IN THE HON’BLE SUPREME COURT OF SINDHIANA UNDER: ARTICLE 32 OF THE CONSTITUTION OF SINDHIANA, 1950. WRIT PETITION No. of 2021. (PIL) THE PEOPLE FOUNDATION ON INTERNET PRIVACY ___.... Petitioner Versus UNION OF SINDHIANA .... Respondent HUMBLE SUBMISSION TO THE HON’BLE JUSTICES OF THE SUPREME COURT OF SINDHIANA ON BEHALF OF THE RESPONDENT. MEMORIAL ON BEHALF OF THE RESPONDENT — UNION OF SINDHIANA,wo Naw . STATEMENT OF JURISDICTION, . STATEMENT OF ISSUES . SUMMARY OF ARGUMENTS, . ARGUMENTS ADVANCED. TABLE OF CONTENTS . LIST OF ABBREVATIONS on . INDEX OF AUTHORITIES 05 . STATEMENT OF FACTS 07 14 ISSUE 1: Whether the public interest litigation is maintainable? Whether the NGO can invoke the right to approach the Supreme Court under Article 32 for the violation of fundamental right? ISSUE 2: Whether the usage of the Sowkiya app which requires the users to enable GPS and Bluetooth affect the privacy rights and liberty ae ISSUE 3: Whether the ‘Right to health’ is paramount when compared to the ‘Right to privacy alee f . PRAYER 2S, Page | 2 MEMORANDUM ON BEHALF OF THE RESPONDENTAIR All India Reporter PIL Public Interest Litigation NGO Non-Governmental Origination UOI Union Of India ie, That is Viz., namely ‘APP Sowkiya Application. GPS Global Positioning System NIC National Informatics Centre ICMR Indian Council for Medical Research Hon’ble Honourable Govt. Government ILR Indian Law Reports Ltd Limited Para Paragraph Sec. Section sc Supreme court scc Supreme Court Cases SCR Supreme Court Reports UDHR Universal Declaration of Human Rights Page | 3 MEMORANDUM ON BEHALF OF THE RESPONDENTMadras Law Journal International Health Regulations MEMORANDUM ON BEHALF OF THE RESPONDENT[ DEX OF HORITIES LEGISLATIONS REFERRED 1. Constitution Of India, 1950 2. The Information Technology Act,2000 3. Right to Information Act,2005 "ASES REFERRED 1, Subhash Kumar vs State of Bihar,1991 AIR 420:1991 SCR (1) 5. Justice K.S. Puttaswamy vs. Union of India, (2017) 10 SCC 1. Bandhua Mukti Morcha vs Union of India,1984 AIR 802:1984 SCR (2) 67. Ashok Kumar Pandey vs The State of West Bengal, 2004 (3) SCC 349. Janata Dal vs H.S. Chowdhary, AIR 1993 SC 892:1993 CriLJ 600. Dr. B. Singh vs Union of India, AIR 2004 SC 1923. BALCO Employees Union vs Union of India, AIR 2002 SC 350. Guruvayur Devasawom Managing Committee vs C.K Rajan, [2003] 7 SCC 546. S.P.V. Paul Raj vs The Chief Electoral Officer, W.P.(MD) No.7078 of 2021 10. MP Sharma v. Satish Chandra, 1954 AIR 300, 1954 SCR 1077. 11. Kharak Singh v. State of Uttar Pradesh, 1963 AIR 1295, 1964 SCR (1) 332. 12. State of Punjab & Ors vs Mohinder Singh Chawla, AIR 1997 SC 1225. 13. State of Punjab & Ors vs Ram Lubhaya Bagga, (1998) 4 SCC 117. 14. Consumer Education and Research Centre vs Union of India, 1995 $.C.C. (3). 15. Paschim Banga Khet Mazdoor Samity vs State of West Bengal, (1996) 4 SCC 37. 16, Raunag International Itd vs IVR construction Ltd, (1999) 1 SCC 492. 17. Krishna swami vs Union of India, AIR 1993 SC 1407. 18. Rajeev Suri vs the Delhi Development Authority, MANU/SE/0001/2021. 19. In Re: The Kerala Education Bill, vs Unknown, 1959 1 SCR 995. Page | 5 MEMORANDUM ON BEHALF OF THE RESPONDENT20. Shankari Prasad vs Union of India, AIR (1951) SC 455. 21. Minerva Mills Ltd. vs Union of India, 1980 AIR 1789:1981 SCR (1) 206. 22. Akhil Bharatiya Soshit vs Union of India, 1981 AIR 298:1981 SCR (2) 185. 23. Vincent Panikurlangara vs Union of India, 1987 AIR 990:1987 SCR (2) 468, 24. Govind vs State of Madhya Pradesh, 1975 AIR 1378:1975 SCR (3) 946. 25. Unnikrishnan vs State of Andhra Pradesh, (1993 SCC (1) 645). 26. Mr. 'X' vs Hospital 2’, 1998 Supp (1) SCR 723. 27. Jane Roe v. Henry Wade, 410 US 113, BOOK REFERRED. 1. M.P JAIN, CONSTITUION OF INDIA, 7" ED. (Lexis Nexis) 2. DURGA DAS BASU, INTRODUCTION TO THE CONSTITUION OF INDIA, 22 ED. (Lexis Nexis) 3. H.R KHANNA, MAKING OF INDIAN CONSTITUTION, 2" ED. (EASTERN BOOK COMPANY) Page | 6 MEMORANDUM ON BEHALF OF THE RESPONDENTSTATEMENT OF FACTS STATE OF SINDHIANA: ‘The Republic of Sindhiana, being the second most populous country in the world, leads the developing nations in terms of technological advancement. The citizens of Sindhiana are well versed with the technology and different applications available in the tech-market. The Government and the judiciary of the democratic country have been curtailing certain rights on the usage of the internet and at times the freedom of speech and expression were upheld. PANDEMIC: In the month of December 2019, there was a sudden outbreak of a novel coronavirus in the province of Chuhan in the neighbouring state. The virus had spread across the nations within a span of two to three months. The Central Government of Sindhiana declared a complete lockdown from the month of March, 