The leader of the opposition in the Kerala assembly, Ramesh Chennithala of the Congress has approached the Kerala High Court seeking cancellation of the State Government’s deal with a US tech firm for processing COVID19 related data of Keralites. IN a separate petition, BJP leader K Surendran also demanded the same.
In his petition, Chennithala has named Kerala Chief Minister Pinarayi Vijayan and IT secretary M Shivasankar as respondents. “The agreement was signed without the knowledge of the Cabinet or the government. It is a mystery that such an agreement was signed with the jurisdiction of a court in New York court. Therefore, it is urgent to stay the data collection of the company,” the petition said.
“And the amount of compensation for patients must be billed from the Chief Minister and the IT Secretary. The court must intervene to ensure that this amount is transferred to COVID-19 patients,” it added. Surendran also sought a vigilance enquiry into the agreement in his petition.
“The Department of Health has had data of more than one crore people since 2014 as part of the e-Health programme. This must be protected and the agreement with the US company should be cancelled,” his petition said. A batch of petitions is already pending before the High Court in the matter.
It is alleged that no informed consent was obtained from data providers, and purpose for which data was so collected was not disclosed.
Points for consideration filed by leader of opposition are as follows:-
1. Whether an agreement can be executed legally with US based IT Company on behalf of State of Kerala without Government authorisation as required under Article 299(1) of Constitution and without approval of concerned Departments including Law Department as required under Rules of Business of Government of Kerala.
2. Whether Performa directing Local Self Government institutions to upload sensitive data in web servers can be issued legally.
3. Whether suspected or positive Covid-19 patients who were and are now in quarantine, whose sensitive data was illegally collected without legal authority, are entitled to get compensation for the loss suffered.
4. Another point of consideration is who should be held liable to pay compensation.
Also, it is admitted that mandatory Constitutional formalities under Article 299(1) were not complied which has made agreement nullified and rendered it void and unenforceable. It has also been pointed out in the Petition that no approval of Council of Ministers or any other department of State including Law Department was sought. Under Part XIX, Clause 2(a) of Rules of Business of Government of Kerala, law department has to draft and approve every agreement by or in favour of Government without which no agreement could be prepared by any official.
Petitioner has submitted that medical records and history of individual is a sensitive personal data which is liable to be protected from unauthorised access, damage, alteration, use, disclosure or impairment. Consent of data provider has to be obtained in writing as per law. Petitioner states that already sensitive data of more than 1.25 lakh had been collected causing loss to data providers Hence, restraining Government from uploading data on web server is necessary to prevent continued breach of Constitutional rights of data providers. Petitioner seeks the relief of calling all records of deal, quashing of circulars, restraint from uploading data and compensation to COVID-19 patients whose data was illegally collected.
M Sivasankar, IT Secretary had admitted in TV interviews that opinion of legal departments was not taken before contract due to emergency situation.
Advocate Balu Gopalakrishnan had also moved a similar plea in Sprinklr deal case. High Court has already sought explanation regarding jurisdiction and omission from sanction from the State. 2 member Committee has also been constituted by Government to examine issues relating to deal by State Government.
-India Legal Bureau