This article has been written by Manhar Mahajan, pursuing the Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.
Table of Contents
Introduction
Right to Information Act, 2005 is a statute enacted by the Parliament of India, setting forth the provisions regarding citizens’ right to information. As per the relevant provisions of the Right To Information Act, a citizen of India may seek information from a public authority ( anybody of the government or instrumentality of the State) which is required to reply as expeditiously as possible and in any case not later than thirty days from the date of request. However, in case the information sought is related to any matter involving any person’s life and liberty, the information is to be provided within forty-eight hours of the request. The responsibility of providing the information lies with the Central Public Information Officers or the State Public Information Officers.
Right to Information has been considered to be a fundamental right implicit in the ‘Right to Freedom of Speech and Expression’ under Article 19(1)(a) of and in the ‘Right to Life and Personal Liberty’ under Article 21 of the Constitution of India.
In Prabhu Dutt v. Union of India, the Supreme Court held that the right to know news and information regarding the administration of the government is included in the Right to Freedom of Speech and Expression.
In R.P Ltd. v. Indian Express Newspaper, the Supreme Court held that the right to know is a necessary ingredient of participatory democracy. The Court observed that Article 21 entails the right to hold a particular opinion and for the purpose of sustaining and nurturing their opinion the Article 21 confers on all persons the right to know.
The main objective of the Right to Information Act, 2005 is to empower the citizens, promote transparency and accountability in the working of the government and make our democracy work for the people in real sense. It is obvious that an informed citizen is in a better position to keep necessary checks on the functioning of the government and make the government more accountable. RTI ensures a proper vigil over the government.
During the Covid-19 pandemic the Government of India launched a contact-tracing mobile app, Aarogya Setu, which attracted several controversies regarding the Right to Information.
Aarogya Setu app
In Sanskrit ‘Aarogya Setu’ means the bridge to liberation from the disease. Aarogya Setu is an Indian COVID-19 contact tracing mobile app, developed by the National Informatics Centre under the Ministry of Electronics and Information Technology (MeitY). The app also performs the functions of syndromic mapping and self-assessment digital service. To tackle the coronavirus pandemic the app purports to identify the hotspots effectively.
The purpose of the app is to spread awareness of coronavirus and to connect essential coronavirus related health services to the people of India. The app supports the initiatives of the Department of Health to control coronavirus spread and share the best measures to curb the spread of infection. Aarogya Setu app helps to track coronavirus infection using the smartphone’s GPS and Bluetooth features. The app uses Bluetooth feature to ascertain if one has been near a COVID-19 infected person, by scanning through a database of known cases across India. If one comes within a range of six feet of an infected person then it gets detected by the bluetooth. The app using the data available determines whether the area in which one currently is belongs to an infected area or not. This is determined using the GPS feature of the phone. [6]
Problems that arose with Aarogya Setu
The contact tracing app has been criticised due to various issues. These include data privacy, safety, and many other legal issues. The application has been imposed through the executive order instead of legislative sanction and, therefore, the app breaches the right to privacy. The safety issue arose for the first time when concern about bugs in the application was raised before the central government. This concern was raised by a French ethical hacker. However, the National Informatics Centre, the creator of the app, contacted the hacker and cleared all the issues. After forty-nine minutes the hacker tweeted that the issue had been resolved.
There are several liability concerns with the Aarogya Setu App. The Aarogya Setu app gathers the data of its users. The app claims to delete such data within thirty days. It attracts several liability concerns as the user has no control over his personal data. If the app fails to produce accurate results or if the user provides inaccurate details, the liability terms of the application exclude the liability of the Government. So, if the personal data of the person is leaked, the terms of usage exonerate the Government from its liability. As once the user agrees and acknowledges the terms and conditions of the app he is contractually bound by such terms and conditions. Therefore, users would not have any legal recourse available with them in case of any data breach.
RTI row over the Aarogya Setu app
RTI activist Saurav Das filed various RTI applications relating to the Government’s contact tracing app. He had filed the RTI requests requesting details over the App’s creation. The information sought included the origin of the app’s proposal, the approval process, the involvement of Government departments, and any communication with private individuals contributing towards App’s development. The RTI request was filed on 1st August, 2020.
