Aarogya Setu app is mandatory to be downloaded: What does law says?
The Ministry of Home Affairs announced on May 1 that it would be mandatory for all the private and public employees to have Aarogya Setu app. The order said that head of every organization would be responsible for ensuring 100 per cent coverage of the contact tracing app among employees.
The order was issued as per the National Disaster Management Act (NDMA), 2005 which said that the districts will be divided into three zones – Red Zone, Orange Zone and Green Zone. In containment areas within red and orange zone, local authorities have to ensure 100 per cent coverage of the corona contact tracing app.
You must be wondering if the government or the employer can force you to download the app and enter your important data. Well, the answer is no. They can’t.
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Can the government force you to download the app?
The government has issued the order to make this app mandatory under the National Disaster Management Act, which falls under the concurrent list. This means the centre can request the state government to follow these guidelines as much as they can. Project manager at Centre for Communication Governance, National Law University-Delhi, Shashank Mohan said , “legally, the government can not ask the people of the country to install the app and enter sensitive details like name, age, gender, preferences. The government can’t take this data without citizen’s consent.”
Constitution expert and lawyer Gautam Bhatia writes that the NDMA cannot be such law which asks the citizens to put sensitive information without consent because there is nothing written about the circumstances, manner and limitations under which government is authorized to infringe or limit civil rights.
Can the employer force you to download the Aarogya setu app?
In the case of both public and private employees, the employer has the right to process only certain data (mostly salaries) without the consent of the employee as per the Personal Data Protection Bill. The employer needs the consent of its employee when it comes to sensitive Data and health is a sensitive data, added Shashank Mohan.
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A Supreme Court Privacy Judgement in 2017, suggests that while privacy is a fundamental right, none of our rights under the constitution are absolute. Justice DY Chandrachud, who was one of the members of 9 judges, wrote in his judgement that in case of health epidemic like dengue, the government might be in a situation where they want to gather the data to manage and monitor the epidemic. But in such a case, the government has to anonymise the data to use it.
Notably, niether the Epidemic Disease Act and nor the NDMA authorize the government to collect such data to achieve this objective even if government says it is important.
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