Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., while considering the re-opening of spas in GNCTD expressed that:

“While the spread of Covid-19 is the main factor to be considered, it has to be also balanced with the interest of reopening of businesses and establishments to bring back a semblance of normalcy.”

Petitioner an association of wellness Ayurveda and Spa providers in NCT Delhi is aggrieved by the delay by GNCTD and the Ministry of Home Affairs in issuing guidelines for re-opening of spas sought quashing of order dated 03-08-2020 issued by the Ministry of Health and Family Welfare (MoHFW).

After the lockdown in March, 2020, though various other establishments were permitted to reopen and commerce businesses, spas have still been forced to remain closed.

Petitioners relied on MOHFW’s office memorandum dated 18-11-2020 permitting the reopening of spas subject to conditions.

Despite the above, GNCTD did not permit the reopening of spas.

Senior Counsel, Mr Datta submitted that salons and other similar places have been opened but not giving permission for reopening of spas is discriminatory.

This Court vide order dated 04-12-2020 came to a prima facie conclusion that the distinction sought to be made between the salons and spas would be discriminatory.

GNCTD’s affidavit had the only reason for not giving permission on re-opening of spas which was the longer duration of proximity with the client.

Decision

Bench expressed that several developments have taken place including the reduction in the number of COVID-19 cases as also the introduction of a vaccine.

“…the question of reopening any particular class of establishments is a delicate one to be taken after due consideration of the relative merits and demerits.”

As of June, 2020, i.e., almost 6 months ago, salons which offer similar services have already been opened in Delhi, subject to such establishments observing standard operating procedure prescribed by the MoHFW.

High Court opined that the slight difference in the nature of services and a slightly higher percentage of risk due to the proximity of the client and the service provider can be obviated by prescribing stricter measures and safeguards rather than continuing to keep such establishments closed. 

Difference between salons and spas

Court observed that it cannot also be lost sight of that several salons also provide services akin to those provided in spas. The difference between the services provided in Salons and Spas is very minimal. The said services require service providers and service takers to remain in close proximity for sufficient duration.

Hence,

“…while allowing the opening of salons, continuing the embargo on spas would be violative of the rights of these establishments and their employees.”

High Court is conscious of the importance of prescribing strict safeguards that ought to be taken by establishments providing spa services as also the clients who visit the establishments, the continuation of the embargo on reopening of spas is unjustified.

Therefore, in light of the above, Court permitted the reopening of spas, wellness clinic and similar establishments, in the GNCTD, subject to the following conditions:

  • There shall be strict compliance of the conditions specified in the office memorandum of 18-11-2020 prescribed by the MoHFW in respect of spas. The 6 feet distance shall be in general maintained between clients and employees. Insofar as the service providers i.e., therapists etc., are concerned, they shall maintain all standards of hygiene, masking etc., as set out below;
  • In addition, considering the nature of services provided in spas, all employees in such establishments shall undergo fortnightly RTPCR tests, especially the therapists who are likely to come in close contact with the clients.
  • All therapists and other employees, as also the visitors, shall be subjected to thermal temperature checks and if anyone shows any symptoms, they would not be permitted entry in the establishment.
  • All service providers shall wear face shields and masks while providing therapy. For treatments which are longer than thirty minutes, a PPE kit should also be worn in addition.
  • Clients should preferably wear masks to the extent possible, considering the nature of services which are availed of.
  • All visitors/clients shall sign a declaration form to the effect that they have not contracted Covid-19 and if they have, they have tested negative. The establishments are permitted to take a written consent form accepting the risks that may be involved for clients/visitors.
  • Tools including clothing, other apparel, towels etc., used for clients, shall be sanitised after each and every treatment.
  • It shall be ensured that hygienic conditions are maintained in the spas and any other safeguards in force for salons shall also be adhered to by the spas.

Bench permitted to open spas, wellness clinics and similar establishments in light of the above conditions.[Sukaita v. GNCTD,    2021 SCC OnLine Del 61, decided 14-01-2021]


Advocates who appeared for the parties:
Petitioner: Sachin Dutta, Senior Advocate with Lal Singh and Sudhir Tewatia, Advocates. Randhir Kr. Lal, Advocate.
Respondents: Anupam Srivastava, ASC for GNCTD Advocate for R-1.

Shalini Nair, Anjana Gosain & Aditi Amitabh, Advocates. for R-2

Hot Off The PressNews

The Subject Expert Committee (SEC) in the Central Drugs Standard Control Organisation (CDSCO) to consider the Emergency Use Authorisation (EUA) request of Pfizer, Serum Institute of India (SII) and Bharat Biotech Pvt. Ltd.

Further time was requested on behalf of Pfizer. The additional data and information presented by SII and Bharat Biotech Pvt. Ltd. was perused and analysed by the SEC.

The analysis of the additional data and information is going on. SEC will convene again on 01-01- 2021.


Ministry of Health and Family Welfare

[Press Release dt. 30-12-2020]

[Source: PIB]

COVID 19Hot Off The PressNews

Election Commission of India approved the broad guidelines for conduct of general/bye-elections during the COVID-19 period.