2020. Strict measures were taken by the government to contain the spread of the virus. Nonetheless, the characteristics of the virus differed from the normal virus and therefore it had the tendency of spreading to people through touch or close proximity to the infected persons. TRACKING To trace the spread of the virus the Central Government set up an application known as the “Sowkiya App” available in android and other online platforms. The details of the users are collected by the application. This is primarily used for contact tracing, a method to control further spread of the virus. Even after the complete lockdown was lifted, the Central Government directed all the State Government authorities to make it mandatory for the people of Sindhiana to download the application and instructed to show it at the entrance of every public places such as government organisations, public transport, private corporate establishments, shopping malls, cinema halls etc., are else entry is restricted. Page |7 MEMORANDUM ON BEHALF OF THE RESPONDENTPRIVACY CONCERNS: ‘Though these are desperate times, there were privacy concerns raised by privacy rights organisations. The reason for the fear being that such apps could later be used for mass surveillance. The Sowkiya app collects a significant amount of personal data such as: name, phone number, age, sex, profession, countries visited in the last 30 days, user’s lifestyle and habits. And also it requires the user to enable GPS (location) and Bluetooth always. Again, a person’s location and movement, user privacy gets compromised by keeping the GPS and Bluetooth switched on. Other than this, there were doubts raised by information security experts on the lifespan of the app, its data management protocols, user confidentiality, the absence of a viable mechanism to address data breach violations and an in-built “No liability” clause protecting the app developers. Around 9 NGO’s and 150 individuals raised the issue along with the infringement of “right to privacy” to the Central Government of Sindhiana, The statement also asks for accountability in case of breach. In response to the concerns raised, the Government declared the application as open source and stated that Right to health is paramount compared to the Right to privacy in these unprecedented times. MATTER BEFORE THE COURT One of the NGO’s, “The People Foundation on Internet Privacy” filed a PIL before the Hon'ble ‘Supreme Court of Sindhiana, under Article 32 for the violation of fundamental right. Page | 8 MEMORANDUM ON BEHALF OF THE RESPONDENTSTATEMENT OF JURISDICTIO! ‘The Petitioner approached this Hon'ble Supreme Court of Sindhiana under Article 32 of The Constitution of Sindhiana Article 32. Remedies for enforcement of rights conferred by this Part (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2) (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution. Page |9 MEMORANDUM ON BEHALF OF THE RESPONDENTSTATEMENT OF ISSUES: ISSUE I: Whether the public interest litigation is maintainable? 1.1 Whether the NGO can invoke the right to approach the Supreme Court under Article 32 for the violation of fundamental right? ISSUE II: Whether the usage of the Sowkiya app which requires the users to enable GPS and Bluetooth affect the privacy rights and liberty of the citizens? ISSUE III: Whether the ‘Right to health’ is paramount when compared to the ‘Right to privacy? Page | 10 MEMORANDUM ON BEHALF OF THE RESPONDENTSUMMARY OF ARGUMENTS 1. Whether the public interest litigation is maintainable? The counsel on behalf of petitioner most humbly submits to the Hon'ble Supreme Court of Sindhiana is that There is no express provision are statute which defines the Public Interest Litigation (PIL). PIL is interpreted by judges in various cases in the absence of the any provision judicial interpretation is taken into consideration. person acting bona fide and having sufficient public interest in proceeding a PIL. will have locus standi and can approach the court for the needy, suffering from violation of fundamental rights The expression "PIL" means the legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected. ' In the case of Dr. B. Singh vs Union Of India Hon’ble court pointed out that “it is shocking to note that courts are flooded with a large number of so-called PILs, whereas only a minuscule percentage can legitimately be called PILs”.As the same the present petition was filed by the NGO “The People Foundation on Internet Privacy” There is no evident cause of action that arose from the said NGO when the 9 other NGO's raised concerns over the practicality of Sowkiya. The litigation has been filed to gain publicity among people. And hence the present petition should be dismissed with cost. 1.1 Whether