Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (C) NO.560 OF 2020
GURUSIMRAN SINGH NARULA ... PETITIONERS
VERSUS
UNION OF INDIA & ANR. ... RESPONDENTS
J U D G M E N T
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(Covid19).
Signature Not Verified
Digitally signed by
ARJUN BISHT
Date: 2020.11.05
15:19:08 IST
Reason:
2. The World Health Organisation(WHO) declared novel
coronavirus disease, 2019 (hereinafter referred to as
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Covid19) 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 Covid19. 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 COVID19.
Coronavirus Disease 2019(COVID19) is an
acute respiratory disease caused by a
novel Cornavirus (SARSCoV2), 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
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people for Covid19 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
Industrial Research) which was joint press release by
CSIRNCL PuneICT Mumbai, stating that the use of mist
based sanitization is expected to provide safeguard to
frontline 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
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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
CSIRNCL,PuneICT,Mumbai, where tunnels for external
body surface sanitization of personal walk was
recommended.
6. The petitioner's case in the writ petition is that
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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
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 Covid19 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
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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. sIn 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. 13 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
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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.”
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
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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
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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 Covid19 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 Covid19 pandemic.
14. The petitioner submits that in absence of any
recommendation of health authorities, there is a trend
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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 nonhealth care
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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?
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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?
All the above questions being interconnected 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
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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 Covid19. The
provisions of Disaster Management Act, 2005(hereinafter
referred to as Act, 2005) has been invoked to combat
Covid19 by different authorities constituted under
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Act, 2005. Covid19 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 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. SubSection (2) of Section 10
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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 subsection
(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
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Authority;
(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
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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 nongovernmental
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;
(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 subsection (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:
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"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 subsection (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(COVID19) and the other
ancillary matters connected thereto. This
order shall be deemed to have come into
th
effect from 17 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 Covid19, its prevention,
mitigation and cure are to be dealt with and taken care
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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 Covid19 management. The advisory dated
18.04.2020 states:
" Advisory against spraying of disinfectant
on people for COVID19 management
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 COVID19 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.
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Chemical disinfectants are recommended for
cleaning and disinfection only of
frequently touched areas/surfaces by those
who are suspected or confirmed to have
COVID19. 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 COVID19 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
observance to hand washing and social
distancing measures.”
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25. Even though the above advisory was issued by
Directorate General of Health Services not recommending
spraying of disinfectant on people for Covid19
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: CSIRNCL 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 mistbased sanitization is
expected to provide safeguards to
frontline healthcare professionals,
including paramedic staff, police, and
employees providing essential services.
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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 sanitization amid Covid19
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
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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 COVID19 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 Covid19 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
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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.
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 COVID19. 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
25
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 COVID19 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
COVID19 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
required contact time needed to
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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
COVID19.'
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
27
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
28
Authority;
(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,
capacitybuilding and preparedness;
(f) provide assistance to the National
Authority and State Governments for—
(i) drawing up mitigation,
preparedness and response plans,
capacitybuilding, 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
29
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;
(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
30
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 subserve 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
31
financial support. The Act, 2005, is special
legislation containing selfcontained 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.
32
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 offquoted 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
33
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 rightpublic 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
34
home the circumstances for its benign
exercise.”
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
35
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
36
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:
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.
37
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.
....................J.
(Ashok Bhushan)
....................J.
(R.Subhash Reddy)
....................J.
(M.R. Shah)
NEW DELHI,
NOVEMBER 05, 2020.