September 22, 2020
The government and its agencies “cannot say that until and unless you download this app [Aarogya Setu], you will not get these services,” Chief Justice of Karnataka High Court Abhay Oka observed while hearing Anivar A. Aravind’s petition seeking permanent injunction against the use of the contact tracing app. The division bench constituting Justice Oka and Justice Ashok Kinagi subsequently directed the central government to specify whether the government of India is collecting and using data of individuals through Aarogya Setu. If it is, the government has to specify the purpose for which the app is collecting data and under the authority of which law.
‘Don’t deny services to people, stop collecting data through Aarogya Setu’: Petitioner
During the hearing, Aravind’s counsel, Senior Advocate Colin Gonsalves said that at the moment, he was pressing for two interim reliefs (prayer 2 and 3, respectively in the amended petition):
- Directing the government to not deny services to citizens for not installing the Aarogya Setup app, and
- Order restraining the the government from “from proceeding with the Aarogya Setu app” and collecting data through it, irrespective of whether it is voluntary or involuntary.
Justice Oka said that if the government is directed to not deny services on the basis of (non)-installation of the app, then the use of Aarogya Setu becomes voluntary. In response, Gonsalves said, “They cannot collect any data without any [law]. Even the collection of data which is said to be voluntary but in India is involuntary, the use of that data will not be valid in the absence of law to process that data.”
This prompted Kumar to call the petitioner’s prayers “misconstrued” and “misconceived”, and he argued that the petition was “not in accordance with what is being practised”. Justice Oka said that nobody could object to directing the government to not deny services to citizens on the basis of the app. “The reason [for objection] is there is no law mandating the use of Aarogya Setu,” he said.
Justice Oka asked what “proceeding with the app” meant. Gonsalves explained that to proceed with the app means to collect, process, transfer data. To not proceed with the app thus “basically” means that “it cannot be used at all”, he said.
In the last hearing, Aravind had been allowed to amend his petition where he had sought a permanent injunction against the use of the app place his concerns about Aarogya Setu’s Open API Services Portal on record.