the NGO can invoke the right to approach the Supreme Court under Article 32 for the violation of fundamental right? The counsel on behalf of petitioner most humbly submits to the Hon’ble Supreme Court of Sindhiana is that under Article 32 of the Constitution should be taken by a person genuinely interested in the protection of society on behalf of the community. Public interest litigation cannot be invoked by a person or body or person to satisfy his or its personal grudge and enmity, The aggrieved party whose fundamental rights have been violated has the option to approach either the high court of the corresponding jurisdiction or the supreme court to seek redressal. However, the supreme court would prefer the party to choose the high court under Art 226 so that piling up of I Janata Dal vs 1.8. Chowdhary And Ors, AIR 199: 2 AIR 2004 SC 1923, * Subhash Kumar vs State Of Bihar,1991 AIR 420:1991 SCR (1) 5, SC 892, Page | 11 MEMORANDUM ON BEHALF OF THE RESPONDENTcases for the Supreme court under Art 32 can be less cumbersome, Right to health and Right to privacy are not explicitly given in the Article 21 of our constitution, By various judicial interpretation alone i is ensured as the fundamental right. Right to privacy is guaranteed only by very recent time in the case of Justice K.S. Puttaswamy vs. Union of India* whereas Right to Health is been discussed in prolong period in numerous cases its been guaranteed as the very basic Fundamental Right®. when there is conflict arose between these two subject matters Right to Health will prevail. in Bandhua Mukti Morcha vs Union of India & Ors’ interpreted the right to health under Article 21 which guarantees the right to life. It is reaffirmed by this Hon'ble court that the right to health is fundamental to the right to life and should be put on record that the government had a constitutional obligation to provide health services®. And in the unprecedent covid pandemic where the life of the people is in thread it’s the primary duty of the state ensure the safety and health of the public since Right to Health is been guaranteed as the very basic fundamental right under Article 21 of our Constitution, IL. Whether the usage of the Sowkiya app affect the privacy and liberty of the citizens? The counsel on behalf of petitioner most humbly submits to the Hon’ble Supreme Court of Sindhiana is that Part IV, Article 47 (Directive Principles of State Policies) of the Sindhiana constitution highlights the duty of the government in the improvement of public health and prohibition of drugs detrimental to health. As much as fundamental rights are held fundamental, ppsi arise from the other side of the same coin and should be held as fundamental as the fundamental rights are held?. The government is bound by the regulations and guidelines proposed in the INTERNATIONAL HEALTH REGULATIONS, 2005 (A branch of the WORLD HEALTH ORGANISATION); of which Sindhiana is a signatory. According to THR, the ongoing pandemic is classified as a "public health emergency of international concern’. WHO made an interim regulation to make contact tracing apps as a complimentary measure to curb spread of disease. The government establishing the Sowkiya app is the result of mere following of obligations from the IHR and WHO. “PN Kumar And Another vs Municipal Corporation Of Delhi,1988 SCR (1) 732, 1987 SCC (4) 609, $2017) 10 SCC 1 ® Bandhua Mukti Morcha vs Union of India,1984 AIR 802:1984 SCR (2) 67, 7 1984 AIR 802:1984 SCR (2) 67. ® tate of Punjab & Ors vs Mohinder Singh Chava, AIR 1997 SC 1225. 9 Akhil Bharatiya Soshit vs Union Of India, 1981 AIR 298:1981 SCR (2) 185, Page | 12 MEMORANDUM ON BEHALF OF THE RESPONDENTTIL. Whether the ‘Right to health’ is paramount when compared to the ‘Right to privacy? The counsel on behalf of petitioner most humbly submits to the Hon'ble Supreme Court of Sindhiana is Right to health and right to privacy are both fundamental rights granted to the Sindhiana constitution. However, in situations such as these, wherein we live in unprecedented times, the government should choose between the lesser of two evils. Compromising the right to privacy to uphold the right to health among the residents of Sindhiana is a logical decision taken by the defendant. Right to privacy has been argued as not being the absolute right in Mr. 'X’ vs Hospital ‘Z'"" ‘The doctrine of pith and substance is applied here to reason that the sole intention behind the creation of Sowkiya by the defendant is to prevent the spread of the virus and not to intrude in the privacy of its citizens and hence, right to health prevails right to privacy. 