An exclusion tale: Aarogya Setu’s march from optional to mandatory

by Tripti Jain & Tanisha Ranjit

As Aarogya Setu is becoming mandatory in a growing number of cases, it deserves to be asked: does the app ensure welfare for all – or not at all? In this column, we try to answer that question. We look in particular at the implications that the mandates pose on people’s lives and fundamental rights, especially on marginalised sections of the community. We also highlight the other concerns with the app: the issues of efficacy, potential tool for mass surveillance and exclusionary nature of the app. This opinion piece was originally published in The Quint, on 6 May 2020.

As countries across the world grappled with the spread of the COVID-19, the Union Health Ministry launched a contact tracing application called Aarogya Setu on 2 April.

This application was designed to allow for identification of individuals who have been infected with the virus and track the ones who may have come in contact with the infected individuals.

Despite insufficient scientific, qualitative or quantitative evidence of contact tracing’s efficacy in achieving the objective, the current governments- central and state- have been pushing the Aarogya Setu application like a magic potion that can prevent and control the spread of Covid 19.

While the Ministry of Electronics and Information Technology has gone on record to state that the app is voluntary’ and not mandatory’, the latest lockdown guidelines issued by the Ministry of Home Affairs on 1 May, 2020 suggest otherwise. The MHA’s latest guidelines state that the local authority will ensure 100% coverage of Aarogya Setu app among residents of containment zones.” The annexure also provides that the app should be made compulsory for all the employees working in both, private and public entities.

Thus, the app has been made mandatory for large sections of the population well beyond containment zones.

We have been tracking primary sources like orders and notifications as well as secondary sources such as newspaper reports. We noticed that this is not the first instance of the state mandating the installation of the app.

Instead, there have been several occasions when the Central, State government authorities, and local or other authorities mandated or aggressively pushed the installation of the app.

States & PSUs Had Quietly Made The App Mandatory #

It was noticed that the app is being made compulsory for different purposes. Some notifications mandated the app for employment: Prasar Bharati issued an office memorandum requiring it’s staff to download the app as part of precautionary measures to deal with COVID-19.

The Central Government, meanwhile, had also issued a notification making it mandatory for all its officers and staff to download the app and check their health status on the app prior to coming to work.

There are also instances of the app being mandated for travel. For example, the Sikkim Government’s press release mandates the app for anyone who wants to enter the state, obtain a vehicle permit/​E‑Pass, and for any public movement amongst others.

Further, there also have been instances where arbitrary use of powers was exercised to coerce people to download the app. According to a news article, the Chandigarh police ensured that the Aarogya Setu app was downloaded by detained curfew violators before their release, a warning was issued to those who did not have access to smartphones.

A similar case was reported from Uttar Pradesh where police in Prayagraj made curfew violators download the app. There have also been cases where under the garb of encouragement of the app, people were being pushed to download the app. This can be seen in an order ( G.O.Rt.No.254) issued on 28 April 2020 by the State Government of Andhra Pradesh documenting the strategies for promoting the app.

While it says that the app is encouraged”, the order also states that the Commissioner (Health and Family Welfare) shall ensure the downloading of this app by maximum people during the house to house survey for COVID-19 and during surveillance activities” among other strategies.

This implies that the state has not been forthcoming about their strategy to mandate the app. The methods through which installation of the app are being made mandatory are worrisome as they empower the state to dictate terms leaving no room for individuals to make independent choices.

Proof of Efficacy Missing #

It is also true that the citizen’s right to choice and autonomy are not absolute. However, the state can only limit the freedom of citizens to ensure welfare for all. Does the Aarogya Setu app achieve this goal? Let’s assess:

This government might be known for promoting technology oriented solutions, such as Aadhaar, UMANG app, m‑passport Seva and MyGov app. However, the problem with Aarogya Setu is that it is being mandated without any proof of efficacy.

In fact, technology and epidemiology experts from Brookings and Harvard University’s Berkman Klein Center have reasoned why contact tracing applications are inefficient to prevent the spread of COVID-19. They have observed that the promoters of these apps have not been taking into account the theory of false positives, i.e. when an individual is claimed positive of contact, and the theory of false negatives, i.e. when an individual might be infected but would be rendered safe, as a result, the promoters of the contact apps are living in an illusion that the apps can do what physical contact tracing performed by medical health professionals does.

In addition to the concerns with respect to the efficacy of the app, it has been pointed out by security experts and civil society members that the technology design and privacy policy of the app are also questionable. The app has the potential to transcend into a tool of mass surveillance for the following reasons:

First, the privacy policy of the app lays down purposes for which data is being collected and they are too broad.

Second, the data of the app can be shared among different government or healthcare institutions, and the privacy policy lays down no restrictions on who can access the data and how.

Third, the state has limited its liability in case of misuse of data collected. Moreover, there is no clarity on the functionality of the app, since it is not an open source app, among other privacy implications.

Mandatory By Linking Essential Services #

The app is also problematic because state and central governments have not just mandated the download of the app to ensure health safety, but they have also mandated the linking of Aarogya Setu to necessary areas of one’s life and livelihood such as citizen’s ability to move across states, return back to employment in an already uncertain economic environment, or travel freely among others, making it a necessity, rather than a real choice.

For instance, in this situation of uncertainty where citizens are worried about their jobs and income, mandating an app on all employees will only force people to download it. It can also be inferred that one’s right to move, earn livelihood, and food, among other rights, are now dependent on an app.

Further, privileging the use of Aarogya Setu as the solution to containing COVID19 is even more disconcerting as it fails to account for the exclusion of the already marginalised communities.

This mandate is capable of excluding 60% of the Indian population due to inaccessibility to a smartphone or a phone with bluetooth and location services and/​or reliable internet. Only 40% of the Indian population possesses a smartphone according to market research firm TechARC India, and only 36% of the Indians have access to the Internet as per reports released by IAMAI.

Even if we were to believe that the app would be made available on feature phones and on the new handsets as is being proposed by the government, the issue of inaccessibility for every individual and at all times would continue to exist. For instance, women are not always allowed to independently own a mobile phone, or households where mobile handsets are shared, such individuals may not possess the phone at all or at all times.

Mandatory requirement of access to a phone with Aarogya Setu app may prevent women from moving freely as they deem fit — which would have severe impact on their agency.

All individuals in India cannot access Aarogya Setu app owing to socio-economic and cultural reasons. Since the access to public spaces would be determined by the access to the Aarogya Setu, individuals who cannot afford to access to the app at all times would be bereaved from their right to life, liberty, movement, healthcare, education and livelihood.

This in turn would imply that this app is violative of fundamental rights enshrined in the Constitution, under Articles 14, 19, and 21.

An Appeal To Revisit The App’s Mandatory Nature #

In light of the manner in which Aarogya Setu has been imposed upon citizens, the functionality of the app, the privacy concerns with the app and the daunting implications of exclusion of marginalised communities, it is apparent that neither does the app ensure protection from COVID-19 nor welfare for all.

Therefore, it is suggested that the government should abandon its strategy of mandating the app. States as well as the Central Government should revisit the existing notifications mandating Aarogya Setu app and make them voluntary.

To prevent further exclusion of the already marginalised communities, the Central and State Governments should provide accessible and practical alternatives for the individuals who cannot access the app.

Lastly, the state should thrive to build systems based on trust and accountability in order to overcome any public health emergency, unlike mandating tech solutionism’ they go a long way in providing the bridge to healthcare for all.