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Writer's pictureParas Sharma
Jun 12, 2020

Aarogya Setu & Arogya Kawach App in India

Updated: Jun 16, 2020

Written by: Ms. Anjali Dixit, Assistant Professor, Faculty of Juridical Sciences Rama University, Kanpur

 

Abstract

This articulation titled as ‘Aarogya Setu & Arogya Kawach without a privacy & data protection Laws’ basically focus on the legality of these app. It is the duty of the state, individuals and even the Court to protect the Right to privacy. Right to privacy as encompassing, repose, sanctuary and intimate decision. An individual can claim privacy against state as well as non state actors. Technology’s impact on the actions of an individual and the consequential chilling effect it may have on free speech and expression. So when government of India force everyone to use the ‘Aarogya Setu & Arogya Kawach App’ it’s duty of state to ensure to protect the fundamental right of every individuals.


Keywords: Aarogya Setu App, Arogya Kawach App, Fundamental Right, Right to privacy, Government.

Introduction

In Justice K.S. Puttaswamy (Retd) Vs. Union of India,[1] Supreme Court’s nine judges Constitutional Bench insure right to privacy as a fundamental right. Bench held that Right to privacy is a part of an individual’s dignity and satisfies itself to as a natural right. Justice D.Y. Chandrachud highlights the need of data protection laws and positive obligations on the states. He focuses on the positive and negative elements of privacy. According to him Positive element restricts the state from unfairly interfering in the privacy of individuals while in its negative elements obliges it to put in place a legislative framework to restrict others from doing so.


During this COVID-19 situation Government of India make downloading ‘Aarogya Setu’ & ‘Arogya Kawach’ app mandatory.


Step of the Ministry of Electronics & Information Technology is a violation of the right to privacy. Government issued a data-sharing and knowledge-sharing protocol for the Aarogya Setu app, laying down guidelines for sharing such data with government agencies and third parties.[ii] Government’s this decision comes when personal data protection bill is in the process of being approved by Parliament. It’ treated as the umbrella group is all personal data — data from which an individual can be identified. Government clear in its guidelines that such data shall be used strictly for the purpose of formulating or implementing appropriate health responses and constantly improving such responses. National Informatics Centre is the only authority which collect such data.


Aarogya Setu App

Aarogya Setu, which is Sanskrit for Health Bridge, is an app developed by the National e-Governance Division (NeGD) at the Ministry of Electronics and Information Technology (MeitY), and was released in association with the Ministry of Health and Family Welfare (MoHFW).


Data collected and shared by Aarogya Setu

By the Aarogya Setu app collected data is broadly divided into four categories as –

1. Demographic data : Demographic data includes information such as name, mobile number, age, gender, profession and travel history.

2. Contact data : Contact data is about any other individual that a given individual has come in close proximity with, including the duration of the contact, the proximate distance between the individuals, and the geographical location at which the contact occurred.

3. Self-assessment data : Self-assessment data means the responses provided by that individual to the self-assessment test administered within the app.

4. Location data : Location data comprises the geographical position of an individual in latitude and longitude.


Entities able to access this Aarogya Setu data

Shri Ajay Sawhney, Chairman of Empowered Group 9[iii] said that the basic principles behind technology and data deployment for citizens and other stakeholders to fight COVID-19. He again said that there is no other purpose. Privacy is a very important feature of the app.”


Response data containing personal data may be shared by the app’s developer as -

1. National Informatics Centre (NIC)

2. Health Ministry,

3. Health Departments of state/Union Territory governments, local governments,

4. National Disaster Management Authority, state disaster management authorities,

5. Other ministries and departments of the central and state governments, and

6. Other public health institutions of the central, state and local governments

Contact tracing by ‘Aarogya Setu’app

According to WHO Contact tracing is the process of identifying, assessing, and managing people who have been exposed to a disease to prevent onward transmission[iv]. Contact tracing can be broken down into 3 basic steps:

  • Contact identification: Once someone is confirmed as infected with a virus, contacts are identified by asking about the person’s activities and the activities and roles of the people around them since onset of illness.

  • Contact listing: All persons considered to have contact with the infected person should be listed as contacts. Efforts should be made to identify every listed contact and to inform them of their contact status, what it means, the actions that will follow, and the importance of receiving early care if they develop symptoms. Contacts should also be provided with information about prevention of the disease.

