NMB MCS161

NMIMS, SCHOOL OF LAW, BANGLORE

1ST NATIONAL VIRTUAL MOOT COMPETITION

Before

The Hon’ble Supreme Court of Inida

ORIGINAL WRIT JURISDICTION

[UNDER ARTICLE 32 OF THE CONSTITUTION OF INIDA]

IN THE CLUBBED MATTER OF

1. Ryan…………………………………………………………………………………………. Petitioner
2. Ryan…………………………………………………………………………………………. Appellant
3. Dino…………………………………………………………………………………………. Appellant
4. Ethics without Religion ……………..………………………………………………………. Petitioner

v.

1. Union of Inida
2. Union of Inida
3. PM CARES Fund
4. Union of Inida ….………………………………………………………………………Respondents

UPON SUBMISSION TO THE HON’BLE JUSTICES OF THE SUPREME COURT

OF INDIA

MEMORIAL ON BEHALF OF THE PETITIONER

 1ST NATIONAL VIRTUAL MOOT COMPETITION
[NMB MCS161]
Table of Contents
LIST OF ABBREVIATIONS........................................................................................................................3
INDEX OF AUTHORITIES.........................................................................................................................5
STATEMENT OF JURISDICTION...............................................................................................................7
STATEMENT OF FACTS...........................................................................................................................8
ISSUES RAISED.....................................................................................................................................10
SUMMARY OF ARGUMENTS................................................................................................................11
ARGUMENTS ADVANCED.....................................................................................................................13
1. WHETHER GOVERNMENT OF INIDA MAKING INSTALLATION AND USE OF “HEALTH LINK”
MANDATORY IS VIOLATION OF RIGHT TO PRIVACY......................................................13
[1.1] MANDATING HEALTH LINK APP IS ILLEGAL..............................................................13
[1.2] THERE IS A CONSTANT SURVEILLANCE OF A PERSON..............................................13
[1.3] THERE IS NO SECURITY OF DATA..............................................................................15
[1.4] THERE IS NO ACCOUNTABILITY OR TRANSPARENCY IN PROCESSING OF DATA......16
[1.5] THE DATA CAN FURTHER BE EMPLOYED…………………………………………………………………..
2. WHETHER SUPREME COURT CAN INVOKE 142 TO CONFER POWER ON THE TRIAL
COURT TO TEST VOICE SAMPLES
17
[2.1] BIOMETRICS COMES UNDER RIGHT TO PRIVACY.....................................................17
[2.2] SHARING BIOMETRICS RESULTS IN SELF INCRIMINATION.......................................17
[2.3] SUPREME COURT CANNOT CONFER THE POWER ON LOWER COURT BY INVOKING
ARTICLE 142…………………………………………………………………………………………………………………………

3. WHETHER PM CARES FUND IS A PUBLIC AUTHORITY UNDER SECTION 2(H) OF RTI ACT
………………………………………...................................…………………..21
[3.1] PM-CARES IS ACCOUNTABLE TO STAKEHOLDERS……………………………
[3.2] PM-CARES FUND IS A PUBLIC AUTHORITY ………………………………………21
[3.3] THERE IS A BREACH OF TRUST…………………………………………
4. 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
22
[4.1] DECISION TO REOPEN PLACES OF WORSHIP IS UNCONSTITUTIONAL ………………22
[4.2] DECISION IS IN VIOLATION OF WHO GUIDELINES......................................................23
[4.3] DECISION IS VIOLATIVE OF ARTICLE 25 AND 26 ……………………………………………………………….
PRAYER.....................................................................................................................................28

2|Page
-Memorial on Behalf of the Petitioner-
 1ST NATIONAL VIRTUAL MOOT COMPETITION
[NMB MCS161]

