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All Posts | Sep 22,2020

Update on Anivar A Aravind v. Ministry of Home Affairs, GM PIL WP (C) 7483 of 2020

Update on Anivar A Aravind v. Ministry of Home Affairs, GM PIL WP (C) 7483 of 2020

SFLC.in’s advisory board member Mr. Anivar A Arvind has filed a petition in the Karnataka High Court challenging the voluntary-mandatory imposition of Aarogya Setu and invasion of privacy rights in the absence of a specific legislation governing data collection and processing by it. He is represented by Senior Advocate Colin Gonsalves, counsels from SFLC.in, Advocate Clifton D’ Rozario, Advocate Avani Choksi and Advocate Ali Zia Kabir in the matter.

So far, the Government of India through Ministry of Railways, Airports Authority of India and Ministry of Civil Aviation has stated on record that Aarogya Setu is not mandatory to avail rail or air services. The Airports Authority of India also had to revise their state-wise quarantine guidelines which had initially made Aarogya Setu mandatory. Similarly, Bangalore Metro Rail Corporation Limited (BMRCL) withdrew its initial statement that Aarogya Setu was mandatory for metro commuters. The Ministry of Housing and Urban Affairs also amended their draft Standard Operating Procedure (SoP) which had made Aarogya Setu mandatory for metro commuters. The now notified SoP by Ministry of Housing and Urban Affairs states that installation of Aarogya Setu is advisable in nature.

The matter was listed for hearing today i.e. 22.09.2020.

Senior Advocate Colin Gonsalves informed the Court that the matter was listed for interim relief and pressed for interim relief prayers number II and III.

Interim prayer number II reads as “directing the respondents not to deny any service to a citizen for not installing the Aarogya Setu application, pending disposal of this writ petition”.

Interim prayer number III reads as “for an order restraining the respondents during the pendency of this petition from proceeding with the Aarogya Setu App and with the data collected, in any manner, whether the collection of data from members of the public is stated to be voluntary or involuntary”.

To this, the Court asked Senior Advocate Colin Gonsalves what he meant with “proceeding with the App” to which Mr. Gonsalves responded that it means any data collection and processing exercise carried out by the State. He also informed the Court that in the absence of a specific legislation, such data collection and processing, voluntary or involuntary, is against the law established in Justice K. S. Puttaswamy v. Union of India (WP(C) No. 494 of 2012).

Hon’ble Chief Justice Abhay Oka observed 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. He also asked the counsel for Union of India to respond on the question of whether anybody who voluntarily downloads the App, whether the state utilises the data collected from the user?

The Counsel for Union of India contended that the prayers by the petitioner are misconceived and seeks time to file a statement of objections.

The Court granted time to Union of India to file a statement of objections till 3rd October, 2020. The matter has been listed for hearing on 5th October, 2020.

To track the updates on Anivar A Aravind v. Ministry of Home Affairs, click here.

S. No.DateAction Taken
1. 04.06.2020Notice issued to respondents & responses to be filed by 11th June. https://sflc.in/petition-challenging-defacto-imposition-aarogya-setu-ka…
2. 12.06.2020Railways and MoCA state on record that Aarogya Setu is not mandatory in naure. Statement of objections to be filed by Respondents if Aarogya Setu requires a specific legislation. https://sflc.in/aarogya-setu-not-mandatory-air-or-rail-travel-update-pe…
3. 10.07.2020Petitioner seeks leave to apply for amendment.
4. 17.07.2020Amendments allowed and adding the Union of India and BMRCL as respondents allowed. Ministry of Health’s SoP for offices brought into court’s notice. BMRCL to clarify if Aarogya Setu is mandatory for metro commuters. https://sflc.in/karnataka-high-court-allows-amendment-petition-aarogya-…
5. 03.08.2020MoHFW revises it SoP. The AAI’s state-wise quarantine guidelines brought to courts notice. They make installation of Aarogya Setu mandatory. AAI seeks time to file response. Court states that once GoI takes clear stance on Aarogya Setu, prayers IIIA and IIIB will be worked out.https://sflc.in/karnataka-high-court-orders-state-karnataka-clarify-its…
6. 13.08.2020Adjourned. 
7. 19.08.2020AAI modifies it statewise quarantine guidelines. An intervention application has been filed which the Court dismisses. https://sflc.in/aarogya-setu-optional-air-passengers-airport-authority-…
8. 03.09.2020Amendments to the petition allowed. 
9. 16.09.2020Adjourned. 
10.22.09.2020Response to be filed by respondents on mandatory-voluntary nature of Aarogya Setu to work out interim relief prayers II and III. 

