Voluntary but Unlawfully Mandatory: Aarogya Setu App in Bail Orders

Aparajita Kaul

Mandatory imposition of the Aarogya Setu app as a condition in bail orders is unlawful and raises a concern regarding the courts’ discretion in conditional bails.

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The government-propagated Aarogya Setu App (‘the app’) has been fraught with controversy ever since its roll-out. The push to increase the number of users has resulted in the app being made mandatory for various categories of individuals and services. Recently, the centre clarified that the use of the app has to be done on a ‘best efforts’ basis and not mandatorily by employees. Pushback also resulted in The Aarogya Setu Data Access and Knowledge Sharing Protocol, 2020 (‘the Protocol’) being released by the Empowered Group on Technology and Data Management to purportedly address the app’s privacy concerns.

In the midst of this, the app is receiving support from the judiciary. Courts across the country have been mandating the download of the app as a condition while granting bail. Most recently, the Additional Sessions Judge at Patiala House Court directed the applicant to download the app during the period of his interim bail. Bail orders by courts in Madhya Pradesh and Jharkhand have also seen the download of the app along with donation to the PM-Cares Fund, as conditions in bail pleas.

There are two significant concerns that these recent orders raise: first, the mandatory imposition of the app on bail applicants; and second, a larger concern regarding the scope of courts’ discretion while imposing conditions in bail orders, during the pandemic.

Mandatory download of the app in bail orders

While in theory the mandatory installation of the app may not have been ordered by the government, attaching conditions to bail orders can hardly be deemed voluntary usage when the applicant has to choose between downloading the app and foregoing bail. This is a typical example of the ‘voluntary yet mandatory’ push for the app, one which is reminiscent of the centre’s Aadhar agenda. The cornerstone of any collection of data (especially sensitive personal data) needs to be consent. This is recognised in the currently pending Personal Data Protection Bill, 2019 as well. Further, under Section 14 of the Indian Contract Act, 1872, consent is required to be ‘free’. Considering how weak the bargaining power of a bail applicant is when faced with a ‘take-it-or-leave-it’ dilemma, it can hardly be claimed that their consent was free and wilful.

Mandatory imposition also begs the question of the power to order so. The explainer released by Vidhi Centre for Legal Policy (the organisation assisted the Government’s Empowered Group) acknowledges that a valid legal basis would be required to make the app mandatory, otherwise, it would be considered a restriction on the individual’s right to privacy. This is in line with the landmark K.S. Puttaswamy judgment. The judgment made clear that there would be three requirements for any legal restriction: (a) a legislative source (b) proportionality of the restriction and (c) existence of necessity. While it is true that the pandemic would qualify as a necessity, the other two requirements remain unfulfilled (as has been discussed in a post on the blog previously). Even though the Protocol provides some clarity on the processing of data by the app, it is not a legislation for the purpose of providing the app with the requisite legal backing. For a more thorough criticism of the Protocol on other fronts, one can refer to Internet Freedom Foundation’s discussion. When the mandatory imposition of the application has been rolled back in other areas and questioned for want of legality, a different standard cannot be applicable for individuals applying for bail as they continue to have the fundamental rights guaranteed in the constitution. The right to informational privacy is available to them as well.  Unlawfully restricting the bail applicant’s right to privacy strikes at the heart of Article 21 of the Indian Constitution.

Court’s discretion in laying bail conditions

A wider concern these orders raise is the court’s discretion to decide conditions while adjudicating upon a bail application. The pandemic has seen courts impose conditions in bail pleas ranging from the download of the app, to registering as ‘Covid-19 warriors’ and donating to the controversial PM-Cares Fund. At a time when remedying the crisis of overcrowded prisons is the need of the hour (as acknowledged by the Supreme Court itself), imposing arbitrary conditions does not meaningfully contribute toward abating the situation.

The provisions on bail are provided under the Criminal Procedure Code (‘CrPC’). The system of bail was devised to ensure the appearance of the accused or preventing the accused from interfering with the process of investigation or/and trial, and protecting the interests of the society at large. In the case of bailable offences, bail is claimed as a matter of right (see Rasiklal v. Kishore (2009) 4 SCC 446). On the other hand, judges have discretion in granting regular bail in non-bailable offences (Section 437 CrPC) and anticipatory bail (Section 438 CrPC).

Provisions for both anticipatory and regular bail provide the court with discretion to impose conditions while granting bail. Section 438 empowers the court to impose “such other condition as may be imposed under Sub-Section (3) of section 437”. Importantly, a judge is given the discretion to impose any conditions in the “interest of justice” as it considers “necessary” under Section 437(3) CrPC. Further, the High Court and Court of Sessions have special powers to impose “any condition” the court “considers necessary” for the offence in nature under Section 437(3) CrPC (Section 439 CrPC). A plain reading of this evidently empowers the judge to impose any condition which they subjectively deem necessary. However, this must not be interpreted so widely that it defeats the purpose of a conditional bail. While putting forward recommendations with respect to conditions to be imposed in a bail order, in 2017 the 268th Law Commission Report acknowledged that conditions cannot unreasonably violate the constitutional rights of the applicant. It further noted that courts have to ensure that the bail conditions are effective.

Conditions are to be imposed to ensure the accused’s appearance and protect the community, based on the accused’s unique circumstances. This was recognised by the Supreme Court in Sumit Mehta v. State of NCT of Delhi [(2013) 15 SCC 570], wherein the Apex court held that “The words ‘any condition’ used in the provision should not be regarded as conferring absolute power on a Court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail.” This indicates that a nexus is required between the particular facts of the applicant and their case while imposing conditions. Recently, in Sushila Agarwal v. State (NCT of Delhi) [2020 SCC OnLine SC 98], a five-judge bench of the Supreme Court recognised the discretion to impose restrictive conditions but, observed that the same should be “judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency.” Notably, it held that restrictive conditions should not be imposed routinely in all cases.

There is crucial context missing from the bail orders that mandate the applicants to take steps relating to the pandemic. First, how do these conditions align with the purpose behind the provision to impose conditions under bail law and second, why particular applicants merit the imposition of such conditions is unclear. In one order, the condition of being declared as a  ‘Covid-19 warrior’ came with the explanation that the applicant was a “young/middle-aged/able-bodied responsible citizen” and it is their fundamental duty under Article 51-A(d) of the Constitution to assist the government during the crisis. How this has anything to do with the facts of the accused’s case is left unanswered. In fact, similar conditions have been set for applicants accused of varied offences, ranging from under the Narcotics Drugs and Psychotropic Substances Act, to attempt to murder under the Indian Penal Code in a short period of time. This evinces the lack of any particular consideration to the applicant and their case when deciding the conditions to be set. Exercise of the court’s discretion in the interest of justice cannot be turned into a mechanism for arbitrarily imposing conditions, even if it is a time of crisis. Precedents set during this period will carry weight beyond it too.

The Author is a student at the National Academy of Legal Studies and Research, Hyderabad.

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