Govt Order Mandating Use of Aarogya Setu App is ‘Utterly Illegal’, Says Justice (retd) Srikrishna

New Delhi: As more and more doubts are being expressed over the privacy and efficacy of the Aarogya Setu App, which is being pushed by Narendra Modi government for contact tracing during the COVID-19 pandemic as virtually mandatory for many benefits and services, former Supreme Court judge, Justice B N Srikrishna, has also backed these concerns by saying it would cause “more concern to citizens than benefit”. He even termed the government order as “utterly illegal,”

As reported by Live Law Justice (retd) Srikirshna, who is a leading light on data protection laws, as he heads the expert committee that is studying such a law, said “it was highly objectionable that such an order is executed at an executive level....Such an order has to be backed by parliamentary legislation, which will authorise the government to issue such an order.”

The eminent judge was addressing a webinar on ‘Data Governance & Democratic ethos’, by legal advocacy group, Daksh, recently. His comments come in the backdrop of the expert committee headed by him still studying data protection laws. However, the right to privacy of an individual has already been upheld by the apex court in K S Puttu swamy vs Union of India case in 201y, the report said.

Citing the judgement, Justice (retd) Srikrishna questioned the order issued by the Home Ministry on May 1, 2020, under the Disaster Management Act, mandating the use of the Aarogya Setu App in all public and private sector offices via an executive order.

“It (the order) is akin to an inter-departmental circular....but who will responsible if there is a breach? It does not say who should be notified,” he was quoted saying in the Live Law report.

Citing the Puttu swamy case, the retired judge said the government needs to ensure some basic norms before it can “lawfully invade the privacy of any individual”, adding that all fundamental rights can be subjected to restriction only by law validly passed by Parliament or state legislature.

Also, it must have a declared object and must be proportionate to what is sought to be achieved, and there should be a mechanism in place to ensure that government does not abuse such power.

The retired judge said while contract tracing to prevent the spread of the virus was “absolutely necessary,” the government guidelines were “utterly illegal” as it does not have power to invade the privacy of a citizen under the National Disaster Management Act, 2005.

“If it is traced to NDMA, there is no provision there for constitution of an empowered group. So, under what provision of law is this order issued?” he said.

According to Live Law, Justice Srikirishna also mentioned the absence of a ‘sunset clause’ to end the App’s use once the pandemic ends, and said that if this was not done it could have disastrous consequences for the citizens of  a democracy.

Underlining the need for legal safeguards, Justice (retd) Srikrishna said if Parliament was not in a position to act during the ongoing lockdown, an ordinance could be issued, which could be replaced by Parliament in 180 days. Had this been done, “it would have been easier to include safeguards,” he added.