TC-122

IN THE

HON’BLE SUPREME COURT OF WESTEROS

IN THE MATTERS OF

ORGANISATION FOR COMMON CAUSE FOR POOR

(REPRESENTED BY CHAIRMAN)

PETITIONER 1

V.

UNION OF WESTEROS

(REPRESENTED BY UNION HOME MINISTER)

RESPONDENT

[Writ Petition (Civil) No. 123 of 2020]

Along-With

CATHERINE PEARSON

(REPRESENTED BY HERSELF)

PETITIONER 2

V.

UNION OF WESTEROS AND OTHERS

1
 (REPRESSENTED BY SECRETARY, MINISTRY OF LABOUR AND

EMPLOYMENT and MINISTRY OF ELECTRONICS & INFORMATION

TECHNOLOGY.)

RESPONDENT

[Writ Petition (Civil) No. 234 of 2020]

Along-With

MICHAEL OLIVER

(REPRESENTED BY HIMSELF)

PETITIONER 3

V.

UNION OF WESTEROS AND OTHERS

(REPRESENTED BY UNION HOME MINISTER)

RESPONDENT

[Writ Petition (Criminal) No. 540 of 2020]

THE ABOVE-MENTIONED MATTERS HAVE BEEN CLUBBED BY THIS

HON’BLE SUPREME COURT OF WESTEROS UNDER ARTICLE 139-A OF THE

CONSTITUTION OF WESTEROS READ WITH RULE 5(5), ORDER XL OF THE

SUPREME COURT RULLES, 2013

[TO BE HEARD THROUGH THE SUPREME COURT’S VIRTUAL PLATFORM]

2
 TABLE OF CONTENTS

Index of Authorities ................................................................................................................... 5

Statement of Jurisdiction............................................................................................................ 8

Arguments Advanced................................................................................................................. 9

I. Whether the MHA Order dated 27.03.2020 is arbitrary, and the detention of such
migrant workers in pursuance of such order amounts to a violation of their fundamental
rights?..................................................................................................................................... 9

The M.H.A. Order dated 28.03.2020 is constitutional............................................................... 9

A. The order is passed by the competent authority. ..................................................... 9

B. The M.H.A. Order dated 28.03.2020 is not arbitrary. ............................................. 9

C. The detention of migrant workers in pursuance of the order dated 28.03.2020 does
not amount to violation of their fundamental rights. ....................................................... 10

II. Whether the suspension of several labour laws by all three states in the garb of
incentivizing economic activities vide Order dated 26.04.2020 violates Fundamental Rights
of workers, and subsequently the International Labour Organisation Conventions ratified by
the Union of Westeros? ........................................................................................................ 13

A. That the impugned order does not violates the Fundamental Rights of workers .. 14

B. That it does not violate the International Labour Organisation Conventions ratified
by the Union of Westeros ................................................................................................ 18

III. Whether the sharing of medical data of COVID-19 tested patients with a foreign-
private company, DMPL violates their right to privacy? .................................................... 20

A. That valid Consent is taken before sharing of data ............................................... 20

B. That this is done in furtherance with the principle that public interest will override
rule of confidentiality ....................................................................................................... 21

IV. Whether all the 14 FIRs filed against Mr. Oliver is liable to be quashed and his article
entitled “The Ground Report” falls within the ambit of freedom of speech and expression of
the press? .............................................................................................................................. 22

A. Section 124A of the Penal Code ............................................................................ 22

3
 B. Section 54 of Disaster Management Act (“Act”) .................................................. 24

Prayer ....................................................................................................................................... 26

4
 INDEX OF AUTHORITIES

Cases

A. K. Gopalan v State of Madras (1950) SCR 88 .................................................................... 12

A. P. Coop. Oil Seeds Growers Federation Ltd. v D. Achyuta Rao (2007) 13 SCC 320 .......... 9
ADM, Jabalpur v Shivakant Shukla 1976 SCC (2) 521 ........................................................... 18
Ajay Canu v Union of India (1988) 4 SCC 156 ....................................................................... 11
Alvi v State of Kerala 1982 SCC OnLine Ker ......................................................................... 22
Asit Kumar Sen Gupta v State of Chhattisgarh 2012 (NOC) Cr LJ 384 (Chh ........................ 22
Bankey v Jhingan 1951 SCC OnLine Pat 80 ........................................................................... 11
Emperor v Bal Gangadhar Tilak (1897) 22 Bom 112, 528, (PC) ............................................ 22
Emperor v Sadashiv Narayan Bhalerao AIR 1947 PC 82 ....................................................... 21
Gramophone Company of India Ltd. v Birendra Bahadur Pandey [1984] SCC (2) 534 ........ 17
Hari Khemu Gawali v The Deputy Commissioner of Police 1956 AIR SC 559........................ 9
Indian Express Newspapers (Bombay) (P) Ltd v Union of India (1985) 1 SCC 641 .............. 21
Indra Narayan Bera v The State of W.B. 1951 SCC OnLine Cal 115 ..................................... 11
Javed v State of Haryana AIR 2003 SC 3057. ........................................................................ 13
Jeshinghbhai v Emperor, AIR 1950 Bom 363......................................................................... 11
Jolly George Varghese and Others v Bank of Cochin 1980 AIR 470 ..................................... 18
Kedar Nath Singh v State of Bihar AIR 1962 SC 955 ............................................................. 22
Korangrapady Co-operative Agricultural Society Ltd v Union of India IKR 2017 KAR 460.
.............................................................................................................................................. 16
Krishna Sharma v State of West Bengal AIR 1954 Cal 591 .................................................... 18
Krishnan Kakkanth v Government of Kerala 1997 SCC 9 495 ............................................... 14
M. C. Mehta v Union of India (2003) 5 SCC 376 .................................................................... 12
Maneka Gandhi v Union of India 1978 AIR SC 597............................................................... 12
Maneka Gandhi v. Union of India [1978] SCC 1 248 ............................................................. 13
Niharendu Dutt Majumdar v The King AIR 1942 FC 22 ........................................................ 23
Olga Tellis &others v Bombay Municipla Corporation (1985) 3 SCC 545 ............................ 12
Romesh Thappar v The State of Madras AIR 1950 SC 124 .................................................... 22
S. Ramanathan v The Superintendent of Police 2012 SCC OnLine Mad 1489....................... 11
Sakal Papers (P) Ltd v Union of India AIR 1962 SC 305 ....................................................... 21
State of U.P. v Kausaliya (1964) 4 SCR 1004 ......................................................................... 11
Suresh Chandra Sharma v Chairman U.P. SEB (2005) 3 SCC 153.......................................... 9

