PLOT -1

PETITIONER:

 Whether mandating Health Link is illegal.

Health link is a contact tracking application which the respondent has developed and is being
mandatorily directed by the respondent to be installed in all smart phones. In clause 16 of the
guidelines as per MHA Order no.40-3/2020-DM-I(A) it is specifically states as follows “any
person violating these lockdown measures and the National Directives for COVID-19
Management will be liable to be proceeded against as per the provision of Section 51 to 60 of
the Disaster Management Act, 2005, besides legal action under S.1888 of Indian Penal Code
and other legal provisions as applicable”. Mandating the app’s use would require a legal
statute that satisfies the ‘triple test’. Since there is no law backing Health Link, making it
mandatory would be illegal. The mandatory imposing of this app indulges with the right to
exercise their choice or right to be let alone and right to consent under Article 21 and 19 (a)
of the Constitution of Inida. This violates the right to privacy of a person enshrined under
Article 21 of the Constitution of Inida as reasonable restrictions on a person’s right to life
cannot take away right to consent declared by the Hon’ble Supreme Court of Inida in
K.S.Puttaswamy v. Union of India [(2017) 10 SCC 1]

 Whether there is a constant surveillance of a person.

Health Link Application collects the personal data of a person including his health-related
data, name, phone number, age, sex, profession, countries visited in the last 30 days and
whether the person is a smoker or not. This information is stored in a cloud server. Once
installed into an electronic gadget it is mandatory for switching on Bluetooth and Location of
a person. And location of a person has to be set in the setting of the gadget as “always”. This
hints towards a constant surveillance of a person. Any surveillance required to respond to the
pandemic should be temporary and only to the extent and degree allowed by provisions of the
Indian Telegraph Act, 1885 and the Information Technology Act, 2000 and the rules notified
under these statutes. Any surveillance pursuant to the aforementioned statutes and other
relevant laws such as the Epidemic Diseases Act, 1987, and the Code of Criminal Procedure,
1973 used for the monitoring of individuals during this pandemic are subject to judicial
review.

 Whether there is any security of data.

The Terms and Conditions of the application are very ambiguous. The preface on it states that
“The terms may be amended from time to time with notice to you. In order to continue using
the App, you will be required o accept the revised Terms. Failure to comply with the Terms
can result in suspension of your ability to use the App”. This clearly indicates that the consent
is compulsory even for the revised terms and conditions and that too after the data from
him/her is already collected. The disclaimer of the terms states that all services are never
wholly free from defects, errors and bugs and the Government of Inida provides no warranty
or representation to that effect. Security protections for data processing during the Covid-19
pandemic should not be compromised and the data must be maintained securely and must be
exchanged only through secure platforms and hardware. Any apps related to COVID-19
promoted by the Government should be secure and their data collection should be in tune
with the principles mentioned herein.

 Whether there is accountability or transparency is the processing of data.

The privacy policy of this application is fully immersed in ambiguity and shrouded with
vagueness. It says “At registration you accepted the terms of this Privacy Policy and your use
of the App signifies your continued acceptance thereof.” In the clause 3(a) of the Privacy
Policy it is stated that “All personal information collected from you under Clause 1 (a) at the
time of registration will be retained for as long as your account remains in existence and for
suck period thereafter as required under any law for the time being in force.” The wordings
clearly point out that the sensitive personal data of a person will be retained by the
Government even after uninstalling the application. Additionally, there is no addressal of the
process by which a user can delete the personal data provided. Processing of personal data
must be conducted transparently, and appropriate notices must be provided about use,
collection and purpose in an easy to read, plain language format. Individuals must be
informed as to the volume, extent, and purpose of the personal data belonging to them being
collected, processed, stored or transferred to any person.

 Whether the data can further be employed for any malicious intention.

It is further stated in the Privacy Policy in clause 1 (b), Information Collected & Manner of
Collection, that “When two registered users come within Bluetooth range of each other, their
Apps will automatically exchange DiDs and record the time and GPS location at which the
contact took place. The information that is collected from your App will be securely stored on
the mobile device of the other registered user and will not be accessible by such other user. In
the event such other registered user tests positive for COVID-19, this information will be
securely uploaded from his/her mobile device and stored on the server.” This means that
information uploaded with the government will be shared with a third party/ another
registered user’s device. The government themselves has put forward a standard from
contract in which there is limited liability if there are any bugs or viruses planted by a 3 rd
party. The information can also be stored in an external server. There can be use of such data
for advertisement and commercial purposes unrelated to public health. There are possibilities
of discrimination meted out to individuals in the collection and processing of personal data
during this pandemic and such personal data can be used to discriminate any individual in the
future.

Clause 3 (c) makes it clear that third parties will also be able to access the data. This stated
just below the clause 3 (b) that says that all the personal information from other users who
came in contact with the mobile device shall be retained on the device for a period of 30 days
if it has not been uploaded to the server, and all the information which has been uploaded to
the server will be purged within 45 days and all information collected of persons having
tested positive will be purged within 45 days, after such persons have been declared cured of
COVID-19. From this it is clear that the data will be available to a third party in their gadget
for this amount of period and thereafter.

The government is also allowed to share the personal information with “other necessary and
relevant persons”, for “necessary medical and administrative interventions” which suggests
interdepartmental exchanges of people’s personal information. This is more excessive that
countries like Singapore and even Israel. This will create a more vagueness as ‘opacity is
what fuels the creation of surveillance systems”. The Privacy Policy is not clear as to who
will be those medical professionals and whether who will be the authority in the government
to be assigned such a task.
RESPONDENT

Whether the infringement of privacy by Arogya Setu App is unconstitutional?

Fundamentally, for a constitutional challenge to succeed, there must be a clear violation of

the right and a clear demonstration that the encroachment is unreasonable and
disproportionate. The outbreak of COVID-19 in the country raised serious public health
concerns on account of the high population and population density in India. With a view to
effectively trace COVID-19 patients, their contacts, potential risks and to avoid large-scale
community transmission, the central government launched Arogya Setu Application (App).
The App uses Bluetooth and GPS data for contact tracing and to sanitise areas potentially
infected with the disease and identify the persons in such areas, who might have been
infected.

Whether mandate to use Arogya Setu app qualifies the tests laid down by the Supreme
Court for valid intrusion on right to privacy?

In what came to be its seminal judgement on privacy (PUTTASWAMY), the Supreme Court
recognized the distinction between anonymity and privacy. While privacy prevents access to
your information, anonymity hides what makes it personal. Making our medical records
public knowledge would certainly be a disproportionate invasion of privacy. Analysing the
data of hospital records to collect information in a public health epidemic may not. According
to its privacy policy, the information collected on the app is uploaded to a server every 15
minutes. This information is then used “in anonymized, aggregated datasets for the purpose
of generating reports, heat maps and other statistical visualisations for the purpose of the
management of COVID-19 in the country…” the government’s ‘use’ of data preserves
anonymity.

