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Constitutional law memorial for memorial
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Before THE HONORABLE SUPREME COURT OF ROSEHILL WRIT JURISDICTION UNDER ARTICLE 32 OF THE CONSTITUTION OF ROSEHILL ASSOCIATION OF DEMOCRATIC RIGHTS………………………………………………………………. Petitioner Versus UNION OF ROSEHILL…………………………………………….... Respondent PETITION (CIVIL) PIL NO / 2022 MEMORANDUM ON BEHALF OF THE PETITIONER
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List of Abbreviations 4 Index of Authorities 5 LIST OF CASES 5 STATUTES, RULES AND MISCELLANEOUS 6 INTERNATIONAL CONVENTIONS REPORTS AND ARTICLES 6 BOOKS AND COMMENTARIES 7 ONLINE SOURCES 7 Statement of Jurisdiction 8 Statement of Facts 9 Statement of Issues 10 Summary of Arguments 11 Arguments Advanced 13 PRAYER 27 ISSUE 1:WHETHER THE EXECUTIVE ORDER OF THE GOVT OF ROSEHILL DECLARING THE LOCKDOWN ON 25.03.2020 IS CONSTITUTIONALLY VALID? WHETHER SUDDEN IMPOSITION OF LOCKDOWN VIA AN EXECUTIVE ORDER VIOLATES ARTICLES 14 AND 21 OF THE CONSTITUTION OF ROSEHILL. ISSUE 2: WHETHER THE ORDINANCE PASSED BY THE STATE GOVERNMENT OF BRAAVOS DATED, 25. 04.2020 WHICH SUSPENDED SEVERAL LABOUR LAWS, VIOLATED FUNDAMENTAL RIGHTS OF WORKERS AND THE INTERNATIONAL LABOUR ORGANISATION CONVENTIONS. ISSUE 3:WHETHER THE APPLICATION COVITRACK BRAAVOS’S SHARING OF THE PERSONAL DATA OF THE QUARANTINED PERSONS ON THE WEBSITE AND USE OF MYSTERIOUS DRONES VIOLATIVE OF THE RIGHT TO PRIVACY? ISSUE 4: WHETHER THE CENTRAL GOVERNMENT OF ROSEHILL AND THE STATE GOVERNMENT OF BRAAVOS VIOLATED SEVERAL HUMAN RIGHTS, BOTH
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AIR All India Record Acc. According Art Article CTO Commissioner Tax Officer DMA Disaster Management Act 2005 DPSP Directive Principle Of State Policy Etc Et Cetera EDA Epidemic Disease Act 1897 FR Fundamental Rights Govt Government Hon’ble Honorable i.e. That Is ILO International Labour Organization Ltd Limited MHA Ministry Of Home Affairs NDMA National Disaster Management Authority Ors. Others SC Supreme Court SCC Supreme Court Cases Sec Section UOI Union Of India UT Union Territory WHO World Health Organization & And Vs./V. Versus
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Francis Coralie Mullin v. Union Territory, AIR 1981 SC 746 K. S. Puttuswamy v. UOI, AIR 2017 SC 4161 Maneka Gandhi v. Union of India, AIR 1978 SC 597 Olga Tellis v. Bombay Municipal Corpn., AIR 1986 SC 180 Sivani v. State of Maharashtra, AIR 1995 SC 1770 State of Punjab v. Mohinder Singh Chawla, (1997) 2 SCC 83 : 1997 SCC (L&S) 294 : AIR 1997 A.K. Gopalan v. State of Madras, 1950 SCC 228 : 1950 SCC OnLine SC 17 : 1950 SCR 88 : (1950) Bannari Amman Sugars Ltd. v. CTO, (2005) 1 SCC 625 Sri Srinivas Theatre v. Government of Tamil Nadu 1992 AIR 999, 1992 SCR (2) 164 Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545 : AIR 1986 SC 180 Common Cause (A Regd. Society) vs Union Of India on 9 March, 2018 payelbiswas v. the commisiner of police registrar general v. state of meghalaya olgatellis v. BMC X v. Netherlands X v. Austria registrar general v. state of meghalaya Madras v. VG Rows State of Rajasthan and Ors. v. Union of India and Ors D. S. Patel and Co. v. Gujarat State Textile Corporation Ltd Bannari Amman Sugar Ltd v. CTO Academy of Nutrition Improvement v. Union of India G. Sundarrajan v. Union of India Shri Sitaram Sugar Company Ltd. v. Union of India Henning Jacobson v. Commonwealth of Massachusetts Zucht v. King
VII https://ohrh.law.ox.ac.uk/suspension-of-labour-laws-in-utar-pradesh-amidst-covid- 19 - a- fundamental-rights-emergency/ https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8250373/ file:///C:/Users/vikra/Downloads/6dd76d37-a5a7-4d17-b8b7-76dd054badcd.pdf BOOKS AND COMMENTARIES ARVIND P. DATAR, THE LAW AND PRACTICES OF INCOME TAX (10TH ED., 2014). DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (JUSTICE S. S. SUBRAMANI ET AL., 9TH ED., 2014). DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (JUSTICE C.K. THAKKER ET AL. EDS., 8TH ED., 2012). DURGA DAS BASU, INTRODUCTION TO THE CONSTITUTION OF INDIA (11TH ED.). H.M SEERVAI, CONSTITUTIONAL LAW OF INDIA (4TH ED., 2010). M.P. JAIN, INDIAN CONSTITUTIONAL LAW (SAMARADITYA PAL ET AL. EDS., 7TH ED. 2010). ONLINE SOURCES www.heinonline.com www.jstor.org www.lexisnexis.com/in/legal www.manupatra.com www.scconline.com www.westlawindia.com
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The petitioner most humbly and respectfully invokes the writ jurisdiction of the hon’ble Supreme Court under Art. 32^1 of the Constitution of Rosehill. (^1) Art.32. Remedies for enforcement of rights conferred by this Part The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed 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 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) The right guaranteed by this art. shall not be suspended except as otherwise provided for by this Constitution.