5
Swaraj Abhiyan v Union of India & Ors AIR 2016 SC 2929 ................................................. 24
Trendtext Trading. Corpn v Central Bank 1977(I) All E.R. 881 ............................................. 17
West Rand Central Gold Mining Co. v The King [1905] 8 KB 391 ........................................ 18

Statutes

Constitution of Westeros, 1950, Art 19 ................................................................................... 21

Constitution of Westeros, 1950, Art 19(2)............................................................................... 21
Disaster Management Act, 2005, § 124A ................................................................................ 23
Printers (Mysore) Ltd v CTO (1994) 2 SCC 434 .................................................................... 21
The Constitution of Westeros 1950, Art 21 ............................................................................. 12
The Constitution of Westeros 1950, Art 231 ........................................................................... 13
The Constitution of Westeros 1950, Concurrent list entry 29 ................................................... 8
The Constitution of Westeros, Art 21 ...................................................................................... 15
The Constitution of Westeros, Art 360 .................................................................................... 15
The Disaster Management Act 2005, § 10(2)(1) ....................................................................... 8
The Disaster Management Act 2005, § 51............................................................................... 10
The Epidemic Disease Act 1897, § 2 & 2(A ........................................................................... 10
The Epidemic Disease Act 1897, § 3 ....................................................................................... 10
The Epidemic Diseases Act 1897; The Lepers Act 1898 ........................................................ 12
The Railways Act 1989, § 147 ................................................................................................. 10
The Railways Act 1989, § 56 ................................................................................................... 12
The Westeros’ Penal Code 1860, § 188 ................................................................................... 10
The Westeros’ Penal Code 1860, § 269 ................................................................................... 10
Westeros Penal Code, 1860, § 124A ....................................................................................... 21

Other Authorities

Developments of International Law in Treaty Making – Rudiger Wolfrum, Volker Röben .. 17

Isabel Reynolds and Emi Urabe, ‘Japan to Fund Firms to Shift Production Out of
China’(Bloomberg, 8 April 2020) < https://www.bloomberg.com/news/articles/2020-04-
08/japan-to-fund-firms-to-shift-production-out-of-china> accessed 20 June 2020. ............ 16
Mental health and psychosocial considerations during the COVID-19 outbreak’ (WHO, 18
May 2020) < https://www.who.int/docs/default-source/coronaviruse/mental-health-
considerations.pdf> accessed 15 June 2020 ........................................................................ 23

6
Nikhil Inamdar, ‘Coronavirus: Can India replace China as world's factory?’(BBC, 18 May
2020) < https://www.bbc.com/news/world-asia-india-52672510> accessed on 20 June 2020
.............................................................................................................................................. 15

Dictionary

Bryan A Garner, Black’s Law Dictionary (9th edn, 2009) ........................................................ 9

Fact Sheet

Fact sheet ¶ 1.............................................................................................................................. 9

Fact Sheet ¶ 10 ........................................................................................................................... 9
Fact Sheet ¶3 ............................................................................................................................ 15

7
 STATEMENT OF JURISDICTION

The petitioners most humbly submit that this Hon’ble Supreme Court of Westeros has the

jurisdiction to hear and adjudicate upon the present matters of:

I. Writ Petition (Civil) No. 123 of 2020 filed by Petitioner 1 under Article 32 of the Constitution

of Westeros read Rule 12(1)(d) Order XXXVIII - B of the Supreme Court Rules, 2013.

II.Writ Petition (Civil) No. 234 of 2020 filed by Petitioner 2 under Article 32 of the Constitution

of Westeros read Rule 12(1)(d) Order XXXVIII - B of the Supreme Court Rules, 2013.

III.Writ Petition (Criminal) No. 540 of 2020 filed by Petitioner 3 under Article 32 of the

Constitution of Westeros read Rule 7 Order XXXVIII - B of the Supreme Court Rules, 2013.

THE ABOVE-MENTIONED MATTERS HAVE BEEN CLUBBED BY THIS HON’BLE

SUPREME COURT OF WESTEROS UNDER ARTICLE 139-A OF THE CONSTITUTION

OF WESTEROS READ WITH RULE 5(5), ORDER XL OF THE SUPREME COURT

RULLES, 2013

All of which is urged in detail in the written submission and respectfully submitted.

8
 ARGUMENTS ADVANCED

I. WHETHER THE MHA ORDER DATED 27.03.2020 IS ARBITRARY, AND

THE DETENTION OF SUCH MIGRANT WORKERS IN PURSUANCE OF
SUCH ORDER AMOUNTS TO A VIOLATION OF THEIR FUNDAMENTAL
RIGHTS?

THE M.H.A. ORDER DATED 28.03.2020 IS CONSTITUTIONAL.

The M.H.A. Order dated 28.03.2020 (hereinafter referred as ‘the order’) directed the
concerned Ministries and Departments of Union of Westeros, and the Governments of States
to ensure restriction on public movements on roads and highways, congregations, and any form
of public gathering in order to protect spread of the COVID-19. The order is constitutional
because the Ministry of Home Affairs is competent to pass such an order [A]; the order is
neither arbitrary [B], nor in violation of the Fundamental rights provided under the Constitution
of Westeros [C].