Also read our coverage of the matter here:

1. Aarogya Setu is optional for air passengers, Airport Authority of India informs Karnataka High Court

2. Karnataka High Court orders the State of Karnataka to clarify its stance on Aarogya Setu

3. Karnataka High Court allows amendment of petition in Aarogya Setu case: Update on petition challenging Aarogya Setu's voluntary-mandatory nature and lack of a specific legislation

4. Aarogya Setu is not mandatory for air or rail travel

5. Petition Challenging the de-facto imposition of Aarogya Setu in Karnataka High Court

All Posts | Sep 01,2020

Government of Rajasthan clarifies to SFLC.IN that Aadhar is not mandatory for COVID-19 testing

Government of Rajasthan clarifies to SFLC.IN that Aadhaar is not mandatory for COVID-19 testing

Recently, it was brought to our notice that the Rajasthan government had made Aadhaar mandatory for the RT-PCR mobile app during sample collection of COVID-19 tests vide their guidelines dated 25.07.2020.

In this regard, SFLC.IN had written to the Chief Minister of Rajasthan Government, Minister of Health and Family Welfare in Rajasthan, and to the Principal Secretary of Health urging them to withdraw the mandatory requirement of Aadhaar for RT-PCR mobile app when the samples for COVID-19 tests are collected. The decision by the Government of Rajasthan was not only exclusionary in nature but also in violation of the judgment of the Supreme Court in Justice Puttaswamy v. Union of India (2019 (1) SCC 1) wherein it was held that Aadhaar is mandatory for:

a. filing income tax returns; and

b. for availing government subsidies charged upon the Consolidated Fund of India.

In this regard, we received an email from the Health department of Rajasthan government on 31.08.2020 stating that the Aadhaar has not been made mandatory for COVID-19 testing. We commend this step by the Rajasthan government. 

However, the Rajasthan government is yet to update the of guidelines stating the same. We have written to the Chief Minister of Rajasthan, Minister of Health and to the Principal Health Secretary of the Rajasthan Government requesting to update their patitent testing guidelines clarifying that any government identification card will be accepted for COVID-19 testing. 

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All Posts | Aug 20,2020

Letter to Ahmedabad Municipal Corporation against mandating Aadhaar for COVID-19 testing

Letter to Ahmedabad Municipal Corporation against mandating Aadhaar for COVID-19 testing

Recently, Ahmedabad Municipal Corporation made Aadhaar mandatory for COVID-19 testing in Ahmedabad's Urban Health Centres. 

This decision by the Municipal Corporation of Ahmedabad is in violation of the judgment of the Supreme Court in Justice Puttaswamy v. Union of India (2019 (1) SCC 1) wherein it was held that Aadhaar is mandatory only for :

a) filing Income Tax returns; and

b) for availing government subsidies charged upon the Consolidated Fund of India. 

This step will exclude people who do not have Aadhaar cards. 

Any step taken by the Government(s) must be constitutionally tenable and in consonance with the law of the land. Through this letter, we have urged the Municipal Corporation to withdraw the mandatory requirement of Aadhaar for COVID-19 testing and instead use any of the government identification cards. 

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All Posts | Aug 19,2020

Aarogya Setu is Optional for Air Passengers, Airport Authority Informs Karnataka High Court

Aarogya Setu is Optional for Air Passengers, Airport Authority Informs Karnataka High Court

SFLC.IN's advisory board member Mr. Anivar A Aravind filed a petition in the Karnataka High Court challenging the voluntary-mandatory nature of Aarogya Setu and invasion of privacy rights in the absence of a specific legislation governing data collected by it. He is represented by Senior Advocate Mr. Colin Gonsalves, counsels from SFLC.In, Advocate Clifton D’ Rozario and Advocate Ali Zia Kabir in the matter.

The petition was listed for hearing today i.e. 19.08.2020 before the division bench of Hon'ble Chief Justice Abhay Okay and Justice Ashok K. Kinagi.

In today’s hearing, Senior Advocate Colin Gonsalves brought to the notice of the Bench that the Government, despite placing it on record on 12.08.2020 that Aarogya Setu is not mandatory in nature, has repeatedly shifted its stance on it. He also pointed out that this is a substantial departure from the voluntary nature of Aarogya Setu. He highlighted that Aarogya Setu is still mandatory for incoming international passengers in Karnataka, and that the Department of Personnel and Training has also made it mandatory for its employees. He also brought the Justice Puttaswamy (II) judgment to the bench's notice which states that in the absence of a specific legislation, citizen’s data cannot be collected irrespective of voluntary nature of the scheme. The counsel for Bangalore Metro Rail Corporation Ltd. (BMRCL) contended that BMRCL has not commenced its operations yet and the draft Standard Operating Procedure (SoP) by the Ministry of Housing and Urban Affairs states that Aarogya Setu has to be installed by all the commuters.