The information officers failed to issue a proper response to the RTI requests. The information officers, on August 7, informed him that the RTI application had been transferred to the Central Public Information Officer (CPIO) of the National e-Governance Division (also part of MeitY).
On October 2nd, nearly two months later, the NeGD responded to the application stating that they had no information at all to provide him. Das then filed a request for an urgent hearing at the Central Information Commission (CIC), citing the matter as one of “immense public interest”.
On 22nd October, the CIC conducted the hearing over the matter. At a hearing conducted by the information commission, information officers from the MeitY admitted that the ministry had no information relating to the app’s creation.
When questioned over the origin of the app, the CIC noted that one of the ministry’s CPIO could provide no plausible explanation except that the creation of the same involves inputs from NITI Aayog. He was also not able to answer why the ministry did not have the information either. The CIC slammed the information officers for having no clue about the app’s origin.
The CIC issued show-cause notices to the CPIOs of the MeitY and NeGD asking them why action should not be initiated against them under Section 20 of the RTI Act for their failure to provide the information without any reasonable cause.
However, the CPIOs apologized before the CIC for their failure to provide proper information to the RTI applicant and elucidated that the same had happened due to the information being scattered in different government departments and due to the fact that proper coordination between the various concerned agencies was not undertaken. It was also clarified that all the information pertaining to the Act is already in the public domain. The proceedings against the information officers were dropped as the CIC observed that there was no malafide intent on the part of the information officers.
During the course of the hearing, the CPIO of NeGD informed the CIC that the requisite documents including privacy policies, details of usage, etc., of the Aarogya Setu App were made available on the Aarogya Setu portal itself.
The ministry also informed that the information about the App’s creators can be found on Github, along with the App’s source code.
What can be done to avoid the RTI controversies
By providing evasive answers to the aforementioned RTI request the Government has violated the basic purpose of the Right to Information Act, which is promoting transparency in the working of the Government.
To ensure compliance with the Right to Information Act there is a need for the introduction of proper mechanisms and regulations.
The Government should adopt an open data policy. The Government institutions should put all necessary information on their respective websites. By this, the petitioners may immediately access whatever information they need. This is a means of self-disclosure. This will also reduce the burden of the department to provide information which takes much of its valuable time.
There should be proper coordination between various departments of the government. At times, the information is scattered between various departments of the government and due to lack of proper communication and coordination between the different departments, there is either a total failure to provide the information requested or there is a huge delay in providing the necessary information. Thus, there should be proper communication and coordination between the government departments so that timely disclosure of the necessary information can be made to the concerned applicant.
The information officers should be properly trained in the matters they are dealing with in their respective departments and they should also be well versed with the requirements of the Right to Information Act, 2005.
Conclusion
The Indian Government’s initiative of developing a contract tracing app is a commendable step as it effectively helps in ascertaining whether a person has come in contact with any infected person and in discovering the hotspot areas. However, the Government should clear all the privacy and safety concerns of the people regarding the usage of the app. The Government should disclose all the relevant information on the portal of the Aarogya Setu so that the trouble of going through the whole RTI application process is dispensed with and the precious time of the Government and the public is not wasted.
References
- http://www.legalserviceindia.com/article/l88-Right-To-Information.html
- https://rti.gov.in/#:~:text=The%20basic%20object%20of%20the,to%20keep%20necessary%20vigil%20on
- https://www.livemint.com/technology/tech-news/french-hacker-finds-security-issue-in-aarogya-setu-says-rahul-gandhi-was-right-11588697775275.html
- https://blog.ipleaders.in/aarogya-setu-app-how-safe-is-it/
- https://www.timesnownews.com/india/article/explained-the-curious-case-of-the-missing-aarogya-setu-developer/674404
- https://www.livelaw.in/news-updates/aarogya-stu-rti-row-cic-drops-cpios-issues-advisory-to-ensure-that-aarogya-setu-website-is-up-to-date-166460
- https://www.timesnownews.com/india/article/explained-the-curious-case-of-the-missing-aarogya-setu-developer/674404
- https://github.com/nicdelhi/AarogyaSetu_Android/graphs/contributors
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