Justice DY Chandrachud states it thus, “If the State preserves the anonymity of the individual
it could legitimately assert a valid state interest in the preservation of public health to design
appropriate policy interventions on the basis of the data available to it.”

The Court set out three conditions that should be met to in order to successfully intrude on
citizenry’s privacy.

 First, there must be a governing law.

 Second, this governing law must have a legitimate aim.
  And third, the law adopted must be proportionate to the objective sought to be
achieved. It is in this context that the Union government has been deliberating a data
protection law for over two years.

The court further held that the right to privacy may also be infringed for protecting national
security, preventing and investigating crime, encouraging innovation and the spread of
knowledge, and preventing the dissipation of social welfare benefits. Thus, the Supreme
Court while reading right to privacy as a part of life and personal liberty also acknowledged
that such right would not be absolute and the state can impinge upon such right by a law,
which is able to withstand the requirements as laid down therein.

 Whether there is a governing law.

It needs to be borne in mind that the application has been launched amidst a pandemic with
the object of containing its spread and bringing awareness in the public at large with the risks
posed by the virus as well as the safety measures to be adopted.

The order mandating use of the application has been passed by the Chairman of National
Executive Committee (NEC) by virtue of the powers conferred under Section 10 of the
Disaster Management Act, 2005. Section 10(2)(l) of the said act empowers the NEC to lay
down guidelines for or give directions to the concerned ministries or departments of
government of India, state governments and state authorities regarding measures to be taken
in response to any threatening disaster situation or disaster. By exercising such power, the
NEC has issued directions to all district magistrates (state authorities) for implementing
lockdown measures as enlisted at Annexure-1 to the order. Condition number 15 at
Annexure-1 to the order mandates usage of Health Link App by all employees working in
public or private sector. Thus, the order flows from a statutory provision and fulfils the first
requirement of existence of law providing for invasion of right to privacy.

 Whether the governing law has a legitimate aim.

If the order is read as a whole, the object of directives cumulatively is to ensure minimum
spread of the virus, for which it is imperative to trace all contacts of COVID-19 positive
patients. The frequently asked questions (FAQs) on the App regarding privacy concerns due
to access to GPS Data are answered, as: Health Link is more than just a contact tracing app.
In a country with the population density of India’s, the Government of India believes it is
necessary to not only identify users who have come in contact with each other but also to
trace the paths that infected persons have walked, in order to be able to sanitize areas
potentially infected with the disease and identify persons in those areas who might have been
infected even though they have not been identified as contacts on the Health Link app. In
addition, when you take the self-assessment test on the Health Link app, by co-relating the
symptoms that you report with your location information, the Government of India will have
the ability to identify hotspots where disease may be spreading early enough to be able to
prevent it from spreading too far.

A conjoint reading of the order passed by the NEC and the purpose of seeking access to GPS
data as described on the App itself, the legitimate state aim, that is of securing public health
in times of the pandemic is demonstrated. The state interest in procuring such details is
apparent and cannot be termed to be excessive or malafide.

 Whether the law adopted is proportionate to the objective sought to be achieved.

The final requirement for infringement on right to privacy is reasonableness. The data
required is for the larger good and securing public health. The Supreme Court has in the case
of Puttaswamy (Supra) cited an example that the access to health records of individuals in a
health emergency can be held to be valid. It is precisely for the said reason that the privacy of
an individual is sought to be invaded in the present case. The application does not require any
health data unless the self-assessment is undertaken by any individual. The location of
individuals would be immensely helpful to the authorities in minimising the spread of the
virus. The application does not require any data, which is not useful for the government to
contain the spread of virus. It appears that the said mandate is now only applicable to public
sector employees; which makes the mandate even more reasonable insofar as most of the
public sector employees are themselves exposed to large number of people and thus need to
be more vigilant about their health status.

This would also contain the spread of virus amongst the frontline workers in these crucial
times. Thus, the last requirement of reasonableness with respect to a law invading right to
privacy can also be said to have been satisfied. The mandate to use Health Link App thus
qualifies the tests laid down by the Supreme Court and does not amount to an illegal or
unreasonable invasion on the right to privacy.
 PLOT-2

PETITIONER

The Honourable Supreme Court of Inida cannot invoke Article 142 of the Constitution of
Inida to confer power on the trial court to order to test voice samples which is equivalent to
invoking Article 142 of the Constitution of Inida to infringe fundamental rights, especially,
right to privacy.

The petitioner submits that in case prem chand v excise commissioner the apex court has
ruled that though its power under article 142 is broad, it cannot be exercised against a
fundamental right and the judgment in Ritesh Sinha v. State of UP clearly violates the
fundamental right to privacy.

It is further submitted that hence, evidence obtained by means of a violation of the right to
privacy of an individual ought to be made inadmissible in a court of law. The exclusionary
rule of evidence should be made applicable to the extent that the evidence obtained by
violating the fundamental right of a person, should be excluded from the trial.

The compulsion of giving the voice sample when ordered to do the same by the magistrate
can be considered as an infringement to the right to privacy, the right to be left alone. The
denial of the accused to provide the voice sample to be taken to compare with an already
present post on his Facebook comes under the ambit of the right to privacy.

 BIOMETRICS COMES UNDER RIGHT TO PRIVACY

Right to Privacy has recently been recognized to be a tenet of Article 21 of the Constitution,
in the case of Justice K.S. Puttaswamy v. Union of India. Informational privacy was held to
be covered within the domains of the right to privacy. Further, in the case of UIDAI v. CBI,
the Supreme Court had held that fingerprints and the retina scans cannot be shared with an
investigative authority, without the consent of the individual.

The current Indian law regime recognizes biometric data as Sensitive Data under the Privacy
Rules and the Aadhaar Act prescribes a specific use-case for biometric data which is for
authentication purposes.

Hence, the police taking the biometrics of accused for the purpose of accessing the mobile
phone is violative of this right to privacy on two levels. First, it violates the right to privacy
with respect to the biometric itself, by taking it without the consent of the accused of the
purpose of further investigation. Secondly, by giving unbridled access to the personal
information and data of an individual, it breaches the right to informational privacy as well.

 SHARING BIOMETRICS RESULTS IN SELF INCRIMINATION

The 87th Report of the Law Commission of India in 1980 describes a voiceprint as a “visual
recording of voice”. Voiceprints resemble fingerprints, in that each person has a distinctive
voice with characteristic features dictated by vocal cavities and articulates.

Article 20(3) read with Section 161(2) of Cr.P.C[3]. protects an accused against any oral
testimony which has a tendency to expose her to a criminal charge.

