Earlier today we facilitated a legal challenge to the Noida Authorities to revoke the mandatory imposition of Aarogya Setu under a threat of criminal imprisonment. As per a legal order those residing or entering Noida have been compelled to install Aarogya Setu. Failing to have Aarogya Setu on your phone would be criminally prosecuted under Section 188 of the Indian Penal Code. To contest this egregious breach of personal liberty, we commenced proceedings of challenge through Ritwik who is an advocate based and residing in Noida. We are making the contents of this representation public to facilitate more people to file similar challenges to Section 144 orders which may arise in different parts of India.
A path to health, or to jail?
The Government's contact tracing app Aarogya Setu literally means a path to health. But as we explained those who do not install it now risk being criminally prosecuted. This is through a direction issued by the Ministry of Home Affairs on which more than 45 organisations and 100 individuals have asked for an urgent review.
To make this direction actionable, the Noida administration issued an order under Section 144 of the Code of Criminal Procedure, 1973 compelling those residing or entering Noida to install Aarogya Setu failing which they would be criminally prosecuted under Section 188 of the Indian Penal Code. This order was also tweeted by the Police Authorities. A copy of it is linked below.
We have detailed concerns and recommendations on the privacy and second order injuries caused by Aarogya Setu. To us it is a, "privacy minefield". From the lack of legality and safeguards there are good, practical reasons (such as it's impact on the battery life of users, or just not having a smartphone) why many people will refrain from having Aarogya Setu. To put is plainly, to criminally prosecute people for not installing a smartphone application even at the time of a pandemic is illegal. Due to this, we were compelled to take steps to challenge this order.
A Section 144(5) Challenge
To activate a challenge to this order, a terse representation was drafted today by Abhinav Sekhri, Advocate to activate a legal process to ensure the personal liberty of all residents of Noida and those who may be seeking to enter it.
This representation is made under Section 144(5) of the CrPC by Ritwick a Advocate and a resident of Noida. The primary grounds of challenge are as follows:
- Contrary to law: Section 144 Orders cannot impose positive obligations on persons to do certain acts, such as download and install an App on their Smartphone, but only direct them to “abstain from a certain act”. Reference may be had to a decision of the Calcutta High Court in Emperor v. B.N. Sasmal [ILR (1930) 58 Cal 1037] where orders under Section 144 directing a person to leave the district were struck down as illegal, and the Court noted that “The very reason why the section uses the language ‘abstain from a certain act’ is just because it is not intended to empower magistrates to make positive orders requiring people to do particular things.” This position was also upheld in Ramanlal Patel [1971 Cri LJ 435].
- Contrary to fact: The Impugned Order is also contrary to fact. It is clear that the Advisory issued by the Union Ministry of Home Affairs requires 100% installation of the “Aarogya Setu App” within Containment Zones and nowhere else (Para 3 of the Advisory). The entirety of District Gautam Buddha Nagar has not been declared a “Containment Zone” as per the notifications issued by the State Government, but only a “Red Zone”, where 100% installation of “Aarogya Setu App” is not required as per Lockdown Directives.
- Violation of privacy and personal liberty: The Impugned Order amounts to an unconstitutional breach of the fundamental right to privacy secured under Article 21. The “Aarogya Setu App” collects personal data in the form of medical information to which a reasonable expectation of privacy attaches as identified by the Supreme Court in K.S. Puttaswamy [(2017) 10 SCC 1]. Any sharing of such information requires clear consent, which is missing from prohibitory orders under Section 144, Cr.P.C. which work on a threat of prosecution.
A ready template (but, not legal advice)
To enable more people -- not only residents of Noida – to prefer similar challenges we are making a copy of this representation available in google docs so it may serve as a template for necessary action. While this does not constitute legal advice, we hope it accelerates the pace of citizen collaboration to safeguard individual privacy and personal liberty.
We will actively work to ensure that such orders that imperil you do not go unchallenged. As a public centred organisation, IFF will conduct rapid responses and relentlessly champion your right to privacy through this pandemic.