10 1998 Supp(1) SCR 723, Page | 13 MEMORANDUM ON BEHALF OF THE RESPONDENTI. Whether the public interest litigation is maintainable? The counsel for the respondent humbly submits before this Hon'ble court that Public Interest Litigation have a major role in rendering justice. Public interest litigation is not defined in any statute or in any act. It has been interpreted by judges to consider the intent of public at large. In the case of Ashok Kumar Pandey vs The State Of West Bengal '' the Hon'ble Supreme court pointed out that “Public Interest Litigation which has now come to occupy an important field in the administration of law should not be "publicity interest litigation” or "private interest litigation” or "politics interest litigation” or the latest trend “paise income litigation”. If not properly regulated and abuse averted it becomes also a tool in unscrupulous hands to release vendetta and wreck vengeance, as well, There must be real and genuine public interest involved in the litigation and not merely an adventure of knight errant or poke ones into for a probe. It cannot also be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity.” In another case Janata Dal vs H.S. Chowdhary' the Hon'ble Supreme Court stated that “PIL' means a legal action initiated in a Court of Law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.” Inthe case of Dr. B. Singh vs Union Of India"? Hon'ble court pointed out that “it is shocking to note that courts are flooded with a large number of so-called PILs, whereas only a minuscule percentage can legitimately be called PILs” the court also held that PIL was filed with reckless allegations and vitriolic statements against the judges and persons whose names were under consideration for judgeship must be sternly dealt with. It also stated that the petitioner is seeking publicity and not interested un welfare of Judicial System." 11 2004 (3) SCC 349 12 AIR 1993 SC 892:1993 CriLJ 600. 13 AIR 2004 SC 1923, 14 Janata Dal vs H.S. Chowdhary, AIR 1993 SC 892. Page | 14 MEMORANDUM ON BEHALF OF THE RESPONDENTIt has become a trend that a PIL is to be filed for whatever the measures or schemes the Government comes up with even if it is for the welfare and safety of the citizens. Many organizations and individuals are using the PIL as an apparatus to gain publicity. During this lunprecedent time when the health of the citizen as stake it is duty of the government to ensure the public health and the primary duty of every citizen is to abide by the guidelines framed by the Government to combat present pandemic by collective action. In the case of BALCO Employees Union vs Union Of India'® A PIL was filed challenging the Central Government's Policy Decision to disinvest its shares to private persons. In this case lot of the precious time of the apex court has been wasted, hearing was done and it had to reiterate the principle of public interest litigation and to give warning against its misuse. In the case of Guruvayur Devasawom Managing Committee v. C.K.Rajan'®, a three judge bench of the Supreme Court with a view of checking the abuse of the PIL, re-examined its scope and ambit in detail and reiterated the guiding principles for its exercise. It was held that the PIL cannot be used for removing corruptions in the temple. In the case of S.P.V. Paul Raj vs The Chief Electoral Officer'”the lower court held that there was no basis for such a petition and it was completely frivolous. It also asked the petitioner to be more responsible before filing such petitions in the court, The petition was dismissed with costs and the petitioner was banned by the court from filing petitions for a period of one year without taking prior leave of the Bench. In pursuance of the same the counsel humbly submitted to this Hon’ble court to rely upon . Further counsel for respondent humbly submits to this Hon’ble court that Based on full Court decision dated 01.12.1988 this Hon’ble court issued certain guidelines that the matters to be listed and entertained as Public Interest Litigation PIL. In which the subject matter of public health lear that the PIL filed by the NGO is not maintainable since the subject matter of public health or privacy is not enumerated in the or privacy is not enumerated in that said guidelines by this itis said guidelines. Further interim guidelines issued by this Hon’ble court dated 23.03.2020 in which stated that “The Hon’ble Bench(es) may be constituted to hear only matters involving extreme urgency” whereas the present petition filed by the NGO “The People Foundation on Internet 15 AIR 2002 SC 350. 