GURUSIMRAN SINGH NARULA versus UNION OF INDIA & ANR.
[2020] 12 S.C.R. 351, Supreme Court of India, 2020
Outcome: Disposed off
Segment: Issues
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GURUSIMRAN SINGH NARULA
v.
UNION OF INDIA & ANR.
Writ Petition (Civil) No. 560 of 2020
NOVEMBER 05, 2020
[ASHOK BHUSHAN, R. SUBHASH REDDY AND
M. R. SHAH, JJ.]
Disaster Management Act, 2005 – Novel Coronavirus disease
2019 (Covid-19) – Pandemic – A writ petition filed in the public
interest u/A. 32 of the Constitution of India seeking direction to ban
on spraying of all kinds of disinfectants on human beings,
supposedly for protecting the human beings from Covid-19 – The
petitioner submitted that although the Ministry of Health & Family
Welfare, the respondent no. 1 through its advisory dated 18.4.2020
had stated that spraying of disinfectant on human being is not
recommended but Union of India has not taken any step to
stop use, advertisement and sale of chemical based disinfection
tunnels – Held: When respondent no. 1 has issued advisory that
use of disinfectant on human body is not recommended and it has
been brought into its notice that despite the said advisory, large
number of organizations, public authorities are using disinfectants
on human body, it was necessary for the respondent no. 1 to issue
necessary directions either to prevent such use or regulate such use
as per requirement to protect the health of the people – The provisions
of Disaster Management Act, Section 10, 36 and other provisions
are not only provisions of empowerment but also cast a duty on
different authorities to act in the best interest of the people to sub-
serve the objects
of the Act – Therefore, the respondent no. 1 may
consider and issue necessary directions in exercise of powers vested
in it under the Disaster Management Act, 2005, regarding ban/
regulation on the usage of disinfection tunnels involving spraying
or fumigation of chemical/ organic disinfectants for the human
beings – Further, there shall be similar consideration and directions
by the respondents with regard to exposure of human beings to
artificial ultraviolet rays.
   [2020] 12 S.C.R. 351
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SUPREME COURT REPORTS
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Disposing of the writ petition, the Court
HELD : 1. From the pleadings brought on record on behalf
of respondent No.1, it is clear that although by the advisory by
respondent No.1, spraying of disinfectant on human body is not
recommended but respondent No.1 has not taken any further
steps in the above context taking any measure either to prevent
or regulate the spraying of disinfectant on the human body. [Para
29][367-D-E]
2. The powers and functions of National Executive
Committee under Section 10 of the Disaster Management Act,
2005, which specifically empowers the National Executive
Committee to give directions regarding measures to be taken
by the concerned ministry and departments of the Government,
State Governments and State Authorities in response to the
threatening situation or disaster.  Section 36 of the Act, 2005,
expressly enumerates the responsibilities of Ministries and
departments of the Government of India. [Paras 30 and 31][367-
F-G]
3. When respondent No.1 has issued advisory that use of
disinfectant on human body is not recommended and it has been
brought into its notice that despite the said advisory, large number
of organizations, public authorities are using disinfectants on
human body, it was necessary for the respondent No.1 to issue
necessary directions either to prevent such use or regulate such
use as per requirement to protect the health of the people. The
provisions of Disaster
Management Act, Section 10, 36 and other
provisions are not only provisions of empowerment but also cast
a duty on different authorities to act in the best interest of the
people to sub-serve the objects of the Act. [Para 32][369-B-D]
4. This Court has no doubt that the Union and the States
are taking all measures to contain the pandemic and all mitigating
steps but the facts which have been brought on record in this
writ petition indicate that in the present case, something more
was required to be done by respondent No.1 apart from issuing
advisory  that use of disinfectant on human body is not
recommended. When public authorities/ organizations were using
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disinfectants both chemical/organic on the human body and there
are various studies to the effect that it may be harmful to the
health and the body. Some more actions were required to remove
the cloud of uncertainty and to regulate the use even if it was to
either prevent such use or regulate the use so that health of
citizens is amply protected. [Para 35][369-F-H]
5. This Court is of the view that ends of justice be served
in disposing the writ petition by issuing the following directions:-
i) The respondent No.1 may consider and issue necessary
directions in exercise of powers vested in it under the Disaster
Management Act, 2005, regarding ban/Regulation on the usage
of disinfection tunnels involving spraying or fumigation of
chemical/organic disinfectants for the human beings.
Or
ii) There shall be similar consideration and directions by
the respondents as indicated  above with regard to exposure of
human being to artificial ultraviolet rays.  [Para 42][371-H; 372-
A-C]
Devika Biswas v. Union of India and others, (2016) 10
SCC 726 ; Commissioner of Police versus Gordhandas
Bhanji AIR 1952 SC 16 : [1952] SCR 135 ; L. Hirday
Narain v. Income Tax Officer, Bareilly, (1970) 2 SCC
355 : [1971] 1 SCR 683 ; Municipal Council, Ratlam v.