The Airport Authority of India also clarified that state-wise quarantine guidelines have been revised on 03.08.2020 and have now made Aarogya Setu voluntary for air passengers.

The Bench has directed the parties to clarify their stance on Aarogya Setu on 03.09.2020. It has also taken the Airport Authority of India’s revised quarantine guidelines on record.

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All Posts | Aug 14,2020

SFLC.IN’s letter to MeitY regarding fully open sourcing Aarogya Setu

SFLC.IN's letter to MeitY regarding fully open sourcing Aarogya Setu

The Aarogya Setu’s Android source code was open sourced and made available on GitHub Repository with much fan-fare on 26thMay, 2020 to be in line with India’s policy on Open Source Software.

However, only the source code of the client side of Android and iOS version has been made available. The server side code is yet to be made available despite the release of Aarogya Setu’s Android source code two months back. The Press Information Bureau’s Press Release dated 26.05.2020 had also stated that the iOS source code of Aarogya Setu will be released within the next two weeks and subsequently, the server code will be released as well. However, Android and iOS source codes are not fully open source yet, and source code of KaiOS app has not been released even after almost three months of open sourcing of Android client side source code.

SFLC.IN wrote to Hon'ble Minister of Electronics and Information Technology, Shri Ravi Shankar Prasad urging him to fully open source Aarogya Setu and to be in compliance with the princuple of transparency, privacy and security as well as the Open Source Software Policy of the Government of India.

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All Posts | Aug 03,2020

Update on Anivar A Aravind v. Ministry of Home Affairs & Ors., Karnataka High Court Allows Amendment to Petition

Update on Anivar A Aravind v. Ministry of Home Affairs & Ors., Karnataka High Court Allows Amendment to Petition

SFLC.IN's advisory board member Mr. Anivar A Aravind filed a petition in the Karnataka High Court challenging the voluntary-mandatory nature  of Aarogya Setu and invasion of privacy rights in the absence of a specific legislation governing data collected by it. He is represented by Senior Advocate Mr. Colin Gonsalves, counsels from SFLC.In, Advocate Clifton D’ Rozario, Advocate Avani Chokshi and Advocate Ali Zia Kabir in the matter.

In the last hearing, the Airport Authority of India had clarified that Aarogya Setu was not mandatory for airport travel and had revised their Standard Operating Procedure (SoP) stating the same. This was placed on record by the Court. The decision of Bangalore Metro Rail Corporation Ltd (BMRCL) to make Aarogya Setu mandatory for metro commuters was also brought to Court’s notice. The BMRCL had placed a draft SoP by the Ministry of Housing and Urban Affairs(MoHUA) on record stating that they had made Aarogya Setu mandatory for commuters on the basis of MoHUA’s draft SoP. Owing to the hearings, the MoHUA released guidelines for metros on 02.09.2020 stating that the use of Aarogya Setu is advisable for commuters.

The petition was listed for hearing today i.e. 03.09.2020 before the division bench of Hon'ble Chief Justice Abhay Okay and Justice Ashok K. Kinagi.

In today’s hearing, the Court allowed the amendment application which includes the details of latest function creep of Aarogya Setu Open API and two additional prayers seeking

a. an order injuncting the respondents from proceeding with the Aarogya Setu app and with the data collected, in any manner, whether the collection of data from members of the public is stated to be voluntary or involuntary”.

b. “for an order directing the respondents to permanently delete all the data collected through the Aarogya Setu app, including the data transferred to third parties”.

An interim prayer has been added as well which reads as “for an order restraining the respondents during the pendency of this petition from proceeding with the Aarogya Setu App and with with the data collected, in any manner, whether the collection of data from members of the public is stated to be voluntary or involuntary.”

The petition has been listed for hearing on 16.09.2020.

For updates and orders of each hearing, please refer to:

1. Karnataka High Court's case status

2. Aarogya Setu is optional for air passengers, Airport Authority of India informs Karnataka High Court  (19.08.2020)

3. Karnataka High Court orders the State of Karnataka to clarify its stance on Aarogya Setu (03.08.2020)

4. Karnataka High Court allows amendment of petition in Aarogya Setu case: Update on petition challenging Aarogya Setu's voluntary-mandatory nature and lack of a specific legislation (17.07.2020)

5. Aarogya Setu is not mandatory for air or rail travel (12.06.2020)

6. Petition Challenging the de-facto imposition of Aarogya Setu in Karnataka High Court (05.06.2020)

7. SFLC's litigation tracker

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All Posts | Aug 03,2020

Karnataka High Court Orders The State of Karnataka To Clarify Its Stance on Aarogya Setu

