The Karnataka High Court on Friday directed the Union Government to make a statement before the court to clarify whether the Ministry of Health and Family welfare and Department of Personnel and Training have made use of Aarogya Setu application compulsory.
A division bench of Chief Justice Abhay Oka and Justice M Nagaprasanna, while allowing the amendment application filed by petitioner Anivar A Aravind, said
"The submission is that use of Aarogya Setu application has been made compulsory by Dept of Personnel and Training and that the SOP dated June 4 of the Ministry of Health and Family Welfare makes it mandatory for employees working in offices to install and use the Aarogya setu app. We direct that on the next date (August 3) Union of India will clarify on the aforesaid allegation made by the petitioner."
In addition to this, the court has also allowed the Bengaluru Metro Rail Corporation Limited to be impleaded in the petition and directed it to make a statement clarifying whether use of Aarogya Setu application will be made mandatory as a condition precedent for boarding metro rail as and when functioning of metro rail starts.
Senior Advocate Colin Gonsalves, appearing for the petitioner. argued that BMRCL has made it mandatory to install and use Aarogya Setu application by Metro users on smartphones, when utility begins. Posters making such an announcement have also been displayed.
The bench then asked the government counsel whether metro rail was functioning during the lockdown period.
Additional Solicitor General M B Nargund, appearing for the Union Government, informed the court that for the past three months, the metro railway has not been functioning in the city and the situation is likely to remain the same for the next two to three more months. He argued that the application filed by the petitioner was premature at this time.
However, the bench observed that "Metro rail should come before the court and say that they will not raise this. No instrumentality of the state can say that use of the Aarogya setu app is compulsory."
Gonsalves then apprised the court about the nature of the proposed amendment to the pleadings which was sought in the petition. It was said that rapid changes are taking place over the last three to four weeks. He even claimed that data of persons is already being shared with third parties in breach of norms of privacy.
The amendment application states that there have been developments in the Aarogya setu application recently.
An update in android and iOS version with even further function creep allowing bluetooth and location data available with the government to check health status of the person the user came in contact with and the iOS version now allows sharing of data with third parties, stated the petitioner.
The Central Government had earlier submitted before the Court that the use of Aarogya Setu was not mandatory for travel by air or rail, and that the same was completely voluntary.
The petitioner submitted that many countries across the world launched mobile apps for contact tracing of persons who test positive for COVID-19. Those applications are voluntary and most of these applications across the world use only bluetooth and do not not access the location of the user. However, the application launched on April 2, by the National Informatics Centre for contact tracing and which has been downloaded more than 100 million times by users, has been using location service and bluetooth to track users.
The petitioner also argued that the Data Access Protocol for Aarogya Setu notified by the Chairperson of the Empowered Group on Technology and Data Management on May 11 has no force of law and that this protocol cannot be an excuse to mandate the use of Aarogya setu app without any enabling law.
The app has been collecting excessive data and this goes against the principles of data minimization and purpose limitation as enshrined in 'Puttaswamy Judgement', contended the petitioner.