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The Union home ministry’s order making the use of Aarogya Setu contact-tracing app mandatory for every working person in India will be hard to enforce in the absence of a personal data law, spawning legal challenges aimed at protecting the right to privacy, experts said.

The ministry said on Friday that all government and private employees must download the app, which is aimed at informing users of the potential risk of covid-19 infection. It said the heads of all public and private organizations will be responsible for ensuring 100% compliance. Some companies that have resumed work said that they have asked employees to use the app. Experts said that while it is a good way to detect covid-19 cases, a company may not be able to force an employee to use the app.

“There can be practical challenges in terms of enforcing employees to install the Aarogya Setu app. However, we have not come across any instance where employees have refused to use the app. In case someone refuses to use it, I don’t think a company can be held liable for it by law," said Ashish Aggarwal, senior director and head, public policy and advocacy, Nasscom.

“Nasscom has reiterated that the industry should ensure that employees are using the app. We see this as a safety measure which is in the interest of the industry and employees," Aggarwal added.

“This is going to open up a Pandora’s box of legal issues and litigation. It violates the fundamental right to privacy. Now that the Supreme Court says right to privacy is part of Article 21, it can only be deprived in accordance with procedure established by the law. There is no Act passed by Parliament which authorizes making this app mandatory," SC advocate Pavan Duggal said.

A personal data protection Bill, which was drafted by the ministry of electronics and information technology in December last year, is still in the works. It was being discussed by a joint select committee of both Lok Sabha and Rajya Sabha, after which it has to be debated in Parliament.

A senior government official said that the committee had not yet suggested changes. “It may take time for the Bill to be passed, as we don’t know about the status of the upcoming Parliament sessions," he said, requesting anonymity.

The Bill aims to build a framework to preserve the sanctity of consent in data sharing, and penalize those breaching privacy norms.

Experts said India is the only democratic country that has mandated the use of a contact-tracing app for its citizens and this is likely to further exclude sections of population that may not have access to a smartphone.

“The government has gone back on its earlier promise on the Aarogya Setu app being voluntary. There is no reason for India, which is similarly placed as other countries to do things in a way that affects the rights of citizens," said Prasanth Sugathan, legal director, Software Freedom Law Centre (SLFC).

Aarogya Setu seeks continuous access to location information for its social movement graph and uses bluetooth technology to alert people when they come in contact with someone infected with covid-19. Most contact-tracing apps work on the same principle.

“When you don’t have a functioning data protection bill, all arguments related to data protection for Aarogya Setu are limited around Puttaswamy judgment (right to privacy), which talks about necessity, proportionality and reasonableness," said Aman Nair, policy officer at Centre for Internet Society.

“That is why you need a data protection bill and a sunset clause to ensure the data is specifically used only for covid-19 and nothing else," Nair added.

Prime Minister Narendra Modi has been urging citizens to use the Aarogya Setu app to prevent the spread of covid-19. Last week, in his meeting with all state chief ministers, Modi spoke about popularising the app and asked them to ensure downloads in greater numbers. The app had nearly 8 crore downloads since its launch on April 2. Aarogya Setu has already set a record by becoming the fastest to have ever reached a 5 crore install-base.

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