Tl;dr

Today, 135 individuals including a large number of lawyers and 7 organizations sent a representation to the Chief Justice of the Delhi High Court and various District & Sessions Judges against Aarogya Setu being mandatory for accessing Delhi District Courts. The representation highlights that such a requirement is likely to create barriers to justice, compromise the privacy of lawyers and their clients, and it has no basis in law.

Background

After a prolonged period of disrupted functioning due to the COVID-19 pandemic, physical filings have recently resumed in courts in Delhi. Different district courts have issued guidelines for this purpose which seek to prevent the spread of the virus within the court premises through measures such as wearing of masks and avoiding crowding. However, the Protocol issued for the South and South East District also mandates use of the Aarogya Setu mobile app by any lawyers, clerks or litigants who wish to enter the court premises.

The Aarogya Setu app has been the subject of significant controversy, and concerns have been raised about the privacy and security of sensitive personal data collected by the app about a user's health and location. These objections also prompted the Ministry of Home Affairs to backtrack on its decision to make Aarogya Setu mandatory (read more here) and its most recent Unlock 3.0. Guidelines clarify that use of Aarogya Setu is only required on a best efforts basis.

Today i.e. 30 July 2020, 135 individuals including a large number of lawyers and 7 organizations sent a representation to the Chief Justice of the Delhi High Court and various District & Sessions Judges against Aarogya Setu being mandatory for accessing courts in Delhi. The representation highlights that such a requirement is likely to create barriers to justice, compromise the privacy of lawyers and their clients, and it has no basis in law. We are extremely grateful to Mansi Sood who brought this important issue to our notice, drafted the representation and steered this entire effort.

Concerns about Exclusion & Privacy

Even in urban centres like Delhi, only 30-50% of the residents own Bluetooth compatible smartphones. As a result, making the Aarogya Setu mobile app a pre-condition for entry into court complexes will exclude a significant number of advocates, clerks and litigants (especially those who visit legal aid centers). Many lawyers are struggling to make ends meet due to disrupted functioning of courts during the COVID-19 pandemic, and forcing them to purchase a smartphone will only increase their suffering.

Mandatory imposition of Aarogya Setu in judicial establishments could also undermine attorney-client confidentiality. Aarogya Setu collects sensitive personal data including the location of persons and the potential for misuse of such data compromises this basic principle that forms the bedrock of the legal profession. Further, as per the Terms of Use of the app, such data is shared with unspecified government entities and third parties. In the absence of an adequate data protection framework in place, mandating the use of this application within court complexes greatly undermines the privacy and data security of all persons within these premises.

In light of these concerns, the representation recommends that the following measures to be undertaken:

• Convene a meeting of all District Judges for a standardised SOP which recognises the challenges and concerns in the use of Aarogya Setu for court complexes.
• Recognise the concerns associated with Aarogya Setu and issue an advisory clarifying that use of the app should not be made mandatory for any physical filing or securing entry into any judicial or court complexes in Delhi, including all District Courts as well as the Delhi High Court.
• Ensure strict implementation of methods of risk mitigation outlined by the Ministry of Home Affairs, including but not limited to social distancing, face covering and regular sanitisation, within judicial/court complexes.

List of Endorsees

Organizations

Important Documents

1. Representation dated 30.07.2020 about mandatory use of Aarogya Setu in Delhi District Courts (link)

#SaveOurPrivacy

#BanTheScan