On Monday when two technology giants, Apple and Google, banned the use of location tracking in apps that use the contact tracing system, the Indian Institute of Technology-Kharagpur (IIT-KGP) has made a similar app mandatory.
“Use of Aarogya Setu app is mandatory for all employees,” an administrative notice by IIT-KGP said on Monday. Registrar Bhrigu Nath Singh said the notice had been issued as per the Union Home Ministry order and the IIT had nothing to do with it.
Meanwhile, legal experts challenged the app on multiple counts. The app fails to adhere to data protection principles endorsed by the Supreme Court in the Puttaswamy (privacy) case, where the court recognised that right to privacy was a fundamental right and if the State wanted to limit it, it could be done by satisfying four criteria, said Jhuma Sen, Associate Professor at Jindal Global Law School.
‘Four criteria’
“First, a legislative criteria, that is, this has to come from a law. Second, the state has to demonstrate that this limiting of right is in pursuit of a legitimate aim. Third, the state has to show that there is a nexus between what is sought to being achieved and the methods employed by the state to achieve it. Fourth, there should be procedural safeguards. The app fails on all these standards,” said Ms. Sen.
She said “neither does the app have any legislative basis which explains its complete lack of adequate procedural safeguard, including grievance redress system or a sunset clause, nor has the state demonstrated the suitability or the necessity prongs of this [proportionality] test.”
The mandatory nature of the app is also a cause of concern for the legal experts.
No ‘opt out’ option
“There is no opt out mechanism, contrary to the ruling of the privacy judgment. Health data is classified as sensitive personal data under the Information Technology Act. Such data can be collected and processed only with the consent of the individual who also has the choice to ‘opt out’. Arogya Setu completely goes against the grain of this,” Ms. Sen noted. The privacy judgment “also made note of the need for data protection legislation to safeguard potential discrimination against individuals” based on their health condition.
“That aside, data collected by the app is not stored by the phone alone, as clarified by the Aarogya Setu team itself. This opens up possibilities of breach of data and sensitive information,” Ms. Sen said.
The IIT notice has also made use of face mask ‘compulsory in workplaces.’ Social distancing as per the Health Ministry’s guidelines is also instructed. Hand wash and sanitiser will be made available, the order stated.
