Licensing for SPAs required for Indian Wellness Industry to achieve healthy growth
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1. Govt. of India Through the Chief Secretary Mantralaya Delhi.
2. Advocate General, Govt. of India,High Court Extension
3. Ministry of Health, Govt. of India, Mantralaya Delhi.
4. Ministry of Tourism, Govt. of India ,Mantralaya, Delhi
5. Ministry of Home, Govt. of India,Mantralaya, Delhi.
6. Director General Health Services, Govt. of India,Mantralaya, Delhi
RESPONDENTS TO, THE HON’BLE CHIEF JUSTICE AND COMPANION HONORABLE JUGES OF HIGH COURT OF JUDICATURE OF DELHI THE ABOVE NAMED PETITIONERS MOST RESPECTFULLY SHEWETH:
The facts and circumstances from which the present Public Interest Litigation arises are capsulated herein below for the sake of ready reference and convenience.
FACTS OF THE PETITION
1. The Petitioner No.1 is a Rekha chaudhari Spa Owner and Consultant and is a law abiding citizen of India and is presently the Global Wellness Ambassador,India .She is keenly interested in enhancing this spa and wellness industry in India, removing malpractices in this industry and to standardize it with an intention to provide relaxation, rejuvenation and revitalization to the society with a mix of ancient traditions and modern practices.
2. The Petitioner No. 2 addressing different issues related to spa owners across the country.
3. The Respondent No. 1 is the Chief Secretary of Govt. of India , who is collectively responsible for overall business of the State Govt. of India.
4. The Respondent No. 2 is the Advocate General who is the authority on law and responsible for disseminating information, opinion, advise and to direct the State Govt. of India in legal matters.
5. The Respondent No. 3 is the Ministry of Health which is the higher most body dealing with health issues of the State Govt. of India.
6. The Respondent No. 4 is the Ministry of Tourism which is the utmost body of the Govt. of India taking care of the tourism industry in the State Govt. of India
7. The Respondent No. 5 is the Ministry of Home which shoulders the responsibility to take care of implementation of the law in a proper manner and maintain law and order in the State Govt. of India.
8. The Respondent No. 6 is the Director General Health Services who is an authority under the Ministry of Health responsible for implementing the policy decisions related to healthcare taken by the State Govt. of India.
9. That for the convenience the concept of spa and wellness is described briefly; extensive information related to which has been provided vide various annexures.
10. That the word ‘SPA’ means Health from water. The history of water therapy can be traced back to around 2400 BC. At those times the proto-Indian culture made hygienic installations. Most ancient cultures revered water as a spiritual force. The Egyptians, Assyrians & Mohammedans used mineral waters for cure. The Japanese, Chinese, Greeks and Romans used warm baths therapeutically for reducing fatigue, for promoting the healing of wounds and for combating dejection and low spirits.
11. That The Greeks were among the first to appreciate the relationship between physical and mental well-being. They developed centers near springs and rivers for bathing or recreation. Around 500 BC bathing became lifestyle as much as therapy with the development of the Roman Bath house.
Indians were also believers in relationships between body , mind and spirituals in centuries.which has created yoga , Ayurveda and spirituals Asrams in three different way. Which was known as a Spa but individuals had a strong impact in olden days.
12. That the spas can be divided in three categories Viz.; Historical - A special place where natural spring waters were reputed to bring relief and cure from a range of ailments. These waters engendered strong spiritual associations and mystical understanding. Traditional - Centers for healing and rehabilitation, being based on hydrotherapy administered under medical supervision. Recreation and relaxation are also encouraged alongside social interaction and entertainment. Contemporary - Facilities dedicated to physical & emotional well-being. The contemporary spa provides for relief, rehabilitation and sports injuries through the spectrum of care to integrated medicine and complementary treatments, de-stressing and relaxation to the beauty and pampering end of the market.
13. That the spas provide various Massages like Aromatic, Swedish, Ayurveda, Rope massage,Thai etc. Body Treatments like Body exfoliation Scrubs, Body Wraps, Facials and anti ageing facials , Hand Spa, Foot Spa, Hair Spa, Diet, Exercise, meditation, Relaxation etc.