16 [2003] 7 SCC 546, 17 W.P.MD) No.7078 of 2021. Page | 15 MEMORANDUM ON BEHALF OF THE RESPONDENTPrivacy” in this unprecedent time is not for the interest of the public and also the said NGO is not their been actively participated since there is some pecuniary interest or some interest by w! legal rights or liabilities are affected’ there is no cause of action arose. when the other NGO's and certai iduals raise concern about the issue these particular NGO out of nowhere suddenly approaches Hon'ble Court by filling a PIL by stating that it is the matter of urgency its mere private interest litigation and hence the petition must be dismissed with heavy cost. 1.1 Whether the NGO can invoke the right to approach the Supreme Court under Article 32 for the violation of fundamental right? The counsel for respondent humbly summit before this Hon'ble court is that when the fundamental right of the citizen is violated are infringed then the affected person can approach Hon'ble Supreme Court by invoking the right conferred under Article 21 of the constitution. The present petition was filed by the NGO “The People Foundation on Internet Privacy” for the violation of Right to Privacy under Article 21. Both the right to privacy and right to health is not expressly guarantee as a fundamental right by Our Constitution under Article 21. It is guaranteed only by the way of judicial imerpretation, right to privacy is not considered as the fundamental right for the prolong period of time and our Constitution does not specifically protect the right to privacy. In MP Sharma v. Satish Chandra’ decided by this Hon’ble court in an eight-judge bench i 1954 by which privacy is not considered as the fundamental and in other case in 1962 Kharak Singh v. State of Uttar Pradesh this Hon’ble court in an six judges also reconfirmed that the privacy is not fundamental right. Later On, 24th August, 2017 a 9 Judge Bench of this Hon’ble court in the case of Justice K.S. Puttaswamy vs. Union of India”! held that our Constitution guarantees to each individual a fundamental right to privacy under Article 21 by this only right to privacy was guaranteed. However, there are multiple references in the Constitution to public health and on the role of the State in the provision of healthcare to citizens. there are numerous cases and references made by this Hon’ble court through various judgement and judicial interpretation by which right to health is very essential and fundamental right and duty of 18 Janata Dal vs H.S. Chowdhary, AIR 1993 SC 892. "9 1954 AIR 300, 1954 SCR 1077. 2 1963 AIR 1295, 1964 SCR (1) 332. % 2017) 10SCC 1 Page | 16 MEMORANDUM ON BEHALF OF THE RESPONDENTthe state to ensure the public health, this Hon’ble court in the case of Bandhua Mukti Morcha vs Union of India & Ors” interpreted the right to health under Article 21 which guarantees the right to life. In State of Punjab & Ors vs Mohinder Singh Chawla’ the apex court reaffirmed that the right to health had a constitutional obligation to provide health services. In State of Punjab & Ors vs Ram fundamental to the right to life and should be put on record that the government Lubhaya Bagge, the court went on to endorse the State’s responsibility to maintain health services. In the case of Consumer Education and Research Centre vs Union of India’, the court had expressly opined that right to health was also an integral factor to lead a meaningfil life and for the right to life under Part II]. And the court also stated that health includes the access to medical care for the highest attainment of living standards. In the case of Paschim Banga Khet Mazdoor Samity & Ors. v. State of West Bengal,’ the scope of Article 21 was further widened; herein the court held that it is the responsibility of the government to provide adequate medical aid to every person and to work in the welfare of the general public. Moreover, Article 21 imposes obligation on the state, the state is required to protect and safeguard right of every person. ‘There are many cases wherein this Hon’ble court had actively decided upon the cases pertaining to the right to health and ensuring that the state fulfils its duty in ensuring that the right so entrusted is duly assured to its public. Both Right to Privacy and Right to Health are considered as the fundamental right and within the scope of Article 21 by various judicial interpretation. But when there is conflict arose in between Right to privacy and Right to health then Right to health only prevails?” In the landmark case of Raunag International Itd v IVR construction Lid? it was held that the public should be compensated for the delay in the implementation of the project and cost of escalation resulting from such delay due to the interim order passed when the PIL was filed if the PIL is found to be baseless and dismissed. ? 1984 AIR 802:1984 SCR (2) 67. 3 AIR 1997 SC 1225, * (1998) 4 SCC 117, 25 1995 8.C.C. 3), 25 (1996) 4 SCC 37, ® Mr. 