A. THE ORDER IS PASSED BY THE COMPETENT AUTHORITY.

Ministry of Home Affairs has passed the order which directs the State machineries to ensure
restriction on public movement on roads. The same has been challenged in the present petition.
It should be noted that entry 29 of the Concurrent list, provides for Center and State government
to make laws regarding ‘Prevention of the extension from one State to another of infectious or
contagious diseases or pests affecting men, animals or plants’.1 Moreover the Section 10 (2) l
of the Disaster Management Act, states that the national executive committee may lay down
guidelines for, or give directions to, the concerned Ministries or Departments of the central
government, the State Governments and the State Authorities regarding measures to be taken
by them in response to any threatening disaster situation or disaster.2 Therefore, the Ministry
of Home Affairs derives its powers to give direction form this section and hence, the order
cannot be challenged on the ground of legislative incompetency.

B. THE M.H.A. ORDER DATED 28.03.2020 IS NOT ARBITRARY.

1
The Constitution of Westeros 1950, Concurrent list entry 29
2
The Disaster Management Act 2005, § 10(2)(1)

9
An act is said to be arbitrary if it is without any determining principle; not founded in nature
of things; non rational; founded on prejudice or preference rather than on reason or fact. 3 Any
action that is arbitrary must necessarily involve the negation of equality.4 However, the mere
fact that some hardship or injustice is caused to someone is no ground to strike down the rule
altogether if otherwise the rule appears to be just, fair and reasonable and constitutional.5

An order to be reasonable must not place a blanket ban on the citizen’s fundamental right, must
be for a limited duration. The Court cannot, however, question the subjective satisfaction of
the authorities empowered to issue order of externment, if the correct procedure laid down in
the law has been followed.6

In the present fact matrix, the Ministry of health affairs has passed the order after being satisfied
that there has been an unprecedented outbreak of COVID-19 epidemic, and which has also
been declared as a global pandemic by the World Health Organisation (WHO).7 The action
taken by the government through the order was necessary and expedient to take effective and
precautionary measures for the containment and transmission of COVID-19 across the country.
The government also took some extra benefits through Prime Ministers’ Relief Plan
(PMRP),Westeros Public Distribution Scheme (WPDS) and Westeros National Rural
Employment Guarantee Scheme (WNREGS) by distributing extra five kilograms of rice, one
kilogram of pulses, three free gas cylinders and increase in the WNREGS wages by 15% with
a view to make such people self-sufficient and self-reliant.8 The order is accompanied with
reasonable grounds to impose restrictions on public movement and this restriction is only for
limited time i.e. 40 days. Therefore the order cannot be considered arbitrary.

C. THE DETENTION OF MIGRANT WORKERS IN PURSUANCE OF THE ORDER DATED

28.03.2020 DOES NOT AMOUNT TO VIOLATION OF THEIR FUNDAMENTAL RIGHTS.

The detention of migrant workers in pursuance of the order does not amount to the violation
of their fundamental rights because, the detention is as per the procedure established by law
[a]; and it does not violate Article 19(1)(d) of the constitution [b] the restriction imposed by

3
Bryan A Garner, Black’s Law Dictionary (9th edn, 2009)
4
Suresh Chandra Sharma v Chairman U.P. SEB (2005) 3 SCC 153
5
A. P. Coop. Oil Seeds Growers Federation Ltd. v D. Achyuta Rao (2007) 13 SCC 320
6
Hari Khemu Gawali v The Deputy Commissioner of Police 1956 AIR SC 559
7
Fact sheet ¶ 1
8
Fact Sheet ¶ 10

10
the order is reasonable restriction under Article 19(5) [c]; it does not violate Article 21 of
the Constitution.

a) The detention is as per the procedure established by law.

Sections 2 and 2A of the Epidemic Disease Act, 1897, allows the government to take measures
if it is satisfied that any state or any part thereof is visited by or threatened with an outbreak of
any dangerous epidemic disease.9 Section 3 prescribes the penalty for disobeying any
regulation or order made under the Act in accordance with Section 188 of the Westeros’ Penal
Code, which is an offence of disobeying directions of a public servant. 10 Further, Section 147
of the Railways Act, 1989, reads as follows: 11 If any person enters upon or into any part of
a railway without lawful authority, or having lawfully entered upon or into such part misuses
such property or refuses to leave, he shall be punishable with imprisonment for a term which
may extend to six months, or with fine which may extend to one thousand rupees, or both.
(2) Any person referred to in sub-section (1) may be removed from the railway by any
railway servant or by any other person whom such railway servant may call to his aid.”

Section 51 of Disaster Management Act,12 provides punishment for obstruction as

(1)Whoever, without reasonable cause, (a) obstructs any officer or employee of the Central
Government or the State Government, or a person authorised by the National Authority or State
Authority or District Authority in the discharge of his functions under this Act; or (b) refuses
to comply with any direction given by or on behalf of the Central Government or the State
Government or the National Executive Committee or the State Executive Committee or the
District Authority under this Act, shall on conviction be punishable with imprisonment for a
term which may extend to one year or with fine, or with both, and if such obstruction or refusal
to comply with directions results in loss of lives or imminent danger thereof, shall on conviction
be punishable with imprisonment for a term which may extend to two years.

The authorities, also get power to punish the people who seem to break the order through the
mechanism provided under Section 188 of Westeros’ Penal Code,13 which provides for action
that can be taken in case of disobedience to the directions given by a public servant; Section
269 of the Westeros’ Penal Code,14 which provides for the punishment for negligent act likely

9
The Epidemic Disease Act 1897, § 2 & 2(A)
10
The Epidemic Disease Act 1897, § 3
11
The Railways Act 1989, § 147
12
The Disaster Management Act 2005, § 51
13
The Westeros’ Penal Code 1860, § 188
14
The Westeros’ Penal Code 1860, § 269

11
to spread infection of disease dangerous to life. Therefore, there are various legal provisions
which empower the authorities to punish the people who are not following the government
order. Therefore, the restrictions on individual’s rights is for the public welfare and in
accordance with the procedure established by law.

b) The order does not violate freedom of movement.