Karnataka High Court Orders The State of Karnataka To Clarify Its Stance on Aarogya Setu

The petition filed by SFLC.IN's advisory board member Mr. Anivar Aravind challenging mandatory-voluntary imposition of Aarogya Setu and lack of specific legislation was listed on 03.08.2020 in the Karnataka High Court before the bench of Hon'ble Chief Justice Mr. Abhay Oka and Hon'ble Justice Ashok S. Kinagi. The petitioner is represented by SFLC.IN, Senior Advocate Mr. Colin Gonsalves, Advocate Ali Zia Kabir, Advocate Clifton Rozario, and Advocate Avani Choksi.

In the last order dated 17.07.2020, the Court had allowed amendments in the original petition and the impleadment of Bangalore Metro Rail Corporation and the Union of India represented by Secretary of Ministry of Health and Family Welfare.

The prayer of the amendment petition seeks that the court should issue a "direction to the respondents to delete and destroy the already collected data including the data collected at the time of registration once the pandemic phase is declared over by the World Health Organisation or the Ministry of Health and Family Welfare". Another important prayer in the amended petition is to "direct the respondents not to transfer or share personal data and sensitive personal data of citizens collected through the Aarogya Setu application to third parties except when it is necessary for the treatment purpose of a patient, and even such shared data should be deleted once the pandemic phase is over."

Chief Justice Abhay Oka sought clarification from the counsel for Ministry of Health and Family Welfare regarding the SoP for Offices dated 04.06.2020 which made it mandatory for all employees to install Aarogya Setu. He also sought clarification from the Bangalore Metro Rail Corporation regarding the mandatory imposition of Aarogya Setu on commuters. The Standing Counsel for the Union of India argued that the counter filed by the UoI clearly states that the Ministry of Home Affairs notification dated 30.05.2020 and other subsequent orders supersede the Ministry of Health and Family Welfare's order mandating installation of Aarogya Setu in the offices. The counter filed by the respondents also states that the use of Aarogya Setu application for Bangalore Metro passengers is premature as the operation of metro is prohibited till 31.08.2020 vide MHA's order dated 29.07.2020.

Senior Advocate for petitioners Mr. Colin Gonsalves also drew the Bench's attention towards the Guidelines for Passengers by States published on the Airport Authority of India's (Respondent No. 4) website. The State of Karnataka (Respondent No. 5) has made it mandatory for passengers visiting Karnataka to install Aarogya Setu.

The Bench has ordered that if the respondents make a statement that no person who has downloaded Aarogya Setu will be denied access to any services, the prayers of the petition can be worked out. The Bench has also ordered the State of Karnataka to clarify its position regarding the imposition of Aarogya Setu.

The matter has been listed on 13.08.2020.

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All Posts | Jul 17,2020

Karnataka High Court Allows Amendment of Petition in Aarogya Setu Case

Karnataka High Court Allows Amendment of Petition in Aarogya Setu Case: Update on Petition Challenging Aarogya Setu's Voluntary-Mandatory Status and Lack of A Specific Legislation

SFLC.IN's advisory board member Mr. Anivar A Aravind filed a petition in the Karnataka High Court challenging the mandatory nature  of Aarogya Setu and invasion of privacy rights in the absence of a specific legislation governing data collected by it. SFLC.IN's team has been assisting Senior Advocate Mr. Colin Gonsalves, Advocate Siddharth Baburao and Advocate Ali Zia Kabir in the matter. 

The petition was listed for hearing today i.e. 17.07.2020 before the division bench of Hon'ble Chief Justice Abhay Okay and Justice M. Nagarprasanna. Before this, the Central Government had stated it on record that Aarogya Setu is not mandatory for air or rail services

In today's hearing, the arguments were made by Senior Advocate Mr. Colin regarding the admissibility of application to the amendments to the petition and impleadment of Ministry of Health and Family Welfare and Bangalore Metro Rail Corporation as respondent parties. Recently, the Bangalore Metro Rail Corporation had made it mandatory for commuters to install Aarogya Setu and the Ministry of Health and Family Welfare had released a SoP making Aarogya Setu mandatory for employees in all offices.

The amendments to the petition included the recent updates in the Aarogya Setu App which allow sharing of user data with third parties, deletion of user's account within 30 days, and health status of persons with whom the user came in contact with. The amendment also raised the point that Aarogya Setu's Android Source Code is partially open source and iOS source code is yet to be released in public domain.

The Karnataka High Court has allowed amendments to the petition and has given time until August 14 to the respondents to file their responses and objections.

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