Shri Vardichan and others (1980) 4 SCC 162: [1981] 1
SCR 97 – relied on.
Case Law Reference
(2016) 10 SCC 726
relied on
Para 19
[1952] SCR 135
relied on
Para 36
[1971] 1 SCR 683
relied on
Para 37
[1981] 1 SCR 97
relied on
Para
38
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
560 of 2020.
(Under Article 32 of the Constitution of India)
GURUSIMRAN SINGH NARULA v. UNION OF INDIA & ANR.
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Tushar Mehta, SG, Ms. Anitha Shenoy, Sr. Adv., Gurmeet Singh
Makker, Rajat Nair, Apoorv Kurup, Raghunatha Sethupathy, T.
Mahendran, K. Paari Vendhan, Advs. for the appearing parties.
Petitioner-in-person
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. This Writ petition filed in the public interest under Article 32 of
the Constitution of India seeks direction to forthwith ban on spraying of
all kinds of disinfectants on human beings which is being  done supposedly
for protecting the human beings from the Novel Coronavirus disease
2019 (Covid-19).
2. The World Health Organisation (WHO) declared novel
coronavirus disease, 2019 (hereinafter referred to as Covid-19) as a
Pandemic on 11.03.2020. All countries including India after spread of
the pandemic had taken and are still taking different measures to contain
the disease and protect its citizens from Covid-19. On 29.03.2020, Ministry
of Health and Family Welfare, Government of India, released guidelines
on disinfection of common Public places including Offices. The scope
as contained in the guidelines is to the following effect: -
“Scope: This document aims to provide interim guidance about
the environmental cleaning/decontamination of common public
places including offices in areas reporting COVID-19.
     Coronavirus Disease 2019(COVID-19) is an acute respiratory
disease caused by a novel Cornavirus (SARS-CoV-2), transmitted
in most instances through
respiratory droplets, direct contact with
cases and also through contaminated surfaces/objects. Though
the virus survives on environmental surfaces for varied period of
time, it gets easily inactivated by chemical disinfectants...”
3. On 18.04.2020, Director General of Health Services (EMR
Division), Ministry of Health and Family Welfare, issued an advisory
against spraying of disinfectants on people for Covid-19 arrangements.
Even though in the above advisory, spraying of individuals or groups was
not recommended, several bodies, organizations started using spraying
tunnels to disinfect the human body. The press release dated 23.4.2020
was issued by National Capital Laboratory(Council for Scientific and
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Industrial Research) which was joint press release by CSIR-NCL Pune-
ICT Mumbai, stating that the use of mist based sanitization is expected
to provide safeguard to front-line health care professionals including
paramedical staff, police and employees providing essential services.
Other public organizations also started using the walk way spray tunnels,
and other measures for disinfecting humans at various public places.
4. This writ petition under Article 32 has been filed on 05.06.2020
praying for following reliefs: -
“i. Issue a writ in the nature of Mandamus or any other appropriate
writ, direction or order a forthwith ban on the usage, installation,
production, advertisement of disinfection tunnels involving spraying
or fumigation of chemical disinfectants for the purposes disinfecting
human being and/or
ii. Issue a writ in the nature of Mandamus or any other appropriate
writ, direction or order a forthwith ban on usage, installation,
production, advertisement of disinfection tunnels involving spraying
or fumigation of organic disinfectants for the purposes disinfecting
human beings and/or
iii. Issue a writ in the nature of Mandamus or any other appropriate
writ, direction or order a forthwith ban on the usage, installation,
production, advertisement of disinfection tunnels exposing human
beings to ultraviolet rays for the purposes disinfecting them and/
or
iv. To pass such other orders and further orders as may be deemed
necessary on the facts and
in the circumstances of the case”
5. The petitioner in the writ petition referred to and relied the
advisory dated 18.04.2020 and has also referred to press release dated
23.04.2020 issued by CSIR-NCL,Pune-ICT,Mumbai, where tunnels for
external body surface sanitization of personal walk was recommended.
6. The petitioner’s case in the writ petition is that although the
Ministry of Health and Family Welfare, Government of India, has not
approved the use of any self claimed organic or ayurvedic disinfectant
for spraying or fumigation purposes nor approved any chemical
disinfectants on human body but lot of organizations/public authorities
are using chemical disinfectants for spraying and fumigation. Several
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instances in the writ petition of public authorities installing disinfecting
tunnel has been given in the writ petition.