A law constitutes a restriction upon the freedom of movement only if it imposes restrictions
upon the right of locomotion of the person physically, e.g., where a person is prevented from
going into a particular area,15 or removed from, one place to another or externed16 from a State
or other territory altogether. The right to move denotes nothing more than a right of locomotion
and in the context of adverb “freely” would only connote that the freedom to move is without
restriction and is absolute, i.e., to move wherever one likes, whenever one likes and however
one likes subject to any valid law enacted or made under Clause (5). 17 In the present matter,
the restriction is imposed on the ‘public’ movement not on the movement of the individual
alone because it was required in the public interest, moreover it should be observed that the
freedom of movement is not an absolute right and it can be taken away in the larger interest of
the nation. The restriction imposed by the order is also for public welfare purpose of controlling
the transmission of the disease.

c) The restriction comes under Article 19(5).

The freedom of movement or of residence is subject to the restrictions which the State may
reasonably impose on either of two grounds—(i) interests of the general public (ii) interests of
any Scheduled Tribe.18 This expression embraces not only public security, public order or
morality19 but also authorises the State to impose restrictions on grounds of social and
economic policy or on the ground of the common good, e.g., securing the objects mentioned in
the Directive Principles of the Constitution.20 There is no fundamental right against any act
aimed at doing some public good.21 Even assuming that wearing a helmet puts a restriction on
the fundamental right under Article 19(1)(d), such restriction being in the interest of general

15
Indra Narayan Bera v The State of W.B. 1951 SCC OnLine Cal 115
16
State of U.P. v Kausaliya (1964) 4 SCR 1004
17
S. Ramanathan v The Superintendent of Police 2012 SCC OnLine Mad 1489
18
Bankey v Jhingan 1951 SCC OnLine Pat 80
19
Jeshinghbhai v Emperor, AIR 1950 Bom 363
20
Gorela Krishnamurthy And Another v. Kalidindi Venkateswaran (Died) And Others 1951 SCC OnLine Mad
186
21
Ajay Canu v Union of India (1988) 4 SCC 156

12
public is reasonable.22 It is obvious that, for the prevention of the spread of contagious diseases
like plague23 regulations for removal and segregation may be made. For similar reasons, the
movement of infected persons by public conveyances, such as railways, may be restricted.24
Thus, Section 56 of the Railways Act, 1989 restricts the right of a person, suffering from
infectious or contagious disease, to travel by rail.25 For the same reason, even healthy persons
may be prevented from visiting infected areas. Therefore, in the present circumstances, the act
of the Government to restrict mass movement of people on roads and other places to stop the
transmission of COVID-19 is reasonable and valid.

d) The detention in pursuance of the order does not violate Article 21.

The Article 21 of the Constitution states that, no person shall be deprived of his life or personal
liberty except according to procedure established by law.26 The procedure prescribed by law
for the deprivation of the right conferred by Article 21 must be fair, just and reasonable.27 No
person can be deprived of his right unless there is a law made by the State prescribing the
procedure for so depriving him and the deprivation is effected strictly in accordance with such
procedure.28 In the present matter, the detention in pursuance of the order is as per the statutes
which provide for punishment in case of an act of disobedience to the directions given by a
public servant.29 Moreover, liberty of an individual has to be balanced with his duties and
obligations towards his fellow citizens.30 In the present matter the public movement on roads
and other places can lead to spread of the disease more rapidly and it would affect the public
at large.

II. WHETHER THE SUSPENSION OF SEVERAL LABOUR LAWS BY ALL

THREE STATES IN THE GARB OF INCENTIVIZING ECONOMIC
ACTIVITIES VIDE ORDER DATED 26.04.2020 VIOLATES FUNDAMENTAL
RIGHTS OF WORKERS, AND SUBSEQUENTLY THE INTERNATIONAL

22
ibid
23
A. K. Gopalan v State of Madras (1950) SCR 88
24
The Epidemic Diseases Act 1897; The Lepers Act 1898
25
The Railways Act 1989, § 56
26
The Constitution of Westeros 1950, Art 21
27
Olga Tellis &others v Bombay Municipla Corporation (1985) 3 SCC 545
28
Maneka Gandhi v Union of India 1978 AIR SC 597
29
The Westeros’ Penal Code 1860, § 188
30
M. C. Mehta v Union of India (2003) 5 SCC 376

13
 LABOUR ORGANISATION CONVENTIONS RATIFIED BY THE UNION OF
WESTEROS?

It is most humbly submitted that that three state governments in the Union of Westeros have
suspended a few labour laws pursuant to an Ordinance dated 26.04.2020 (“Impugned
Order/Law”) passed by the Governors of their respective states under Article 213 of the
Constitution of Westeros.31 Therefore, it is submitted that [A] the impugned order does not
violate the Fundamental Rights of workers and subsequently, [B] it does not violate the
International Labour Organisation Conventions ratified by the Union of Westeros.

A. THAT THE IMPUGNED ORDER DOES NOT VIOLATES THE FUNDAMENTAL RIGHTS OF

WORKERS

It is submitted [i] that the Fundamental Rights under part III of the Constitution of Westeros
(“Constitution”) are under control and are subject to reasonable restrictions as necessary for
the protection of general welfare. [ii] Further, all the basic rights are still available to workers
through Fundamental rights and only selective provisions are suspended for a limited period of
time.

a) That the Fundamental Rights under part III of the Constitution of Westeros are
under control and are subject to reasonable restrictions as necessary for the
protection of general welfare (Need to incentivize economy).

It is submitted that Fundamental Rights can also be selectively curtailed. Unrestricted freedom
of one may be destructive of the freedom of another and in a well-ordered, civilized society,
freedom can only be regulated.32

While dealing with the provision of Article 21 in respect of personal liberty, Hon'ble Supreme
Court put some restrictions in a case of Javed v State of Haryana,33 as follows:

“At the very outset we are constrained to observe that the law laid down by this court
in the decisions relied on either being misread or read divorced of the context. The test
of reasonableness is not a wholly subjective test and its contours are fairly indicated
by the Constitution. The requirement of reasonableness runs like a golden thread
through the entire fabric of fundamental rights. The lofty ideals of social and economic

31
The Constitution of Westeros 1950, Art 231
32
Maneka Gandhi v. Union of India [1978] SCC 1 248.
33
Javed v State of Haryana AIR 2003 SC 3057.

