Update on Anivar A Aravind v. Ministry of Home Affairs, GM PIL WP (C) 7483 of 2020 : Karnataka High Court orders that in the absence of a law State cannot deny services or benefits to citizens who do not have Aarogya Setu
SFLC.in’s advisory board member Mr. Anivar A Arvind has filed a petition in the Karnataka High Court challenging the voluntary-mandatory imposition of Aarogya Setu and invasion of privacy rights in the absence of a specific legislation governing data collection and processing by it. He is represented by Senior Advocate Colin Gonsalves, counsels from SFLC.in, Advocate Clifton D’ Rozario, Advocate Avani Choksi and Advocate Ali Zia Kabir in the matter.
So far, the Government of India through Ministry of Railways, Airports Authority of India and Ministry of Civil Aviation has stated on record that Aarogya Setu is not mandatory to avail rail or air services. The Airports Authority of India also had to revise their state-wise quarantine guidelines which had initially made Aarogya Setu mandatory. Similarly, Bangalore Metro Rail Corporation Limited (BMRCL) withdrew its initial statement that Aarogya Setu was mandatory for metro commuters. The Ministry of Housing and Urban Affairs also amended their draft Standard Operating Procedure (SoP) which had made Aarogya Setu mandatory for metro commuters. The now notified SoP by Ministry of Housing and Urban Affairs states that installation of Aarogya Setu is advisable in nature.
In the last hearing on October 5th, the Respondents i.e. Union of India had sought more time to file objections. The Court had granted them additional 10 days to file their objections and the matter was listed for hearing today i.e. 19.10.2020.
Proceedings on 19.10.2020
The Counsel for Union of India, today, again sought for another extension to file their statement of objections. Senior Advocate Colin Gonsalves informed the Court that the matter was listed for interim relief and pressed for interim relief prayers number II and III.
Interim prayer number II reads as “directing the respondents not to deny any service to a citizen for not installing the Aarogya Setu application, pending disposal of this writ petition”.
Interim prayer number III reads as “for an order restraining the respondents during the pendency of this petition from proceeding with the Aarogya Setu App and with the data collected, in any manner, whether the collection of data from members of the public is stated to be voluntary or involuntary”.
He also informed the Court that the Department of Personnel and Training has still made Aarogya Setu mandatory for its employees, and that this is the second extension sought by the counsels for Union of India. To this, the Counsel for Union of India informed the Court currently, there is no record of any state instrumentality mandating Aarogya Setu.
Hon’ble Chief Justice Abhay Oka ordered that in the absence of a legislation, central and state government or their agencies or instrumentalities cannot deny any benefit or service to a citizen for not installing Aarogya Setu.
The Karnataka High Court also asked the Counsel for Union of India that “what happens if people do not use mobile phones by choice?”
The Court granted time to Union of India to file a statement of objections. The matter has been listed for hearing on 10th November.
|S. No.||Date||Action Taken|
|1.||04.06.2020||Notice issued to respondents & responses to be filed by 11th June.|
|2.||12.06.2020||Railways and MoCA state on record that Aarogya Setu is not mandatory in naure. Statement of objections to be filed by Respondents if Aarogya Setu requires a specific legislation.|
|3.||10.07.2020||Petitioner seeks leave to apply for amendment.|
|4.||17.07.2020||Amendments allowed and adding the Union of India and BMRCL as respondents allowed. Ministry of Health’s SoP for offices brought into court’s notice. BMRCL to clarify if Aarogya Setu is mandatory for metro commuters.|
|5.||03.08.2020||MoHFW revises it SoP. The AAI’s state-wise quarantine guidelines brought to courts notice. They make installation of Aarogya Setu mandatory. AAI seeks time to file response. Court states that once GoI takes clear stance on Aarogya Setu, prayers IIIA and IIIB will be worked out.|
|7.||19.08.2020||AAI modifies it statewise quarantine guidelines. An intervention application has been filed which the Court dismisses.|
|8.||03.09.2020||Amendments to the petition allowed.|
|10.||22.09.2020||Response to be filed by respondents on mandatory-voluntary nature of Aarogya Setu to work out interim relief prayers II and III.
|11.||05.10.2020||Adjourned as the counsels for respondents seek time to file statement of objections.|
|12.||19.09.2020||Counsels for Union of India again seek adjournment for filing statement of objections. The Karnataka High Court orders that the State cannot refuse services or benefits to any citizen who does not have Aarogya Setu.|
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