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Plea in Bombay HC challenges de-facto imposition of Aarogya Setu at regional passport office

Aarogya Setu

The Bombay High Court on Wednesday issued notice to the central government in response to a plea challenging the de-facto imposition of Aarogya Setu by the Regional Passport Office (RPO), Mumbai. The petition, filed by one Tanya Mahajan, claimed that she was denied entry by the Passport Seva Kendra at Malad after she refused to install Aarogya Setu, the Indian government’s contact tracing app.

The plea claimed that while the Regional Passport Office’s website suggests having the app is voluntary, it has been made mandatory in practice. On September 3, Mahajan had visited the Passport Seva Kendra in Malad to renew her passport, when she was denied entry into the premises without the contact tracing app on her phone, the plea claimed. The de-facto imposition of the app is also violative of the right to privacy, it added.

Mahajan prayed for the court to direct the government to make the use of Aarogya Setu voluntary, and not deny individuals without the app from availing any services. The de-facto imposition of the app curtailed the petitioner’s access to a government service, the plea said, adding that such a measure could potentially lead to exclusion of people without a smartphone from availing government services:

“The de-facto mandatory use of an mobile application is bound to result in excluding persons who do not have a smartphone or who have been categorized incorrectly as belonging to the risk category of the mobile application” — from the petition

It is also violative of an individual’s personal autonomy, the plea contended. “Because the mobile phone is a personal device owned by an individual and the Government has no authority to direct the installation of any application on such a device. Such a de-facto imposition violates the personal autonomy of the citizen,” the plea said.

Mahajan was represented by counsels from the Delhi-based digital rights group Software Freedom Law Centre (SFLC.In), and Aditi Saxena, an advocate at the Bombay High Court. The case is expected to be heard next on January 7, 2021. According to SFLC.In, no representatives on behalf of the Regional Passport Office appeared during the hearing on Wednesday.

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On May 1, the Ministry of Home Affairs had made it mandatory for all employees — both public and private — to download the contact tracing/exposure notification app. The heads of the organisations were made responsible for ensuring “100% coverage of this app among employees”. However, the Ministry later rolled this back on May 17 and asked employers to ensure that the employees install the app on “compatible mobile phones” on a “best effort basis”. These guidelines, that do not hold employers responsible for failing to do so, have been renewed through the subsequent lockdowns and unlocks.

Since its launch in April, the app has been riddled with controversies, most of them revolving around its de-facto mandatory nature in various government and private institutions. Universities such as JNU had earlier declared that the app was mandatory to enter the institution’s premises, only to later backtrack on it. The Delhi government directed all licenced wholesale liquor vendors in Delhi to ensure that their workers use Aarogya Setu. Housing societies have denied people from entering societies without the app.

In October, the Karnataka High Court held that in the absence of a law, central and state government agencies cannot deny any benefit to citizens if they don’t install Aarogya Setu, while hearing a petition filed by technologist Anivar A. Aravind, seeking a permanent order against the use of the contact tracing app.

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