14
 justice, the advancement of the nation as a whole and the philosophy of distributive
justice- economic, social and political- cannot be given a go-by in the name of undue
stress on fundamental rights and individual liberty. Reasonableness and rationality,
legally as well as philosophically, provide colour to the meaning of fundamental rights
and these principles are deducible from those very decisions which have been relied.”

Fundamental rights guaranteed under Article 19 of the Constitution are not absolute but the
same are subject to reasonable restrictions to be imposed against enjoyment of such rights.34

To ascertain unreasonableness and arbitrariness in the context of Article 14 of the Constitution,

it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision
of the State Government.35 It is immaterial whether a better or more comprehensive policy
decision could have been taken.36 Unless the policy decision is demonstrably capricious or
arbitrary and not informed by any reason whatsoever, the policy decision cannot be struck
down.37

It should be borne in mind that except for the limited purpose of testing a public policy in the
context of illegality and unconstitutionality, courts should avoid “embarking on uncharted
ocean of public policy.38

In case of Olga Tellis v Bombay Municipal Corporation (5 judge bench),39 the petitioners
claimed that the provisions of Bombay Municipal Corporation Act, 1888 are violative of right
to livelihood under Article 21 and further violative of Article 19 and 14. According to
Maharashtra Government those provision are conceived in public interest and great care is
taken by the authorities to ensure that harassment is not caused to any payment dweller. The
Hon’ble Supreme Court accepted this contention and declared that such laws/provisions are
not unreasonable.

The Centre for Monitoring Westeros’ Economy (“CMWE”), a government approved agency
which monitors Westeros’ economy, states that the unemployment rate is at 23.9% in the
country. Approximately 55% of the employed persons in Westeros were employed either in
small scale industries or in unorganized sectors, while 360 million persons are destitute.

34
Krishnan Kakkanth v Government of Kerala 1997 SCC 9 495
35
ibid
36
ibid
37
ibid
38
ibid
39
Olga Tellis &others v Bombay Municipla Corporation (1985) 3 SCC 545

15
Out of 1.3 billion people 360 million were in destitute even before the lockdown as the statistics
available were from before lockdown period. Further, CMWE in its research paper 25.04.2020
stated that Westeros is experiencing its biggest downfall in the industrial production in the past
52 years and there exist a dire need to incentivize the economic and industrial production, or
else Westeros will soon witness a situation of financial emergency.

Thus, the present labour laws will only make the condition worst for everyone including the
workers as due to long and hectic procedure of licensing factories will not be able to work thus
leading to unemployment and which will ultimately jeopardize already low industrial
production. With the help of impugned order, the state governments have protected the basic
rights of the workers by also providing them will more employment opportunities as this will
provide employment to those who were unemployed otherwise. Thus, violating right to work
of the worker under Article 19(1)(g) and Article 21 of the Constitution.40

Further, Article 19(6) provides that nothing shall prevent state from making any law imposing
in the interests of general public, reasonable restrictions on the rights conferred by Article
19(1)(g). In furtherance with this the impugned law has been passed by the state government.

In case such measures are not taken it is most likely that a state of Financial Emergency under
Article 360 will have to be declared by the President of Westeros which will ultimately arm
the government with high powers such as reduction of salaries and allowances of all or any
class of person.41

Labour laws have created a ‘monstrous’ unorganised sector. Labour regulation makes labour
costly, industry switches to capital. 90 percent of labour never had any protection in the first
place. The existing laws only served unionised labour, labour inspectors, and ‘champagne
socialists’

That being said, the impugned order of presenting this initiative as a ‘win-win’ for labour and
capital must be called out for the contempt that it deserves. Moreover, 55% of the employed
persons were in unorganized sector thus many labour laws weren’t already benefiting them
anyways.42 Temporarily removing them will attract investors from outside the country. As
many companies are looking forward to shift their factories from China.43 Also, Japan is

40
The Constitution of Westeros, Art 21
41
The Constitution of Westeros, Art 360
42
Fact Sheet ¶3.
43
Nikhil Inamdar, ‘Coronavirus: Can India replace China as world's factory?’(BBC, 18 May 2020) <
https://www.bbc.com/news/world-asia-india-52672510> accessed on 20 June 2020.

16
providing incentives earmarked $2.2 billion to help manufacturers shift production out of
China.44 Hence, to revive the economy and attract investors such measures are taken.

b) Further, all the basic rights are still available to workers through Fundamental rights
and only selective provisions are suspended for a limited period of time.

It is submitted that impugned order has absolutely no effect on the fundamental rights of the
workers as they will still be protected by the Fundamental Rights and thus the impugned order
will help the country in incentivizing economic activities as this will attract foreign investors.
This will further solve the problem of unemployment who has increased a lot due to pandemic.

The workers are still entitled to fair wages and timely wages as Section 5 of the Payment of
Wages Act has not been suspended. Further, workers can still claim infringement of
Fundamental Rights in case an employer does so. The impugned law has not suspended the
Trade Unions Act, 1926 and thus workers can also claim their rights through a trade union as
it will maintain balance of bargaining power. Thus, the petitioner’s claim that impugned order
violates Article 19(1)(c) of Constitution is invalid.

In the case of Korangrapady Co-operative Agricultural Society Ltd v Union of India,45 the
Karnataka High Court held that restriction imposed are not violative of Article 19(1)(c) as the
restrictions was necessary and not on permanent basis.46

These steps are taken an emergency measure. The idea is to provide some relief to industries
which are genuinely stressed by poor economic conditions. As in view of the prevailing
circumstances, the economists expressed their concerns about the further downfall of economy
if the economic and industrial activities were also shut. They also highlighted the potential
threat to livelihood of the indigenous and migrant working class.

Labour laws in Westeros have often been accused of being onerous. The concomitant permit
or license Raj, which mandates the companies to obtain licenses and permits for every step,
often leads to delays, enhances the compliance burden and also leaves new businesses at mercy

44
Isabel Reynolds and Emi Urabe, ‘Japan to Fund Firms to Shift Production Out of China’(Bloomberg, 8 April
2020) < https://www.bloomberg.com/news/articles/2020-04-08/japan-to-fund-firms-to-shift-production-out-of-
china> accessed 20 June 2020.
45
Korangrapady Co-operative Agricultural Society Ltd v Union of India IKR 2017 KAR 460.
46
ibid

17
of a regulatory maze. Currently, there are 44 Labour laws which has many overlapping
provisions which have to be complied by the companies/factories.