14. Massage is the soul of spa. Various kinds of massages to different parts of human body are applied for relaxation, rejuvenation and getting relief from fatigue and/or pain.
15. That there are various types of spa like Day Spa, Club Spa, Cruise Ship Spa, Mineral Spring Spa, Resorts spa, Medical Spa etc.
16. That Wellness can be equated with HEALTH. It is been defined as “A state of complete physical, mental & social well-being and not merely the absence of disease or infirmity”(WHO, 1992). The notion of wellness can be extended further to include not only physical, mental & social dimensions but also sexual, educational, occupational, environmental, ethical & existential dimensions.
17. That Wellness also includes internal and external beauty of human body and soul. Spas also help in beautification of human body using various methods and techniques.
18. That growing incomes and a faster pace of life, increased sedentary living, high work stress, rising pollution levels and consumption of unhealthy fast food are factors leading to a rise in lifestyle disorders. It has triggered the necessity of spa and wellness Industry.
19. That the report published by FICCI in Sept. 2011 with the title ‘Riding the Growth Wave’; consists of a detailed perspective on wellness ecosystem. This report attributes Consumers, Providers, Adjacent Industries, Facilitators and Government as essential ingredients of the wellness ecosystem. It shows the wellness ecosystem in India comprising of multiple stakeholders. It states that the Wellness market in India is about INR 11000 Billion which is estimated to grow up to 2O% every year by 2021. Wellness services account for 40 percent of this market. Rejuvenation and alternative therapy are crucial ingredients of the wellness industry which need to be developed systematically. As per this report the alternate therapy market in India is estimated at 20 till 25%growth by Considering the growth many players have entered in this industry. Key players include Apollo hospitals, Badynath , Kottakal Arya Vaidyashala , Arya Vaidya Pharmacy, Dr Batra’s, Dabur and Himalaya, among others. Large numbers of home grown Indian companies are growing global as per this report. The report forecasts that by 2021 the wellness services have the potential to generate 3 million jobs in India. Talent crunch, managing increasing costs, controlling industry malpractices, implementation and acceptance of quality accreditation these are the challenges posed in front of this industry. This report also gives agenda for Private participants and the Government.
20. That on this report also states that the economic burden of illness in India is very high. By 2020, over 65% of all mortality will be linked to chronic diseases. Projected foregone national income due to heart disease, stroke and diabetes between the decades of 2005 to 2015 is estimated to be around INR 9000 Billion.
21. That the report quotes that the wellness industry is of strategic importance to the Indian government. By 2015, wellness services in India have the potential to generate over three million jobs.
22. That this report further says that the government had launched an accreditation program for wellness centers in 2008-2009, under the authority of the National Accreditation Board for Hospitals and Healthcare (NABH) and the Quality Council of India (QCI).
23. That the government also has a number of regulations and acts governing quality enforcement in other wellness segments. E.g., Drugs and Cosmetics Acts and Rules for cosmetics and herbal beauty products, the Food Safety and Standards Act (FSSA) for nutrition products.
24. That the government is a provider of alternative therapy services in India, with the formal institutionalization and integration of Ayurveda, Yoga, Unani, Siddha and Homeopathy (AYUSH) into the national health delivery system. The Department of AYUSH runs various alternative therapy hospitals and clinics across India.
25. That the Ministry of Tourism (MoT) has outlined key initiatives to enable and boost wellness tourism in India:- It has initiated the Marketing Development Assistance scheme (MDA). It has been promoting India as a wellness tourism destination with the help of print, electronic, internet and outdoor media across target markets. Various infrastructural facilities in certain circuits promoted as centers of wellness tourism (e.g., Puducherry, Chitrakoot etc.). It has plans to develop training centers for yoga and other traditional therapies.
26. That the Skill Development Initiative Scheme (SDIS), a vocational training scheme run under "SKILL MINSTERY " which is the new Ministry specially focus on skill fours, includes various courses on wellness , such as beauty and hair dressing, yoga, nail artist , naturopathy and spa and wellness.