7. Publication from World Health Organization has also been relied
where it is clearly stated that spraying and introducing bleach or other
disinfectant into body will not protect against Covid-19 and can be
dangerous. Quoting World Health Organization, it is pleaded that the
Ultraviolet (UV Lamps) should not be used to disinfect the hands and
other areas of the skin. Reference has also been made of advanced
disinfectant tunnel developed jointly by Indian Institute of Technology,
Kanpur and Artificial Limb Manufacturing Corporation of India.
8. Articles questioning against the use of disinfectant tunnels have
also been referred to and relied by the petitioner. Certain materials where
different experts have recommended use of UV light and disinfectant
tunnel has also been referred to. In view of several discordant note
expressed by certain experts and organizations, the writ petition prayed
for directions as quoted above.
9. This Court issue notice to respondent Nos. 1-3 on 10.08.2020.
No notice having been issued to the respondent Nos.4 to 6, they be
deleted from the array of the parties. The respondent No.1 has filed a
counter affidavit dated 01.09.2020 where advisory dated 18.04.2020 as
well as minutes of meeting dated 09.06.2020 held under the chairmanship
of Director General Health Services,
with regard to review on use of
disinfection tunnel using various chemicals and spraying disinfectants
have been brought on the record. Taking note of the meeting proceeding
dated 09.06.200 where spraying disinfectant was not recommended by
the minutes, This Court passed following order on 07.09.2020: -
“ ORDER
    A counter affidavit has been filed on behalf of Union of India.
In the counter affidavit at page 40 copy of meeting - Annexure
‘G’ dated 09.06.2020 has been brought on the record, where it
has been decided that spraying disinfectants is not recommended.
Shri Tushar Mehta, learned Solicitor General submits that relevant
directions and circulars shall be issued to all concerned.
    As prayed by Shri Tushar Mehta, learned Solicitor General, list
after two weeks.”
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10. After the aforesaid order, another affidavit titled as ‘Compliance
affidavit dated 28.09.2020’ by respondent No.1 where O.M. dated
23.09.2020 has been brought on the record reiterating that spraying of
individuals or groups with disinfectant using any modality is not
recommended and hence, all States/Union Territories are directed to
ensure that such practices are not implemented in the States/UTs.
11. An additional affidavit has also been filed by respondent No.1
with regard to use of Ultraviolet (UV) rays to disinfect/sterilize edible
items like fruits and vegetables. Petitioner has also filed consolidated
rejoinder affidavit. An intervention application has also been filed by one
Ideal Flow Pvt. Ltd. which claims to be a company which has developed
and designed pressurized steam disinfectant chamber. The applicant
submits that in designed pressurized steam disinfectant chamber, natural
oils are mixed in an emulsifier solution. Applicant claims that the product
has various health benefits. Applicant further submitted that there is a
major difference between disinfectant tunnels spraying chemical
disinfectant and pressurized disinfection chamber, any blanket ban as
sought in the writ petition may seriously impact the business of the
applicant, in light of the major difference of the applicant’s product from
that of disinfection tunnel mentioned in the writ petition.
12. We have heard the petitioner appearing in person, Shri Tushar
Mehta, learned
Solicitor General for the respondents and Smt. Anita
Shenoy, Senior Advocate for the intervenor.
13. The petitioner submits that although the Ministry of Health &
Family Welfare, the respondents No.1 through its advisory dated
18.04.2020 had stated that spraying of disinfectant on human being is
not recommended but Union of India has not taken any step to stop use,
advertisement and sale of chemical based disinfection tunnels. The
petitioner submits that there is no study anywhere in the world by any
credible health agency which states that human disinfection tunnels are
effective against Covid-19 virus. On the contrary, there are sufficient
health advisories by the WHO, respondent No.1 and other international
agency that tunnels are counter productive and harmful for human health.
There has been no advisory issued by respondent No.1  which
recommends usage of any organic solution for spraying on human body
against Covid-19 pandemic.
GURUSIMRAN SINGH NARULA v. UNION OF INDIA & ANR.
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14. The petitioner submits that in absence of any recommendation
of health authorities, there is a trend across the Country where people
are producing self-certified so called safe disinfection tunnels with variety
of organic solutions. The petitioner submits that the concept of “human
disinfection” through walk in tunnel is flawed and misconceived and be
not permitted at any cost in light of Right to Health under Article 21 of
the Constitution.
15. Shri Tushar Mehta, learned Solicitor General, submits that
answering respondent No.1 had not issued any advisory for usage,
installation, production, advertisement of disinfection tunnel involving
spraying or fumigation of chemicals/organic disinfectants for the purpose
of disinfecting human beings. Learned Solicitor General has referred to
advisory dated 18.04.2020 issued by respondent No.1. It is further
submitted that in the meeting held on 09.06.2020 under the Chairmanship
of Director General Health Services, review on use of disinfection tunnel
was made and it was reiterated that spraying disinfectant is not
recommended in both health care and non-health care settings. Shri Mehta
submits that the States/UTs have to implement the guidelines dated
18.04.2020 and the role of the Government of India is limited to providing
necessary guidelines and financial support.
