The Department of Telecommunications (DoT)’s directive mandating the pre-installation of the Sanchar Saathi app on all new mobile devices sparked a significant legal and political controversy, centered on balancing the crucial state interest in combating rapidly increasing cyber fraud with the fundamental Right to Privacy of citizens.

The controversy was resolved when DoT took the wise decision to withdraw the controversial directive issued to all cell device manufacturers. This withdrawal comes after intense scrutiny regarding the potential constitutional overreach of the mandate, particularly concerning initial data access and the principle of explicit consent.

The core concern was that the app, being pre-installed, likely enabled some form of data access or transfer-such as logging the device’s unique identifier and the user’s mobile number—during the first boot-up or device setup sequence.

The controversial directive:

The official DoT directive had explicitly mandated that the pre-installed app must be “readily visible and accessible.”

Crucially, it stated that the app’s functionalities “cannot be disabled or restricted” at the time of first use.

A reading of the directive showed that the app was designed to be enabled on first use, an event that happens before the user has fully taken control of the device or consciously decided to keep or delete the application.

This specific sequence meant that a citizen’s core identity information was potentially transmitted to a government system without explicit, informed consent at the crucial moment of its first exposure to the digital network. This mechanism undermined the spirit of informational self-determination and raised the specter of unwarranted data collection, making the information vulnerable to the risks of hacking and unauthorized access.

Constitutional conflict-The proportionality test:

The legal challenge to the mandate was strongly rooted in the Supreme Court’s jurisprudence on privacy, which defines the strict test the state must satisfy when infringing upon fundamental rights.

1. Justice K.S. Puttaswamy v. Union of India (2017)

This landmark judgment affirmed the Right to Privacy as a fundamental right under Article 21 of the Constitution. It established a three-fold test for any state measure involving the collection or use of personal data:

Legitimate State Aim (Necessity): The action must pursue a legitimate aim (combating cyber fraud clearly qualifies).

The action must be backed by a clear law:

Proportionality: The means adopted must have a rational nexus with the objective, and there must be no less intrusive alternative that can achieve the same purpose.

Critics argued that the mandatory pre-installation and the risk of initial non-consensual data transfer fundamentally failed the proportionality test. The government could have chosen less intrusive alternatives, such as:

Making the app purely optional:

Ensuring the pre-installed app remained entirely dormant and transmitted zero data until the user deliberately clicked an explicit “I consent and wish to use the app” button.

2. Anuradha Bhasin v. Union of India (2020)

This judgment reinforced the principle that any restriction on fundamental rights must be the least restrictive measure available. In the context of Sanchar Saathi, this emphasized that the onus was on the state to demonstrate that the massive imposition of a pre-installed app was truly necessary and not merely convenient.

The DoT’s directive, without a clear, technical, and legally binding guarantee that no personal data is transferred until the user actively consents, remained exposed to the charge that it fundamentally violated the constitutional safeguards established by the Supreme Court.

The subsequent withdrawal of the controversial directive is seen as an acknowledgment by the DoT of the significant constitutional and privacy concerns raised. It reinforces the principle that even in the pursuit of a legitimate aim like combating fraud, state action must strictly adhere to the proportionality and necessity tests required for restricting fundamental rights.

(The writer is a senior Advocate)