Beauty and wellness sector skill council has been implemented under NSDC and Skill ministry ,to generate more manpower to fulfill Wellness industry skill workforce which is rapidly growing demand.
27. That the Department of AYUSH has set up national institutes for imparting education in AYUSH.
28. That the report further says that the proliferation of unorganized players due to low-entry barriers has had a two-fold effect on the industry-pricing pressure on organized players and negative impact on the overall image of the industry due to misconduct of some unscrupulous players. There is no visible mechanism for consumers to distinguish between a good service provider and a mediocre player. Consumers often learn the hard lesson through expensive trial and experimentation. Lack of substantiated evidence and overstated claims lead customers to doubt the veracity of wellness products and services, contributing to consumer skepticism.
29. That there are no checks enforcing usage of licensed personnel. Punitive measures to check misconduct are few and ineffective in implementation. A large number of players (ranging from one-man shops to established corporates) and a wide range of service and product segments have made monitoring of the industry a complex and costly exercise.
30. That this report states that the Govt. should take priority efforts for Accreditation, Quality guidelines and Reduction in Taxes for this rising industry. It also suggests that the government and the private sector to work in close collaboration to develop suitable facilities for the growth of this industry.
31. That another report published by FICCI having the title ‘Wellness – Exploring the untapped potential’ briefly describes the challenges faced by users, providers, education providers and the Government. It also suggests way forward to cope up with these challenges.
32. That the report published by FICCI in Aug. 2013 reporting the annual wellness conference states that, ‘Despite macroeconomic headwinds, consumer spent in wellness remained largely buoyant. The wellness market in India registered a growth rate of 18 – 20% during 2012, to touch a market size of 700 Billion INR. Products continue to constitute a majority share of the market.’
33. A paper written by Petitioner No. 1 elaborates the situation about spa licensing in India. It also gives insight about the licensing processes Internationally. It also gives a brief account of challenges and solutions regarding licensing of wellness industry.
34. Another report published with the name ‘Spa and the Global Market’ by SRI international along with world leaders summit (Global wellness institute)in May 2010 till 2015 for understanding Definition of spa and wellness, history of Spa and the size of wellness related market all over the world. (report can Provided)
35. That in an era of cut-throat competition every human being is put under tremendous pressure throughout his life which results in physical, psychological, emotional and social imbalance. Spas ideally are sacred places to remove these imbalances and the agents or staffs of the spa are the sacred agents of change.
36. Eventually the picture is inverse. There are many evils penetrating this spa industry which is degrading the very essence and modesty of this industry. Many unfortunate incidents take place around us. These ranges from forgery or exploitation to sexual abuse and human trafficking.
37. That Cross - gender massage is the loophole which crates opportunity for such evil elements. However there are many spas which are doing their business smoothly including cross – gender massage fulfilling all the legal parameters. A single unfortunate incidence degrades image of overall spa industry. The reason for this as per our point of view is absence of a consolidated formal law or regulation for this industry.
38. Absence of formal law creates opportunities for persons to run shady business in the name of spa. In a report by industry leaders , based on the survey of spa and massage parlors in India ,the statistical data has been analyzed and can be provided .More than ninety percent of the spa and massage parlors are into shady business. They place advertisements in daily newspapers of the city and attract their clients. On the other hand in more than ninety-five percent of genuine spa and massage parlors the owners, staff and guests are frequently exploited and harassed by the police and various officials for money and other illegal benefits.
39. This exploitation and harassment gets the staff demoralized. Young and talented individuals hesitate to enter in this field although it has a lucrative career. Parents are not ready to send there children in this filled which is one of the top rising industry in india. The guests start measuring all the spa and massage parlors with same scale. And the owners are left on their own fate.
40. A person having sound body, mind and soul can deliver his best in any profession. In this era of tremendous pressure, competition and ambitions a genuine spa helps the people to keep being a sound human. But the menace and drastic situations elaborated above are creating a mess which is causing a great loss to persons as individuals, the process of overall development and humanity.
41. That to cope up with the above stated problems the solutions are as follows :- Providers should enhance assurance on quality of service in two parameters viz.; technical competence and personal quality.
