Sustained, strategic litigation helps advance transparency in digital policymaking #SaveOurPrivacy

Updates from the High Court of Delhi on the writ petition of Saurav Das who is challenging the Central Information Commission's order denying him information on Aarogya Setu.

12 April, 2021
5 min read

Updates from the High Court of Delhi on the writ petition of Saurav Das who is challenging the Central Information Commission's order denying him information on Aarogya Setu.

Tl;dr

On April 9, 2021, IFF lawyers represented Saurav Das in a hearing before the Delhi High Court. The hearing related to Saurav's RTI requests in relation to the security and privacy aspects of the development of the Aarogya Setu app. While the Court was unable to hear our matter today, due to a shortage of time we take this opportunity to brief you on this case that relates to transparency around Aarogya Setu, the work and arguments that have gone in it and how we are looking forward to our day in court!

Background

Saurav Das is an independent journalist and a motivated RTI activist passionate about transparency, privacy and fundamental rights. As detailed in our previous post, Saurav approached us to advance his legal remedies for an order dated October 26, 2020 by the Central Information Commission (CIC). The CIC declined to allow him to attend a hearing in respect of the public information officers it had summoned.

This case relates to an unreasonable denial of information relating to  privacy and security aspects of the Aarogya Setu app. Since May 2020, Saurav has been trying to obtain information about creation of the Aarogya Setu mobile app which was launched by the Central Government as a COVID-19 surveillance measure. Many features of Aarogya Setu have led to concerns about its misuse of personal data for commercial and law enforcement purposes.

Through his RTI work, Saurav has managed to uncover information about the Aarogya Setu app that shows  its current functioning does not comply with provisions of the Aarogya Setu Data Access and Knowledge Sharing Protocol. However, there is still a lot of information about the creation of the app which is not available to the public. For this reason, he had filed several RTIs with the relevant government authorities and sought a copy of the entire file relating to Aarogya Setu which would contain information about the origin of the proposal, people and government departments involved, correspondence between private sector executives and government officials, file noting(s), minutes of meetings etc.

An improper denial of a RTI on Aarogya Setu

It is Saurav's case that the authorities did not respond to the RTI for three months even though the RTI Act requires them to respond within 30 days. When they did respond, the Public Information Officers of the National Informatics Centre (which built the App), the National e Governance Division (responsible for e-gov projects) and the Ministry of Electronics & Information Technology (which owns the App) all claimed that information relating to Aarogya Setu is not held by their respective departments. Aggrieved by the lack of a response from the public information officers of these departments, he approached the Central Information Commission (CIC).

The CIC observed that the denial of information by the CPIOs was unreasonable, however, at a hearing dated November 24, 2020, where Saurav was not allowed to attend despite several requests, the CIC issued a final order accepting the government's claim that the information sought by him was already available in the public domain, and declining to take action in the show cause proceedings against the CPIOs. Subsequent to the final order being issued, the government authorities shared certain documents with him which were already available in the public domain but which did not answer the specific queries in his RTI application.

On his instructions and representing him, lawyers from IFF filed a writ petition before the Delhi High Court challenging the CIC’s refusal to grant him a hearing prior to passing the final order which incorrectly disposed of his complaint and dropped the show cause proceedings against the Public Information Officers.

A Tale of Two Charts

The case previously came up for hearing before the Delhi High Court on January 19, 2021, where both parties were directed to file a chart indicating the information sought and the information provided. This would be tremendously useful to the court in narrowing down on the area of controversy. Basically what Saurav asked for and what information has been supplied to him under the RTI Act.

We filed a chart promptly with our best efforts towards demonstrating the specific non-compliance that required the intervention of the High Court. The Respondents, however, filed a chart bringing up multiple RTI requests that Mr. Das had filed in relation to completely different aspects of the Aarogya Setu application. The Respondents also incorrectly claimed that they have responded entirely to all information requests.

At a subsequent hearing dated February 24, 2021, the Delhi High Court granted us one week’s time to file a rejoinder in respect of the Respondents’ chart. We filed a rejoinder reiterating that Saurav’s chart reflects the correct picture of the information sought and received. In a nutshell, the information in the public domain and that provided by the Respondents relates to the functioning and operation of Aarogya Setu. On the other hand, the his request is with respect to the decision making that was carried out away from the public gaze, such as --- proposals, consultations, and other relevant documents relating to the creation of Aarogya Setu - none of which are in public domain and have not been disclosed by the Respondents.

We further pointed out in our rejoinder that the Respondents have failed to answer the substantive case of the Petitioner. Their Compliance Affidavit does not deal with the averments and arguments in the Petition. The Respondents have provided a list of RTI applications filed by Mr. Das relating to  the Aarogya Setu app, emphasising that the Petitioner has filed 9 RTI applications, with 55 total queries, and that no RTI request is pending, to try and paint Mr. Das’ RTI requests as frivolous. However, the nine RTI applications relate to different aspects of the Aarogya Setu app that have no connection with the relevant RTI that formed the subject matter of this petition. We also found and averred that the Respondents initially, incorrectly claimed that no information was available, even though it became evident from subsequent responses, that such information was in fact available with the Respondents all along.

The value of persistence

The case was listed towards the end of the Ld. Single Judge’s board on April 11, and by the time it reached, the Court unfortunately did not have time to hear it. The Ld. Single Judge, however, remarked that she wished to hear the parties at length, and would require a large amount of time to be set aside for arguments. The matter has been posted for August 21, 2021, and we will keep you updated on subsequent proceedings. We are hopeful and remain committed to advance transparency in digital policy making. Applying this value to our work and given the large public interest we are making the pleadings available since they have come on record of the Court.

  1. Writ Petition filed on behalf of Saurav Das (link)
  2. An 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)
  3. Respondent’s Chart showing the information asked for, and the information received (link)
  4. Rejoinder filed on behalf of Saurav Das (link)
  5. Previous post titled 'Delhi HC issues notice to govt in petition challenging denial of RTI regarding Aarogya Setu #SaveOurPrivacy' dated 19.01.2021 (link)



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