AROGYA SETU APP IS SAFE
The outbreak of Covid-19 in the country raised serious public health concerns on account of the high
population and population density in India.
With a view to effectively trace Covid-19 patients, their contacts and potential risks and to avoid
large-scale community transmission, the central government launched Aarogya Setu application
(App).
The App uses bluetooth and GPS data for contact tracing and to sanitise areas potentially infected
with the disease and identify the persons in such areas, who might have been infected.
In what came to be its seminal judgement on privacy(PUTTASWAMY), the Supreme Court recognized
the distinction between anonymity and privacy. While privacy prevents access to your information,
anonymity hides what makes it personal. Making our medical records public knowledge would
certainly be a disproportionate invasion of privacy. Analysing the data of hospital records to collect
information in a public health epidemic may not.
Justice DY Chandrachud states it thus,
“if the State preserves the anonymity of the individual it could legitimately assert a valid state
interest in the preservation of public health to design appropriate policy interventions on the basis
of the data available to it.”
The Court set out three conditions that should be met to in order to successfully intrude on
citizenry’s privacy.
First, there must be a governing law. Second, this governing law must have a legitimate aim. And
third, the law adopted must be proportionate to the objective sought to be achieved. It is in this
context that the Union government has been deliberating a data protection law for over two years.
The court further held that the right to privacy may also be infringed for protecting national security,
preventing and investigating crime, encouraging innovation and the spread of knowledge, and
preventing the dissipation of social welfare benefits.
Thus, the Supreme Court while reading right to privacy as a part of life and personal liberty also
acknowledged that such right would not be absolute and the state can impinge upon such right by a
law, which is able to withstand the requirements as laid down therein.
According to its privacy policy, the information collected on the app is uploaded to a server
every 15 minutes. This information is then used “in anonymized, aggregated datasets for the
purpose of generating reports, heat maps and other statistical visualisations for the purpose
of the management of COVID-19 in the country…” the government’s ‘use’ of data preserves
anonymity
Fundamentally, for a constitutional challenge to succeed, there must be a clear violation of the right
and a clear demonstration that the encroachment is unreasonable and disproportionate.
Whether Mandate To Use Aarogya Setu App Qualifies The Tests Laid Down By The Supreme Court
For Valid Intrusion On Right To Privacy?
It needs to be borne in mind that the application has been launched amidst a pandemic with the
object of containing its spread and bringing awareness in the public at large with the risks posed by
the virus as well as the safety measures to be adopted.
The order mandating use of the application has been passed by the Chairman of National Executive
Committee (NEC) by virtue of the powers conferred under Section 10 of the Disaster Management
Act, 2005.
Section 10(2)(l) of the said act empowers the NEC to lay down guidelines for or give directions to the
concerned ministries or departments of government of India, state governments and state
authorities regarding measures to be taken in response to any threatening disaster situation or
disaster.
By exercising such power, the NEC has issued directions to all district magistrates (state authorities)
for implementing lockdown measures as enlisted at Annexure-1 to the order. Condition number 15
at Annexure-1 to the order mandates usage of Aarogya Setu App by all employees working in public
or private sector.
Thus, the order flows from a statutory provision and fulfills the first requirement of existence of law
providing for invasion of right to privacy.
Secondly, if the order is read as a whole, the object of directives cumulatively is to ensure minimum
spread of the virus, for which it is imperative to trace all contacts of Covid-19 positive patients.
The frequently asked questions (FAQs) on the App regarding privacy concerns due to access to GPS
Data are answered, as...
Aarogya Setu is more than just a contact tracing app. In a country with the population density of
India’s, the Government of India believes it is necessary to not only identify users who have come in
contact with each other but also to trace the paths that infected persons have walked, in order to be
able to sanitize areas potentially infected with the disease and identify persons in those areas who
might have been infected even though they have not been identified as contacts on the Aarogya
Setu app. In addition, when you take the self-assessment test on the Aarogya Setu app, by co-
relating the symptoms that you report with your location information, the Government of India will
have the ability to identify hotspots where disease may be spreading early enough to be able to
prevent it from spreading too far.
A conjoint reading of the order passed by the NEC and the purpose of seeking access to GPS data as
described on the App itself, the legitimate state aim, that is of securing public health in times of the
pandemic is demonstrated. The state interest in procuring such details is apparent and cannot be
termed to be excessive or malafide.
The final requirement for infringement on right to privacy is reasonableness. The data required is for
the larger good and securing public health. The Supreme Court has in the case of Puttaswamy
(Supra) cited an example that the access to health records of individuals in a health emergency can
be held to be valid.
It is precisely for the said reason that the privacy of an individual is sought to be invaded in the
present case. The application does not require any health data unless the self assessment is
undertaken by any individual. The location of individuals would be immensely helpful to the
authorities in minimising the spread of the virus.
The application does not require any data, which is not useful for the government to contain the
spread of virus. It appears that the said mandate is now only applicable to public sector employees;
which makes the mandate even more reasonable insofar as most of the public sector employees are
themselves exposed to large number of people and thus need to be more vigilant about their health
status.
This would also contain the spread of virus amongst the frontline workers in these crucial times.
Thus, the last requirement of reasonableness with respect to a law invading right to privacy can also
be said to have been satisfied.
The mandate to use Aarogya Setu App thus qualifies the tests laid
down by the Supreme Court and does not amount to an illegal or
unreasonable invasion on the right to privacy.