• Providers should develop collaborative development model which will increase their depth and breadth of coverage and reach.
• Ensure on delivering high standards.
• Should undertake regular communication with the users.
• The facilitators should enhance quality of institutes and human resources.
• Profession, service and other policies should be standardized to give the consumer satisfactory experience.
• The Govt. should stimulate the development of this industry and take necessary steps to regularize and legalize it.
I. India is emerging as one of the leading 'Spa and Wellness Industry' globally with maximum number of Hotels being built in the country, more and more people becoming aware of the 'Spa and Wellness concept'. Wellness is becoming a part of lifestyle rather than Luxury.
II. This Industry does not have any regulation or Licensing and hence a lot of Illegal activities are being carried under the pretext of 'Spa and Wellness', which is also creating problem for the Honest and Professional stakeholders of this industry.
III. Government is losing a lot of revenue in form odd Taxes etc., as these Illegal activities are usually all cash transactions and hence there is no question of paying Service tax etc. on these.
IV. There is a massive opportunity for 'Skill Development' in this sector and we can actually support the Global requirement in this field, provided we remove the 'Taboo' attached to this industry and improve the status of this profession and also bring in Licensing and Registration process which makes working in this industry a safer option for the professionals.
V. Honest Professionals get harassed many times because every Spa is looked upon with an eye of suspicion, which can be handled by the licensing and Regulation.
VI. Taking the cognizance of the above situation The Petitioners submit that lack of exclusive Law/ Regulation/Guidelines for the spa and wellness industry creates opportunity for some people to carry on fishy and illegal business in the name of spa. It also provides an opportunity for exploitation to various authorities of different govt. departments related with this spa and wellness industry.
VII. The Petitioners herein had collected certain data through surveys from all over India. symbolically which shows the alarming situation in the spa and wellness industry. Every newspaper consists of advertisements relating to Spa and Massage Parlors. Out of these advertisements around 90% are in fishy business. Many of them are into prostitution. This has created chaos in the industry. In absence of law these people enjoy the freedom to do this illegal business in the name of spa and at the same time the Govt. officials get the opportunity to exploit them in every possible manner.
VIII. That because of this situation the genuine spa owners are tortured by the officials for personal gains and the industry as a whole gets defame.
IX. Therefore the Petitioners keenly felt the need of a law encircling all the aspects related to this industry which should regularize, standardize and make it grow.
X. That given the ongoing and repeated instances of exploitation and harassment experienced by the spa, massage parlor and wellness establishments owners, staff and guests and the failure on the part or Respondent No.s 1 to 6 herein to recognize the same as inherent occupational hazard for all the spa, massage parlor and wellness establishments owners, staff and guests the Petitioners submit that this Honorable court may be pleased to direct that a committee headed by a retired judge of the Honorable High Court, Lawyers, Spa Consultants, Spa owners , Spa Experts from the field and Individuals be appointed to prepare and submit guidelines for consideration by the Respondent No. 1 within a stipulated time with a view to implementing the same.
The petitioner submits that the propose guidelines address the following :
a) Defining Spas, Massage Parlors and Wellness Establishments.
b) Process of Licensing for the above.
c) Defining standards for the above; Viz; Professional/Medical/Services.
d) Defining responsibilities of Spa/Massage Parlor/Wellness Establishment owners.
e) Responsibility and Liabilities of the State, its agents and concerned officers.
f) Defining various kinds of wrongs and crimes and providing punishments for them.