 Whether the voice spectrography test of an accused amounts to testimonial

compulsion within the meaning of Article 20(3) of the Constitution of India and
whether such test should be put at par with tests like brain mapping, lie detector
test, narco analysis test, etc.

The Supreme Court had drawn the link between the right to privacy and Article 20 (3) of the
Constitution in the landmark ruling of Selviv. State of Karnataka(2010), which outlawed
narco-analysis and the infamous ‘lie detector test’. The Court had held:

“We must recognize the importance of personal autonomy in aspects such as the choice
between remaining silent and speaking. An individual’s decision to make a statement is the
product of a private choice and there should be no scope for any other individual to interfere
with such autonomy, especially in circumstances where the person faces exposure to criminal
charges or penalties. Therefore, it is our considered opinion that subjecting a person to the
impugned techniques in an involuntary manner violates the prescribed boundaries of
privacy.”

While giving a voice sample may not amount to giving a ‘statement’, the court’s ruling on
autonomy and private choice relating to speaking or being silent as an element of ‘right to
privacy’ assume significance in light of the nine-judge bench judgment on the right to privacy
in 2017 (Puttaswamy). In Puttaswamy, the Supreme Court located the right to privacy inter
alia in the right to autonomy and the right to make intimate decisions about oneself.

Closely linked to the idea of dignity and autonomy, is the concept of bodily privacy. The
majority opinion in Puttaswamy held that privacy enables the individual to retain the
autonomy of the body and mind. Previous judgments of the Supreme Court in Suchita
Srivastava (2009) and NALSA (2014) upheld the right to make decisions with respect to
one’s own body as an important facet of the right to privacy. Hence, the coercion involved in
taking voice samples would by itself infringe on the right of autonomy and of bodily privacy.

 Whether in the absence of any provision in the Criminal Procedure Code, can a
magistrate authorise the investigating agency to record the voice sample of the
person accused of an offence?

There was no provision allowing a Magistrate or investigation agency to direct an accused

person to give her voice samples.

The Court analyzed various statutory provisions such as Section 53 CrpC, 73/165 IEA but
failed to locate this power under the present statutory regime.

 WHETHER SUPREME COURT CAN CONFER THE POWER ON LOWER

COURT BY INVOKING ARTICLE 142

Once the court decided to introduce a law using Article 142, it was bound to analyze whether
such a law would be inconsistent with any other fundamental rights as well – in this case, the
right to privacy, irrespective of whether it was an issue before the court.

Cardozo J. writes: judges have, of course, the power, though not the right, to ignore the
mandate of a statute, and render judgment despite of it. They have the power, though not the
right, to travel beyond the walls of interstices, the bounds set to judicial innovation by
precedent and custom. Nonetheless, by that abuse of power, they violate the law. [Benjamin
N. Cardozo, The Nature of the Judicial Process 129 (2008).] This is an apt summation to the
principle which must be observed when invoking the extraordinary power under Article 142.
Indeed the justices have the option of exercising this power but the abuse of power will
produce judgments falling foul of law and justice, as can be the fate of erroneous judgments
rendered under any other jurisdiction of the Supreme Court.

In State of Jharkhand v. Govind Singh it is stated that-

While interpreting a provision the court only interprets the law and cannot legislate it. If a
provision of law is misused and subjected to the abuse of process of law, it is for the
legislature to amend, modify, or repeal it, if deemed necessary. The legislative casus
omissus cannot be supplied by the judicial interpretative process is involved.

The Supreme Court itself has laid down the following checks on the powers under Article
142:

2) The order should render complete justice for both parties and not just one party,

ii) The court should endeavor to neutralize any undeserved and unfair advantage gained by a
party invoking its jurisdiction,

iii) The power cannot be exercised in a manner so as to isolate fundamental rights,

The order of the honorable supreme court in Ritesh Sinha v. State of U.P., to make it
compulsory to give the voice sample of the accused is not specifically mentioned under any
provisions of the CrPC or any other statute. It is only through the power under article 142 of
the constitution that this power could be conferred to the magistrate of the trial court by the
honorable supreme court. But the function of the judiciary is to interpret the law and not
power to legislate new provision which not present in the statutes may not come under the
honorable apex court’s jurisdiction.
RESPONDENT

Respondent submits that directing a person to part with his voice sample to the police is not a
violation of his fundamental right to privacy. The fundamental right to privacy cannot be
construed as absolute and must bow down to compelling public interest. Hence giving voice
samples to an investigating agency was not a violation of the fundamental right against self-
incrimination.

It is further submitted that When there is a call for justice the honorable court bound down to
public interest and shows their judicial heroics to cope with the difficulties raised.

Calling upon the accused to lend his voice sample not amounts “to be a witness against
himself”

Voice sample is like a fingerprint impression signature or specimen handwriting of the

accused. Like giving of a fingerprint impression or specimen handwriting by the accused for
purpose of investigation giving of voice sample for the purpose of investigation cannot be
included in the impression of to be witnessed. By giving a voice sample the accused does not
convey information based upon his personal knowledge which can incriminate him. A voice
sample by itself is fully innocuous.

In order that testimony by an accused may be said to have self-incriminatory the compulsion
of which comes within the prohibition of the constitutional provision it must be of such a
character that by itself it should have the tendency of incriminating the accused’s if not also
of actually doing it. They are only material for comparison in order to lend assurance to the
code that its interference based on other pieces of evidence is reliable.

The purpose of taking voice samples if nontestimonial physical evidence if you compare it
with a tape-recorded conversation. It is a physical characteristic of the accused. The
voiceprint identification of boys in balls measurement of frequency and intensity of the sound
wave. When compared with the recorded conversation with the help of a mechanical process,
it may throw light on the points of controversy. It cannot be said by stretching of imagination
that by giving voice samples the accused’s convert any information based upon his personal
knowledge and became a witness against himself. The accused by giving voice sample
merely gives identification data to the investigation agency. He is not subjected to any
testimonial compulsion. Thus, taking a voice sample of an accused is not hit by article 20(3)
of the constitution.
When Oghad and Selvi, read together, as students will recall, effectively confine the
protection against self-incrimination to ‘testimonial compulsion’ or ‘psychiatric knowledge’.
That is to say, to information that is mental and testimonial in nature and not physical
evidence such as blood, semen, etc. The idea is to protect the mental privacy/integrity of the
individual and give him a right to silence with respect to facts in his mental knowledge. The
protection does not extend to physical phenomena such as DNA/Handwriting/Fingerprints etc
as there is no testimonial compulsion involved and since this evidence is ‘objective’ and
‘physical’ in nature, there is no threat of induced/tortured testimony creeping in.

Based on the above reasoning, it is clear that giving of voice samples for matching does not
amount to being compelled to be a witness against oneself.

