Aarogya Setu: Decoding the Evolution From Voluntary to Mandatory

Editor: Mohd. Ibrahim

The new guidelines issued by the Union Home Ministry on 1 May have stated that contract tracing app Aarogya Setu must be installed by all individuals residing within containment zones.

However, the national directives in the annexure to the order also states that all public and private sector employees will have to install the app, thereby expanding the mandated areas beyond the containment zones.

According to the latest directions, “the most sensitive areas of the country, from the spread of COVID-19 point of view, and falling within the Red and Orange Zones, are designated as Containment Zones.”

This essentially means that containment zones will comprise 414 out of the country’s 733 districts. The Union Health Ministry, in a letter, identified 130 districts as red zones and 284 as orange zones.

While the guidelines state that “100% coverage of Aarogya Setu app among the residents of the Containment Zone” shall be “ensured”, the ‘National Directives for COVID-19 Management’ indicates that those in green zones will also have to install the application.

According to point 15 of the National Directives, issues along with the lockdown extension order states “use of Aarogya Setu app shall be made mandatory for all employees, both private and public.”

While the point also says that organisations must ensure “100% coverage of all employees”, it does not specify this as pertaining to any particular zone.

Additionally, containment zones would have intensified surveillance protocols, with contact tracing, house to house surveillance, home and institutional quarantining of persons based on their risk assessment, and clinical management.

Launched on 2 April, Aarogya Setu, developed by the Government of India, is a contact tracing tool. It is meant to help determine if you have come in contact with someone “who could have tested COVID-19 positive.”

The app has come under severe criticism for privacy and surveillance concerns as well as the lack of audit and transparency.

What Happens If You Don’t Have the App?

“This would lead to a defiance of the directions which have been issued by the MHA and the Disaster Management Act,” said Apar Gupta, executive director, Internet Freedom Foundation.

“At Point number 16 within the main direction by itself there is a clear prescription of criminal penalties for any kind of disobedience from Section 51 to 60 of the DMA as well as Section 188 of the IPC for defying a public proclamation order,” he added.

While one can face one to two years of jail for defying orders under the Disaster Management Act, Section 188 of the IPC prescribes six months in jail. Gupta pointed out that it’s not about the prison sentence.

“It’s about the long criminal trial people will have to undergo if they do not install the Aarogya Setu App. Quite simply the effect of this direction is to dramatically transform the app from voluntary, encouraged measure to a mandated coercive measure,” he told The Quint.

“There is a shift from encouraging fraternity and trust which leads to the installation of the app now towards coercion, control and compulsion.”

Apar Gupta, Executive Director, Internet Freedom Foundation

Can Aarogya Setu Be Made Mandatory?

Th Home Ministry’s latest guidelines mean the directions to make it mandatory for those people in the Constrained Containment Zones will likely be through orders by District Magistrates under Section 144 of the Code of Criminal Procedure.

This would also provide the means for enforcement. Failure to download and install the app would become punishable under Section 188 of the IPC (disobedience of an order by a public servant) or even, Section 51 of the Disaster Management Act (disobedience of an order by an official relating to a disaster).

Punishment for an offence under Section 188 of the IPC is up to 1 month's imprisonment and a fine of Rs 200, though this can rise to 6 months in jail and a fine of Rs 1000 if the disobedience can cause a danger to human life, health or safety.

If Section 51 of the Disaster Management Act is used instead, the punishment is up to 1 year in jail and a fine - and up to 2 years if the disobedience leads to loss of life.

These punishments cannot of course apply just because the police catches a person, but would require a person to be convicted in a court of law.

Aditi Agrawal, research associate at MediaNama also raises a concern is about function creep. 'Function creep' is basically expanding the use of the app beyond the purpose for which it was originally intended.

“That’s something we have already seen realised with integration of e-passes, video integration, with a system to make UPI payments towards PM Cares. We have been told that telemedicine consultation will soon be integrated with the app and furthermore this app will be the building block for India health stack,” Agrawal told The Quint.

Moreover, with an installation base of more than 900 million people, there’s no way people can opt out of it.

Absence of Law

However, as advocate Prasanna S points out, “If the state makes an app like this available for public download and install, and if it collects information as to people’s movements, the right to privacy is obviously into play.”

Vrinda Bhandari, of-counsel for the Internet Freedom Foundation, explains, “If it (downloading the app) is made mandatory, it will have to be done under the authority of law, and will have to satisfy the necessity and proportionality test for the violation of privacy – this will look at, for instance, what is the data being collected, how long is it stored for, what are the deletion protocols in place.”

Any order, whether by the centre or the state government or the DM, will need to state exactly what the legal basis for the order is – failure to do so would mean the order is “demonstrably unconstitutional” as per the Supreme Court’s right to privacy judgment, according to Prasanna.

The requirement to establish proportionality and necessity means that limited orders – making it mandatory for those who have tested positive for the coronavirus, for instance – are more likely to be upheld by the courts.

Broad, sweeping orders, where it is not clear if there is a less privacy-restrictive means to achieve the same objective, have a greater chance of being found illegal.