After the onset of the COVID-19 pandemic in India, the Ministry of Home Affairs (MHA) and Ministry of Health and Family Welfare (MoHFW) have been issuing guidelines from time to time.

In their latest circular dated 29-07-2020, MHA has issued comprehensive guidelines/directives to be followed countywide. Similarly, the Ministry of Health & Family Welfare has also issued SOP on disinfection, sanitization, and prevention for containing COVID-19.

Earlier, Commission, on 17-07-2020, had sought views/suggestions of National/State Political Parties till 31-07-2020 and had further extended the period टिल 11-08- 2020 on request of the Political parties. Commission has considered the views/suggestions received from various Political Parties and Chief Electoral Officers of States/UTs on the election campaign and public meetings.

Salient features of the guidelines include the following:

The Commission has revised the norms of number of persons accompanying the candidate and number of vehicles at the time of nomination. It has also created optional facility to fill the nomination form and the affidavit online and submission of the same, after taking print, before the RO concerned. For the first time, the candidates will have the option to deposit security amount for contesting the elections online. Keeping the containment guidelines in view, the Commission has limited the number of persons including candidate for door to door campaign to five. Public meeting and road shows shall be permissible with suitable instructions subject to containment instructions issued by the MHA/State. Face Mask, Sanitizer, Thermal scanners, gloves, face shield and PPE kits shall be used during the electoral process ensuring social distancing norms. Hand gloves shall be provided to all the electors for signing on the voter register and pressing button of EVM for voting.

The Chief Electoral Officers of concerned States/UTs, shall make comprehensive State/District & AC election plans regarding arrangement and preventive measures following these guidelines taking local conditions into account. These plans will be prepared in consultation with Nodal Officer for COVID-19 in their respective States/UTs.

Guidelines are available at https://eci.gov.in/files/file/12167-guidelines-for-conduct-of-general-electionbye-election-during-covid-19/


Election Commission

[Press Release dt. 21-08-2020]

COVID 19Hot Off The PressNews

Ministry of Home Affairs, in a letter to Union Higher Education Secretary, today permitted conduct of examinations by Universities and Institutions.

The final Term Examinations are to be compulsorily conducted as per the UGC Guidelines on Examinations and Academic Calendar for the Universities; and as per the Standard Operating Procedure (SOP) approved by the Union Ministry of Health & Family Welfare.


Ministry of Home Affairs

[Press Release dt. 06-07-2020]

Case BriefsCOVID 19Tribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Bimal Julka (CIC) observed that, important decisions are being made by the Governments involving huge intervention in the healthcare and daily lives of billions of people as they seek to secure social, economic and cultural wellbeing of its population and uphold the rule of law.

It is essential that the decisions themselves and the senior decision makers involved are thoroughly documented in order for the Governments to remain accountable both during and after the crisis for future generations to be able to learn from these actions.

Complainant sought information regarding district-wise number of hospitals and healthcare facilities called by any other name, designated as COVID-19 treatment centres;  criteria for designating them as COVID-19 treatment centers; hospitals and healthcare facilities whose status as COVID 19 treatment centers was withdrawn, etc which should be available with the M/o Health and Family Welfare (M/oH&FW), Directorate General of Health Services (DGHS) or the Indian Council of Medical Research (ICMR).

Reasoning for information sought:

Complainant submitted that the suo motu disclosure of information would immensely benefit the suspected COVID-19 patients or their relatives to be informed and take timely action to approach the appropriate healthcare facility for treatment.

ICMR

He further cited the example of mapping of designated COVID testing centers by the ICMR on Google Maps and stated that similarly information regarding COVID-19 Treatment Centers could also be displayed on Google Maps which would be beneficial to the entire citizenry.

Respondent (MoHFW, PH Section) re-iterated the response to the RTI application and stated that the information sought was not available with them and the application was transferred to the CPIOs concerned.

Commission’s Observation and Decision

Commission at the outset was appalled to learn that basic information pertaining to the District Wise Designated COVID treatment centres could not be provided to the information seeker by any of the Respondents.

As per the provisions of the RTI Act, 2005, the CPIO acts as the pivot for enforcing the implementation of the RTI Act, 2005 and it is their responsibility to facilitate flow of information instead of simply shifting the onus of disclosing the same to other Public Authority/ officials.

Commission further observed that a voluntary disclosure of all information that ought to be displayed in the public domain should be the rule and members of the public who having to seek information should be an exception.

An open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms.

Commission held that very pertinent information pertaining to the COVID-19 pandemic situation was sought by the Complainant which could not be made available by any of the Respondent. The fact that the application shuttled from one Division of the Public Authority to another indicates that there is a very urgent requirement for notifying a Nodal Authority in the M/o H&FW/ DGHS to compile, collate and consolidate the information sought in the RTI application and suo motu upload the same on the website of the Public Authority.

Therefore, the Commission advises the Secretary, M/o H&FW to designate an officer of an appropriate seniority as a Nodal Officer to examine the matter and suo motu disclose the information sought in the RTI application on the website of the Public Authority within a period of 15 days.[Venkatesh Nayak v. CPIO & CMO (EMR), MoHFW, 2020 SCC OnLine CIC 346 , decided on 05-06-2020]