16. Learned counsel for the intervenor has submitted that the
product which is being designed by the
applicant does not use any chemical
as human disinfectant rather it uses natural oil which promotes health.
The applicant opposes any blanket ban on the use of such products for
human disinfection.
17. We have considered the submission of learned counsel for the
parties and perused the record.
18. The writ petition raises following three questions:-
I) Whether spraying or fumigation of any kind of chemical
disinfectants on human beings without the approval of the relevant
ministry is violative of Article 21?
II) Whether spraying or fumigation of any kind of self-claimed
organic disinfectant on human beings without the approval of the relevant
Ministry is violative of Article 21?
III) Whether exposure of human beings to artificial ultraviolet
rays is violative of Article 21?
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All the above questions being inter-connected are being taken
together.
19. Article 21 of the Constitution provides for protection of life
and personal liberty. The expression ‘life’ used in Article 21 has wide
import and connotation. Article 21 encompasses a bundle of rights which
have been recognized from time to time by the legislature of this Country
and Courts of this Country including this Court. Right to life as recognized
under Article 21 is Right to live with dignity.  Right to health is also
recognized as an important facet of Article 21 of the Constitution. We
may refer to pronouncement of this Court in Devika Biswas versus
Union of India and others, (2016) 10 SCC 726, where this Court
held that Right to Health is an integral facet of Right guaranteed under
Article 21 of the Constitution. In paragraph 107 of this Court dealing
with Right to Health laid down following: -
“107. It is well established that the right to life under Article 21 of
the Constitution includes the right to lead a dignified and meaningful
life and the right to health is an integral facet of this right. In
CESC Ltd. v. Subhash Chandra Bose dealing with the right to
health of workers, it was noted that the right to health must be
considered an aspect of social justice informed by not only Article
21 of the Constitution, but also the Directive Principles of State
Policy and international covenants to which India is a party.
Similarly, the bare minimum obligations of the State
to ensure the
preservation of the right to life and health were enunciated in
Paschim banga Khet Mazdoor Samity vs. State of W.B.”
20. In the present case, Right to Health under consideration is in
wake of pandemic Covid-19. The provisions of Disaster Management
Act, 2005(hereinafter referred to as Act, 2005) has been invoked to
combat Covid-19 by different authorities constituted under  Act, 2005.
Covid-19 is a notified disaster for the purposes of the Act, 2005 by the
Government of India.
21. The Act, 2005, is an act for effective management of disasters
and matters connected therewith and incidental thereto. Disaster
Management includes prevention of danger/threat of a disaster, mitigation
or reduction of risk of a disaster, preparedness to deal with the disaster
and prompt response to any threatening disaster situation or disaster
GURUSIMRAN SINGH NARULA v. UNION OF INDIA & ANR.
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etc.. Under Section 3, National Disaster Management Authority is
established for the purposes of the Act. Section 8 provides for the
constitution of National Executive Committee. Section 10 deals with
powers and function of National Executive Committee. The National
Executive Committee is to assist the National Authority in discharge of
its functions and have the responsibility  for implementing the policies
and plans of the National authority and ensure the compliance of the
directions issued by the Central Government for the purposes of the
Central Government. Sub-Section (2) of Section 10 enumerates various
powers and functions of the National Executive Committee. Section 10
which is relevant for this case is as follows: -
“10. Powers and functions of National Executive
Committee.—
(1) The National Executive Committee shall assist the National
Authority in the discharge of its functions and have the
responsibility for implementing the policies and plans of the National
Authority and ensure the compliance of directions issued by the
Central Government for the purpose of disaster management in
the country.
