The Constitutional Case against Aarogya Setu
Anmol Dhindsa, Sashwat Kaushik · SSRN Electronic Journal · 2020
In 2017, a democratically-elected government stood before the Supreme Court and argued that it had complete and absolute right over the lives of its citizens. It referred to privacy as an “elitist” concern, that its surveillance powers has no constitutional limits and no fundamental right to privacy was guaranteed by the Constitution. The Court disagreed unanimously. Twice thereafter, The Narendra Modi government attempted to circumvent the Supreme Court’s judgement. First through the mandatory, expansive and unjustified use of Aadhaar, which was pruned substantially by the court. And second, by issuing an executive notification making the installation of Aarogya Setu app mandatory. The app has witnessed a metamorphosis from voluntary, voluntary-mandatory to effectively mandatory. The paper aims to answer (a) how the recent MHA order which dilutes the mandatory imposition of the app does little to no dilution of the mandatory imposition. (b) Privacy concerns that survive the ‘Aarogya Setu Data Access and Knowledge Sharing Protocol 2020’ and (c) legal lacunae the Protocol fails to address.