Constitutionalism During a Crisis: The Case of Aarogya Setu

Abstract

Aarogya Setu is a contact tracing app launched by the Indian government on April 2, 2020, as a tool to combat the COVID-19 crisis. Issues concerning the privacy and security concerns with the app have been discussed extensively. In this short piece, we focus on the issue of lack of legislative foundations and certain practical governance oriented considerations related to the roll out of the app. We begin by considering the principles of evaluating executive action during a crisis and whether extraordinary times truly call for extraordinary measures. We then explore the importance of a clear and specific law and why the Disaster Management Act or Section 144, CrPC fail to provide an adequate legal foundation for the app. We then consider the importance of law and process of legislation and provide certain recommendations on addressing the procedural irregularities and governance related issues that were related to the roll out of the app.

Keywords: Aarogya Setu, COVID-19, privacy, law, legislation, pandemic, judicial review, contact tracing, India, proportionality, crisis, executive action

JEL Classification: K1, K10, K41, Z18