 (2) Without prejudice to the generality of the provisions contained
in sub-section (1), the National Executive Committee may—
(a) act as the coordinating and monitoring body for disaster
management;
(b) prepare the National Plan to be approved by the National
Authority;
(c) coordinate and monitor the
implementation of the National
Policy;
(d) lay down guidelines for preparing disaster management plans
by different Ministries or Departments of the Government of India
and the State Authorities;
(e) provide necessary technical assistance to the State
Governments and the State Authorities for preparing their disaster
management plans in accordance with the guidelines laid down
by the National Authority;
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(f) monitor the implementation of the National Plan and the plans
prepared by the Ministries or Departments of the Government of
India;
(g) monitor the implementation of the guidelines laid down by the
National Authority for integrating of measures for prevention of
disasters and mitigation by the Ministries or Departments in their
development plans and projects;
(h) monitor, coordinate and give directions regarding the mitigation
and preparedness measures to be taken by different Ministries or
Departments and agencies of the Government;
(i) evaluate the preparedness at all governmental levels for the
purpose of responding to any threatening disaster situation or
disaster and give directions, where necessary, for enhancing such
preparedness;
(j) plan and coordinate specialised training programme for disaster
management for different levels of officers, employees and
voluntary rescue workers;
(k) coordinate response in the event of any threatening disaster
situation or disaster;
(l) lay down guidelines for, or give directions to, the concerned
Ministries or Departments of the Government of India, the State
Governments and the State Authorities regarding measures to be
taken by them in response to any threatening disaster situation or
disaster;
(m) require any department or agency of the Government to make
available to the National Authority or State Authorities such men
or material resources as are available with it for the purposes of
emergency response,
rescue and relief;
(n) advise, assist and coordinate the activities of the Ministries or
Departments of the Government of India, State Authorities,
statutory bodies, other governmental or non-governmental
organisations and others engaged in disaster management;
(o) provide necessary technical assistance or give advice to the
State Authorities and District Authorities for carrying out their
functions under this Act;
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(p) promote general education and awareness in relation to disaster
management; and
(q) perform such other functions as the National Authority may
require it to perform. ”
22. The powers under sub-section (2) of Section 10 clauses (i)
and (l) of  Act, 2005, have been delegated to Secretary, Ministry of
Health and Family Welfare, Government of India, by notification dated
11.03.2020. The Notification dated 11.03.2020 is as follows: -
“ORDER
  In exercise of the powers conferred under Section 69 of the
Disaster Management Act, 2005, Union home Secretary being
Chairman of the National Executive Committee(NEC) hereby
delegates its power under clauses (i) and (l) of sub-section (2) of
Section 10 of the Disaster Management Act, 2005 to Secretary,
Ministry of Health and Family Welfare, Government of India to
enhance the preparedness and containment of novel
Coronavirus(COVID-19) and the other ancillary matters connected
thereto. This order shall be deemed to have come into effect from
17th January, 2020.
(Sanjeev Kumar Jindal)
Joint Secretary to the
Government of India”
23. Thus it is the Secretary, Ministry of Health and Family Welfare,
who had to lay down the guidelines or give directions to the concerned
Ministries or Departments of Government of India, the State Governments
and State Authorities regarding measures to be taken by them in response
to any disrupting situation or disaster. The Pandemic has threatened the
health of entire citizenry of the country and all facets relating to pandemic
Covid-19, its prevention, mitigation and cure are to be dealt with and
taken care of authorities empowered with different duties and functions
under different statutes including Disaster Management Act, 2005.
24. We may first refer to the advisory dated 18.04.2020 which
was issued against spraying of disinfectant on people for Covid-19
management. The advisory dated 18.04.2020 states: -
“Advisory against spraying of disinfectant on people for
COVID-19 management
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Ministry of Health & Family Welfare has received many queries
regarding the efficacy (if any) of use disinfectants such as Sodium
hypochlorite spray used over the individuals to disinfect them.
The strategy seems to have gained of lot of media attention and is
also being reportedly used at local levels in certain districts/local
bodies.
Purpose of the document
To examine the merit of using disinfectants as spray over human
body to disinfect them from COVID-19 and to provide appropriate
advisory
Disinfectants are chemicals that destroy disease causing
pathogens or other harmful microorganisms. It refers to substances
applied on inanimate objects owing to their strong chemical
properties.
Chemical disinfectants are recommended for cleaning and
disinfection only of frequently touched areas/surfaces by those
who are suspected or confirmed to have COVID-19.
Precautionary measures are to be adopted while using
disinfectants for cleaning – like wearing gloves during disinfection.
In view of the above, the following advisory is issued:
• Spraying of individuals or groups is NOT recommended under
any circumstances. Spraying an individual or group with chemical
disinfectants is physically and psychologically harmful.
• Even if a person is potentially exposed with the COVID-19
virus, spraying the external part of the body does not kill the virus
that has entered your body. Also there is no scientific evidence to
suggest that they are effective even in disinfecting
the outer
clothing/body in an effective manner.
• Spraying of chlorine on individuals can lead to irritation of eyes
and skin and potentially gastrointestinal effects such as nausea
and vomiting. Inhalation of sodium hypochlorite can lead to irritation
of mucous membranes to the nose, throat, respiratory tract and
may also cause bronchospasm.
• Additionally use of such measures may in fact lead to a false
sense of disinfection & safety and actually hamper public
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observance to hand washing and social distancing measures.”