As stated in the CMWE paper dated 25.04.2020 this lockdown has caused more human
suffering than that by COIVD-19 itself which means that unemployment of daily wage workers
or migrants have caused more suffering/deaths thus no employment is more harmful than
compared to employment with better facilities.

Even though the state has allowed labourers to work for a 12-hour shift, instead of 8-hours
shift, they will still be commensurate extra pay. Thus, the employers will be able to pass on the
benefits to the employee which otherwise would have used in obtaining licenses and permits.
Hence, it is a win-win situation for both workers and employers.

B. THAT IT DOES NOT VIOLATE THE INTERNATIONAL LABOUR ORGANISATION

CONVENTIONS RATIFIED BY THE UNION OF WESTEROS

It is submitted that courts may order to implement international law if it is not inconsistent with
the domestic law enacted by the Parliament. In case, if the international law is not consistent
with the domestic law, the court will follow the domestic law.47

State law has binding force within its territories of a sovereign state. But in certain
circumstances, International law may not have such binding force, unless and until the
sovereign state incorporates it in its state law.48

First, we shall examine if there is any mandate of international law or if the rules of
international law afford us any guidance and if such mandate or guidance is perceptive under
Indian law.

Two questions arise, first, whether international law is, of its own force, drawn into the law of
the land without the aid of a municipal statute and, second, whether, so drawn, it overrides
municipal law in case of conflict.

It has been said in England that there are two schools of thought, one school of thought
propounding the doctrine of incorporation and the other, the doctrine of transformation Per
Lord Denning MR in Trendtext Trading. Corpn v Central Bank.49 According to the one, rules
of international law are incorporated into the law of the land automatically and considered to

47
Gramophone Company of India Ltd. v Birendra Bahadur Pandey [1984] SCC (2) 534.
48
Developments of International Law in Treaty Making – Rudiger Wolfrum, Volker Röben.
49
Trendtext Trading. Corpn v Central Bank 1977(I) All E.R. 881

18
be part of the law of the land unless in conflict with an Act of Parliament. According to the
other, rules of International law are not part of the law of the land, unless already so by an Act
of Parliament, judicial decision or long-established custom. According to the one whenever the
rules of international law changed, they would result in a change of the law of the land along
with them, 'without the aid of an Act of Parliament'. According to the other, no such change
would occur unless those principles are 'accepted and adopted by the domestic law'. Lord
Danning who had once accepted the transformation doctrine without question, later veered
round to express a preference for the doctrine of incorporation and explained how courts were
justified in applying modern rules of international law when old rules of international law
changed. In fact, the doctrine of incorporation, it appears, was accepted in England long before
Lord Danning did so. Lord Danning himself referred to some old cases. Apart from those, we
may refer to West Rand Central Gold Mining Co. v The King,50 where the court said:

It is quite true that whatever has received the common consent of civilized nations must
have received the assent of our country, and that to which we have assented along with
other nations in general may properly be called international law, and as such will be
acknowledged and applied by our municipal tribunals when legitimate occasion arises for
those tribunals to decide questions to which doctrines of international law may be relevant.

In Krishna Sharma v State of West Bengal,51 the Calcutta High Court has decided the case
considering the above view. But in ADM, Jabalpur v Shivakant Shukla,52 which is a Writ of
Habeas Corpus case, the Hon’ble Supreme Court of India clearly opined that “nothing which
conflicts with the provision of our constitution could be enforced here under any disguise”

Thus, the impugned law which was made using a constitutional provision will prevail over the
International Labour Organisation Conventions.

The question, whether the treaties are binding automatically or do they need any legislation
enabling it was answered in the judgment given by the Hon’ble Supreme Court of India in the
leading case of Jolly George Varghese and Others v Bank of Cochin.53 In this case, the Hon’ble
Supreme Court of India, in the words of Justice Krishna Iyer had opined that “The positive

50
West Rand Central Gold Mining Co. v The King [1905] 8 KB 391
51
Krishna Sharma v State of West Bengal AIR 1954 Cal 591
52
ADM, Jabalpur v Shivakant Shukla 1976 SCC (2) 521.
53
Jolly George Varghese and Others v Bank of Cochin 1980 AIR 470.

19
commitment of the State Parties ignites legislative action at home but does not automatically
make the covenant as enforceable part of the corpus juris of India “.

Based on the above discussed provisions of the Constitution of India, judgments in various
leading cases, we can conclude that the International Treaties and the treaty obligations are
enforceable by the Courts in India, if such treaties are enabled by legislating an act by the
Parliament of India. There are several such legislations which are enacted by the Parliament of
India, once India became signatory to the related treaties and conventions. Example: The
Diplomatic Relation (Vienna Conventions) Act 1972. SAARC Convention (Suppression of
Terrorism) Act 1993, Protection of Human Rights Act 1993 and Environment Protection Act,
1986. Whereas the Westeros labour laws were not legislated on these conventions.

Most Central labour laws have provisions that delegate certain powers to the state government
emergency situations other than war/external or internal disturbances. There have been cases
where a developed country has suspended labour laws during emergency for revival of
economy. United States suspension of Davis-Bacon Act after hurricane Katrine despite being
a developed nation with economy far greater than Westeros.

On the same line three states of Westeros have for a temporary period of time have suspended
few labour laws in order to incentivize the economy and thus the impugned law/order is just
and reasonable hence it does not violate Fundamental Rights and subsequently as the basic
principles of International Labour Organisation Conventions which have been enumerated in
Westeros domestic laws which are binding on Westeros are still followed.

III. WHETHER THE SHARING OF MEDICAL DATA OF COVID-19 TESTED

PATIENTS WITH A FOREIGN-PRIVATE COMPANY, DMPL VIOLATES
THEIR RIGHT TO PRIVACY?