It is for these reasons that the present petition has been filed. CITATION “In our considered opinion, the same would amount to negating the fundamental right guaranteed under Art.19(1)(g) of persons who are interested in applying for amusement licences. The right of such persons cannot be deprived merely because others who have been issued licences have violated the conditions of amusement licence or because of sentiments of some section of the public.” The Supreme Court in para 43 of the judgment emphasized that the State's duty to ensure circumstances of safety which inspire confidence in women to discharge their duties. Para 43 reads as follows: “Instead of prohibiting women employment in the bars altogether the State should focus on factoring in ways through which unequal consequences of sex differences can be eliminated. It is the State's duty to ensure circumstances of safety which inspire confidence in women to discharge the duty freely in accordance to the requirements of the profession they choose to follow. Any other policy inference (such as the one embodied under Section 30) from societal conditions would be oppressive on the women and against the privacy rights." In the same judgment the Honorable Supreme Court has said, “In the light of the above, it can clearly be seen that the respondent police as on date has no legal right to prevent an health Spa being operated by any citizen of this Country even if it is done by persons belonging to the opposite sex.” While giving the final remark in this judgment Honorable Supreme Court has said, “A majoritarian impulses rooted in moralistic tradition cannot impinge upon individual autonomy. At the same time, there is no prohibition for the respondent police to inspect and take appropriate action in accordance with law, in cases of any criminal activities prohibited by law.”
The Cause of Action has arisen in the state of Maharashtra. The data has been collected from all over India specially from Mumbai which are within the extra ordinary territorial Jurisdiction of this Honorable Court. Hence this Honorable Court has jurisdiction to try, entertain and decide this petition.
The Petitioners have not preferred any other Writ Petition, appeal or application, either to this Honorable Court or any other Court in the Honorable Supreme Court of India, in respect of this cause of action.
4. The Petitioners submit that the Petitioners have been collecting the data and this data also become available earlier.
5. The Petitioners undertake to give the English translate of Hindi documents when so required by the Honorable Court.
PRAYERS . THE PETITIONERS THEREFRORE RESPECTFULLY PRAYSW AS UNDER:
(A) Issue a writ mandamus or writ in the nature of mandamus or any other appropriate writ direction and order under Article 226 of the Constitution of India, 1950, directing the Respondent Nos. 1 to 5 to enact and implement proper and convenient law and/or guidelines for the spa, massage parlors and wellness unit holders urgently.
(B) That this Honorable Court be pleased to issue a writ mandamus or writ in the nature of mandamus or any other appropriate writ direction and other under Article 226 of the Constitution of India, 1950, directing the Respondent Nos. 1 to 5 to take essential steps in this direction with formation of a high level committee or any other suitable mechanism for drafting of proper and convenient law and/or guidelines for the spa and wellness unit holders urgently.
(C) Issue a writ mandamus or writ in the nature of mandamus or any other appropriate writ direction and order under Article 226 of the Constitution of India, 1950, directing the Respondent Nos. 1 to 5 to enact and implement proper and convenient law and/or guidelines for the spa, massage parlors in such terms as set out at grounds X of this Petition.
(D) That this Honorable Court be pleased to issue orders for designing and implementing a time bound program to the Respondents Nos. 1 to 5.
(E) Ad interim relief in terms of prayer Clause [B] be awarded in favor of the Petitioner.
(F) For the costs of the Public Interest Litigation be awarded in favor of Petitioner against Respondent by this Honorable Court.
(G) That such other order as justice and convenience may demand from time to time shall be passed in favor of the Petitioner by this Honorable Court.
THIS ACT OF KINDNESS THE ABOVENAMED PETITIONER SHALL DUTY BOUND EVER PRAY VERIFICATION I,
Rekha Chaudhari Occ : Spa Owner and Consultant, spa education and luxury brands Distributor and Global wellness Ambassador,India along with Assocition S.A.W.A ,Niqi kundi. ( S.K Kundi ), GEO SPA fitness,Pankaj Arora , Assocition AWAS and many more industry leaders
do hereby state on solemn affirmation that I am the Petitioner in this Public Interest Litigation and that I have carefully gone through the memo of this Public Interest Litigation and annexures annexed thereto. I say that the contents of the memo of this Public Interest Litigation are true to the best of my personal knowledge and the legal submissions made therein are true to the best of my personal belief which belief is based upon the legal instructions and advice given to me by my Advocate which I believe to be correct. I also state on oath that the Annexures which are annexed to the memo of this Petition have been personally checked by me and that they are true copies of the original documents, and I can state on the affidavit according when it needed. I say that the paragraphs which are true to the best of my knowledge, are shown in
[a] above, the paragraphs which are true to the best of my belief are shown in clause
[b] below and the paragraphs which are true to the best of my belief.
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