Supreme Court can confer power to trail court by invoking its power under art 142 when
there is no provision available in crpc

Article 142 of the constitution states that (1) The Supreme Court in the exercise of its
jurisdiction may pass such decree or make such order as is necessary for doing complete
justice in any cause or matter pending before it, and any decree so passed or orders so made
shall be enforceable throughout the territory of India in such manner as may be prescribed by
or under any law made by Parliament and, until provision in that behalf is so made, in such
manner as the President may by order prescribe.

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court
shall, as respects the whole of the territory of India, have all and every power to make any
order for the purpose of securing the attendance of any person, the discovery or production of
any documents, or the investigation or punishment of any contempt of itself.”

The Apex Court has used this provision in the catena of cases[1] to provide the “complete
justice” to the society without affecting the rights of citizens by creating new laws and in this
case, also, Apex Court has done the same.

It is further submitted that In this case the compulsion to give voice sample when ordered by
the magistrate originated from the honorable supreme court’s decisions itself in Ritesh Sinha
v. state of UP. There is no straight provision that is specifically mentioned in the CrPC but it
can be implied through section 53A and 311 CrPC and also from section 5 of identification
of prisoners act, 1920. It said that due to legislative inaction the judges of the honorable apex
court stepped up and filled up the gap in the statute. All those judiciary’s function does not
include legislation of laws but many times through interpretation statute can be construed in
order to fill the void in the statue itself. The principle of ejudem generis allows legislation to
be interpreted in an open, flexible, and unrestricted sense. Jurisdiction of constitutional courts
must not be allowed to be caged with the rigid principles. When there is a call for justice the
honorable court bound down to public interest and shows their judicial heroics to cope with
the difficulties raised.

Krishna Iyer in Sushil Kumar Sen v. State of Bihar stated that that

“The processual law so dominates in certain systems as to overpower substantive rights and
substantial justice. The humanist rule that procedure should be the handmaid, not the
mistress, of legal justice compels consideration of vesting a residuary power in judges to act
ex debito justiciae where the tragic sequel otherwise would be wholly inequitable.”

Of course, the application of the law with pedantic rigor is neither just nor justifiable, yet the
judicial process must be mindful of the existing legal principles while invoking principles of
equity to strike a harmonious balance between the two. The absence of any Constitutional
Assembly Debate on Article 142 (Article 112 of the Draft Constitution) indicates that the
founding fathers wanted the powers under this article to remain open-ended, so as to enable
the Supreme Court to develop its own jurisprudence. It is then time for the justices to
challenge, clarify and correct the prevailing jurisprudence on Article 142 which presents it as
a nebulous, unfettered power. No salvage, other than an inward-looking exercise by the apex
court and corrective case law can do justice in redeeming a purposive construction of Article
142.

Hence, Ritesh Sinha, it was stated that the order of the honorable supreme court that the
magistrate can order to test the voice sample was based on the principle of imminent
necessity and principle of ejudes generis which stands true.

[1] Ayodhya Case

UNION CARBIDE CASE (BHOPAL GAS TRAGEDY)

COAL BLOCK ALLOCATION CASE

SALE OF LIQUOR /ALCOHOL BANNED ON STATE AND NATIONAL HIGHWAYS

 PLOT-3
PETITIONER

"In order to fortify and strengthen the general public's faith and confidence, it is necessary to
issue a direction to the government to declare the funds collected by PM CARES trust till
date and how the same have been used for the benefits of citizens affected by coronavirus"

Petitioner submits that, under the facts and circumstances of the case, it is expedient and
necessary in the interests of justice: to pass an ad interim order, direction or writ, directing the
respondent to make full disclosure of the accounts, activity and expenditure details of the
PM-CARES Fund to this Hon’ble Court and the public at large, And a further ad interim
order, direction or writ, directing the audit of the PM-CARES Fund to be done by the
Comptroller and Auditor General of India (CAG)

Web page pointed two main objectives as: (1) To undertake and support relief or assistance
of any kind relating to a public health emergency or any other kind of emergency, calamity or
distress, either man-made or natural, including the creation or upgradation of healthcare or
pharmaceutical facilities, other necessary infrastructure, funding relevant research or any
other type of support, and (2) To render financial assistance, provide grants of payments of
money or take such other steps as may be deemed necessary by the Board of Trustees to the
affected population.

 Whether PM-CARES is accountable to the stakeholders?

The accountability of PM Cares Fund arises out of its origin, operations, nature, funds flow
and controls. Because (i) it holds PM's name and created by PM, (ii) it operates within PMO,
(iii) the concessions like tax reliefs for donations were granted by state, which amounts to
'substantial funding', the trust headed by PM consisting of 3 cabinet ministers and three others
appointed by them. Hence the PM CARES Fund is public authority under RTI Act.

Under Article 266(2) of the Constitution, “public moneys received by or on behalf of the
Government of India”, which is not on account of revenue from taxes, duties, repayment of
loans and the like should be credited to the Public Account of India.

Under Section 13(b) of the CAG Act, it is the duty of the CAG to audit “all transactions” of
the Union relating to public accounts.
There is also a second tier of oversight, as reports of the CAG are required to be submitted to
the President, who causes them to be laid before each House of Parliament under Article
151(1) of the Constitution.

 Whether the PM-CARES Fund is a public authority?

The PM's official webpage says: Keeping in mind the need for having a dedicated national
fund with the primary objective of dealing with any kind of emergency or distress situation,
like posed by the COVID-19 pandemic, and to provide relief to the affected, A Public
Charitable Trust under the name of 'Prime Minister's Citizen Assistance and Relief in
Emergency Situations Fund' (PM CARES Fund)' has been set up.

The decision of Delhi High Court in National Stock Exchange of India Limited v. Central
Information Commission is noteworthy, wherein the Court held that the three conditions -
owned, controlled, and substantially financed, are distinct. Even if one of the three is satisfied
by a body, it would be sufficient to declare it a public authority.

The PM's webpage says that the Prime Minister is the ex-officio Chairman of the PM CARES
Fund and Minister of Defence, Minister of Home Affairs and Minister of Finance,
Government of India are ex-officio Trustees of the Fund.

A web announcement says: "Donations to PM CARES Fund would qualify for 80G benefits
for 100% exemption under the Income Tax Act, 1961. Donations to PM CARES Fund will
also qualify to be counted as Corporate Social Responsibility (CSR) expenditure under the
Companies Act, 2013". Most importantly, it is the taxpayers who are paying for the public
machinery operationalised in support of the Fund, as well as its advertisements and appeals
for contributions.

It also says: "PM CARES Fund has also got exemption under the FCRA and a separate
account for receiving foreign donations has been opened. This enables PM CARES Fund to
accept donations and contributions from individuals and organizations based in foreign
countries". There is no statutory or official communication other than this web publication.

