Bombay HC advises lawyers and litigants to download Aarogya setu App

The circular has effectively allowed the surveillance app to make inroads into judiciary

Bombay HCImage Courtesy:economictimes

As per a circular issued by the Bombay High Court, all courts in Maharashtra, Goa and the Union Territory of Dadra and Nagar Haveli shall continue taking up remand work and extremely urgent matters until further orders. This circular has been issued in furtherance of the previous circular dated April 16.

The circular advises Advocates, litigants as well as the court staff to download the Aarogya Setu mobile app, among other social distancing related advisories. The other advisories include:

1.       Identity proofs of Advocates and litigants shall be asked for at the entry point of the Court Complex.

2.       A register be maintained at the entry point of the court complex and names of the entrants be recorded in the said register, after verifying due identification.

3.       No person shall be permitted to enter the premises of Courts without wearing a mask.

4.       Anyone showing signs or symptoms of COVID-19, after his apparent screening, shall not be allowed to enter or remain in the Court rooms. To meet any exigencies, pursuant to anyone found with COVID-19 symptoms, an isolation room shall be earmarked to isolate the said
person and undertake the further course of action vis a vis further treatment at Hospital.

5.       At the entry point / gates of the Court Complex keep liquid soap and water for hand wash. At the entrance of each Court hall, as far as possible make provision of hand sanitizer.

6.       Necessary social distancing shall be maintained during the transaction of the Court business.
Wherever there is a provision of lift, it should be ensured that not more than fifty percent of
the capacity allowed at a time. As far as possible, the members of the Staff, Advocates and
Litigants who are young and not differently abled should be encouraged to make use of stairs for their own safety.

7.       The Advocates and Litigants shall be advised to follow strict social distancing while accessing any department of Courts.

8.       The Departments shall endeavor to allot a time slot to address any query on the part of

9.       Advocates and Litigants and adhere the time slot in consonance with the social distancing

10.   The Judges and the members of the staff, in the unlikely event of having any symptoms of COVID-19, are requested to immediately report the same to the Medical Center and also the Principal District Judge / Principal Judge and District Registry. Same request is also made to the High Court employees who shall report to the concerned Registrar of their Department.

While all other advisories are important for maintenance of social distancing, the advisory on downloading the Aarogya Setu app remains questionable. The circular has effectively allowed the surveillance app to make inroads into judiciary, a platform where the viability of the mandate to download the app could be challenged, is an irony in itself.

This advisory seems to be following the Ministry of Home Affairs guidelines released on May 1 which makes use of the app mandatory for both public and private sector employees. The order reads, “It shall be the responsibility of the head of the respective organisations to ensure 100% coverage of this app among employees.”

Ever since the App has been made covertly mandatory for public offices and is being imposed in one way or the other, questions have been raised on the privacy issue.

The privacy policy of the app states that the app will store your name, phone number, age, sex, profession and countries visited in the last 30 days on a government server and provide the uses with a unique digital ID (DiD). It further states, “The app continuously collects your location data and stores securely on your mobile device a record of all places you have been at 15 minute intervals. This information will only be uploaded to the Server along with your DiD, (i) if you test positive for COVID-19; and/or (ii) your self-declared symptoms indicate that you are likely to be infected with COVID-19; and/or (iii) the result of the self-assessment test is either YELLOW or ORANGE.” The app therefore, appears to come dangerously close to ringing privacy alarm bells.

Given how a person’s infected status would only show if they upload this information to the app and consequently the government server, the app also therefore, inadvertently discourages people from reporting symptoms or infection status, rendering the entire purpose of the app pointless!

But there are many more concerns, the chief of which is mass surveillance. This kind of surveillance will be difficult to combat as the rampant contact tracing is being justified as being in public interest.

The Internet Freedom Foundation has even sent a joint representation to the Prime Minister’s Office (PMO) signed by 45 organisations and over 100 individuals highlighting several privacy related concerns with the app.

The representation states, “In order to satisfy the proportionality standard adopted in Puttaswamy (Privacy), the use of any privacy infringing technology must satisfy five criteria. First, it must have a legislative basis. Second, it must pursue a legitimate aim. Third, it should be a rational method to achieve the intended aim. Fourth, there must not be any less restrictive alternatives which can also achieve the intended aim. Finally, the benefits must outweigh the harm caused to the right holder. In the present case, Aarogya Setu fails the very first prong of the proportionality standard because it does not have a legislative framework to govern its functioning and to ensure adequate procedural safeguards. In the absence of a legislative guarantee containing a sunset clause, sensitive personal data about health and movement of gig workers collected by the Aarogya Setu app could be misused for profiling and mass surveillance even after the COVID-19 outbreak is over.”


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