The High Court of Kerala on Friday sought the response of the Central Government on a writ petition challenging the directives issued by the Centre making the use of 'Aarogya Setu' app mandatory for public and private employees.
A division bench comprising Justices Shaji P Chaly and M R Anitha posted the matter on May 12.
Though the petitioner sought an interim order to restrain the authorities from taking any penal action for not downloading the contact tracing app developed by the Centre, the bench declined saying "its a matter of only four days(before next posting)".
"The authorities may have many other things to do in the meanwhile than launching prosecution for non-use of 'Aarogya Setu'", Justice Chaly commented.
The petition filed by John Daniel, General Secretary of Thrissur District Congress Committee, contends that mandatory direction for using 'Aarogya Setu' violates 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 'Aarogyasetu' 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", stated the petition filed through Advocates Sriram Parakkat, K S Sripathi and Anupama Subramanian.
The petition also referred 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 raised concerns over the data security features of the app, and voiced the apprehension that it could be used a tool for state surveillance.
The petitioner stated 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 extend 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 read.