 Section 2(h) of the RTI Act, 2005

Under section 2(h) of the RTI Act "Public authority" means any authority or body or
institution of self-government established or constituted—

a) by or under the Constitution;

 b) by any other law made by Parliament/State Legislature.
c) by notification issued or order made by the appropriate Government, and includes any
—
d) body owned, controlled or substantially financed;
e) non-Government organisation substantially financed, directly or indirectly by funds
provided by the appropriate Government.

The PM's page officially states that "this is consistent with respect to Prime Minister's
National Relief Fund (PMNRF). PMNRF has also received foreign contributions as a public
trust since 2011". In 2012, the PMO rightly considered PMNRF as public authority and
furnished information under RTI Act.

PM CARES uses the State Emblem of India (an adaptation of the Ashoka Pillar at Sarnath) in
a manner that creates the impression that it is related to the government. The use of this
symbol is governed by the State Emblem of India Act and Rules, and is a prohibited offence
unless permitted by the Central government.

The Fund is cross-linked to the official website of the Prime Minister of India, and is listed as
one of the three Prime Minister’s Funds (along with the Prime Minister’s National Relief
Fund and the National Defence Fund). In addition, the website of the Fund is hosted using the
official “.gov.in” domain, which would mean that is has been deemed eligible to have been
allotted this domain name by the National Informatics Centre under the Ministry of
Electronics and Information Technology regulations.

All these factors, including the deduction and deposit of salaries of government employees to
the PM CARES Fund undertaken as a departmental or ministerial policy, would indicate that
it has all the trappings of a public account set up by the government of India.

 Whether there is a breach of trust?

Negating transparency and accountability could be origin of breach of trust. As PMCARES

Fund is totally controlled by PMO, it is public authority. If it is a public charity trust, it is
governed by Trusts Act, which has to be transparent, and every citizen, in his capacity as
beneficiary, has a right to information, if it is a society, under the Societies Registration Act,
1860, it must be transparent. Every donor, either of Rs 10 or a crore, is owner who transferred
their 'property' to 'trustee' and hence has right to know the activities and how their fund is
utilized.
Since breach of trust is a crime, if committed by public servant, he will be punishable, public
authority is bound to give information. The PMO is public authority that has entire records of
PMCARES Fund, any request for information under RTI Act, cannot be rejected, on the
excuse that PMCARES Fund is not public authority.
RESPONDENT
 Whether the PM-CARES Fund is a public authority.

The PM CARES Fund is a charitable trust registered under the Registration Act, 1908 at New
Delhi on 27.03.2020. The trust does not receive any Budgetary support or any Government
money. It is not open for the petitioner to question the wisdom of trustees to create PM
CARES fund which was constituted with an objective to extend assistance in the wake of
public health emergency that is pandemic COVID-19

The guidelines in existence with respect to NDRF and State Disaster Response Fund - which
were framed in 2015- 16 - did not cover biological or public health emergencies. There is no
statutory prohibition for the Union of India utilizing the NDRF for providing assistance in the
fight of COVID-19 in accordance with the guidelines issued for administration of NDRF;
there is no statutory prohibition in making any contribution by any person or institution in the
NDRF as per Section 46(1)(b)of the Act, 2005.

 Whether the PM-CARES is accountable.

According to the Section 7 (9) of the RTI Act, “an information shall ordinarily be provided in
the form in which it is sought unless it would disproportionately divert the resources of the
public authority or would be detrimental to the safety or preservation of the record in
question.”

The information was denied by the PMO on the grounds that providing it would
“disproportionately divert the resources of the office” under Section 7(9) of the Right to
Information Act, 2005.

Keeping in mind the need for having a dedicated national fund with the primary objective of
dealing with any kind of emergency or distress situation, like posed by the COVID-19
pandemic, and to provide relief to the affected, a public charitable trust under the name of
‘Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund’ (PM CARES
Fund)’ has been set up.

 Whether the PM-CARES is a charitable trust

• Prime Minister is the ex-officio Chairman of the PM CARES Fund and Minister of
Defence, Minister of Home Affairs and Minister of Finance, Government of India are ex-
officio Trustees of the Fund.
The Chairperson of the Board of Trustees (Prime Minister) shall have the power to nominate
three trustees to the Board of Trustees who shall be eminent persons in the field of research,
health, science, social work, law, public administration and philanthropy. Any person
appointed a Trustee shall act in a pro bono capacity.

The objectives of the fund include:

a) To undertake and support relief or assistance of any kind relating to a public health
emergency or any other kind emergency, calamity or distress, either man-made or
natural, including the creation or upgradation of healthcare or pharmaceutical
facilities, other necessary infrastructure, funding relevant research or any other type of
support.
b) To render financial assistance, provide grants of payments of money or take such
other steps as may be deemed necessary by the Board of Trustees to the affected
population.
c) To undertake any other activity, which is not inconsistent with the above Objects.

The fund consists entirely of voluntary contributions from individuals/ organizations and
does not get any budgetary support. The fund will be utilised in meeting the objectives as
stated above.

Donations to PM CARES Fund would qualify for 80G benefits for 100% exemption under
the Income Tax Act, 1961. Donations to PM CARES Fund will also qualify to be counted as
Corporate Social Responsibility (CSR) under the Companies Act, 2013

PM CARES Fund has also got exemption under the FCRA and a separate account for
receiving foreign donations has been opened. This enables PM CARES Fund to accept
donations and contributions from individuals and organizations based in foreign countries.
This is consistent with respect to Prime Minister’s National Relief Fund (PMNRF). PMNRF
has also received foreign contributions as a public trust since 2011.

From the above details, it is clear that PM CARES Fund has been constituted as a public
charitable trust. After outbreak of pandemic COVID-19, need of having a dedicated national
fund with objective of dealing with any kind of emergency or distress situation, like posed by
the COVID-19 pandemic, and to provide relief to the affected, a fund was created by
constituting a trust with Prime Minister as an exofficio Chairman of PM CARES Fund, with
other exofficio and nominated Trustees of the Fund. The PM CARES Fund consists entirely
of voluntary contributions from individuals/organisations and does not get any Budgetary
support. No Government money is credited in the PM CARES Fund.
 PLOT 4
PETITIONER

Whether Article 25 is being violated when the government ordered the reopening of
religious places during the time of an emergency possessed by the COVID pandemic.

