A violation of Right to Privacy- Aarogya Setu app
Vijaya Gupta | School of Law, Bennett University | 30th August 2020
Today, every country in the world is fighting with the novel coronavirus diseases. Many people in the world have lost their lives after getting infected with this virus. The Government of every country has taken various measures to protect people getting infected form this deadly virus. The Government advised the citizens to maintain social distance and take proper precautions while they are out for some work.
The Government of India had announced nationwide lockdown for 21 days in India after the outbreak of coronavirus in the country. The Central and State Government along with various healthcare officials, non-profit government organizations took various steps to protect the citizens and to slowdown the spread of COVID-19 in the country. After 21 days, the lockdown was extended by the Government because of the rise of the coronavirus cases in the country. During the second lockdown, the Central Government launched Aarogya Setu App, a contact tracing app through which the server will record the data of all the people who came in contact with infected people to limit the spread of coronavirus. It is an app which uses both GPS and Bluetooth to determine the location of the users, when and where the person came in contact with the infected person. The App collects various information of a person such as name, gender, age, profession, phone number, travel history, present location, access to the contacts and health status. Within few days, the app had 98 million downloads and was the fastest downloading app of all time. The App records all the data of the person and accessed by the Government whenever necessary. After the launching of the app, every company, local authorities, societies made it mandatory to download the app. The Government also made mandatory for the travelers to download the Aarogya Setu App while travelling through train or flight. The users had privacy concerns in the App as it is collecting personal data and tracking location with Bluetooth and GPS technology. Therefore, the question arises whether the App is invading the right to privacy of the citizen in the country.
VIOLATION OF RIGHT TO PRIVACY
Privacy is an important concept in every life of the person. With the advancement of technology, it is necessary to protect and maintain privacy of each person. In our country, there is no proper data protection law in our country which legally protects the sensitive data of the citizens. With the existing legal provisions such as Information Technology Act, 2000, there is limited protection to the data of the citizens of India. Hence, there is very less protection to data privacy in our country. This issue was raised in the case of K.S. Puttuswamy v. Union of India, it was held that the privacy of the individual is an essential aspect of dignity. The ability of the individual o protect a zone of privacy enables the realization of the full value of life and liberty.
In this landmark judgment Justice DY Chandrachud laid down three fold test for encroachment on privacy– 1) There must be a law in existence to justify the encroachment 2) The intervention must be for fulfilling a legitimate state interest 3) The encroachment should not be disproportionate to the purpose.
Recently, the Ministry of Electronics and Information Technology of India released Aarogya Setu Data Access and Knowledge Sharing Protocol, 2020. In this protocol, the government has given certain clarifications regarding the app such as the data can be used by other departments of the Government. But the protocol did not the clear the fact of using both Bluetooth and GPS for tracking the users and also about the data collected and stored in an anonymized manner.
Privacy is an vital aspect in an individual’s life. Both are protected and an intrinsic part of Article 21. Today, every country is fighting with the novel coronavirus disease and taking different measures in order to keep their citizens safe. One of the measure is the contact tracing app where the app tracks the users using GPS or Bluetooth or both. India also launched a contact tracing app named Aarogya Setu App which uses both Bluetooth and GPS for tracking the users. There were many legal flaws stated in the Aarogya Setu App main being the violation of fundamental right to privacy as per the test stated in the Puttuswamy case. Though the Government is trying to protect the citizens from coronavirus but it is also necessary to protect the privacy of every citizen in the country. The App has different privacy issues and it is important to resolve all the issues the data stored with the Government is for the public interest. The Government can make the App as an open source code and maintain the transparency with the citizens. It should also secure the data within themselves and do not share with the third party. With all these effective changes, the App will create a proper balance between security, privacy and the protection of public health.
 India Internet 2019, Internet and Mobile Association of India, Nielsen, available at https://cms.iamai.in/Content/ResearchPapers/d3654bcc-002f-4fc7-ab39-e1fbeb00005d.pdf, (last visited on August 29, 2020)
 Shashank Mohan, No Covid-19 silver bullet: Aarogya Setu endangers India’s Privacy and Its Usefulness is uncertain, May 12, 2020, available at https://scroll.in/article/961641/no-covid-19-silver-bullet-aarogya-setu-endangers-indias-privacy-and-its-usefulness-is-uncertain, (last visited on August 29, 2020)
 Andrew Clarance, Aarogya Set App: Why India’s Covid-19 Contact Tracing App is Contraversial, May 14, 2020, available at https://www.bbc.com/news/world-asia-india-52659520, (last visited on August 29, 2020)