3|Page
-Memorial on Behalf of the Petitioner-
 LIST OF ABBREVIATIONS

Abbreviations Expansions
& And

Anr. Another

A.I.R. All India Reporter

All E.R. All England Law Report

Art. Article

CAA Citizenship Amendment Act

CAB Citizenship Amendment Bill

Ed. Edition

Govt. Government

Id ibidem

i.e. that is

JT Judgement Today

LLJ Labour Law Journal

MAD LJ Madras Law Journal

NRC National Register of Citizens

Ors. Others

QB Queen Bench
 INDEX OF AUTHORITIES

[I] CONSTITUTION/ STATUTES/ RULES REFERRED

1. The Constitution of India, 1950.

2. The Right to Information Act, 2005 (Act No. 22 of 2005).
3. The Disaster Management Act, 2005
4. The Code of Criminal Procedure, 1973
5. The Income-tax Act, 1961
6. Companies Act 2013

[II] CASE LAWS

S L. N O . CASE NAME CITATION

1. Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of (2017) 10 SCC 1
India
2. Binoy Vishwan v. Union Of India (2017) 7 SCC 59

3. UIDAI v. CBI SLP (CRL)

2524/2014
4. Selvi v. State Of Karnatka (2010) 7 SCC 263

5. Suchita Srivastava and anr. V. Chandigarh (2009) 14 SCR

Administration 989
6. NALSA v. Union Of India AIR 2014 SC
1863
7. Jharkhand v. Govind Singh AIR 2005 SC 294

8. National Stock Exchange of India Limited v. Central WRIT PETITION

Information Commission (CIVIL) NO. 4748
OF 2007
9. RatilalPanachand Gandhi v. State of Bombay 1954 AIR 388

10. Prem Chand v Excise Commissioner 1963 AIR 996

11. Kharak singh v. state of u.p 1963 AIR 1295

 [IV] DICTIONARY

 Henry Campbell black, BLACK LAW DICTIONARY (10th ed.., 2014).

[V] DYNAMIC LINKS

1. www.manupatra.com

2. www.jstor.org.
3. www.scconline.com

4. www.heinonline.org

5. www.westlawIndia.com

6. www.lexisnexis.com

7. www.ebscohost.com
 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Inida has the jurisdiction to hear and decide upon the petition
made by the petitioner by virtue of the Writ Jurisdiction as stated in Article 32 of The
Constitution of Inida under the Original Jurisdiction of Supreme Court.

Article 32 of The Constitution of Inida reads as hereunder:

“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 clauses (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.”
 STATEMENT OF FACTS
In 2020, a virus outbreak resulted in the death of over 4 lakh people around the world and the same,
which was identified as Severe Acute Respiratory Syndrome Coronavirus-2 (hereinafter 'virus')
affected more than 2.5 lakh people in Inida and was responsible for the death of more than 8000
people. The disease caused by the virus, identified as COVID-19 a.k.a. Corona Virus Disease
(hereinafter 'disease'), was declared as a global pandemic by the WHO and is still spreading across the
world at a shocking rate.

BACKGROUND
To control the spread of the virus, the Inida government declared a nationwide lockdown that lasted
for 2 months. Partial lifting of lockdown started in the latter half of the second month and the Inida
government had allowed inter-district and inter-state travel by road, rail and air modes subject to
travelers following the governments institutional and home quarantine instructions.

LAUNCH OF ‘HEALTH LINK APP’

The Inida government with a view to safeguard from spread of virus mandated the installation of a
mobile application named “Health link” (hereinafter 'application'). The application is intended to
enable contact tracing as a means to control the spread of the virus. The government has mandated
that the application should be mandatorily used by all private and government employees and it has
been implemented as part of the country's health surveillance due to the virus spread. The application
uses both 'bluetooth' and 'location access' relies on voluntary data collected to discover clusters and
take sufficient safety measures to curb spread of virus. Hence the users must regularly update their
health status so that community spread can be controlled. Ryan files a petition before the Honourable
Supreme Court of Inida challenging the directions of the Inida government making installation and
use of “Health link” mandatory on account of violation of right to privacy.