Article 25 says "all persons are equally entitled to freedom of conscience and the right to
freely profess, practice, and propagate religion subject to public order, morality and health.”
In Ratilal Panachand Gandhi v. State of Bombay [1954 AIR 388], the Supreme Court stated
that Article 25 guarantees every person (not only citizens) the freedom of conscience and
right to freely profess, practice and propagate religion imposed with certain restrictions by the
State. These restrictions are:
 Public order, morality and health, and other provisions of the Constitution (Clause 1
of Article 25).
 Laws relating to or restricting any economic, financial, political, or other secular
activities associated with religious practices. (Clause 2(a) of Article 25).
 Social welfare and reform that might interfere with religious practices.
 The petitioner states that on account of the recent outbreak of Novel Corona Virus
and/or COVID 19, the nation had been put under an unprecedented lockdown since
the evening of March 23, 2020 in order to prevent further spread of the same. Under
such circumstances, except the movement of essential commodities, transport of all
kinds of goods and movement of all individuals had been suspended till further orders
from the Government of India.
The abovementioned measures were taken in accordance with The Disaster Management
Act, 2005. The Parliament had enacted the Disaster Management Act, 2005 (hereinafter
referred to as ‘the Act’) for the effective management of disasters and for matters connected
therewith or incidental thereto.
The powers and functions of National Executive Committee are provided under Section 10
of the Act. Chapter III deals with the State Disaster Management Authorities. Chapter IV
deals with the District Disaster Management Authority. Chapter V provides for measures by
the Government for Disaster Management.
In light of the above, by guidelines dated 24.03.2020, issued by the Respondent no. 4, inter
alia, all places of worship and educational institutions were, closed for public. No religious
congregations were be permitted, without any exception. The restrictions qua religious places
and educational institutions, as mentioned in the consolidated guidelines dated March 28,
2020 (which were consolidated after inclusion of the 1st and 2nd addendum to the guidelines)
issued in pursuance of the statutory order dated 24.03.2020 read as under:-
“8. All educational, training, research,
coaching institutions etc. shall remain closed.
 9. All places of worship shall be closed for
the public. No religious congregations will be
permitted, without any exception.”
The words used in the restrictions were pre-emptory and mandatory, without any exception.
These restrictions applied to all religions.
 On May 30, 2020, center issued guidelines directing, inter alia, the opening of places of
worship and congregation of not more than 10 people in places which are not containment
areas from June 1, 2020. These guidelines order a further extension of the lockdown till
June 30, 2020, in all those areas which are containment areas. In all those areas, which are
not containment areas, as per Phase I, places of worship are to be opened from June 8,
2020.
 The decision of the government to reopen the religions places of worship amidst the
pandemic is completely unconstitutional as it hampers the element of “public health”
discussed in Article 25. People can catch COVID-19 from others who have the virus. The
disease can spread from person to person through small droplets from the nose or mouth
which are spread when a person with COVID-19 coughs or exhales. These droplets land
on objects and surfaces around the person. If the places of worship are opened, it may not
be possible to control the crowd and there is every possibility for the spread of the
pandemic. A significant probability of failure of law and order machinery is also
possessed by this premature decision.
 In the case of Sardar Sarup Singh and others vs. State of Punjab and others, reported
in MANU/SC/0238/1959 : AIR 1959 SC 860, it was held that freedom of religion in our
Constitution is not confined to religious beliefs only, but extends to essential religious
practices as well, subject to the restrictions which the Constitution has laid down. Their
lordships have held as under:
"We are unable to accept this argument as correct. Article 26 of the Constitution, so far as it
is relevant for our purpose, says-
"Art. 26. Subject to public order, morality and health, every religious denomination or any
section thereof shall have the right-
a) to manage its own affairs in matters of religion;
b) to administer such property in accordance with law."

In Sardar Syedna Taher Saifuddin Saheb vs. The State of Bombay (09.01.1962 - SC) : it
was held :
“Article 26 confers on every religious denomination two rights which are relevant in the
present context, by clause (b) - "to manage its own affairs in matters of religion" - and by the
last clause - clause (d) - "to administer such property" which the denomination owns or has
acquired (vide clause (c)) "in accordance with law."”
In The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra
Thirtha Swamiar of Sri Shirur Mutt 1954 SCR 1005 at pp. 1023, 1026 : AIR 1954 SC 282
at pp. 289, 290 this distinction was pointed out by this honourable Court and it was there
observed: "The administration of its property by a religious denomination has thus been
placed on a different footing from the right to manage its own affairs in matters of religion.
The latter is a fundamental right which no legislature can take away, whereas the former can
be regulated by laws which the legislature can validly impose" Secondly, the expression used
in Clause (b) is 'in matters of religion'. In what sense has the word 'religion' been used. This
was considered in two decisions of this Court: 1954 SCR 1005 : AIR 1954 SC 282, and Sri
Venkataramana Devaru v. State of Mysore MANU/SC/0026/1957 : 1958 SCR 895 : AIR
1958 SC 255 and it was held that freedom of religion in our Constitution is not confined to
religious beliefs only, but extends to essential religious practices as well subject to the
restrictions which the Constitution has laid down.
The petitioner assails this portion of the decree on two grounds. He firstly contends that the
right to enter into a temple which is protected by Art. 25(2)(b) is a right to enter into it for
purposes of worship, that that right should be liberally construed, and that the modifications
in question constitute a serious invasion of that right, and should be set aside as
unconstitutional. We agree that the right is protected by Art. 25(2)(b) is a right to enter into a
temple for purposes of worship, and that further it should be construed liberally in favour of
the public. But it does not follow from this that that right is absolute and unlimited in
character. No member of the Hindu public could, for example, claim as part of the rights
protected by Art. 25(2)(b) that a temple must be kept open for worship at all hours of the day
and night, or that he should personally perform those services, which the Archakas alone
could perform. It is again a well-known practice of religious institutions of all denominations
to limit some of its services to persons who have been specially initiated, though at other
times, the public in general are free to participate in the worship. Thus, the right recognised
by Art. 25(2)(b) must necessarily be subject to some limitations or regulations, and one such
limitation or regulation must arise in the process of harmonising the right conferred by Art.
25(2)(b) with that protected by Art. 26(b).
We have held that the right of a denomination to wholly exclude members of the public from
worshipping in the temple, though comprised in Art. 26(b), must yield to the overriding right
declared by Art. 25(2)(b) in favour of the public to enter into a temple for worship. But where
the right claimed is not one of general and total exclusion of the public from worship in the
temple at all times but of exclusion from certain religious services, they being limited by the
rules of the foundation to the members of the denomination, then the question is not whether
Art. 25(2)(b) overrides that right so as to extinguish it, but whether it is possible - so to
regulate the rights of the persons protected by Art. 25(2)(b) as to give effect to both the
rights. If the denominational rights are such that to give effect to them would substantially
reduce the right conferred by Art. 25(2)(b), then of course, on our conclusion that Art. 25(2)
(b) prevails as against Art. 26(b), the denominational rights must vanish. But where that is not
the position, and after giving effect to the rights of the denomination what is left to the public
of the right of worship is something substantial and not merely the husk of it, there is no
reason why we should not so construe Art. 25(2)(b) as to give effect to Art. 26(b) and
recognise the rights of the denomination in respect of matters which are strictly
denominational, leaving the rights of the public in other respects unaffected.
The World Health Organisation, through its advisories has advised the public regarding the
dos and don’ts relating to the COVID-19. In its recent post, WHO can be seen stating “avoid
going to crowded places. Why? Where people come together in crowds, you are more likely
to come into close contact with someone that has COVID-19 and it is more difficult to
maintain physical distance” [https://www.who.int/emergencies/diseases/novel-coronavirus-
2019/advice-for-public].
WHO additionally clarified myths about thermal scanner saying - Thermal scanners are
effective in detecting people who have a fever (i.e. have a higher than normal body
temperature). They cannot detect people who are infected with COVID-19. Now, Inida is
taking the risk of reopening more spots where people congregate, including places of
worship, with the hope that added precautions will prevent infections. Even with steps to
reduce the number of people and maintain physical distance, the worry is what could happen
if worshipers flout the guidelines.
Such an act of the Respondents will lead to the increased assembly of people outside such
places of worship as only ten (10) people are allowed to go in at one point in time. The
notification further states that gathering and assembly of people on such premises shall not be
permitted. This means that all others who want to enter such places must wait for their turn
outside. There is no norm or guideline issued for how many people can congregate outside
such places of worship and how much distance they ought to maintain between themselves.