25. Even though the above advisory was issued by Directorate
General of Health Services not recommending spraying of disinfectant
on people for Covid-19 management but several contrary opinion have
been expressed by other bodies and organisations. In this context,
reference has been made to the joint Press Release dated 23.04.2020
by NCL (CSIR). The Press Release dated 23.04.2020 states: -
“Publication and Science Communication Unit
Press release
April 23, 2020
 Safe concentration of disinfectant in walk through spray
tunnels and their scientific design
Joint Press Release: CSIR-NCL Pune and ICT Mumbai
  CSIR–National Chemical Laboratory (CSIR-NCL), Pune
evaluated various concentrations of sodium hypochlorite to find
effective chemical disinfectants for the mist sanitization system.
  The use of mist-based sanitization is expected to provide
safeguards to frontline healthcare professionals, including
paramedic staff, police, and employees providing essential services.
These people are more likely to get the infection and unknowingly
spread arising from various sources. A lot of advisories have
appeared against the use of such tunnels from various agencies,
which does not have any scientific basis.
  Efficacy of sodium hypochlorite, also known as hypo or bleach,
ranging from 0.02% to 0.5% weight concentration was studied
on personnel walking through mist
tunnel unit, besides antibacterial
activity against standard microorganisms before and after exposure
in the walk through. Results indicated that 0.02% to 0.05% weight
concentration did not show an adverse effect on normal skin flora
and yet destroyed the standard microbes. Thus, we recommend
using 0.02% -0.05 wt. % sodium hypochlorite solution (200 to 500
ppm) for external body surface sanitization of personnel walk
through the mist tunnel by following standard safety precautions”
26. The petitioner has also referred to in the writ petition various
articles where different experts have recommended for effective
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sanitization amid Covid-19 pandemic by disinfection tunnels, different
studies for and against  disinfectment of human body has been referred
to and relied in the writ petition.
27. After Notice was issued in the petition, the counter affidavit
was filed. In the Counter affidavit respondent No.1 has also brought on
record the minutes of the meeting dated 09.06.2020 chaired by Director
General Health Services where review was made on the use of
disinfection tunnels. Observations as recorded in the minutes are as
follows: -
“1. Use of disinfection tunnel
The matter of spraying of disinfectant on people for COVID-
19 management was discussed in the Joint Monitoring Group and
an advisory in this regard has been issued by MOHFW/DGHS,
EMR Division which is available on the website of the ministry. It
clearly states the following:
“Spraying of individuals or groups is NOT recommended under
any circumstances. Spraying an individual or group with chemical
disinfectants physically and psychologically harmful.
·
Even if a person is potentially exposed with the Covid-19
virus, spraying the external part of the body does not kill
the virus that has entered your body. Also there is no
scientific evidence to suggest that they are effective even
in disinfecting the outer clothing/body in an effective
manner.
·
Additionally use of such measures may in fact lead to a
false sense of disinfection and safety and actually hamper
public observance to hand washing and social
distancing
measures.
It is reiterated that spraying of individuals with disinfectants (such
as tunnels, cabinets, chambers, etc.) is not recommended. This
could be physically and psychologically harmful and would not
reduce an infected person’s ability to spread the virus through
droplets or contact. Moreover, spraying individuals with chlorine
and other toxic chemicals could result in eye and skin irritation,
bronchospasm due to inhalation, and gastrointestinal effects such
as nausea and vomiting.
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2. Use of Chemicals
As per the advisory by MOHFW/DGHS, EMR Division:
Chemical disinfectants are recommended for cleaning and
disinfection only of frequently touched areas/surfaces by those
who are suspected or confirmed to have COVID-19.
Precautionary measures are to be adopted while using
disinfectants for cleaning – like wearing gloves during disinfection.
Spraying of chlorine on individuals can lead to irritation of eyes
and skin and potentially gastrointestinal effects such as nausea
and vomiting. Inhalation of sodium hypochlorite can lead to irritation
of mucous membranes to the nose, throat, respiratory tract and
may also cause bronchospasm.
The chemicals such as freshly prepared 1% sodium hypochlorite
or 70% ethanol etc., are to be used as indicated, to disinfect
inanimate surfaces using mops/wipes for the recommended contact
time.
3. Spraying disinfectants:
Spraying disinfectants is not recommended in both health care
and non health care settings.
In indoor spaces, routine application of disinfectants to
environmental surfaces by spraying or fogging (also known as
fumigation or misting) is not recommended for COVID-19 as the
disinfectants may not be effective in removing organic material
and may miss surfaces shielded by objects, folded fabrics or
surfaces with intricate designs. If disinfectants are to be applied,
this should be done with a cloth or wipe that has been soaked in
disinfectant.