'X' vs Hospital Z',1998 Supp(1) SCR 723. % (1999) 1 SCC 492, Page | 17 MEMORANDUM ON BEHALF OF THE RESPONDENTInthe case of Krishna swami vs Union of India” the Supreme court held that the petitioners had no locus standi to file the petition. The petitioners have no purpose in filing the petition In Rajeev Suri vs the Delhi Development Authority" the Supreme Court lamented and called this as a misuse of the concept of PIL. It reiterated the intention behind that PIL, and said that PIL was not meant to make the judiciary the superlative authority over everyday governance bbut to open the doors of constitutional courts for those who were facing injustice to secure their rights. And in these unprecedent time it is primary duty of the government is to ensuring health of the public and hence the petition filed by the NGO by invoking Article 32 for violation of fundamental right is not maintainable and the counsel for respondent humbly submits before t Hon’ble court to not entertain this kind of private interest litigation filed in sake of gaining publicity. © AIR 1993 SC 1407, 8 MANU/SE/0001/2021 Page | 18 MEMORANDUM ON BEHALF OF THE RESPONDENTIL. Whether the usage of the Sowkiya app affect the privacy and liberty of the citizens? The counsel for respondent humbly summit before this Hon’ble court is that Part IV of our constitution states about the Directive Principles of state policy in which Article 47 states that itis the primary duty of the government to ensure quality of life and to improve public health, In the case of In Re: The Kerala Education Bill, vs Unknown’ the court pointed out that the directive principles of State policy have to conform to and run as subsidiary to the Chapter on Fundamental Rights. Nevertheless, in determining the scope and ambit of the fundamental rights relied on by or on behalf of any person or body the court may not entirely ignore these directive principles of State policy laid down in Part IV of the Constitution but should adopt the principle of harmonious construction and should attempt to give effect to both as much as possible. The Doctrine of Harmonious Construction is considered as the thumb rule to the rule of interpretation of statutes. The doctrine states: “Whenever there isa case of conflict between two or more statutes or between two or more parts or provisions of a statute, then the statute has to be interpreted upon harmonious construction. It signifies that in case of inconsistencies, proper harmonization is to be done between the conflicting parts so that one part does not defeat the purpose of another.” The doctrine is based on a cardinal principle in law that every statute has been formulated with a specific purpose and intention and thereby should be read as a whole In the case of Shankari Prasad vs Union of India®. When there is conflict between part ITT (Fundamental Rights) and IV (Directive Principles of State Policy) that form as basic features of the Indian Constitution ‘The court applied the rule of Harmonious Construction and held that Fundamental rights being rights given against the state can be taken away in certain situations and can be amended as well by the Parliament to bring them in conformity with constitutional provisions. Preference was given to both and it was decided that FRs and DPSPs are just two different sides of the same coin that requires working together for the public good. % 1959 1 SCR 95 © AIR (1951) SC 455, Page | 19 MEMORANDUM ON BEHALF OF THE RESPONDENTIn the case of Minerva Mills Ltd. vs Union Of India* the Hon'ble court pointed out that “It is not possible to fit Fundamental Rights and Directive Principles in two distinct and strictly defined categories, but it may be stated broadly that Fundamental Rights represent civil and poli of the broad spectrum of human rights. There is a fine balance in the Constitution between the DPSP and the Fundamental Rights, which should be adhered by the Courts without placing any of them as superior” ical rights while Direct /e Principles embody social and economic rights. Both are clearly part The Directive Principles of State Policy, fundamental in the governance of the country the Fundamental Rights are intended to foster the ideal of a political democracy and to prevent the establishment of authoritarian rule but they are of no value unless they can be enforced by resort to courts. So they are made justifiable. However, it is also evident that notwithstanding their great importance, the Directive Principles cannot in the very nature of things be enforced in a Court of Law, but it does not mean that Directive Principles are less important than Fundamental Rights or that they are not binding on the various organs of the State. Maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends the building of the society of which the Constitution makers envisaged, Attending