The petitioner states that exposure of normal people to such COVID positive asymptomatic
person will lead to nothing short of an explosion of the number of COVID positive cases.
This will put a lot of lives at risk, especially of those who are more susceptible to contracting
the virus and those with underlying health issues such as diabetes, lung, heart conditions, etc.

The abovementioned order of the Respondents, especially with respect to opening up of

places of worship, is in violation of the exception of ‘public order, morality and health’ as
envisaged in Articles 25 and 26 of the Constitution of Inida and its immediate revocation is
justified for the following reasons:
a) Restrictions by the State upon free exercise of religion are permitted both under
Articles 25 and 26 on grounds of public order, morality, and health.
b) Clause (2) (a) of Art. 25 reserves the right of the State to regulate or restrict any
economic, financial, political and other secular activities which may be associated
with religious practice and there is a further right given to the State by sub-clause (b)
under which the State can legislate for social welfare and reform even though by so
doing it might interfere with religious practices. As per clause (2) (a) all secular
activities, which may be associated with religion but do not really constitute an
essential part of it, are amenable to State regulation.
c) Article 25(2)(a) contemplates regulation by the State of religious practices as such,
the freedom of which is guaranteed by the Constitution except when they run counter
to public order, health and morality. It allows regulation of activities which are
economic, commercial or political in their character though they are associated with
religious practices.
While offer of prayer or worship is a religious practice, its offering at every location where
such prayers can be offered would not be an essential or integral part of such religious
practice unless the place has a particular significance for that religion so as to form an
essential or integral part thereof.
Places of worship of any religion having particular significance for that religion, to make it
an essential or integral part of the religion, stand on a different footing and have to be treated
differently and more reverentially but fall within the aforesaid exception given the current
pandemic and increasing susceptibility of people due to human exposure.
Article 25 secures to every person, subject to public order, health and morality and other
provisions of Part- Ill, including Article 17 freedom to entertain and exhibit by outward Acts
as well as propagate and disseminate such religious belief according to his judgment and
conscience for the edification of others. The right of the state to impose such restrictions as
are desired or found necessary on grounds of public order, health and morality is inbuilt in
Articles 25 and 26 itself. Article 25(2)(b) ensures the right of the state to make a law
providing for social welfare and reform besides throwing open of religious institutions of a
public character to all classes and sections of the population and any such rights of the state
or of the communities or classes of society were also considered to need due regulation in the
process of harmonizing the various rights. The vision of the founding fathers of the
Constitution to liberate the society from blind and ritualistic adherence to mere traditional
superstitious beliefs sans reason or rational basis has found expression in the form of Article
17.
The legal position that the protection under Articles 25 and 26 extends a guarantee for rituals
and observances, ceremonies and modes of worship which are integral parts of religion and
as to what really constitutes an essential part of religion is intact. A practice may be a
religious practice but not an essential and integral part of the practice of that religion. The
latter is not protected by Article 25.
A bare reading of Article 25 deprives the submission of all its force, vigor and charm. The
freedom is subject to public order, morality and health. So, the Article itself permits a
measure under legislation such as the Disaster Management Act, 2005 in the interest of social
welfare and reform which are obviously part and parcel of public order stemming from the
collective health of the nation's people.
The Respondent has relaxed the restrictions imposed qua religious places. The imposition of
restrictions on religious places was in the larger public interest. There was a reasonable nexus
with the object sought to be achieved. The object sought to be achieved is that the persons
should not gather in religious places to practice social distancing and control the spread of
Coronavirus. The said object has not been achieved yet. The guidelines had been issued
strictly in conformity with the Disaster Management Act, 2005. The opening of religious
places and holding of religious congregations cannot be relaxed on the analogy of opening of
business establishments. The imposition of restrictions is not repugnant to Article 25 of the
Constitution of India. Article 25 guarantees that every person shall have the freedom of
conscience and right to profess, practice and propagate religion, subject to restrictions
imposed by the State, namely on the ground of -
a) public order, morality, and health;
b) to the other provisions of the Constitution;
c) regulation of non-religious activity associated with the religious practice;
d) social welfare and reform.
The freedom to religion is subject to public order, morality and public health. It is an
extraordinary situation. In order to safeguard the health of the society, restrictions have to be
imposed by closing down all the places of worship for the public, including holding of
religious congregations/gatherings. The restrictions imposed are reasonable based on
objectivity. The restrictions do not amount to interference in the religious affairs of any
community.
RESPONDENT
Article 25 of Indian Constitution:
25. (1) Subject to public order, morality and health and to the other provisions of this Part, all
persons are equally entitled to freedom of conscience and the right freely to profess, practise
and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State
from making any law—
(a) regulating or restricting any economic, financial, political or other secular activity which
may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus.
The court in Stainislaus Rev v. State of MP [1977 AIR 908, 1977 SCR (2) 611] explained
that freedom of ‘profession’ means the right of the believer to state his creed in public
whereas freedom of ‘practice’ means his right to give expression in forms of private and
public worship.
According to World HEALTH organization, Health is a state of complete physical, mental
and social wellbeing and not merely the absence of disease
 To control disease
Petitioner submits that, Union Ministry of Health and Family Welfare had issued Standard
Operating Procedure to contain the spread of COVID-19 in religious places/places of
worship. This set of comprehensive guidelines were prescribed in a manner to maintain
adequate social distancing and other preventive measures.
 SOPs for religious places:
1. Background
Religious places / places of worship get frequented by large number of people
for spiritual
solace. To prevent spread of COVID-19 infection, it is important that required
social
distancing and other preventive measures are followed in such premises.
2. Scope
This document outlines various generic precautionary measures to be adopted
in addition to
specific measures to be taken at particular places to prevent spread of COVID-
19.
Religious places/places of worship for public in containment zones shall
remain closed.
Only those outside containment zones will be allowed to open up.
3. Generic preventive measures
Person above 65 years of age, persons with comorbidities, pregnant woman
and children
below the age of 10 years are advised to stay at home. Organisations managing
the religious
institutions to advise accordingly.
The generic preventive measures include simple public health measures that
are to be
followed to reduce the risk of COVID-19. These measures need to be
observed by all
(workers and visitors) in these places at all times.
These include:
i. Individuals must maintain a minimum distance of 6 feet in public places as
far as
feasible.
ii. Use of face covers/masks to be mandatory.
iii. Practice frequent hand washing with soap (for at least 40-60 seconds) even
when
hands are not visibly dirty. Use of alcohol-based hand sanitizers (for at least
20
seconds) can be made wherever feasible.
iv. Respiratory etiquettes to be strictly followed. This involves strict practice
of covering
one’s mouth and nose while coughing/sneezing with a
tissue/handkerchief/flexed
elbow and disposing off used tissues properly.
v. Self-monitoring of health by all and reporting any illness at the earliest to
state and
district helpline.
vi. Spitting should be strictly prohibited.
vii. Installation & use of Aarogya Setu App shall be advised to all.
4. All religious places shall also ensure:
i. Entrance to have mandatory hand hygiene (sanitizer dispenser) and thermal
screening provisions.
ii. Only asymptomatic persons shall be allowed in the premises.
iii. All persons to be allowed entry only if using face cover/masks.
iv. Posters/standees on preventive measures about COVID-19 to be displayed
prominently. Audio and Video clips to spread awareness on preventive
measures for
COVID-19 should be regularly played.
v. Staggering of visitors to be done, if possible.
vi. Shoes / footwear to be preferably taken off inside own vehicle. If needed
they
should be kept in separate slots for each individual / family by the persons
themselves.
vii. Proper crowd management in the parking lots and outside the premises –
duly
following social distancing norms shall be organized.
viii. Any shops, stalls, cafeteria etc., outside and within the premises shall
follow social
distancing norms at all times
ix. Specific markings may be made with sufficient distant to manage the queue
and
ensure social distancing in the premises.
x. Preferably separate entry and exits for visitors shall be organized
xi. Maintain physical distancing of a minimum of 6 feet at all times when
queuing up for
entry.
xii. People should wash their hand and feet with soap and water before
entering the
premises.
xiii. Seating arrangement to be made in such a way that adequate social
distancing is
maintained.
xiv. For air-conditioning/ventilation, the guidelines of CPWD shall be
followed which
inter alia emphasises that the temperature setting of all air conditioning
devices
should be in the range of 24-30oC, relative humidity should be in the range of
40-
70%, intake of fresh air should be as much as possible and cross ventilation
should
be adequate.
xv. Touching of statues/idols / holy books etc. not to be allowed.
xvi. Large gatherings/congregation continue to remain prohibited.
xvii. In view of potential threat of spread of infection, as far as feasible
recorded
devotional music/songs may be played and choir or singing groups should not
be
allowed.
xviii. Avoid physical contact while greeting each other.
xix. Common prayer mats should be avoided and devotees should bring their
own
prayer mat or piece of cloth which they may take back with them.
xx. No physical offerings like Prasad/distribution or sprinkling of holy water,
etc.to be
allowed inside the religious place.
xxi. Community kitchens/langars / “Ann-daan”, etc. at religious placesshould
follow
physical distancing norms while preparing and distributing food.
xxii. Effective sanitation within the premises shall be maintained with
particular focus on
lavatories, hand and foot-washing stations/areas.
 xxiii. Frequent cleaning and disinfection to be maintained by the management
of the
religious place.
xxiv. The floors should particularly be cleaned multiple times in the premises.
xxv. Proper disposal of face covers / masks / gloves left over by visitors and/or
employees should be ensured.
xxvi. In case of a suspect or confirmed case in the premises:
a. Place the ill person in a room or area where they are isolated from others.
b. Provide a mask/face cover till such time he/she is examined by a doctor.
c. Immediately inform the nearest medical facility (hospital/clinic) or call the
state or district helpline.
d. A risk assessment will be undertaken by the designated public health
authority (district RRT/treating physician) and accordingly further action be
initiated regarding management of case, his/her contacts and need for
disinfection.
e. Disinfection of the premises to be taken up if the person is found positive.