Spraying or
fumigation of outdoor spaces, such as streets or
marketplaces, is also not recommended to kill the COVID-19 virus
or other pathogens because disinfectant is inactivated by dirt and
debris and it is not feasible to manually clean and remove all organic
matter from such spaces. Moreover, spraying porous surfaces,
such as sidewalks and unpaved walkways, would be even less
effective. Even in the absence of organic matter, chemical spraying
is unlikely to adequately cover all surfaces for the duration of the
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required contact time needed to inactivate pathogens. Furthermore,
streets and sidewalks are not considered to be reservoirs of
infection for COVID-19. In addition, spraying disinfectants, even
outdoors, can be harmful for human health.
The committee referred to the document of the World Health
Organisation on ‘Cleaning and disinfection of environmental
surfaces in the context of COVID-19.’
28. It is further relevant to notice that in  paragraph 13 of the
affidavit dated 01.09.2020, following statement has also been made:
“13. It is most respectfully submitted that as public health and
hospitals are State subject, it is for the States/Union Territories to
implement the guidelines issued by the Ministry of Health and
Family Welfare and the role of Government of India is limited to
providing necessary guidance and financial support.
....
...
   ....   ....”
29. From the pleadings brought on record on behalf of respondent
No.1, it is clear that although by the advisory by respondent No.1, spraying
of disinfectant on human body is not recommended but respondent No.1
has not taken any further steps in the above context taking any measure
either to prevent or regulate the spraying of disinfectant on the human
body.
30. We have noted above the powers and functions of National
Executive Committee under Section 10 of the Act, 2005, which specifically
empowers the National Executive Committee to give directions regarding
measures to be taken by the concerned
ministry and departments of the
Government, State Governments and State Authorities in response to
the threatening situation or disaster.
31. Section 36 of the Act, 2005, expressly enumerates the
responsibilities  of Ministries and departments of the Government of
India. Section 36 which is relevant for the case is as follows: -
“36. Responsibilities of Ministries or Departments of
Government of India.—It shall be the responsibility of every
Ministry or Department of the Government of India to—
(a) take measures necessary for prevention of disasters, mitigation,
preparedness and capacity building in accordance with the
guidelines laid down by the National Authority;
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(b) integrate into its development plans and projects, the measures
for prevention or mitigation of disasters in accordance with the
guidelines laid down by the National Authority;
(c) respond effectively and promptly to any threatening disaster
situation or disaster in accordance with the guidelines of the
National Authority or the directions of the National Executive
Committee in this behalf;
(d) review the enactments administered by it, its policies, rules
and regulations, with a view to incorporate therein the provisions
necessary for prevention of disasters, mitigation or preparedness;
(e) allocate funds for measures for prevention of disaster,
mitigation, capacity-building and preparedness;
(f) provide assistance to the National Authority and State
Governments for—
(i) drawing up mitigation, preparedness and response plans,
capacity-building, data collection and identification and training
of personnel in relation to disaster management;
(ii) carrying out rescue and relief operations in the affected
area;
(iii) assessing the damage from any disaster;
(iv) carrying out rehabilitation and reconstruction;
(g) make available its resources to the National Executive
Committee or a State Executive Committee for the purposes of
responding promptly and effectively to any threatening disaster
situation or disaster, including measures for—
(i) providing emergency communication in a vulnerable or
affected area;
(ii)
transporting personnel and relief goods to and from the
affected area;
(iii) providing evacuation, rescue, temporary shelter or other
immediate relief;
(iv) setting up temporary bridges, jetties and landing places;
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(v) providing, drinking water, essential provisions, health care,
and services in an affected area;
 (h) take such other actions as it may consider necessary for
disaster management. ”
32. When respondent No.1 has issued advisory that use of
disinfectant on human body is not recommended and it has been brought
into its notice that despite the said advisory, large number of organizations,
public authorities are using disinfectants on human body, it was necessary
for the respondent No.1 to issue necessary directions either to prevent
such use or regulate such use as per requirement to protect the health of
the people. The provisions of Disaster Management Act, Section 10, 36
and other provisions are not only provisions of empowerment but also
cast a duty on different authorities to act in the best interest of the people
to sub-serve the objects of the Act.
33. We have extracted paragraph 13 of the Counter Affidavit
where it has been stated by the respondent No.1 that public health and
hospitals, it is for the States/UTs to implement guidelines by the Ministry
of Health and Family Welfare and role of the Central Government is
limited to provide necessary guidelines and financial support.
34. No exception can be taken to the above pleading but the
provisions of the Act, 2005, confer certain more responsibilities and duties
on the respondent No.1 apart from issuance of guidelines and providing
financial support. The Act, 2005, is special legislation containing
self-
contained provisions to deal with a disaster. The Pandemic being a disaster
within the meaning of Act, 2005, has to be dealt with sternly and
effectively.
