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(Shivi Shrivastava and Vaibhav Singh are third year students at Institute of law, Nirma University, Ahmedabad) INTRODUCTION Ever Since the inception of the Aarogya Setu app, it has been swarming with controversies and debates. Amidst the grave public health crisis, Prime Minister Narendra Modi on 2nd April 2020 launched this application to keep a track of the health status of citizens and for coronavirus case contact tracing. Earlier on 1st May 2020, the Ministry of Home Affairs with an objective to augment the number of users issued the guidelines which mandated the use of Aarogya Setu for both public and private employees. But the latest guidelines of 17th May ruled that the private sector employees should on a best effort basis ensure that the application is installed in their phones. The app is still required for train travel, air travel and even most of the government employees. In addition to this, the Jharkhand High Court has passed an order making installation of Aarogya Setu Application a prerequisite condition for granting bail. As the coronavirus positive cases are incessantly proliferating, the government, to protect the people, from the infection has started regulating their movement. There is no end to the gamut of restrictions that can be foisted through this app. The app has induced a miasma of distress as it breaches the privacy of citizens and grossly violates their fundamental right. The application seems to be a benign one but it is crammed with the potential to violate international conventions and principles. The app is invasive from the security and safety point of view as it is silent on the requisite data confidential practices. THE UNCONSTITUTIONAL BARGAIN The government contact-tracing application suffers from myriads of constitutional flaws as the features and guidelines attached to this app hinder the basic structure of the Indian constitution by contravening the essence of Article 14, 19 and 21. The pandemic cannot be used as an excuse to devalue the constitution. The nature of the app brings challenges to the privacy of the citizens. The apex Court has propounded that Right to privacy is an intrinsic part of Article 21. In the landmark case of K.S. Puttaswamy v. Union of India, the court reiterated the proportionality test that should be applied to assess any restriction on the fundamental rights of the citizens by the action of the State. The proportionality test lays down that the action of the State must be sanctioned by law and there must be a rational connection between the object sought and the means to accomplish the ends. Undoubtedly, the object sought to be achieved through the imposition of the app is legitimate, but the aforesaid action of the State is not sanctioned by law and also lacks the rational connection. Let us analyse the first condition. The Aarogya Setu app is imposed on us through an executive order, which derives its authority from the Disaster Management Act, 2005. But surprisingly, the act neither has any provision to deal with surveillance nor accords authority to the government to publicize any personal information. There is no legal framework that monitors the app except the few guidelines and policy framework. Thus, the app is not sanctioned by law because of the absence of any anchoring legislation. Which in turn shows that the condition of the action being sanctioned by law is not fulfilled. According to Justice B.N. Srikrishna, it is objectionable that the order passed at an executive level is devoid of any legal backing and considers it an illegal app. The application is also not in consonance with the requirements of the Information Technology Act, 2000 as there was no law passed by the Parliament authorizing the installation and creation of the Aarogya Setu. Now, in order to move on to analyzing the second condition of rational connection with the aim, let us first look at some fundamental rights violations. The guidelines issued in pursuance to the installation of Aarogya Setu app violate Article 14 of the Constitution. The Apex Court's judgment in Indra Sawhney v. Union of India is renowned for its incantation that Right to equality enshrined in Article 14 is the rule of law that constitutes the basic feature of the constitution. In the State of West Bengal v. Anwar Ali, it was held that reasonable classification is permissible when the classification has a nexus with the object of the act, also it should not be arbitrary, artificial or evasive. As per the guidelines, the Aarogya Setu has been made compulsory for a category of classes which is based on the status of jobs, residence and travelling. The classification made on the basis that whether a person is a private or a public employee has no nexus with the object. The real motive of the government is only to escalate the numbers of users by using this app as a weapon of compulsion. In another fundamental right violation, the right to privacy of the under-trial prisoners is being hampered by making them install the Aarogya Setu app, as an essential condition for getting bail. Whereas, it can be argued that by taking such a step, their right to health is also being protected under the canopy of Article 21 as the aim of the government behind launching this application is to keep a track of the users when they come in contact with a corona positive person and thereby alerting the infected person. One can see that, in this situation, the protection of the right to health of the under-trail prisoners leads to the infringement of their right to privacy. In Ujjam Bai v. State of Uttar Pradesh, it was held that the fulfilment of