Plea Moved In Bombay High Court Challenging The De-facto Imposition Of 'Aarogya Setu' In Passport Office, Mumbai

A petition has been moved in the Bombay High Court, challenging the de-facto imposition of Aarogya Setu by officials of Passport Seva Kendra, Mumbai. The petition has been filed by one Tanya Mahajan (an architect by profession) through Software Freedom Law Centre, India and Advocate Aditi Saxena. The Case of the Petitioner It is the case of the Petitioner that while the Respondents (officials of Passport Seva Kendra, Mumbai) maintain that the use of Aarogya Setu is voluntary on their website, it has been made mandatory in practice by the Respondents and is infact a de-facto imposition of the use of the mobile application. The plea states that on account of absence of Aarogya Setu in her mobile, the Petitioner is being denied entry and service by officials of Passport Seva Kendra, Mumbai. The Plea has also claimed that the de-facto imposition of Aarogya Setu by the Respondents affects the right to privacy of the Petitioner and goes against the principles laid down by the Supreme Court in Justice K.S. Puttaswamy vs. Union of India [(2017) 10 SCC 1]. It has been contended that there must be a law in existence to justify an encroachment on privacy. The Plea further contends that as per MHA guidelines, Aarogya Setu app has been made voluntary in nature and, and while the Respondents, on their website, maintain that Aarogya Setu is voluntary, and the website only "advises" to install the mobile application, still it has been made mandatory in practice by officials of Passport Seva Kendra, Mumbai. Notably, it has been argued that the act of the Respondents is contradictory to the stand taken by the Central Government in the High Court of Karnataka in Anivar A Aravind v Ministry of Home Affairs (Writ Petition (GM-RES) No. 7483/2020), where it has stated on record that Aarogya Setu is not mandatory in nature pursuant to the Ministry of Home Affairs Guidelines. It may be noted that in the above-mentioned case, the High Court of Karnataka had ordered that State or Central Government or any of their agencies or state instrumentalities cannot refuse a benefit or a service to a citizen who does not have Aarogya Setu installed in their device. It has also been stated in the plea that Aarogya Setu App collects location information, health data and personal information of users and such de-facto mandatory collection and processing of information cannot be carried out without an enabling law. The plea argues that the de-facto imposition violates the personal autonomy of the citizen and same is in violation of the law declared by the Supreme Court in Maneka Gandhi vs. the Union of India (1978 AIR SC 597). Prayers of the Plea Direction has been sought for the Respondent authorities to make use of Aarogya Setu application by citizens voluntary and not to deny any service to the petitioner for not installing the Aarogya Setu application. Further, pending the hearing and final disposal of this matter, it has been prayed before the Court that Respondents be directed to allow the entry of the Petitioner in the Passport Seva Kendra, Malad without Aarogya Setu installed in her mobile device. Court's Order The plea was listed for hearing on Wednesday (09th December 2020) and High Court sought the response of the Central government. The Bench of Justice Ujjal Bhuyan and Justice Abhay Ahuja issued notice asking respondents to file their reply before the next date. The matter has been posted for further hearing on Thursday (07th January 2021). Notably, LiveLaw had recently reported the order passed by the CIC wherein it was observed: "None of the CPIOs(Central Public Information Officers) were able to explain anything regarding who created the App, where are the files, and the same is extremely preposterous". In fact, the Central Information Commission on 27th October had issued show-cause notices to the Central Public Information Officers(CPIOs) of the Ministry of Electronics and Information Technology, National Informatics Centre and National E-Governance Division(NeGD) to show reasons as to why penalty u/s 20 of the Right To Information Act should not be imposed on them for prima facie obstruction of information and providing an evasive reply on an RTI application related to Arogya Setu App. Following the controversy generated by the Central Information Commission pulling up the central government authorities for not sharing information about the 'Aarogya Setu App', the Ministry of Electronics and Information Technology (MeitY) had issued a clarification statement The Ministry had issued a statement on Wednesday evening stating that the app was developed via a public-private partnership in "record time" of 21 days to tackle COVID-19 and that the names of all persons associated with its development and management are available in the public domain. Aarogya Setu: Mandatory or Optional? The Guidelines...

Plea Moved In Bombay High Court Challenging The De-facto Imposition Of 'Aarogya Setu' In Passport Office, Mumbai

Sparsh Upadhyay

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