to public health, in our opinion, therefore, is of high priority perhaps the one at the top. Article 47, a Directive Principle of State Policy, lays stress note on the improvement of public health and prohibition of drugs detrimental to health as one of the primary duties of the state. *° Even if the Article 19(1)(d) guarantees to a citizen a right to privacy in his movement as an emanation from that Article and is itself @ fundamental right, Law imposing reasonable restriction in public interest on the freedom of movement falling within Article 19 (5), even if it be assumed that Article 19(5) does not apply in terms, as the right to privacy of movement cannot be absolute, a law imposing reasonable 1 striction upon it for compelling interest of State must be upheld as valid.** By which it is clear that there is fine balance between Fundamental Right and Directive Principles of State Policy. Even though DPSP is not an Enforceable Right simply it can’t be ignored as the whole in justifying fundamental right. 58 1980 AIR 1789:1981 SCR (1) 206. 34 Akhil Bharatiya Soshit vs Union Of India,1981 AIR 298:1981 SCR (2) 185. 35 Vincent Panikurlangara vs Union OF India,1987 AIR 990:1987 SCR (2) 468. 36 Govind vs State Of Madhya Pradesh, 1975 AIR 1378:1975 SCR (3) 946, Page | 20 MEMORANDUM ON BEHALF OF THE RESPONDENTIn the case of Unnikrishnan vs State of Andhra Pradesh *7 The Court was of the view that Fundamental Rights and Directive Principles are not exclusive to each other therefore they should not be read in exclusion. Moreover, the Court said that the Fundamental Rights are the means through which the goals enumerated in Part IV are achieved. The makers of our constitution while moving for consideration the interim report on fundamental rights, Sardar Vallabhai Patel described both the rights mentioned in Part III and Part IV as fundamental rights’ one justificiable and other non-justiciable. In his supplemental report, he stated: "There were two parts of the report; one contains fundamental rights which were justiciable and the other part of the report refers to fundamental rights which were not justiciable but were directives. This statement indicates the significance attached to directive principles by the founding fathers. In this unprecedent time like covid pandemic where the life of the people is at stake, when the citizen of our country are fighting for life and against death it’s the duty of the government is to ensure the safety and health of the people which is also Enumerated in Article 47 as the directive as the same government taken step by introducing Sowkiya App as a tool to ensuring public safety and to curb the further spreading of deadly covid viru: Sindhiana being signatory to WHO by which government duty bound to the International Health Regulations. IHR are an instrument of international law that is legally-binding on 196 countries, including the 194 WHO Member States. Sindhiana being Member state in WHO its legally bound by IHR . The IHR grew out of the response to deadly epidemics that once overran Europe. IHR creates rights and obligations for countries, including the requirement to report public health events. The Regulations also outline the criteria to determine whether or not a particular event constitutes a “public health emergency of international concern”. Ongoing global pandemic of coronavirus being the matter of international concern and hence government of Sindhiana is bind by the rules and regulations WHO. As the WHO made a interim regulation to make a contact tracing. And also quoted that “Although several countries and areas have deployed digital tools for their COVID-19 response, there is currently limited evidence to evaluate the effectiveness and impact of these tools. As such, digital tools should not be considered as ‘single solutions’ for ¥ (1993 SCC (1) 645) Page | 21 MEMORANDUM ON BEHALF OF THE RESPONDENTcontact tracing, but rather as complementary tools” **.As the same Government taken appropriate steps in ensuring public safety and to trace the spread of the virus and to isolate the people who were in personal contact with the infected government introduced “Sowkiya App” which is fall within the exception sole ground ie public safety. Usage of the Sowkiya app which is not in the violation of privacy and liberty to the citizens. 38 https:/www. who intipublications-detail-redirecv WHO-2019-nCoV-Contact_Tracing-Tools_Annex-2020.1 Page | 22 MEMORANDUM ON BEHALF OF THE RESPONDENTIII. Whether the ‘Right to health’ is paramount when compared to the ‘Right to privacy”? The counsel for respondent humbly summit before this Hon’ble court right to privacy is been debated since 1960’s there are numerous discussions in various cases in deciding whether right to privacy is Fundamental Right and whether it is in within the scope of Article 21 of our constitution. The right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part II.” In the case of Mr. 