Delhi High Court directs government to submit affidavit confirming lack of written records in Aarogya Setu’s development

Updates on Saurav Das’ writ petition before the Delhi High Court, where he is contesting the Central Information Commission’s decision to withhold information related to Aarogya Setu.

16 September, 2023
4 min read


tl;dr

On September 15, 2023, the IFF legal team represented Mr. Saurav Das, a Right to Information (‘RTI’) activist and independent journalist, in a hearing before the Delhi High Court. This legal proceeding related to RTI requests under the Right to Information Act, 2005 (‘RTI Act, 2005’) filed by Mr. Das concerning the security and privacy dimensions involved in the development of the Aarogya Setu (India's COVID-19 contact-tracing app), and the government’s inadequate response that the information sought about the app’s creation was already in the public domain. The Delhi High Court has now directed the Union Government to submit a specific affidavit, attesting to an absence of comprehensive file notations throughout the app’s creation process.

Why should you care?

Since its launch during the initial wave of COVID-19, Aarogya Setu has faced significant criticism, from lack of transparency to concerns related to privacy, security and potential misuse. Shortly after its release, Mr. Das submitted a series of RTIs to unearth information about the app’s genesis. However, frustrated by the absence of any response, he escalated the matter by lodging a complaint with the Central Information Commission (‘CIC’), which yielded no results. Aggrieved with the CIC’s decision, Mr. Das, with legal assistance from IFF, filed a writ petition before the Delhi High Court. The Delhi High Court has now directed the Union Government to confirm the absence of comprehensive written records related to the app’s development.

Proceedings before the Delhi High Court

On September 15, 2023, IFF Of-Counsel, Adv. Vrinda Bhandari argued before the Delhi High Court, asserting that, contrary to government’s claims, the information sought by the Petitioner concerning the development and creation of the Aarogya Setu app had not been furnished by the government till date.

The Court orally observed that the CIC’s order appeared to lack proper consideration and indicated a non-application of mind, and it found that the information provided by the government was incomplete and did not address several of the queries raised by the Petitioner.

Adv. Vrinda Bhandari also raised the issue of the CIC’s failure to grant Mr. Das a hearing before passing the final order. The Petitioner had earlier submitted that CIC misinterpreted the Delhi High Court’s judgement in Ankur Mutreja v Delhi University, which stated that CIC had to “decide” if the applicant’s presence is necessary during penalty proceedings and clarified that the CIC has the discretion to allow it.

In response, the Government counsel maintained that no further information was available with the government, and that everything of relevance had already been made publicly accessible. He defended the absence of comprehensive file notations and detailed written records during Aarogya Setu’s development, by submitting that the app had been developed in record time "on a war footing” where the priority was to save lives.

Following arguments from both sides, the Court directed the Government counsel to submit a specific affidavit putting on record the absence of comprehensive file notations during the app’s creation process, and confirming that no additional records of discussions and decision-making were available with the government. The Court granted the Government four weeks’ time to file the affidavit.

Background

Saurav Das is an independent journalist and dedicated RTI activist, driven by a strong commitment to uphold transparency, privacy, and fundamental rights. Mr. Das had sought our legal assistance in addressing an order passed by the CIC dated November 24, 2020, wherein the CIC had denied him attendance at a hearing involving Public Information Officers (‘PIOs’) it had summoned, despite repeated requests. The case pertained to the unjust withholding of information concerning the privacy and security aspects of Aarogya Setu.

Since May 2020, Mr. Das had been trying to obtain details about the creation of Aarogya Setu, since there were numerous concerns regarding the app’s potential misuse of personal data for commercial and law enforcement purposes. Subsequently, through his RTI efforts, Mr. Das uncovered information indicating that the operation of Aarogya Setu did not align with the provisions of the Aarogya Setu Data Access and Knowledge Sharing Protocol.

Further, contrary to the government’s claims, a significant amount of information regarding the app’s creation remained unavailable in the public domain. Consequently, starting May 2020, he submitted multiple RTIs to relevant government authorities, seeking a comprehensive file containing details about the proposal’s origin, involved individuals and government departments, communications between private sector executives and government officials, file notations, meeting minutes, and more.

Mr. Das contended that authorities failed to respond to his RTI request for three months (despite the mandated 30-day period provided under the RTI Act, 2005). When they eventually responded, the PIOs from the National Informatics Centre (the app’s developer), the National e-Governance Division (overseeing e-gov projects), and the Ministry of Electronics & Information Technology (the app’s owner) all asserted that their departments do not possess information related to Aarogya Setu.

Aggrieved by denial of information from the concerned PIOs, Mr. Das filed a complaint with the CIC. The CIC noted that the refusal of information by the PIOs was unreasonable. Nevertheless, during the November 24, 2020 hearing, related to which Mr. Das repeated requests to attend were denied, the CIC issued a final order endorsing the government’s position that the information sought was already in the public domain. Further, the CIC declined to initiate any action in the show-cause proceedings against the concerned PIOs. Following this, Mr. Das’ legal representatives from IFF filed a writ petition before the Delhi High Court to contest the CIC’s final order.

We will continue to provide legal support to Mr. Saurav Das in their efforts to seek greater transparency and accountability relating to the privacy of Indian citizens. We are immensely grateful to Adv. Vrinda Bhandari for leading us in the matter. She was assisted by Advocates  Abhinav Sekhri, Tanmay Singh, and Gayatri Malhotra.

The matter has been listed next on November 2, 2023, and we will keep you updated on subsequent case proceedings.

This post has been authored by Litigation Intern Raghu Gagneja, and reviewed by Senior Litigation Counsel Tanmay Singh and Associate Litigation Counsel Gayatri Malhotra.

  1. Order dated September 15, 2023 [Link]
  2. W.P. (C) 10873/2020 filed on behalf of Saurav Das [Link]
  3. Application to file additional documents on behalf of Saurav Das, containing our Chart (at pages 131 - 139) showing the information asked for, and the information received [Link]
  4. Respondent’s Chart showing the information asked for, and the information received [Link]
  5. Rejoinder filed on behalf of Saurav Das [Link]
  6. Previous blog post titled “Sustained, strategic litigation helps advance transparency in digital policymaking #SaveOurPrivacy,” dated April 12, 2021 [Link]

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