  • Contact follow-up: Regular follow-up should be conducted with all contacts to monitor for symptoms and test for signs of infection.

Above mentioned steps are followed by the ‘Aarogya Setu’app. But till date several red flags with respect to Aarogya Setu app in India and called it as risks of institutionalization of mass surveillance.


Before various High Courts, even before the Supreme Court several petition filled against the Aarogya Setu’app. In the case of Union Of India vs Narayan Chandra[v] Supreme Court of India recognize the use of Aarogya Setu App to monitor and tracked the health status.

But Kerala High Court also recognize the use of Aarogya Setu App and refused to pass an interim order to stay the mandatory downloading of ‘Arogya Setu’ app on employees’ phones and sought a statement from the central government on data safeguards of the app being developed by the National Informatics Centre.


On 5 May 2020 single bench of Justice P Gopinath Kerala High Court asked government about the valid concerns on mandatory condition on the employers. Many have no smartphones. Same day Kerala High Court’s division bench of Justices Anu Sivaraman and M R Anitha arise question mark on the “Aarogya Setu Aap. ” Court asked whether the Central Government can guarantee that the information collected by the Aarogya Setu app would not be misused. Although CGC recognized “Aarogya Setu Aap. ” as "the best app in the world fighting COVID-19".


In another case Delhi High Court on dated 14th May 2020 asked the central government to respond on a plea against linking of the Government mandated Aarogya setu App with a website for the promotion of E- pharmacies.


Although various person criticizes the “Aarogya Setu Aap. ”but World Bank appreciate it. World’s various countries also have app like “Aarogya Setu Aap. ” Pan-European Privacy Preserving Proximity Tracing (“PEPP-PT”) project in Europe must comply with its stringent privacy laws. Which comprises more than 130 members across eight European countries. Apple and Google released a joint statement addressing some of the privacy concerns raised so far.


App like Aarogya Setu App

Many others Aarogya Setu App like Coronavirus related app are Corona Kavach, Cowin-20 and Test Yourself Goa and Test Yourself Puducherry. Karnataka’s Quarantine Watch has already received scathing criticism for making it mandatory for infected persons to send periodic selfies. Maharashtra, Gujarat and Himachal Pradesh are also said to be developing similar apps.


During the third phase of the lockdown till May 17 UP Government led by CM Chief Minister Yogi Adityanath launched a new application called Ayush Kavach. To provide health-related information amid COVID-19 it will prove as a medium.


Ayush Kavach app

Ayush Kavach App provide health-related tips about ayurvedic medicines amid the coronavirus pandemic to boost the immunity of the people. This mobile software was developed by the Ayush Department of UP.


Features of the Ayush Kavach App

Ayush Kavach app is laced with many incredible features such as Live YOGA sessions for different age group users e.g kids, adults, elderly people, pregnant women. The app also delivers sections such as Office stress Management yoga protocol, and many more that provide an extensive list of yogas for a person to manage stress. The app also contains general information and precautionary measures that will help the user to understand how to protect themselves from the COVID-19 crisis.[vi]


Criticism Aarogya Setu App & Ayush Kavach App

Government India claims that they use these apps to better equip healthcare authorities to fight against COVID- 19. But when data protection become a fundamental right , thus its imperative that government answers answers the question on this app as :-


1. What is the legislative sanction when this app breaches the fundamental right to privacy? What is the legal frameworks ?

2. What are the safeguards against the theft of the data? Who will be held accountable in all types breaches related to this App?

3. Why allowed to operate a huge surveillance system without concomitant obligations?

4. Why this app is not open sources?

5. What is the protocol for deletion of data?

6. In which proviso government on 14 April 2020 updated the app’s privacy policy without notifying users, despite the privacy policy explicitly mandating the same. Is not breach the trust of users.


Conclusion

Government of India must answers these concerns in an open manner. In the case of K.S.Puttaswamy vs. Union of India rightly held by the Justice Chandrachud that, ‘privacy is not alien to other fundamental rights under the part III. It can be classified as an unchangeable natural right which is necessary for maintaining human dignity.’

So, now, it is time to stand up and ensure that, through the Aarogya Setu app, this government does not callously snatch right to privacy and jeopardise citizens’ safety.


 

 

References

 

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