It is submitted that the sharing of medical data of COVID-19 tested patients with a foreign-
private company, DMPL does not violates their right to privacy as [A] Valid Consent is taken
before sharing of data. Further, [B] this is done in furtherance with the principle that public
interest will override rule of confidentiality.

A. THAT VALID CONSENT IS TAKEN BEFORE SHARING OF DATA

20
It is submitted that valid consent was taken on a form having terms and conditions running
through four pages. It was held in the case of K S Puttaswamy v Union of India,54 that informed
consent is a valid defence for collecting data.

In Jacobson v Massachusetts, it has been held that, governments need to ensure that they do
not apply public health laws in an “arbitrary and oppressive manner.”55 While the governments
are required and entitled to formulate fresh guidelines and pass orders to combat a public health
emergency,56 they ought to be enforced in a manner that the constitutional rights of individuals
are not overlooked in a bid to defend public interests.57 Thus, a four-page long terms and
conditions will inform in detail about how the data will be utilized and share. Moreover, the
doctor will be explaining the terms and conditions to the patient as there are migrant
worker/labourers involved who might not know how to read or right.

B. THAT THIS IS DONE IN FURTHERANCE WITH THE PRINCIPLE THAT PUBLIC INTEREST

WILL OVERRIDE RULE OF CONFIDENTIALITY

It is submitted that the intersection between privacy and medical jurisprudence has been dealt
with in a series of judgments of Supreme Court of India, among them being Mr. X v Hospital
Z.58 In that case, the Appellant was a doctor in the health service of a state. He was
accompanying a patient for surgery from Nagaland to Chennai and was tested when he was to
donate blood. The blood sample was found to be HIV+. The Appellant claiming to have been
socially ostracized by the disclosure of his HIV+ status by the hospital, filed a claim for
damages before the National Consumer Disputes Redressal Commission (NCDRC) alleging
that the hospital had unauthorizedly disclosed his HIV status resulting in his marriage being
called off and in social opprobrium. Justice Saghir Ahmad, speaking for a Bench of two judges
of this Court, adverted to the duty of the doctor to maintain secrecy in relation to the patient
but held that there is an exception to the Rule of confidentiality where public interest will
override that duty.59 Similarly, in the present case public interest will prevail over rule of
confidentiality.

54
K.S. Puttaswamy v Union of India (2019) 1 SCC 1
55
Jacobson v Massachusett (1905) 197 U.S. 11
56
The Epidemic Disease Act 1897, § 2
57
Hazarika, S & Yadav, ‘Public health law in India: A framework for its application as a tool for social change’
(2009) 22 The National Medical Journal of India <https://pubmed.ncbi.nlm.nih.gov/20120996/#affiliation-1>
accessed 20 June 2020
58
Mr. X v Hospital Z (1998) 8 SCC 296
59
ibid

21
IV. WHETHER ALL THE 14 FIRS FILED AGAINST MR. OLIVER IS LIABLE TO
BE QUASHED AND HIS ARTICLE ENTITLED “THE GROUND REPORT”
FALLS WITHIN THE AMBIT OF FREEDOM OF SPEECH AND
EXPRESSION OF THE PRESS?

Freedom of speech and expression of the press has been read into Article 19 60 of the
Constitution61. It has been held by the Supreme Court62 that the press cannot be treated distinct
from other citizens. It is understood that this freedom is the heart of social and political
intercourse63 and is essential for the proper functioning of a democratic process. However, it is
commonly known that these rights, although fundamental, are not absolute. Therefore, the basis
for restricting the right protected under Article 19(1)(a)64 is provided under Article 19(2)65,
namely, protection of the sovereignty and integrity of the country, the security of the State,
friendly relations with foreign states, public order, decency or morality or in relation to
contempt of court, defamation or incitement to an offence. It was also held by the apex court66
that sedition reasonably restricts this right.

The FIRs were filed under Section 124A67 of Westeros’ Penal Code and Section 54 of Disaster
Management Act. Therefore, this issue can be divided into two sub- issues- a) FIRs filed under
Section 124A of the Westeros’ Penal Code and b) FIRs filed under Section 54 of the Disaster
Management Act, 2005.

A. SECTION 124A OF THE PENAL CODE

Section 124A68 of the Penal Code provides that sedition is a crime. It is clear that the section
aims at rendering penal “only such activities as would be intended, or have a tendency, to create
disorder or disturbance of public peace by resort to violence”69. It is accepted that the apex
court has set very narrow and stringent limits for the permissible legislative abridgment of the

60
Constitution of Westeros, 1950, Art 19
61
Printers (Mysore) Ltd v CTO (1994) 2 SCC 434
62
Sakal Papers (P) Ltd v Union of India AIR 1962 SC 305
63
Indian Express Newspapers (Bombay) (P) Ltd v Union of India (1985) 1 SCC 641
64
Constitution of Westeros, 1950, Art 19(1)(a)
65
Constitution of Westeros, 1950, Art 19(2)
66
Kedar Nath Singh v State of Bihar AIR 1962 SC 955
67
Westeros Penal Code, 1860, § 124A
68
Westeros Penal Code, 1860, § 124A
69
Emperor v Sadashiv Narayan Bhalerao AIR 1947 PC 82

22
right of free speech and expression70. However, the acts which lie within this realm are to be
deemed as seditious.

It is observed that the ingredients for sedition are:

1. Bringing or attempting to bring into hatred or contempt, or exciting or attempting to

excite disaffection towards the Government of India.
2. Such act or attempt may be done
a. by words, either spoken or written; or
b. by signs; or
c. by visible representation

The Supreme Court has observed the provisions of S. 124A should be limited in its application
to acts involving an intention or tendency to create disorder or disturbance of law and order or
incitement to violence.71 An essential ingredient constituting the crime of sedition is the effort
of bringing or attempting to bring into hatred or contempt to excite or attempt to excite
disaffection towards the Government established by law in India by words, either spoken or
written or by signs or by visible representation or otherwise72. Whether any disturbance or
outbreak was caused by the publication of seditious articles is absolutely immaterial.73 The
Kerala High Court stated that the approach to the question whether any action brings into hatred
or contempt or excites disaffection towards the Government should be in the following way:

• First, the true meaning of the words, the innuendo they convey and the convert meaning,
if any, they have, to be gathered.
• Secondly, their probable or natural effect has to be seen. In other words, whether they
are calculated to produce the result, i.e., hatred, contempt or disaffection towards the
government.

