The notice outside the passport service centre in Dehradun 'advises' downloading Aarogya Setu but the security personnel at the entrance compel passport applicants to download the app (Photo: Hemant Gairola)

Dehradun, Uttarakhand: The Centre might have deposed in the court that its contact-tracing app Aarogya Setu is not mandatory but government documents and ground reality prove otherwise.

An interim order of Karnataka High Court (HC) categorically states that the government cannot deny any service to citizens for not installing the app. Yet passport applicants are not allowed to enter Passport Seva Kendras (PSKs; Passport Service Centres) until Aarogya Setu app in their smartphone shows them marked safe. Effectively, no Aarogya Setu means no passport. 

The Centre had pushed the app, developed by its IT arm, as mandatory after its launch in April last year. It was made compulsory for access to airports, trains, schools and offices (government as well as private). Not downloading the app had become a punishable offence for smartphone users in several cities in north India. These moves led to widespread criticism and the Centre, in principle, withdrew the mandatory status of the app via an order on May 17. Nonetheless, Aarogya Setu remains mandatory at PSKs till date.

This reporter visited the PSK at Dehradun, Uttarakhand, this June and found that entry was strictly prohibited for applicants until they installed the app. In Mumbai, a woman was not allowed inside the PSK at Malad last September for refusing to install the app. She then filed a case in Bombay HC.

About a dozen posts on Twitter note, rue and begrudge the fact that the PSKs do not let people in without Aarogya Setu. These tweets were shared from cities such as Bangalore, Jaipur and Ahmedabad between June 2020 and March 2021, long after the app’s mandatory status was withdrawn on paper.

One such tweet reads: “I’m going to the passport office, where they don’t let you in if you don’t have a certain app installed. The government has finally bullied me into downloading Aarogya Setu.”

Government’s claim vs RTI

A petition was filed in Karnataka HC last year to avoid precisely this scenario. Besides challenging various aspects of Aarogya Setu, it sought directives to the government to not make the app mandatory and not deny any service to citizens if they do not have the app. The Centre’s response, supported by an affidavit, states: “It is not at all mandatory to download Aarogya Setu.” It reiterates: “The government has not passed any such orders [making the app compulsory for government services].” 

However, documents obtained under the Right to Information Act show that an order was indeed passed to make the app mandatory at the PSKs and that it is still in effect. The Ministry of External Affairs (MEA) had issued an order to all passport offices on May 14 last year, explicitly stating: “Aarogya Setu mobile App to be made mandatory for all employees and applicants.”

101Reporters filed an appeal with the MEA and questioned the validity of this order. The appeal contended that this order was null and void in the wake of the two developments that came after it was issued: (i) the Centre revoking the app’s mandatory status; and (ii) Karnataka HC’s interim order.

101Reporters requested the MEA to provide a copy of the latest/updated order that is in alignment with the aforementioned decrees. The MEA’s reply, dated July 22, 2021, upheld its last year’s order as the grounds to deny service to passport applicants who have not installed Aarogya Setu. 

An email with further questions to the officials concerned of the passport division and the spokesperson of the MEA elicited a response from the passport helpdesk. It reads: “...as per mandatory requirements imposed by the Ministry due to COVID, it is necessary to have Aarogya Setu Application for the safety of applicants.”

Court’s order

Karnataka HC’s interim order in the case challenging Aarogya Setu says: “...in the absence of any legislation, neither the State Government nor the Central Government or its agencies or instrumentalities can deny any benefits to a citizen only on the ground that he has not installed the Aarogya Setu app on his cell phone.”

The HC had passed this interim order on October 19 last year. The final verdict is awaited. The case was filed by public-interest technologist Anivar Aravind. He told 101Reporters over the phone that the MEA is clearly violating the HC’s order by imposing the app on passport seekers. Central government counsel in the case, Kumar MN, said he should not comment on the MEA’s stance since the case is sub judice.

