Aarogya Setu: Mandatory or not? We traced it for eleven months through our Tracker

by Tanisha Ranjit

We traced whether Aarogya Setu was mandatory or not during the last 11 months from 8 May 2020 to 1 March 2021. The government claimed it wasn’t, but practice seemed to play out differently.

Here is what we found.

On 2 April 2020, the Government of India launched the Aarogya Setu app with the stated intention of curbing the pandemic. While initially termed voluntary, we noticed that soon after its launch, the app started to be pushed by various governments, non-government establishments, and private bodies as mandatory, or was forced on people in other ways. The prescription of a state-sponsored app raised many concerns. As we have noted earlier, in addition to the issue of data privacy and security, such an imposition can lead to an infringement of a broader range of fundamental rights. It can exclude those who do not have access to a mobile phone. Concerned about these consequences, especially on marginalised people and groups, we therefore launched the Aarogya Setu tracker on 8 May 2020, to document all such instances. Access the Aarogya Setu Tracker here.

As the number of new instances of the app being made mandatory seems to have gone down considerably this year, at least for now, we have now decided to close the tracker. Although we may have missed out on some cases, especially in regional languages or those that are not reported by national newspapers, we have attempted to make the tracker as comprehensive as possible until 1 March 2021. However, new instances emerging after that date will no longer be added.

At present, there are a total of hundred and fifty-five instances recorded on the tracker. Out of this number, in seventy-four cases the app was made mandatory. In ten cases, at the time of documentation, the app was proposed to be made mandatory in the future. In fifteen cases, the app was used in a manner that compelled people to download it. For instance, in several cases noted on the tracker, individuals have been directed by courts to download the app in order to get bail. This practice has continued till date, as seen with the recent case of activist Umar Khalid being directed to download the app by the Delhi High Court as a bail condition. Lastly, there are fifty six cases of the app being strongly recommended or advised.

But the journey of this app has not been linear. On 17 May 2020, the Ministry of Home Affairs had changed its stance on the app from mandatory’ to best efforts’ and advise’. Five days after the order was issued, we had argued that data from the tracker showed that the app was continuing to be made mandatory, in direct contradiction to the order. Eleven months since that post, things have not changed entirely: while the majority of orders passed by the Central Government after the 17 May 2020 order have echoed the language of advise’, the change has not been consistent, as between 24 May 2020 and 1 March 2021, the tracker records seven additional orders passed by the Central Government making the app mandatory for various purposes. Sometimes the same Ministry has made the app mandatory in one case but not another. For example, on 13 February 2021, the SOP on preventive measures to contain the spread of COVID-19 in offices’, issued by the Ministry of Health and Family Welfare (MoHfw), stated that all visitors and employees at offices had to install and use the app. On the other hand, guidelines passed for international arrivals on 17 February 2021 by the same Ministry merely advised downloading the app. On 1 March 2021, the MoHFW issued six SOPs on preventive measures to be undertaken in restaurants, shopping malls, hotels, religious places etc. Interestingly, in all of these too, the use of the app was only advised. The reason for these inconsistencies has been unclear.

Over the last eleven months, the tracker has been used by various privacy activists, journalists, researchers, and concerned individuals to trace the journey of the app. For example, privacy activists used the tracker in a challenge in the Karnataka High Court to the voluntary-mandatory imposition of Aarogya Setu and invasion of privacy rights in the absence of specific legislation governing data collection and processing by it, in Anivar A Aravind v. Ministry of Home Affairs, GM PIL WP © 7483 of 2020. The Court subsequently requested that the tracker be put on the record in the case.

In the past, we have seen how tech tools have followed the slippery slope of mandatory-non mandatory’ in other contexts, having a detrimental impact on lives. The tracker has helped in documenting cases in real-time to ensure greater accountability of those in power. We would like to thank everyone who has contributed to the tracker and this journey in various capacities.