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Whether the executive order of the Government of Rosehill declaring lockdown on 25. 03. 2020 constitutionally valid? Whether sudden imposition of lockdown via an executive order violates Articles 14 and 21 of the Constitution of Rosehill?
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Firstly, [1.1] The order is constitutionally invalid as it abrogates the rights of equality to underprivileged sections of the society, secondly, [1.2]The order is a negligence of the Doctrine of Reasonable classification. Thirdly,[1.3.]The impugned notification manifests arbitrariness and is invasive of art. 14. ISSUE 2: WHETHER THE ORDINANCE PASSED BY THE STATE OF BRAAVOS DATED
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It is humbly submitted to the Hon’ble court that, the lockdown implied via executive order dated 25.03.2020 is in violation of Articles 14 & 21 of the Constitution of Rosehill and hence, constitutionally invalid as it abrogates the rights of equality to underprivileged sections of the society[1.1], The order is a negligence of the Doctrine of Reasonable classification[1.2], Moreover, the notification is arbitrary and disproportionate in nature [1.3]. As reiterated by the court in the Badappanavar “equality is the basic feature of the Constitution of India and any treatment of equals unequally or unequals as equals will be violation of basic structure of the Constitution of India.” The lockdown severed the provision of equal protection of law by subjugation of the whole population under one measure. There has been an equal treatment of the unequals. It was held in the case of Indira sawhney & ors. V. the union of Rosehill &ors. that, “equality contemplated by the article 14 and other cognate article of the constitution is secured not only when equals are treated equally, but also when unequals are treated unequally.” Conversely, when unequals are treated equally, the mandate of equality before law is breached. It was established by the SC in the case of St. Stephen’s college v. the University of Delhi, that unequals are not only permitted to be treated equally but, also they have to be so treated. In the case of State of West Bengal v. Anwar Ali Sarkar, it was held by the court that, ‘the term equal protection of law is a natural consequence of the term equality before law and thus it is very difficult to imagine a situation in which there has been a violation equal protection of law is not a violation of equality before law’. The petitioners fulfil the criterion for passing the test of permissible classification as laid down in the case of Chiranjit Lal Choudhary v. union of Rosehill the criterion of intelligible differentia is met with the fact that not all economical groups could bear the lockdown’s measures which can be subjugated to their family conditions as well as their financial resources. Those with limited source are dependent on daily wages, old people living on the earnings of their family members or bedridden can’t help themselves. A complete lockdown deprieved them their resources of earning and in many cases. They were devoid of accomodation in the places they were stuck. The intelligible differentia in nexus with the object sought called for a differential treatment, denial of which causes a breach of equality conferred by the Constitution.