one fundamental right cannot be made conditional on the renunciation of another fundamental right. Thus it is the opinion of the author that such an act by the government is not justifiable by any means. In light of this, it is clear that the means adopted by the State i.e. making people use the Aarogya Setu App despite the fact that it violates the Right to Equality and Right to Privacy are extremely excessive in their nature. In the opinion of the author, such excessive acts can in no way be said to have a ‘rational’ connection with its aim. This should make it apparent to the reader that the condition of the presence of a rational connection is not fulfilled. Further, in the case of Satwant Singh Sawhney v. D. Ramarthnam and Ors. it was held that under Article 21 there is an absolute right of locomotion, one aspect of which is covered by Article 19(1)(d). The app has caused unnecessary constraints on the freedom of movement of the citizens. The order of Jharkhand High Court is in no way benignant to the under-trial prisoners, it breaches their right to movement just because they are reluctant to compromise with their privacy. Such a curtailment is also not imposed in accordance with the reasonable restrictions under Article 19(5) as the grounds of imposing restriction include the protection of the interests of the general public and that of any Scheduled Tribe. In the present scenario, the restriction on the right to movement is not related, in any manner, to the interests of Scheduled tribe and when it comes to interests of the general public, their rights to equality and privacy are eventually being infringed, as illustrated above and thus makes the app unconstitutional and arbitrary. Another stumbling block in the way of calling Aarogya Setu app a comprehensive app is that it remains inaccessible to the disabled people. The developer of the app i.e. National Informatics Center (NIC) has failed to acknowledge the concern of the disabled activists to incorporate a separate section compatible for the disabled people. The absence of closed captioning and audio guide for navigation add up to the concerns of the disabled people and thus leads to the infringement of their legal rights provided under the Rights of Persons with Disabilities Act, 2016. BLATANT VIOLATION OF INTERNATIONAL OBLIGATIONS Right to privacy is the safeguard of human dignity against the unjustified and arbitrary use of power. It forms the core of a democratic society. Right to privacy has been articulated in all the major international human rights instruments. The most significant concern of people all around the globe is that their right to privacy is being compromised without their knowledge or without them being aware of the same. In the same manner, the Arogya Setu app makes it obligatory for them to give access to their whereabouts, taking into consideration the absence of proper safeguards and thus leading to a fundamental breach of privacy of individuals. Another concern regarding the app is that once you have registered on the app, the privacy policy cannot be accessed again and this makes the condition even worse as the right to enquire about being wrongfully monitored, is taken away from the common people. Being a signatory of international treaties, the government of India assumes certain responsibilities and duties to ensure full protection of human rights. Article 51 of the Indian Constitution also suggests that the government must be committed to international obligations. One such obligation on the government is to comply with the principle of the right to privacy enshrined under article 17 of the International Covenant on Civil and Political Rights and article 12 of the United Declaration of Human Rights. In General Comment 16, the United Nation Human Rights Commission (UNHRC) has also emphasized the legislative measures to be taken to protect the right to privacy of the people. The General Assembly resolution 68/167 of 2013 also expresses deep concern on the infringement of the right to privacy in the digital era. The resolution recognizes that the states must fully comply with the international human rights law obligations while gathering sensitive information from the public for ensuring public security. However, when it comes to the Aarogya Setu app, the government has very well tried to get away from the liability rather than taking precautionary measures for privacy violation on the data of the public. This attempt to evade livability is evident from the existence of the limitation of liability clause in the terms of the app, which exempts the government from being liable for any unauthorized third-party access to the data of an individual and thus making the government escape from being liable for the faults in the app. CONCLUSION A necessary corollary of this is that the government can, in no manner, mandate the use of an app that infringes the privacy of its people unless it has demonstrably established a suitable nexus between the actions taken and the problem to be addressed. And as encapsulated above, mandating the use of Aarogya Setu leads to legal challenges rather than helping us get out of this unprecedented threat. The vaguely articulated privacy policy of the app doesn't impart lucidity on how secure the data is, as it fails to render its compliance with the IT Rules 2011 and IT Act 2000. The other serious legal flaws that the app suffers from including the absence of specific anchoring legislation, it becomes necessary to challenge the 'hypothetical law' mandating the app rather than disproportionately bargaining our fundamental rights.
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