Plea in Bombay HC, Goa Bench against Margao Collectorate Order requiring Aarogya Setu installation for entry into its premises

A Public Interest Litigation petition has been filed in the High Court of Bombay at Goa, assailing the validity of a Margao Collector’s Order mandating the installation of the Aarogya Setu app for entry into the Margao Collectorate (Sudeep Dalvi v. State of Goa and Ors).

The petitioner, activist Sudeep Dalvi, has challenged the imposition of Aarogya Setu contending that the order is arbitrary, unreasonable and without legislative basis.

Aarogya Setu, a contact tracing app launched by the Government of India in the wake of the COVID-19 pandemic, has been at the centre of several legal storms in the past months. Most of the challenges to the App’s mandatory use stem from data protection and privacy concerns, with the App’s use of personal data prompting these claims.

Dalvi’s plea is the latest in a series that question the mandatory installation of the Aarogya Setu as a prerequisite for entry into government premises.

Dalvi, through his advocates Shashwat Anand, Shrinivas R. Khalap and Chintan Nirala, has assailed the app’s alleged infringement on the privacy of users as without the backing of the law, relying on the Supreme Court’s ruling in the Justice KS Puttuswamy case.

The Supreme Court's 9-Judge pronouncement that declared privacy a fundamental right declared that the same could only be curtailed by procedure “established by law”.

Describing the app as a tool for “prying and mining the data of the individuals”, the petitioner alleges that mandating the use of the app is “wholly arbitrary and unconstitutional”, through “unwarranted and illegal executive instructions."

The plea further avers that the ‘contact-tracing’ app, based on a ‘symptoms and exposure quiz’, excludes the identification of ‘asymptomatic’ patients, who comprise around 80% of Indian COVID-19 patients.

The symptoms and exposure quiz estimates degrees of risk based on possible exposure to a person with a coronavirus infection, his plea explains.

The plea also references assertions made by ethical hackers that the data collected by the App is “vulnerable and susceptible to hacking, misappropriation, and misuse.”

The terms of service, moreover, disclaim the effectiveness of the App, stating that the App is not “a substitute for common prudence, medical diagnosis, or specific therapeutic and epidemiological measures necessary to combat COVID-19.”

The plea records that the App’s stated objective of ‘contact tracing’ is in fact an epidemiological measure. The disclaimer demonstrates the ineffectiveness of the App when directing the resort to other epidemiological measures. Additionally, the disclaimer limits the government’s liability for failure to trace, or accurately trace a possible COVID-19 infection.

In light of this, the Petitioner remarks:

The plea also quotes Justice B.N. Srikrishna, Chair of the Committee that drafted the Data Protection Bill, 2018 that is pending passage in Parliament, who is reported to have “thrashed” the mandatory imposition of the App.