Update on Anivar A Aravind v. Ministry of Home Affairs, GM PIL WP (C) 7483 of 2020

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.

The matter was listed for hearing today i.e. 22.09.2020.

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”.

To this, the Court asked Senior Advocate Colin Gonsalves what he meant with “proceeding with the App” to which Mr. Gonsalves responded that it means any data collection and processing exercise carried out by the State. He also informed the Court that in the absence of a specific legislation, such data collection and processing, voluntary or involuntary, is against the law established in Justice K. S. Puttaswamy v. Union of India (WP(C) No. 494 of 2012).

Hon’ble Chief Justice Abhay Oka observed that if the government is directed to not deny services on the basis of (non)-installation of the App, then the use of Aarogya Setu becomes voluntary. He also asked the counsel for Union of India to respond on the question of whether anybody who voluntarily downloads the App, whether the state utilises the data collected from the user?

The Counsel for Union of India contended that the prayers by the petitioner are misconceived and seeks time to file a statement of objections.

The Court granted time to Union of India to file a statement of objections till 3rd October, 2020. The matter has been listed for hearing on 5th October, 2020.

To track the updates on Anivar A Aravind v. Ministry of Home Affairs, click here.

**Aarogya Setu Matter Hearing Dates**
S. No.	Date	Action Taken
1.	04.06.2020	Notice issued to respondents & responses to be filed by 11th June. https://sflc.in/petition-challenging-defacto-imposition-aarogya-setu-karnataka-high-court
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. https://sflc.in/aarogya-setu-not-mandatory-air-or-rail-travel-update-petition-challenging-mandatory-imposition
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. https://sflc.in/karnataka-high-court-allows-amendment-petition-aarogya-setu-case
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. https://sflc.in/karnataka-high-court-orders-state-karnataka-clarify-its-stance-aarogya-setu
6.	13.08.2020	Adjourned.
7.	19.08.2020	AAI modifies it statewise quarantine guidelines. An intervention application has been filed which the Court dismisses. https://sflc.in/aarogya-setu-optional-air-passengers-airport-authority-informs-karnataka-high-court
8.	03.09.2020	Amendments to the petition allowed.
9.	16.09.2020	Adjourned.
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.