Nearly a year after the Kerala High Court last took up petitions challenging the agreement between the Kerala Government and US-based Sprinklr Company processing of data related to COVID-19 patients, the High Court heard the batch of petitions again today.
A Bench of Justices Devan Ramachandran and Kauser Edappagath initially expressed surprise at the listing of the pleas today.
However, Advocate T Asaf Ali for the Kerala Leader of Opposition, one of the petitioners informed the Court that he had filed an Interim Application in his petition. He sought the production of the Report tabled by a Committee headed by Madhavan Nambiar which probed the Sprinklr deal.
"My application is to call for the Committee report which is very helpful for me in the adjudication of my writ petition", he said.
The Counsel for Sprinklr submitted that the company had yet not received a copy of the application.
Again, Advocate Asaf Ali stressed that the Report "is essential for the just adjudication of the case" and urged the Court to consider his application.
Without venturing a remark, the Court proceeded to direct that the matter be posted after the vacation.
Last year, a Bench of Justices Devan Ramachandran and TR Ravi issued a slew of directions in an interim order that stated these -
- Government of Kerala is directed to anonymize all data that have been collected and collated so far, and allow Sprinklr to access data only after such anonymization is completed.
- Sprinklr is restrained from committing any act which will be in breach of confidentiality of data entrusted with them by Kerala Govt under the impugned contract.
- Sprinklr shall not directly or indirectly deal with the data entrusted to them by the Kerala Govt in conflict with the confidentiality clauses in the contract, and will return the data as soon as their contractual obligations are over. They should not disclose or part with the entrusted data to any third-party entity.
- Sprinklr is injuncted from advertising or representing to any third party that they have access to data relating to COVID-19 cases.
- Sprinklr is restrained from exploiting directly or indirectly any data entrusted with it for commercial purposes.
- Sprinklr is further injuncted from using the name or logo of Government of Kerala for its promotional acts.
- Government has to take informed consent from individuals that their data will be processed by a third-party foreign company.
The petitions, filed by lawyers Balu Gopalakrishnan and Krishna Prasad N, programmer Binosh Alex Bruce, Kerala Leader of Opposition Ramesh Chennithala, assailed the decision of the Pinarayi Vijayan-government to choose the services a foreign-private company Sprinjlr for storing and analyzing COVID-19 data. The decision to entrust the job with a foreign company, overlooking state entities like the C-DIT and NIC, was specifically brought in question.
Additionally, the pleas further pointed out that the agreement with Sprinklr was executed without seeking approval of the Council of Ministers or other concerned departments of the State including the Law Department, which is empowered to prepare agreements on behalf of the government.
The petitioners averred that the data of citizens were collected without their informed consent, and was stored in a foreign server. According to the petitioner, more than 1.5 lakh sensitive medical information of the COVID -19 patients are with the company.
Notably, M Sivasankar, the-then IT Secretary, admitted that the opinion of legal department was not taken before the contract, due to the emergency situation, when he appeared in interviews last year.
Following the highly-publicised challenges to the deal, the Government constituted a two-member committee to examine the issues in relation to the deal.
M Madhavan Nair IAS (retired), former Civil Aviation Secretary & IT Secretary, Government of India and Rajeev Sadanandan IAS (retired), former Additional Chief Secretary (Health and Family Welfare Department) Government of Kerala were declared members of the committee.
According to a New Indian Express Report, the Committee led by M Madhavan Nair found that former IT secretary M Sivasankar unilaterally signed the deal keeping even the Chief Minister in the dark, giving a "clean chit to the Chief Minister". The New Indian Express's story explained that the Madhavan Nambiar committee was of the view that the proposal for installing a digital platform for analyzing a crisis situation like COVID-19 should have been discussed with the Crisis Management group. The Crisis Management group, headed by the Chief Secretary along with the Secretaries of finance, revenue, health, law and IT, should have been closely involved. It has been revealed that the Sprinklr proposal was not discussed with the then Chief Secretary Tom Jose. Health and Family Welfare Secretary Dr Rajan N Khobragade too has confirmed that no formal consultation was taken with the health department, the story stated.
The New Indian Express story also quoted the Report as stating,
"The committee would like to point out that the approval of the Chief Minister who is also the IT minister was not taken before the agreement was executed with Sprinklr Inc. Since we are dealing with date security issues and entrusting sensitive data to a foreign company, this could be detrimental to the interest of the state and its citizens," said the report."