Tl;dr
Resident Welfare Associations ('RWAs') have nominated themselves as the first line of defence against the coronavirus pandemic. Media reports suggest that RWAs are going well beyond the guidelines issued by the government and mandating use of Aarogya Setu by residents and visitors including domestic workers, drivers, delivery personnel and other service providers. Such measures may be well intentioned but they are illegal because the bottom line is that RWAs are private self-administration bodies which lack the power to issue rules restricting the freedom of movement and right to livelihood of individuals. In lights of this, we wrote to the Ministry of Housing and Urban Affairs, the National Real Estate Development Council and the Ministry of Health and Family Welfare seeking issuance of an advisory which clarifies that use of the Aarogya Setu mobile app cannot be made a precondition for entering residential colonies.
Is it a bird? Is it a plane? No, it is RWAman!
Media reports indicate that Resident Welfare Associations (‘RWAs’) in several cities have made use of the Aarogya Setu mobile app a precondition for residents and visitors such as domestic workers, drivers, delivery persons, service providers etc. As you may know, Aarogya Setu is a COVID-19 surveillance app launched by the Indian government which has been heavily criticized for privacy, security and exclusion related concerns. IFF has opposed mandatory imposition of Aarogya Setu on the litigation, policy, RTI and public advocacy fronts. But before we delve into the legality of rules made by RWAs which mandate use of Aarogya Setu, let us first understand what is the legal status of RWAs themselves.
A Resident Welfare Association is a voluntary body formed by the residents for the residents. It is a self-financed and self- managed association registered under the Society Registration Act, 1860 (subject to state-level amendments). The primary purpose of such an association is to represent the interests of residents of a specific locality/complex and perform the following illustrative functions:
- Represent the residents before the governmental authorities;
- Collect money for maintenance of common areas;
- Establish good public infrastructure for the residents;
- Organize workshops and cultural functions etc.
The government may also issue guidelines to RWAs as seen in the context of the Bhagidari Scheme in Delhi, which aims to promote broad-based civic participation in local governance. The formation of an RWA has also been made mandatory under Section 19(9) of the Real estate (Regulations & Development) Act, 2016.
RWAs are governed by their Memorandum of Association (MoA)/ by laws which contain their objectives and functions. While the by-laws are binding amongst the residents, they lack statutory character and do not have the force of law as clarified by the Bombay High Court. For similar reasons, RWAs cannot issue directions prohibiting residents from keeping pet animals in violation of guidelines issued by the Animal Welfare Board of India under the Prevention of Cruelty to Animals Act.
RWAs turn mini-sovereigns during COVID 19
The role of RWAs during the COVID-19 pandemic is crucial to ensure that residents and visitors are adhering to government guidelines relating to wearing masks and maintaining physical distance in common areas. RWAs are also responsible for maintaining sanitation of common areas and facilitating supply of essential commodities in their locality. Recognizing the importance of RWAs as stakeholders, the National Centre for Disease Control has issued an advisory for RWAs to support and complement governmental efforts to contain spread of the virus.
However, RWAs are slowly morphing from private self-administration bodies to mini-sovereigns in their own right. Several RWAs have taken it upon themselves to impose restrictions which as this news report notes, ‘‘make even the stringent terms of the lockdown pale in comparison.” For example, an RWA in Gurugram has asked its residents to have their domestic help tested for COVID-19 before they can be allowed into the premises. This is clearly inconsistent with testing guidelines framed by the Indian Council for Medical Research (ICMR) - the only competent authority for frame guidelines for COVID-19 testing. In another instance in Noida, permission to enter a housing complex will be granted only if the entrant has a ‘green’ status on the Aarogya Setu app.
The most recent order issued by the Ministry of Home Affairs on 30 May 2020 states that use of Aarogya Setu should be encouraged by employers on a “best efforts” basis and district authorities may “advise” individuals to install the app. The terminology used in these guidelines makes it abundantly clear that RWAs have not been authorized by the government to mandate use of Aarogya Setu among residents and visitors, and they do not have any authority to prohibit entry to residential colonies on this ground.
As we have explained earlier, COVID-19 surveillance apps are susceptible to false positives and false negatives because of inherent limitations of bluetooth technology which is not a perfect proxy for virus exposure. If RWAs were allowed to force residents and visitors to download the Aarogya Setu app and allow entry based on the status displayed on the app, it could lead to wrongful confinement of certain residents and deprivation of livelihood of working class service providers. Residents who are shown by the app to be at risk of COVID-19 could be prohibited from leaving their house or accessing common areas. Further, domestic workers, drivers, delivery persons and other service providers could also be prohibited from entering the colony to do their jobs based on their status on the app.
What can an ordinary resident do?
If you find yourself in a situation with an overzealous RWA, first ask them for a copy of the by-laws and the rules and details of the procedure by which they were adopted. The RWA’s MoA and by-laws will contain the procedure for amending existing rules or adding new rules. Generally, new rules or amendments cannot be made without a General Body Meeting. If the rule making procedure has been flouted, the rules will be invalid.
We also encourage you to have a constructive dialogue with your RWA representatives highlighting concerns about accuracy and privacy of the Aarogya Setu app and explain that official MHA guidelines do not authorize RWAs to require mandatory use of Aarogya Setu. Any rules which are inconsistent with governmental guidelines may be an abuse of power by the RWA and can be challenged in court. Any resident who is aggrieved by arbitrary and unreasonable actions of an RWA can file a suit under Section 6 of the Societies Registration Act, 1860. The RWA can be sued in the local civil court in the name of the President or Secretary.
Representation to Government
We recognize that individual residents and working class service providers may not always have the bargaining power to negotiate with RWAs or approach courts. Therefore, we have written to the Ministry of Housing and Urban Affairs, the National Real Estate Development Council and the Ministry of Health and Family Welfare seeking issuance of an advisory which clarifies that use of the Aarogya Setu mobile app cannot be made a precondition for entering residential colonies.
As researchers at the Centre for Internet and Society note in their recent article on lateral surveillance, the COVID-19 pandemic has witnessed an increase in surveillance by private actors. Residential colonies cannot be controlled by RWAs as mini-sovereigns, and insofar as RWAs impose measures which are inconsistent with guidelines issued by the government, it amounts to vigilantism. During the COVID-19 crisis, the need of the hour is social solidarity and the government has a positive duty to prevent RWAs from engaging in intrusive and arbitrary practices which lack any basis in law and promote a culture of suspicion, stigma and exclusion.
(This post has been authored by Sonalakshi Naidu, a legal intern at IFF, and reviewed by IFF staffer, Devdutta.)
Important Documents:
1. Representation regarding illegal imposition of Aarogya Setu by RWAs (link)