is absolutely illegal and oppressive.

"It is trite law that either the 1^st Respondent or any of its officials have no right or authority to collect CDRs of the COVID-19 pandemic positive patients, who are in quarantine either at their residence or elsewhere, whose right of privacy guaranteed by the Constitution would be suffered by them following the breach of confidentiality," the plea states.

Further the Petitioner apprehends "misuse" of the personal data so collected, as the same is allegedly being stored by an unknown agency, that too without anonymising CDRs, against the guidelines issued by Govt. of India and the Courts.

He has averred that the Circular, which is an executive order, cannot be used to infract the fundamental right to privacy recognized by the Supreme Court in Justice Puttuswamy (Retd.) & Anr. v. Union of India & Ors., 2017 (10) SCC 1, or to modify the enactments of the Legislature.

"It is very pertinent to note that CDRs will be permitted to collect in connection with the investigation of grave nature of criminal cases in which threat to national security issues, financial crimes and other similar nature of crimes affecting national security are allowed only after obtaining permission from Home Department subject to review by the Review Committee constituted under Rule 16 of the Indian Telegraph(Amendment) Rules, 2007," he has submitted.

It is contended that collection of CDRs of COVID-19 positive patients, without obtaining their consent, is an illegal expansion of police powers. Moreover, it is alleged that the police had started collection of CDRs of COVID-19 patients even prior to the issuance of Exhibit P-1, thus trampling on their rights under Article 21 of the Constitution.

The plea therefore seeks declaration of the impugned Circular as ultra vires, unconstitutional, null and void.

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