• Thirdly, if they do, the intention of the author of the words to produce that result has to
be ascertained.74

The Ground Report published by Mr. Oliver did not, prima facie, contain any words that
conveyed a feeling hatred and contempt. However, in the case at hand, Mr. Oliver had acted

70
Romesh Thappar v The State of Madras AIR 1950 SC 124
71
Kedar Nath Singh v State of Bihar AIR 1962 SC 955
72
Asit Kumar Sen Gupta v State of Chhattisgarh 2012 (NOC) Cr LJ 384 (Chh)
73
Emperor v Bal Gangadhar Tilak (1897) 22 Bom 112, 528, (PC)
74
Alvi v State of Kerala 1982 SCC OnLine Ker 3

23
irresponsibly by reporting wrong statistics which were in fact based on unreliable sources. This
was clearly an aim to excite just feeling among the people. When such inaccurate data is
provided to the public, the only natural effect would be a disaffection or disloyalty to the
government. In the case, Niharendu Dutt Majumdar v. The King Emperor75 it was laid down
that public disorder, or the reasonable anticipation or likelihood of public disorder, is the gist
of the offence of sedition and “the acts or words complained of must either incite to disorder
or must be such as to satisfy reasonable men that that is their intention or tendency.” The Union
of Westeros is in a delicate condition due to the spread of the pandemic. The state of mind of
the public is also delicate76 and considerations for alleviating this condition are provided.77
However, in such a state, it is easy to sow the seed of doubt in the mind of the public. Supporting
it with fake data from unreliable sources would help to strengthen this doubt in the minds of
the people. This can be seen in the fact that many facts of the deaths and other shortcomings
were being reported aggressively. Deletion of the word "sedition" from the draft article 13(2),
therefore, shows that criticism of Government exciting disaffection or bad feelings towards it
is not to be regarded as a justifying ground for restricting the freedom of expression and of the
press, unless it is such as to undermine the security of or tend to overthrow the State.78 The
security of the state is also compromised in the case at hand. Also, Mr. Oliver stated that the
police officials and the government for being apathetic towards the poor migrants79 despite the
various efforts, such as introduction of schemes and measures, being made by the government.
Also, on the publication of the report by Mr. Oliver, the government attempted to curb the said
malpractice of fake data and under-reporting by encouraging whistle-blowers. However, such
comments were made despite these efforts with the attempt to incite disaffection.

B. SECTION 5480 OF DISASTER MANAGEMENT ACT (“ACT”)

Section 54 states that “Whoever makes or circulates a false alarm or warning as to disaster or
its severity or magnitude, leading to panic, shall on conviction, be punishable with
imprisonment which may extend to one year or with fine.” The Supreme Court of India, after
perusing the Statement of Objects and Reasons of the Act, concluded that the aim of this Act

75
Niharendu Dutt Majumdar v The King AIR 1942 FC 22
76
‘Coping with Stress’ (Centers for Disease control and prevention) <https://www.cdc.gov/coronavirus/2019-
ncov/daily-life-coping/managing-stress-anxiety.html> Accessed June 13 2020
77
‘Mental health and psychosocial considerations during the COVID-19 outbreak’ (WHO, 18 May 2020) <
https://www.who.int/docs/default-source/coronaviruse/mental-health-considerations.pdf> accessed 15 June 2020
78
Romesh Thappar v The State of Madras AIR 1950 SC 124
79
Moot Proposition ¶12
80
Disaster Management Act, 2005, § 124A

24
is “not only to draw up, monitor and implement disaster management plans but also prevent
and mitigate the effects of a disaster”81. Section 2 (d) of the Act defines disaster as a
catastrophe, mishap, calamity or grave occurrence in any area arising from natural or man-
made causes which results, inter alia, in human suffering. The situation of a pandemic is a grave
situation that leads to human suffering and can be categorised as a disaster. Section 2 (e) of the
Act defines disaster management as meaning a continuous and integrated process of planning,
organizing, coordinating and implementing measures necessary or expedient for prevention of
danger or threat of any disaster and mitigation or reduction of risk of any disaster or its severity
or consequences. Section 2 (i) of the Act defines mitigation as measures aimed at reducing the
risk, impact or effect of a disaster or threatening disaster situation. Therefore, Section 54 aims
to reduce the impact of the disaster. In this situation, the statistics provided by Mr. Oliver were
unreliable and incorrect. This also led to a state of distrust towards the government which would
further lead to a disruption of public order and a state of panic. Therefore, this section is an
accurate restriction fo the freedom of speech and expression of the press in this situation.

It must also be observed that an interim relief of protection from arrest has been provided in
this situation. The FIR would only lead to investigation of the facts. In this situation it has been
stated by Mr. Oliver that the statistics provided by him are accurate. The investigation would
reveal whether the statistics are accurate and the facts stated in Ground Report are apt.
Therefore, there is no infringement of fundamental rights

81
Swaraj Abhiyan v Union of India & Ors AIR 2016 SC 2929

25
 PRAYER

Wherefore in the lights of facts stated, issues raised, arguments advanced and authorities cited,

it is most humbly and respectfully prayed before this Hon’ble Supreme Court of Westeros to:

a) Dismiss the petition filed by Peitioner 1.

b) Dismiss the petition filed by Peitioner 2.

c) Hold the sharing of medical data of COVID-19 tested patients with a foreign private

company, DMPL as not a violation of right to privacy.

d) Dismiss the petition filed by Petitioner 3 and allow further trial.

And/or grant any other order in favor of the Respondent that this Hon’ble Supreme

Court may deem fit in the ends of equity, justice and good conscience.

All of which is most humbly and respectfully submitted

Sd/-

Counsels for the Respondent

26