A week after a group of Noida and Greater Noida residents submitted a letter before the district magistrate and police commissioner challenging the order of making Aarogya Setu App mandatory, the district police is in the process of seeking legal advice on the issue, The Quint has learnt.
The representation submitted to the district police and the district magistrate stated that the police’s order ran “contrary to law” and sought “urgent modification” in order to make installation of the app voluntary.
The legal challenge, facilitated by the Internet Freedom Foundation, contests the issue of breach of personal liberty. IFF commenced proceedings of the challenge through advocate Ritwik Shrivastav, who himself is a resident of Greater Noida.
“We will only be able to get back on this issue after seeking legal advice. Legal feedback will be sought in this matter and a response will be given,” Ashutosh Dwivedi, Additional Deputy Commissioner (Law & Order), Gautam Buddh Nagar District told The Quint on Wednesday. Dwivedi was the signatory to the order.
The district police will be discussing its decision to have made the contact tracing app mandatory with Uttar Pradesh Advocate General Raghvendra Singh’s office.
At a time when the contact tracing app has been clouded by privacy and data protection concerns, the order to make its installation mandatory sparked protests regarding its legal basis, privacy violation and executive overreach.
Dwivedi also said that any decision regarding the mandating of the app in the district will be taken by the district police commissioner Alok Singh. “I may be the executive magistrate but any decision regarding this will be taken by the CP. It is possible that some advise is being sought regarding the matter.”
Aarogya Setu Mandatory For Noida, Greater Noida
On 3 May, Gautam Buddh Nagar District police in Uttar Pradesh had passed prohibitory orders under section 144 of the Criminal Procedure Code (CrPC) imposing several restrictions in the entire district order to combat the spread of COVID-19.
In addition to the restrictions, the order also directed that the non-installation of the Aarogya Setu App will be treated as a violation of the order and attract criminal penalties.
On 5 May, residents of Gautam Buddh Nagar District, which includes Noida, Greater Noida and Dadri, led by advocate Ritwick Shrivastav , submitted a representation to Additional Deputy Commissioner (Law & Order), Ashutosh Dwivedi, challenging the legal basis for making the installation of Aarogya Setu mandatory.
“This amounts to a case of executive overreach by the district administration and violation of privacy safeguards. What we have asked is simple, to modify its order and make the installation of the app mandatory,” advocate Ritwick Shrivastav told The Quint.
What Is The Legal Challenge By Residents?
Speaking with The Quint, advocate Ritwick Shrivastav said the legal challenge against making the app mandatory has three primary aspects:
- Section 144 cannot be used to impose positive obligations on persons to do certain acts such as install an app but only direct them to ‘abstain from such an act’. Shrivastava said, “Section 144 only gives police restrictive powers. It can only say what not to do. It cannot tell people to do specific things like download an app.”
- Shrivastav’s second argument challenges the order of factual grounds, arguing that the Union Home Ministry’s guidelines on 1 May where 100 percent coverage of the app is required only in containment zones and nowhere else.
- While Gautam Buddh Nagar District has been identified as a red zone, only limited parts of the district are containment zones.
- The third argument states that the “impugned order amounts to an unconstitutional breach of the fundamental right to privacy secured under Article 21.” “The app is collecting sensitive personal data in the form of our health data. This can only be done with explicit consent of the individual, which the app doesn’t do,” Shrivastav told The Quint.
Shrivastav also said he will be seeking an early hearing before Dwivedi, who is also the executive magistrate. “Under Section 144 (7) ‘the magistrate shall afford to the applicant an early opportunity of appearing before him’,” he said.
IFF, in its post on the issue ad stated, “to put it plainly, to criminally prosecute people for not installing a smartphone application even at the time of a pandemic is illegal. Due to this, we were compelled to take steps to challenge this order.”
On 1 May, IFF had also sent a joint representation to the Prime Minister's Office that was endorsed by 45 organisations and more than 100 individuals against the mandatory use of the Aarogya Setu.
In a separate but related case, the Kerala High Court on Tuesday refused to pass an interim order to stay the mandatory installation of the app on employees’ phones. Multiple petitions had sought a stay claiming that the mandatory downloading of the app is unconstitutional and violates user privacy.
The court sought a report on the app’s data privacy safeguards from the Centre and posted the matter for further hearing next week.
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