Mental and social wellbeing

Petitioner further submits that, Besides the financial burden caused by the Covid-19 outbreak
and nationwide lockdown, the situation has caused mental distress to many. Opening temples
and other religious places would help such people get peace of mind by offering prayers to
their respective gods. However, the proceedings of the worship are modified to fit the interest
of public health. Many rituals and traditions of the worship place will have to be skipped. The
basis essential religious practices are to be conducted at the sites with maximum preventive
measures. Some of the religious practices which were held essential by the Court:
(1) In Mohd. Hanif Quareshi v. State of Bihar [1958 AIR 731, 1959 SCR 629]: In
Hinduism, worshipping of an image or idol.
(2) In Sarwar Husain v. Addl. Judge: Muslims offering prayers at a public
mosque.
Petitioner further submits that, gatherings related to shopping malls, restaurants, have been
allowed, while having the similar SOPs. Putting restrictions on the entry in the places of
worship for public will be unwarranted unwarranted.

SOPs for shopping malls:

Thermal screening of all visitors mandatory at entry point, along with compulsory
hand hygiene. Only asymptomatic visitors will be allowed to enter the shopping mall.
It will be mandatory for all visitors as well as workers to wear face masks at all times
inside the mall. Gaming arcade, children’s play area and cinema halls inside the mall
will remain closed. There is also a bar on trial of clothing. Number of customers
inside a shop has to be kept minimum. The government has made mall management
responsible for ensuring social distancing.

SOPs for restaurants:

 Takeaways to be encouraged, instead of Dine-In. Food delivery personnel should
leave the packet at customer’s door. Seating arrangement has to be made in such a
way that adequate social distancing is maintained. In restaurants, not more than 50
per cent of seating capacity will be permitted. The restaurants have been advised to
use disposable menus.

It is further submitted that; the above stated facts make it quite evident that a proper measure
was being taken by the government before reopening the places of worship. Overall, the
reopening of the religious place was intended to boost the morale and confidence of devotees
to fight the disease.