FAQ: Is it Mandatory to Download the Govt’s Aarogya Setu App?
Any government orders making the app a requirement would need to satisfy the law on the right to privacy.
In his address to the nation on the extension of the coronavirus lockdown on 14 April, Prime Minister Narendra Modi made seven appeals to everyone regarding India’s fight against COVID-19. One of the appeals was a request to download the ‘Aarogya Setu’ app on their smartphones, and urge others to do so as well.
This is not the first time the PM has encouraged people to download this app. On 9 April, he had tweeted about it, and said it was an important step in the fight against the spread of COVID-19.
The Ministry of Home Affairs’ (MHA’s) new order on Wednesday, 15 April, regarding the extended lockdown, also includes several “National Directives” to district magistrates (DMs) across the country, meant to to be enforced by them through fines and criminal cases. One of the points reads:
“Use of Aarogya setu will be encouraged for all employees both public and private.” (sic)
So does this mean you have to download this app on your phone now? And would it be legal if someone forced you to do it?
What is ‘Aarogya Setu’?
On 2 April, the Central government launched the Aarogya Setu app for Android and Apple smartphones. The app is meant to be a ‘contact tracing’ tool – ie, it is meant to help determine if you have come in contact with someone “who could have tested COVID-19 positive”.
When you download the app, you need to say whether you have recently travelled, and whether you’ve been in contact with someone who might have contracted the virus. Once you’ve done that and been given your unique ID, the app will keep a log of all the other people you’ve been in contact with who had the app on their phone, using Bluetooth and location data (the app recommends these have to be kept on at all times to function).
If anyone who has the app tests positive for COVID-19, then the app will inform anyone who has been in contact with them as per its logs, and the information of who have been in contact with the infected person, can be used by the government for targeted testing and quarantine measures.
The Govt Stance
Is it mandatory to download the Aarogya Setu app at this time?
At this point of time, there is no directive or order from the Government of India which says that the general public has to download the app.
PM Modi’s speech and the MHA’s order only encourage people to download the app, they do NOT make it mandatory to do so.
What about government employees?
While the Centre has not made it mandatory for the general public, all central government employees have been instructed to download and install the app, as per an office memorandum from the Ministry of Personnel, Public Grievances and Pensions dated 29 April.
In addition to the staff working in the central government itself, the order also notes that Ministries/Departments are to issue similar instructions to autonomous/statutory bodies and PSUs attached to them.
Earlier, only some government and PSU personnel were being made to compulsorily download the app, including Prasar Bharati (DD and AIR) staff and Central Armed Police Forces (CRPF, BSF, etc) personnel.
Are there any state governments or local authorities which have made it mandatory to download the app?
There do not appear to be any state-wide orders to download Aarogya Setu at this time. However, it is advisable to check if your local administration has made it mandatory, as the responsibility to enforce the lockdown currently rests with your local DM.
In Sant Kabir Nagar in Uttar Pradesh, for instance, the DM has passed an order instructing people to download the app. The order says that if anyone who has a smartphone is found to not have the app on their phone (during a check when moving outside), then a case will be filed against them.
Legality and Voluntariness
Legally, can it be made mandatory to download the Aarogya Setu app?
This is a difficult question to answer.
The Disaster Management Act 2005 (which is what the Centre has used for the lockdown) and the Epidemic Diseases Act 1897 (which is the basis for orders in several states) both give very wide powers to the Central and state governments, which could potentially include making downloading the app mandatory for everyone.
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 that this means that “if it 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, 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 Central government 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.
It should be clear from this, of course, that a private individual or association cannot make downloading the app mandatory. Such an order would have to come from the central or state government (or at worst, the DM), otherwise it is an illegal invasion of privacy.
So is downloading and installing the Aarogya Setu app truly voluntary? Or could it be made a requirement the way Aadhaar was?
In addition to the messages from PM Modi and indeed other ministers to download the app, it is now being observed that it is also becoming a tool for more than just the stated objective of contact tracing. The app interface says that a facility to get e-passes for movement during the lockdown will be made available on it soon, for instance, and it also allows donations to the PM-CARES Fund.
“The requirement for installation of Aarogya Setu is being done in ways which cannot be termed as purely voluntary,” says Apar Gupta, executive director of the Internet Freedom Foundation. According to him, the frequency of these “repeated messages which are being sent through various service providers as well as government departments cannot be termed as requests for voluntary installation.”
Gupta suggests that this kind of messaging creates a “social expectation” in people’s minds that the app needs to be installed by everyone with a view to combatting COVID-19 and easing the lockdown.
“Hence it is also building a social pressure for each person to have this application installed on their phone without explaining its features, or evaluating its objective necessity,” he argues, adding that “Such messages also do not fairly explain the privacy risks which may be posed by it.”
Prasanna also warns of attempts to make the app a necessity without a government order explicitly saying that. “Making the app downloadable as an order from a superior or employer to a subordinate/employee; or making the app download a pre-requisite for e-pass etc”, he suggests, “would be attempts obviously to make the app being installed practically compulsory.”
Should you download and install the Aarogya Setu app?
At the end of the day, downloading and installing the Aarogya Setu app should be a matter of individual discretion. The app could play a major role in combatting the spread of the disease through contact tracing, however, it is important that there is no overreach through it, like being made essential for e-passes.
The decision to use the app isn’t purely about the right to privacy. On that count, citizens can assess the arguments for and against it on whether it has sufficient safeguards themselves before making their decision.
There are other more practical considerations that users might want to keep in mind, as journalist and digital rights activist Nikhil Pahwa points out:
“The Aarogya Setu app requires a smartphone to be used, and for location and bluetooth to be kept on. Millions of people in India don’t have smartphones, or their phones don’t have high processing power, and that will drain their phone batteries and heat up the phones. In addition, keeping bluetooth on at all times means that the phone can be susceptible to malware that can be transferred from phone to phone.”
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