RYAN’S AUDIO POST AGAINST MANDATING OF HEALTH LINK APP ON FACEBOOK

Ryan posted audio on Facebook against the directions of the Inida government making installation and
use of “Health link” mandatory. The Relhi state police arrested Ryan and charged him under section
153A of the Indian Penal Code for the offence of causing disharmony and feeling of hatred which
disturb public tranquility. During the trial, the trial court directed the investigating agency to test voice
samples of the accused with the help of technical experts. Ryan approached the Relhi High Court by
way of a writ petition challenging the direction of the trial court to test the voice samples but the Relhi
High Court dismissed the writ petition on account of the precedent set by the Honourable Supreme
Court of Inida in the matter of Ritesh Sinha v. State of UP (2019).

CREATION OF PM CARES FUND

During the COVID-19 pandemic, the Prime Minister's Office of Inida (PMOI) received several
requests from members of the public to set up an emergency fund that could be used for combating
COVID-19 pandemic and other similar situations in the future. Accordingly, the PMOI created the
Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund (PM CARES 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. After a month from establishing the
PM CARES Fund, PMOI in response to an application filed under the Right to Information Act, 2005
informed the applicant that the PM CARES Fund is not a public authority under the RTI Act. The PIL
was filed by a Relhi based lawyer Dino and though the petitioner contended that the public and
especially the COVID-19 victims have a “right to know” about the fund collected, the Relhi High
Court dismissed the PIL and affirmed that the PM CARES Fund is not a public authority within the
meaning of Right to Information Act, 2005. Aggrieved by this, Advocate Dino has approached the
Honourable Supreme Court of Inida by way of an appeal.

REOPENING OF PLACES OF WORSHIP

The government of Inida, as part of partial lifting of lockdown, also allowed reopening of places of
worship in addition to allowing all industrial units and places of employment to function with 100%
staff. Though the Inida government had issued Standard Operating Procedures (SOP), a section of
atheists of Inida who are part of a voluntary organization named “Ethics Without Religion” filed a
petition before the Honourable Supreme Court of Inida challenging the decision of the Government of
Inida to allow reopening of places of worship during the time of an emergency situation posed by the
COVID-19 pandemic.
 ISSUES RAISED

ISSUE 1.

WHETHER GOVERNMENT OF INIDA MAKING INSTALLATION AND USE OF

“HEALTH LINK” MANDATORY IS VIOLATION OF RIGHT TO PRIVACY

ISSUE 2.

WHETHER SUPREME COURT CAN INVOKE 142 TO CONFER POWER ON THE TRIAL
COURT TO TEST VOICE SAMPLES

ISSUE 3.

WHETHER PM CARES FUND IS A PUBLIC AUTHORITY UNDER SECTION 2(H) OF RTI

ACT

ISSUE 4.

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
 SUMMARY OF ARGUMENTS

1. Whether the Government of India making installation and use of health link mandatory
is a violation of right of privacy

Health link is a contact tracking application that is being mandatorily directed to be installed in
all smartphones. Mandating the application has no law backing it, the applications mandating it
is illegal. The application collects and stores personal data and users of the application are under
constant surveillance. Thus, clearly infringing the right to privacy of the users. the terms and
conditions are also ambiguous. The government has not taken responsibility or has no
accountability of the sensitive data of the user present in the application.
2. Whether supreme court can invoke article 142 to confirm power on the trial court to test
voice samples?

The order of collection of voice sample of the accused by the magistrate is a violation of right to
privacy. Such power was conferred to the trial court by the honorable supreme court by
invoking article 142 in Ritesh Sinha vs Union of India. The voice sample could be considered as
a biometric and ordering to give voice sample could be considered as act of self-incriminatory
evidence infringing right to privacy. Hence, the apex court cannot confirm power on the lower
court by invoking article 142 when it is inconsistent with fundamental right to privacy.
3. Whether pm cares fund is a public authority under section 2 h of RTI act?

The Full disclosure of PM cares fund is quite necessary. The fund is very much accountable to
all of its stakeholders which includes the common masses as well. the PM cares fund has PM as
its ex officio, is controlled by PMO itself and various other government officials are its
members clearly indicating that its nature is that of a public authority which is working for the
welfare of the general public under the RTI act, 2005. The negligible transparency and
accountability about the PM cares fund could lead to breach of trust which is punishable.
4. Whether article 25 is being violated when the government order the reopening of
religious places during the time of an emergency possessed by the covid-19 pandemic?

