Modi govt’s order making Aarogya Setu mandatory unconstitutional: Plea in Kerala HC

A writ petition has been filed in the High Court of Kerala challenging the directions issued by the Central Government to make the use of 'Aarogya Setu' app mandatory for public and private employees, reports legal news website LiveLaw.in.

The petition filed by John Daniel, General Secretary of Thrissur District Congress Committee, contends that such directions violate the right to privacy and personal autonomy.

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

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".

These directions are challenged in the writ petition as violative of right to privacy and personal autonomy, as explained by the SC in the K S Puttaswamy decision.

"Clause 15 of the National Directives in Exhibit P2 Order mandating the use of the application, Arogya Setu takes away the right of a person to decide and control the use of information pertaining to him. He is forced to give away data to a system which he may or may not approve of, thereby attacking his right of informational autonomy. Autonomy guaranteed by the Constitution of India also grants an individual freedom not to take part in activities he does not approve of," states the petition.

The petition also refers to the recent interim order passed by the High Court in the "Sprinklr" case, where the importance of data privacy and data security was highlighted by the Court.

The petitioner states that the use of penal law to enforce use of the app is arbitrary and unconstitutional.

"Section 58 of the Disaster Management Act 2005 imposes penal action upon employers of enterprises if their employees do not comply with the directive of usage of Arogya Setu. This is arbitrary to the extent that no penal action can be imposed to anyone having no mens rea. An employer who has only a work relationship with an employee cannot compel the employee to install a mobile application and use it diligently and to provide his personal information to the domain," the plea reads.

While the petition seeks to quash the directions as unconstitutional, as an interim measure, the petitioner seeks to restraint the authorities from resorting to coercive action for enforcing the mandatory use of app.