35. We have no doubt that the Union and the States are taking all
measures to contain the pandemic and all mitigating steps but the facts
which have been brought on record in this writ petition indicate that in
the present case, something more was required to be done by respondent
No.1 apart from issuing advisory  that use of disinfectant on human
body is not recommended. When public authorities/ organizations were
using disinfectants both chemical/organic on the human body and there
are various studies to the effect that it may be harmful to the health and
the body. Some more actions were required to remove the cloud of
uncertainty and to regulate the use even if it was to either prevent such
use or regulate the use so that health of citizens is amply protected.
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36. When a statute confer power on authority and that power is
to be exercised for the benefit of the people in general, the power is
coupled with the duty. This Court in Commissioner of Police versus
Gordhandas Bhanji, AIR 1952 SC 16, speaking through Vivian Bose,J.,
had laid down the off-quoted preposition in paragraph 28: -
“28. The discretion vested in the Commissioner of Police under
R.250 has been conferred upon him for public reasons involving
the convenience, safety, morality and welfare of the public at large.
An enabling power of this kind conferred for public reasons and
for the public benefit is, in our opinion, coupled with a duty to
exercise it when the circumstances so demand. It is a duty which
cannot be shirked or shelved nor it be evaded, performance of it
can be compelled under S.45.”
37. This Court again in L.Hirday Narain versus Income Tax
Officer, Bareilly, (1970) 2 SCC 355, reiterated the same principle in
following words: -
“13....if a statute invests a public officer with authority to do an
act in a specified set of circumstances, it is imperative upon him
to exercise his authority in a manner appropriate to the case when
a party interested and having a right to apply moves in that behalf
and circumstances for exercise of authority are shown to exist.
Even if the words used in the statute are prima facie enabling the
Courts will readily infer a duty to exercise power which is invested
in aid
of enforcement of a right-public or private- of a citizen.”
38. Justice V.R. Krishna Iyer had elaborately dealt the above
principle in Municipal Council, Ratlam versus Shri Vardichan and
others, (1980) 4 SCC 162. The above case was a case where
Municipal Council Ratlam was entrusted with certain duties to the public
which was sought to be enforced by the residents through Section 133
Cr.P.C. where Magistrate issued certain directions to the Municipal
Corporation which came to be challenged in this Court. Justice Krishna
Iyer quoting Benjamin Bisraiely, in paragraph 9 of the judgment
stated: -
“9. ...”All power is a trust – that we are accountable for its exercise
– that, from the people, and for the people, all springs, and all
must exist.” Discretion becomes a duty when the beneficiary brings
home the circumstances for its benign exercise.”
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39. With regard to judicial process, important observations were
made by this Court in the above case that affirmative action taken in the
judicial process is to make remedy effective failing which the right
becomes sterile. In paragraph 16 of the judgment, following observations
have been made: -
“16...The nature of the judicial process is not purely adjudicatory
nor is it functionally that of an umpire only. Affirmative action to
make the remedy effective is of the essence of the right which
otherwise becomes sterile...”
40. Justice Krishna Iyer also laid down that improvement of public
health is paramount principle of governance. In paragraph 24, following
has been observed: -
“24. ...The State will realise that Article 47 makes it a paramount
principle of governance that steps are taken ‘for the improvement
of public health as amongst its primary duties’...”
41. An additional affidavit has been filed by the respondent No.1
where details regarding use of Ultraviolet UV rays disinfectant/sterilize
edible food items like fruits and vegetables has been quoted. In additional
affidavit, rules have been relied namely ‘Atomic Energy (Radiation
Processing of Food and Allied Product) Rules,2012’, which rules require
that no person shall operate the facility without obtaining a license  for
radiation processing of food and allied products under the Rules. Facility
has been defined as radiation processing facility for food and allied product.
There are hosts of
regulatory measures of radiation for use of UV rays
with regard to food and other articles. We are of the view that for spraying
disinfectant on human body, fumigation or use of UV rays against the
human body, there has to be regulatory regime when respondent No.1
itself is of the view that such use is not recommended. The respondent
No.1 has wide powers and responsibilities under Act, 2005, which could
have been utilized to remedy the situation. In event, use of disinfectant
on human body is to cause adverse effect on the health of the people,
there has to be immediate remedial action and respondent No.1 cannot
stop only by saying that such use is not recommended.
42. In view of the foregoing discussion, we are of the view that
ends of justice be served in disposing the writ petition by issuing the
following directions:-
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i) The respondent No.1 may consider and issue necessary
directions in exercise of powers vested in it under the Disaster
Management Act, 2005, regarding ban/Regulation on the usage
of disinfection tunnels involving spraying or fumigation of chemical/
organic disinfectants for the human beings.
or
ii) There shall be similar consideration and directions by the
respondents as indicated  above with regard to exposure of human
being to artificial ultraviolet rays.
iii) Looking to the health concern of the people in general, the
aforesaid exercise be completed by respondent No.1 within a
period of one month.
Ankit Gyan
Writ petition disposed of.