MS. Sukaita & Ors. v. Government of NCT of Delhi & Anr.

7. A perusal of the above affidavit shows that the only reason given is a longer duration of proximity with the client which is the cause for concern. This Court has heard ld. counsels for the Petitioners as also for the GNCTD and the Union of India. A perusal of the office memorandum dated 18th November, 2020 issued by the MoHFW shows clearly that a decision has been taken to reopen spas, subject to the following conditions: “The matter has been examined and it is informed that his Ministry may not have any objection to opening up of Spas subject to the following conditions:- (a)The employees and clients of Spas maintain requisite physical distancing of 6 feet in the premises, avoid overcrowding, use masks, maintain hand hygiene, and sanitize the environment and equipment regularly. (b)MHA has no objection and/or approves it through their next Unlock order.”

8. Subsequent to November, 2020, as on date, several developments have taken place, including the reduction in the number of Covid-19 cases as also the introduction of a vaccine. Moreover, a large number of establishments have already reopened and reopening of schools and colleges is also being contemplated. There is however no doubt that 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. 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. These establishments provide direct and indirect employment to a large number of employees and their businesses have come to a standstill since the outbreak of the pandemic. As of June, 2020, i.e., almost six months ago, salons which offer similar services have already been opened in Delhi, subject to such establishments observing the standard operating procedure prescribed by the MoHFW on 3rd August, 2020, which prescribes the following general measures: i. Individuals must maintain a minimum distance of 6 feet as far as feasible. ii. Use of face covers/masks is mandatory at all times with in the premises. However, during yoga exercise or exercising in gymnasiums, as far as possible only a visor may be used. Use of mask (in particular N-95 masks) during exercise may cause difficulty in breathing. iii. Practice frequent hand washing with soap (for at least 40-60 seconds) even when hands are not visibly dirty. Use of alcoholbased hand sanitizers (for at least 20 seconds) can be practiced wherever feasible. iv. Respiratory etiquettes to be strictly followed. This involves strict practice of covering one’s mouth and nose while coughing/sneezing with a tissue/handkerchief/flexed elbow and disposing off used tissues properly. v. Self-monitoring of health by all and reporting any illness at the earliest to state and district helpline. vi. Spitting should be strictly prohibited. vii. Installation & use of Aarogya Setu App shall be advised to all.

9. This Court is of the opinion 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. It also cannot be lost sight of that several salons also provide services akin to those provided in spas. Thus, the difference between the services provided in Salons and Spas is very minimal. Both these services require service providers and service takers to remain in close proximity for a sufficient duration. Thus, while allowing the opening of salons, continuing the embargo on spas would be violative of the rights of these establishments and their employees.

10. While this 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 these establishments, the continuation of the embargo on reopening of spas is unjustified. Accordingly, this Court permits the reopening of spas, wellness clinics and similar establishments, in the GNCTD, subject to the following conditions: i. There shall be strict compliance of the conditions specified in the office memorandum of 18th November, 2020 prescribed by the MoHFW in respect of spas, which is extracted above. 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; ii. 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. iii. 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. iv. 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. v. Clients should preferably wear masks to the extent possible, considering the nature of services which are availed of. vi. 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. vii. Tools including clothing, other apparel, towels etc., used for clients, shall be sanitised after each and every treatment. viii. 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.

11. Subject to the above conditions being adhered to by spas, wellness clinics and similar establishments, the said establishments are permitted to be opened.

12. The petitions are allowed in the above terms and all pending applications are disposed of.

PRATHIBA M. SINGH JUDGE JANUARY 14, 2021 dj/T