XIV The denial of equal protection of law, by assuming the society to be on equal grounds grossly violates the fundamental right of equality under the article 14 of the constitution. [1.1] The order is constitutionally invalid as it abrogates the rights of equality to underprivileged sections of the society The sudden implementation of lockdown by an executive order dated 25.03.2020 has violated the fundamental rights of the citizens guaranteed by the Constitution. Various aspects of several provisions which entitled and empowered the citizens were struck off owing to the inadequacy of the government to meet the necessary remarks during an adverse situation like the pandemic. Article 14 corresponds to the equal protection clause of the 14th amendment of the U.S. constitution and adheres to the same concept of equality as in UDHR. Article 14 infers that ‘equals should be treated alike’ which deputizes the concept of differential treatment. The Supreme Court has itself asserted that constitution lays down provisions both for protective discrimination as also affirmative action. In the situation of pandemic, the power of the article to confer ‘equal protection of the laws’ has been compromised in light of the steps taken by the government. With an executive order dated 25.03.2020 a blanket application of lockdown was implied which failed in the admission of the diverse nature of Rosehill. A lockdown of unvarying form imposed the same complexities on every citizen irrespective of their differences. Pertinently, any treatment of equals unequally or unequals as equals constitutes an infringement of the principle of equality enshrined under Art. 14. Furthermore, this the principle of equality is a facet of the basic structure of the Constitution and cannot be compromised in any circumstance. The impugned notification discriminates the people from the deprived sections if the society by placing them on equal footing with the upper classes. Since the object and surrounding circumstances of all such lockdown formulated by the Govt. is for controlling the pandemic, the implementation lead to a greater havoc towards the underprivileged. Their was a necessity for differential treatment of the different classes of the society. Its inadmissibility is violative of the principle of equality enshrined in the Article 14 as vice versa to unlike treatment in analogous circumstances is not permitted. [1.2] The order is a negligence of the Doctrine of Reasonable classification. The circumstances were in favor of the doctrine of Reasonable classification which is prescribed under Art. 14 as a subsidiary rule. It acts in Favour of differential treatment without a reasonable relation and envisages the twin tests of classification i.e. classification must be founded on an intelligible differentia which must have a rational relation to the object sought to be achieved. Firstly, the lockdown was sudden, which restricted the movement of people who have gone for working, away from their homes for earning a livelihood that supports for a real and substantial distinction which is in resonance with the spirit of Article 14.
XVI
It is humbly submitted by the petitioners that the ordinance passed by the State Government of Bravoos dated 25.04.2020, which suspended several labour laws, violated fundamental rights of workers as it exposes them to the worst exploitation by taking away their legal protection. The Constitution of India confers innumerable rights for protecting safeguarding the interests of labour under Part III as well as Part IV pertaining to Fundamental Rights and Directive Principles of State Policy (DPSP), respectively. 2.1 Ordinance passed by the government of Braavos, suspending significant labour laws is in direct violation of Article 21 and the reasons for the same are suspension of laws like the Industrial Disputes Act, 1947 would lead to complete lawlessness as employers will be able to hire and fire workers at their will. The Factories Act, 1948 ensures the safety of workmen and implementation of humane working conditions in the workplace which if taken away violates basic human rights. Further, out of the four laws exempted from suspension, the Bonded Labour System (Abolition) Act, 1976 remains one of them. 2.2 The consequence of suspension of the Minimum Wages Act will force labourers into bonded labour as employers can pay below minimum wage amount. This situation is undesirable, keeping in mind the surge in Covid-19 cases in India and a ban on movement, this might deprive the labourers from their basic livelihood. The intelligible differentia is questionable for such an act of the Government of Braavos. Such a step will promote movement of labour out of BRAVOS where the laws are suspended to their detriment and the prohibition of public movement worsens the situation. 2.3 The health of the working community will suffer through extended working hours and fewer safety precautions. This will further push workers into the informal economy 4. Workers' pay will fall even lower than before. Workers will lack job security and will not benefit from overtime payments.In Jay Engineering Works Ltd. and Ors. v. State of West Bengal and Ors.^2 , When the executive suspended state law which imposed duties on various authorities for the maintenance of law and order, thereby declining protection to managerial staff from ‘gherao', the suspension was held to be unlawful.It was pointed out by B. C. Mitra, J. that the direct result of the suspension (^2) AIR 1968 Cal 407.
