Tl;dr

On Monday i.e. 24 August 2020, a Single Judge Bench of the Kerala High Court heard a writ petition filed regarding third party data sharing and mandatory imposition of the Aarogya Setu app launched by the Indian Government during the COVID-19 pandemic. This petition was filed by Mr. Jackson Mathew as a follow up to his previous petition filed in May 2020 after the Ministry of Home Affairs made use of Aarogya Setu mandatory for all public and private sector employees. Both petitions filed by Mr. Mathew are scheduled to be listed before a Division Bench of the Kerala High Court in September 2020.

Background

On 01 May 2020, the Ministry of Home Affairs issued guidelines under the Disaster Management Act, 2005 which made use of the Aarogya Setu app mandatory for all public and private sector employees. The head of an organization was also made responsible for ensuring 100% coverage of the Aarogya Setu app among all employees. Aggreived by this, Mr. Jackson Mathew, who employs over 50 people in his paper cup manufacturing business, filed a petition before the Kerala High Court (Read more here). Soon after the petition was filed, the Ministry of Home Affairs issued revised guidelines on 17 May 2020 which encouraged use of the Aarogya Setu app on a "best efforts" basis but stopped short of making it mandatory (Read more here).

However, this was only a partial victory because a few days later on 21 May 2020, the Ministry of Civil Aviation issued an order which provided conflicting guidelines about whether Aarogya Setu was mandatory for passengers who wanted to undertake domestic air travel. The confusion resulting from the conflicting guidelines led to a situation where use of the Aarogya Setu app was mandatory for all practical purposes for flight passengers (Read more here).

Private Sector Access

Since its launch as a proximity exposure notification app, the government has also added several new features to Aarogya Setu which raise concerns about function creep and third party data sharing. For a while, the app was used to refer users to select telemedicine and e-pharmacy services listed on the Aarogya Setu Mitr portal till this practice was discontinued after brick and mortar pharmacies filed a petition before the Delhi High Court. As media reports have explained, integration of services like telemedicine and e-pharmacies with the Aarogya Setu app creates a serious conflict of interest since many of these services are being provided by private entities whose executives were involved in the development of the app.

The functional aspects of the Aarogya Setu app have also been changed to facilitate sharing of data with third parties. For instance, on July 05, 2020, the app was updated with the option of granting permission to external third-party apps to access the user’s health status. Most recently, on August 22, 2020, the government launched an ‘Open API Service’ to enable employers to receive real-time information about the risk status of their employees, customers and users. While consent of the employee is required under the Open API Service, in reality, employees may not have enough bargaining power to resist imposition of the app by the management.

Follow up Litigation before Kerala HC

The second petition which raises concerns about third party data sharing and the lack of clarity about whether Aarogya Setu is voluntary or mandatory was filed on 20 August 2020. To address residual concerns associated with the Aarogya Setu app, the petition seeks two main reliefs. First, it seeks a direction restraining the government from sharing any personal data collected by the Aarogya Setu app with third parties for access to convenience services or issuance of e-pass. Second, it seeks a direction to the government to give wide publicity to the voluntary nature of Aarogya Setu through electronic, print and social media and on the app itself.

The petition was listed for hearing before the Kerala High Court on 24 August 2020 i.e. Monday. During the hearing, the Single Judge Bench of Justice Anu Sivaraman directed that this writ petition should be listed with other connected matters before a Division Bench. The matter is likely to be listed next after the Onam Holidays in September 2020. The petitioner was represented by Advocates Santhosh Mathew and Anil Sebastian Pulickel and we, at IFF, are grateful to have had the opportunity to assist the legal team in this case.

Important Documents

1. Writ Petition (Civil) No. 17439 of 2020 (link)

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