On Tuesday, 14 April, Prime Minister Narendra Modi, during his address to the nation, appealed to citizens to download the Aarogya Setu app and encourage others to do the same.
The next day, NITI Aayog CEO Amitabh Kant announced, “Aarogya Setu, India’s app to fight COVID-19 had reached 50 million users in just 13 days – fastest ever globally for an app.”
While the app has received a major push from the prime minister himself, as well as the home ministry in its Nation Directive in COVID-19 Management issues on 15 April, there is no directive or order from the Government of India which says that the general public must download the app.
However, while PM Modi’s speech and the MHA’s order only encourage people to download the app, the line between voluntary and mandatory appears to be rapidly blurring.
In light of the encouragement by the government, several institutions in the public and private sectors have moved swiftly to interpret the nudge as a diktat and have made the app mandatory.
From India’s public broadcaster Prasar Bharati to private educational institutions, like Sharda University and Mother’s International School, many have made it mandatory to download the app.
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.
Moreover, most bodies have gone the extra mile and issues two additional orders:
- Individuals must send across proof of installation by way of screenshots
- Authorising law enforcement and private security guards to check if an individual has indeed activated it
- Authorised penal action for not installing the app
MHA’s Contradictory Directive
The MHA directives on use of Aarogya Setu app also presents a visible contradiction.
The document clearly mentions that “the use of Aarogya Setu will be encouraged for all employees both private and public (sic).” It does not mention anywhere that the act be made mandatory.
However, the directive also states that “the directives shall be enforced by the District Magistrate through fines and penal action as prescribed in the Disaster Management Act 2005”
“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 combating COVID-19 and easing the lockdown.
Prasar Bharati
Prasar Bharati, India’s public service broadcaster, issued an office memorandum on Tuesday, making it mandatory for its staff to install the Aarogya Setu app.
The direction mandating the installation of the COVID-19 contact tracing app was issued on the same day Prime Minister Narendra Modi appealed to the people to download Aarogya Setu during his address to the nation.
The memorandum, issued with the approval of the CEO, also goes on to say that security guards at Prasar Bharti’s office premises should be instructed to check if the staff members have indeed installed the app.
The app has to be installed by both, field reporters as well as the office staff of Prasar Bharati which runs Doordarshan and All India Radio.
Universities
The Quint has learnt of private institutions such as Sharda University in Greater Noida, Uttar Pradesh, also directing students to mandatorily download it. Students under condition of anonymity have shared WhatsApp screenshots of faculty members asking students to install the app.
The texts include a link to Google Play Store as well as the instruction, “Students pls (sic) install this app. It is mandatory for everyone.”
It also instructs students, “once installed pls share the screenshot with me”.
Students and their guardians have also received text messages asking them to, “install now & share it”. While the text also contains download links for Android and iOS devices, it does not specify that the installation is mandatory.
Schools
Medianama had reported on 7 April that several private schools, including Mother’s International and Sardar Patel Vidyalaya, in New Delhi had communicated with parents of students about downloading the app and reporting back to the school about the same.
According to the report, “Maneesh Garg, the joint secretary for Samagra Shiksha in the HRD ministry, sent an email to all states, asking them to circulate this information ‘among all stakeholders including students, teachers, officials and parents for maximum participation.’”
However, Mother’s International School had also sent across a Google form to parents while Sardar Patel Vidyalaya had asked parents to reply with “downloaded” on the school’s app once they had installed Aarogya Setu.
In view of the monitoring by schools of parents and students downloading the app, the Union HRD Ministry issued a clarification through Twitter: “MHRD has appealed to students and their families to download Aarogya Setu app developed by @MoHFW_INDIA but there was no form developed to monitor the activity.”
Districts
While there do not appear to be any state-wide orders to download Aarogya Setu, in districts like Sant Kabir Nagar in Uttar Pradesh, the District Magistrate has passed an order on 14 April instructing people to download the app.
The order says that every individual with a smartphone is required to download the Aarogya Setu app.
An individual with a smartphone found to not have the app on his or her phone when moving outdoors is liable to face penal action. While the order states that legal proceedings will be initiated as per relevant provisions of the law, it does not specify which specific law enables such an action.
According to a report by The Tribune on 4 April, all Central Armed Police Forces (CAPF) personnel have been ordered to download the Aarogya Setu application on their smartphones.
The personnel are also required to report compliance to the Ministry of Home Affairs (MHA) as part of the government’s efforts to contain the spread of COVID-19.
The CAPF comprise Border Security Force (BSF), Indo-Tibetan Border Police Force (ITBP), Sashastra Seema Bal, Central Reserve Police Force (CRPF), Central Industrial Security Force (CISF) and the National Security Guard. Their combined strength is over nine lakh personnel.
Can An App Be Made Mandatory?
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 possibly a District Magistrate), otherwise it is an illegal invasion of privacy.
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, in the current circumstances of a national disaster/epidemic.
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 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 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.
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