XVII would be violation of fundamental rights of the petitioners, who were encircled by the respondents, and breach of statutory duties imposed on public servants. 2.4 The provisions under ILO and its infringement. The aforesaid suspension of workers' rights would also be against the International Labour Organisation (ILO) conventions, ratified by India. Therefore, the immediate suspension and dilution of such rights would lead to a violation but also of the International Labour Organisation's conventions, which India, being a party to, has to "respect and promote". Thus, such suspensions/dilutions would amount to a gross violation of one of the ILO's fundamental principles - namely freedom of association, and the effective recognition of employees' rights, including that of collective bargaining, the abolition of forced or compulsory labour and the abolition of discrimination in respect of pay and conditions of work. 2.5 Article 51 bestows a duty to foster respect for international treaties and obligations. The freedom of citizens of India to form associations and unions has been curbed by this action. The scope with regard to Article 19 (1)(c) has also been extended with the case of Manekar Gandhi vs. the union of India^3. 2.6 A right to life does not mean merely an animal existence, rather it implies a right to live with decency and respect. In the case of Francis Coral vs. Union territory of Delhi^4 , the right to life was found to include a right to live with human dignity. 2.7 The grievance redressal mechanism for the workers as provided in the Industrial Disputes Act, 1947, is also not available due to the suspension of the laws despite the Supreme Court of India recognizing the right of access to justice as a fundamental right in the case of Anita Kushwaha v. Pushap Sadan (2016). In the case of Daily Rated Casual Labour v. Union of India, it was held that “job security” is an essential ingredient of the right to work and must be read in the light of the socio-economic philosophy of the right. By suspending labour laws, there would also be an absence of security of employment and living wage, along with a decent standard of living. ISSUE 3.WHETHER THE APPLICATION COVITRACK, BRAAVOS’S SHARING OF THE PERSONAL DATA OF THE QUARANTINED PERSONS ON THE WEBSITE AND USE OF MYSTERIOUS DRONES VIOLATIVE OF THE RIGHT TO PRIVACY? 3.1 The Counsel on behalf of petitioner most humbly submits before the Hon’ble Supreme Court of Rosehill that mobile applications such as CoviTrack and other applications introduced by Governments, Rosehill has been using mapping techniques from contact tracing to create buffer zones for Covid-19 clusters and hot spots, along with location tracking techniques to track infected patients. Covid-19 tracking application, CoviTrack made it mandatory for all the citizens to download it and upload all the information like name, contact number, health data, location etc. (^3) AIR 1978 SC 597 (^4) AIR 1981 SC 746
XIX without asking for their consent. The app. sought continuous access to location information for its social movement graph. 3.8 Further, the Health and Family Welfare Department of Braavos published the addresses including the names, contact details, house numbers, street numbers, and localities of 16, people who have been quarantined because they had come from abroad, on its official website. This list also included the countries that they had recently visited. 3.9 Henceforth , the Usage of the CoviTrack App directly points to the violation of the right to privacy of a person and this is an argument that cannot be refuted, especially considering how aggressive the measure is. 3.10 In the case of Arvind v. Ministry of home affairs, Karnataka High Court held that informed consent of the user isn’t taken while sharing data hence centre can’t share data. Court also held that the state cannot deny citizens benefits just because they don’t have the app on their phone. Moreover there no particular statues or law , center or state to this effect and therefore the app can’t be mandatory. 3.11 Privacy Protection Bill 2011 The bill forbids "any person having a place of business in India but has data using equipment located in India" from collecting or processing, using or disclosing "any data relating to individual to any person without consent of such individual".With recent judicial luminaries such as Former Supreme Court Judge B N Srikrishna, the chair of the committee that drafted the Privacy Protection Bill 2011, stating that the government’s move was “utterly illegal” (as reported in Indian Express 12th May, 2020, 1:31:56 pm, by Apurva Vishwanath), the true ends of this right need to be justified. 3.12 Furthermore,drones were allegedly used by the Braavos’s Government and these drones were seen announcing orders to pedestrians below to maintain social distance and they were also being used to scan fevers. Law enforcement officials were allegedly using drones to scan parks, beaches, and city squares for violators not complying with the social distancing protocols as mandated by the government 3.13 Through the judgement in the case of K.S. Puttuswamy, the right to Privacy has become an inalienable right. Even though the same was not originally a part of the Constitution, the Right to
XX Privacy is now protected under the Constitution of India and is Preserved by the Judiciary, which acts as the guardian of the Constitution 3.14 KS Puttaswamy vs. Union of India: In the absence of any legislation regulating privacy, the only jurisprudence in this regard is provided by the landmark 2017 decision of the Supreme Court which upheld privacy as a fundamental right under Article 21 of the Indian Constitution. The apex court also held that although the expectation of privacy in public places cannot be unreasonably high, it does not mean that privacy of an individual should altogether be given up in such places. Therefore, unfettered surveillance using drones is violative of the fundamental right to privacy. Yes, privacy like any other right is not an absolute right. The court laid down a four-pronged test of proportionality that must be satisfied for restrictions on privacy to be reasonable. i) Restriction on privacy must be enabled by a law The first limiting principle against curtailment of privacy is legality. The action of the state to restrict privacy must be pursuant to an enacted statute. But these Drone Rules, 2021 do not regulate surveillance and most of the surveillance is being carried out through executive notification, without any procedural safeguards. Therefore, there is a need to enact a comprehensive legislation dealing with data protection in general and regulating drone surveillance in particular. ii) Restriction on privacy must be for a legitimate aim Most drone surveillance by the government is carried out for maintenance of law and order. However, there is no data to prove that this has facilitated in improving law and order. Some studies conducted around the world focusing on the efficacy of mass surveillance devices like CCTV cameras, can provide useful guidance.