Right to freedom of religion is provided but it is subject to public order, morality and health.

Health of the public is at stake if the religious places re-open making this decision
unconstitutional. WHO guidelines clearly mention to avoid crowded places which may be
compromised if the religious places are allowed to open. Article 25 and article 26 should be read
harmoniously. They both provide the right to freedom of religion but as mentioned in them are
subject to health of the people. Hence because there is danger of people getting infected the
decision of reopening is violating article 25 and article 26 of the constitution.
 ARGUMENTS ADVANCED

ISSUE 1.

1. WHETHER GOVERNMENT OF INIDA MAKING INSTALLATION AND USE OF

“HEALTH LINK” MANDATORY IS VIOLATION OF RIGHT TO PRIVACY

It is humbly submitted that 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 violating the
right to privacy [A]. Health Link Application collects the personal data of a person including his
health-related data, name, phone number, age, sex, etc. and it is mandatory for switching on Bluetooth
and Location of a person which means there is constant surveillance on a person [B].  The Terms and
Conditions of the application are very ambiguous and the consent is compulsory for the revised term
and conditions and that too after the data from him/her is already collected which clearly shows that
the data collected is far from secure [C]. The wordings of the privacy policy clearly point out that the
sensitive personal data of a person will be retained by the Government even after uninstalling the
application. [D]. 

A. MANDATING HEALTH LINK APP 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 smartphones. In clause 16 of the
guidelines as per MHA Order no.40-3/2020-DM-I(A), it is specifically stated 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.188 of Indian Penal Code and other legal provisions as
applicable”. 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 India1 

B. THERE IS A CONSTANT SURVEILLANCE OF A PERSON

1
(2017) 10 SCC 1
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 the location of a person has to
be set in the setting of the gadget as “always”. This hints towards 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 is subject to judicial
review. According to Kharak singh v. state of u.p.2 the right of personal liberty in Article 21 can be
defined as a right to be free from restrictions or encroachment that are directly imposed or indirectly
brought by the calculated measures.

C. THERE IS NO 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 to accept the revised Terms. Failure to comply with the Terms can result in the
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. In Binoy Vishwan v. Union3 of India it was felt that a
large section of citizens feels concerned about data leak, this concern must be addressed by the
government because it is important that their apprehensions are satisfied by taking proper measures.

D. THERE IS NO ACCOUNTABILITY OR TRANSPARENCY IN 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

2
1963 AIR 1295
3
(2017) 7 SCC 59
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.” This 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
address 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.

ISSUE 2.

2. WHETHER WHETHER SUPREME COURT CAN INVOKE 142 TO CONFER

POWER ON THE TRIAL COURT TO TEST VOICE SAMPLES

The petitioner submits that in the case Prem Chand v Excise Commissioner4 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
[A]. 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 which means giving a voice sample
will result in self-incrimination [B]. 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 [C]. 

A. 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 5. Informational privacy was held to be covered
within the domains of the right to privacy. Further, in the case of UIDAI v. CBI6, 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

4
1963 AIR 996
5
(2017) 10 SCC 1
6
SLP (CRL) 2524/2014
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.

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 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 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 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.

B. 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. Now whether sharing voice samples
results in self-incrimination boils down to two questions.

 Whether the voice spectrography test of 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 Selvi v. State of Karnataka (2010) 7, which outlawed narco-
analysis and the infamous ‘lie detector test’. 

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).

7
(2010) 7 SCC 263
In the Puttaswamy case, the Supreme Court placed the right to privacy inter alia in the right to
autonomy and the right to make intimate decisions about oneself. 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)8 and NALSA (2014)9 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 authorize the investigating agency to record the voice sample of the person
accused of an offence?

There is no specially mentioned 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. The
above-stated facts make it quite evident there was no provision present that allows a magistrate or any
investing agency to take voice samples of the accused.