'X’ vs Hospital ‘2 the division bench of supreme court quoted decision of the Supreme Court of United States in the case of Jane Roe v. Henry Wadet! Although the Constitution of the U.S.A. does not explicitly men-tion any right of privacy, the United States Supreme Court recognizes that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution, and that the roots of that right ‘may be found in the First Amendment, in the Fourth and Fifth Amendments, in the penumbras of the Bill of Rights, in the Ninth Amendment, and in the concept of liberty guaranteed by the first section of the Fourteenth Amendment and that the "right to privacy is not absolute. As one of the basic Human Rights, the right of privacy is not treated as absolute and is subject to such action as may be lawfully taken for the prevention of Crime or disorder or protection of health or morals or protection of rights and freedoms of others. The Supreme court taken the stand that health is more important than once’s own privacy and hence dismissed the petition. This Hon'ble Court in Bandhua Mukti Morcha vs Union of India* interpreted the right to health under Article 21 which guarantees the right to life. In State of Punjab & Ors vs Mohinder Singh Chawla’*the apex court reaffirmed that the right to health is fundamental to the right to life le health and should be put on record that the government had a constitutional obligation to provi services. In State of Punjab & Ors vs Ram Lubhaya Bagga“, the court went on to endorse the 39 Kharak Singh vs The S “© 1998 Supp (1) SCR 723, #410 US 113. © 1984 AIR 802:1984 SCR (2) 67. © AIR 1997 SC 1225, (1998) 4 SCC 117, ite OF U. P. ,1963 AIR 1295:1964 SCR (1) 332. Page | 23 MEMORANDUM ON BEHALF OF THE RESPONDENTState’s responsibility to maintain health services. By which the right to health or healthcare is fundamental and the government had a constitutional obligation to provide health services. The doctrine of pith and substance applied here to reason that the sole intention behind the creation of Sowkiya by the defendant is to prevent the spread of the virus and not to intrude in the privacy of its citizens As the Primary duty of the government is to ensure the primary health of the public. Article 47 of our constitution also ensured the same. ongoing global pandemic by the novel corona virus made the public health as international importance The International Health Regulations (IHR) have been the governing framework for global health security since 2007. Declaring public health emergencies of international concern (PHEIC) is fundamental of the IHR. The ultimate purpose of such declaration is to catalyse timely evidence-based action, to limit the public health and societal impacts of emerging and re-emerging disease risks while preventing unwarranted travel and trade restrictions. As stated in the above case Mr. 'X’ vs Hospital 'Z’ right to privacy is not being the absolute right. when the matter of public health is questioned are disputed with right to privacy then the right to health will override. and in the present situation public health being the international importance and international safety concern then the ‘Right to health’ is supreme when compared to the ‘Right to privacy’. Page | 24 MEMORANDUM ON BEHALF OF THE RESPONDENTPRAYER In light of the issues raised, arguments advanced and authorities cited, the counsel for the Respondent humbly prays that the Hon'ble Court be pleased to adjudge, hold and declare: 1. That the public interest litigation filed by the NGO “The People Foundation on Internet Privacy” is not maintainable since there is no cause of action in the interest of general public and hence the petition must be dismissed with cost 2, That the NGO can’t invoke the right to approach the Supreme Court under Article 32 for the violation of fundamental right since Right to Health will prevail and primary duty of government to ensure health prevail be dismissed. 3. That the usage of the Sowkiya app which requires the users to enable GPS and Bluetooth doesn’t affect the privacy and liberty of the citizens. 4, The ‘Right to health’ is supreme when it is compared with ‘Right to privacy’, Hence fourth pleasing to dismiss the petition filed by NGO “The People Foundation on Internet Privacy” And pass any order that this Hon" ble court may deem fit in the interest of equity, justice and good conscience. And for this act of kindness, the counsel for the Respondent shall duty bound forever pray. (Counsel for Respondent) Page | 25 MEMORANDUM ON BEHALF OF THE RESPONDENT