Hassles & harassment

Meanwhile, the decision to move the court worked out for Mumbai applicant Tanya Mahajan, who was not allowed inside the PSK last year. After the HC took up the case, the PSK officials called her up and said she could get her passport made without needing Aarogya Setu. Subsequently, her court case was disposed of.

Mahajan navigated this case with the support of a legal services organisation that works towards protecting freedom in the digital world. Volunteer legal counsel Apurva Singh of the organisation—Software Freedom Law Center (not to be confused with the US organisation by the same name)—told 101Reporters that Mahajan was turned away from the PSK last September and could get her passport renewed only in March this year.

The process that normally takes about two weeks took her more than five months. Plus, Singh pointed out, the applicant had to put up with the hassles of serving a legal notice and filing a case to get her passport. She said the PSK officials told Mahajan during her second visit that they have instructions to insist on Aarogya Setu, which is why they had denied her entry the first time.

Singh mentioned the Centre’s order that revoked the app’s mandatory status last year and asked organisations to “ensure” that it is installed on a best-effort basis. “Best effort doesn’t mean that you deny entry to someone for a government service.”

De facto mandatory

Singh said passport officials have made Aarogya Setu de facto mandatory on the lines of Aadhaar. (Legally speaking, Aadhaar is voluntary but has become a must to avail of a host of essential services.)

Internet Democracy Project’s Aarogya Setu Tracker found dozens of instances of organisations, both private and government, pushing people to download the app. Legal experts have argued that imposing the app has no legal or constitutional basis.

Concerns & criticism

The petitioner in the Karnataka HC case, Aravind, said contact-tracing technology’s failure in containing Covid has been proven the world over. He said the app ought to be retired but it is still being pushed and repurposed in the name of vaccine registrations.

The app marks people as safe or otherwise based on their recent movement history. Hence, it cannot tell if a person is indeed safe immediately after it is installed. Nonetheless, passport applicants who do not have the app are made to download it on the spot and show their safe status to gain entry. So what purpose is served by installing the app right before entering the PSK? Passport officials did not respond to the question.

Contact-tracing technology works by continuously collecting users’ location data. This has triggered concerns that the government could misuse the app for surveillance purposes. The app’s policies regarding how it stores and shares users’ location data have also been called into question.

“Aarogya Setu is like a low-cost Pegasus-like functionality pushed to individual mobiles, collecting their social graphs and locations,” Aravind alleged.

Inconsistent claims

Nine days after the passport helpdesk stated in an email to 101Reporters that the app is mandatory, the passport division sent another reply. Bearing the name and signature of the Director of Passport Seva Programme (PSP), Ashok Kumar Singh, it states that the app is not compulsory for applicants. It says that via an order dated September 17, 2020, the app “was made mandatory for employees only and RPOs [Regional Passport Officers] were instructed not to make Aarogya Setu app mandatory for the applicants.”

The second instruction does not appear in the aforesaid order, which merely states that passport office employees must use the app. 101Reporters filed another RTI request with the MEA and sought a copy of this particular instruction. The reply is still awaited.

Dehradun RPO’s response to 101Reporters’ RTI request might indicate how clear and effective, or otherwise, the MEA’s purported instruction was. 101Reporters sought a copy of the latest order(s) on the basis of which Dehradun PSK refuses entry to app-less applicants. The RPO furnished a copy of the MEA’s May 14, 2020, directive, which explicitly calls for making the app mandatory for everyone.

101Reporters filed a First Appeal, contending that this order was void but PSP Director Singh—as the First Appellate Authority of the passport division—upheld this order and, by implication, the app’s mandatory status. But a mere 15 days later, his statement to this reporter claimed the app is not mandatory. 101Reporters has requested a clarification on the contradictions in his stance. This story will be updated if and when a response is received.

Update: On August 6, this reporter filed an RTI application and wrote to senior officers of the passport division to seek a copy of the order through which the MEA explicitly instructed RPOs not to make Aarogya Setu mandatory for passport applicants. The very day, the MEA passed the order.

MEA explicitly instructs RPOs not to make Aarogya Setu mandatory for passport applicants