C. SUPREME COURT CANNOT 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 analyse 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 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. 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. Also, in State of
Jharkhand v. Govind Singh10, 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,

8
(2009) 14 SCR 989
9
AIR 2014 SC 1863
10
AIR 2005 SC 294
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:

 The order should render complete justice for both parties and not just one party,
 The court should endeavor to neutralize any undeserved and unfair advantage gained by a
party invoking its jurisdiction,
 The power cannot be exercised in a manner so as to isolate fundamental rights,

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 honourable supreme court. But the function of the judiciary is to
interpret the law and not power to legislate new provisions that not present in the statutes may not
come under the honourable apex court’s jurisdiction.

ISSUE 3.

3. WHETHER PM CARES FUND IS A PUBLIC AUTHORITY UNDER SECTION

2(H) OF RTI ACT

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 [A].The PM's webpage also says that the Prime Minister is the
ex-officio Chairman of the PM CARES which clearly points out that this fund is a public authority
fund under section 2(h) of RTI act [B]. As the government is negating the transparency by refusing to
share the information it is the breach of trust [C].

A. 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 Commission11 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 the 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 operationalized 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.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 PMOI rightly considered PMNRF as a
public authority and furnished information under the 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 offense 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 it 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.

11
WRIT PETITION (CIVIL) NO. 4748 OF 2007
 B. PM-CARES IS ACCOUNTABLE TO 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 the 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 a public authority under the RTI Act.

Under Article 266(2) of the Constitution, “public money 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. 

C. THERE IS A BREACH OF TRUST

Negating transparency and accountability could be the origin of the breach of trust. As the PM
CARES Fund is totally controlled by PMO, it is a 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 the owner who transferred their 'property' to
'trustee' and hence has the right to know the activities and how their fund is utilized. 

Since breach of trust is a crime, if committed by a public servant, he will be punishable, the public
authority is bound to give information. The PMO is a public authority that has entire records of PM
CARES Fund, any request for information under the RTI Act, cannot be rejected, on the excuse that
PM CARES Fund is not a public authority. 

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 to date and how the
same has been used for the benefits of citizens affected by a coronavirus.

ISSUE 4.

4. 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

The decision of the government to reopen the religious places of worship amidst the pandemic is
completely unconstitutional as it hampers the element of “public health”. It 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[A]. The World Health Organisation, through its
advisories, has advised the public regarding the dos and don’ts relating to the COVID-19 and the
decision by the government completely violates that [B]. 

A. DECISION TO REOPEN PLACES OF WORSHIP IS UNCONSTITUTIONAL

The petitioner states that on account of the recent outbreak of Novel Coronavirus 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 for 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 mentioned 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 the 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 that are economic, commercial, or
political in their character though they are associated with religious practices.

 The 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 the 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 to the public. No religious congregations
were permitted, without any exception.

In RatilalPanachand Gandhi v. State of Bombay 12, 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 decision of the government to reopen the religious places of worship amidst the pandemic is
completely unconstitutional as it hampers the element of “public health”.

DECISION IS IN VIOLATION OF WHO GUIDELINES

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”. 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. The notification further states that gathering and assembly of people on such premises shall
not be permitted. 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
12
1954 AIR 388
petitioner states that exposure of normal people to such a 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 Respondent has relaxed the restrictions imposed on 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, that is the persons should not gather in religious places, to practice social
distancing and control the spread of Coronavirus. 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. 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.

PRAYER
WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED,
AUTHORITIES CITED, AND THE SUBMISSIONS TO BE MADE AT THE TIME OF
HEARING,

IT IS HUMBLY PRAYED THAT THIS HON’BLE COURT MAY BE PLEASED,

1. To declare, the Health Link app Constitutionally valid

2. To set forth, that PM CARES Fund is a public authority
3. To adjudge, that the decision of Relhi High Court is voilative of right to privacy
4. To declare, that Reopening is voilative of ARTICLE 25 of Inida Constitution.
AND PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT THIS HON’BLE
COURT MAY DEEM FIT AND APPROPRIATE IN THE INTERESTS OF justice, equity &
good conscience.