Gursimran Singh Narula vs Union Of India Ministry Of Science … on 5 November, 2020


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Supreme Court of India

Gursimran Singh Narula vs Union Of India Ministry Of Science … on 5 November, 2020

Author: Ashok Bhushan

Bench: Ashok Bhushan, R. Subhash Reddy, M.R. Shah

                                                                                         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

2.
Reason:

The World Health Organisation(WHO) declared novel

coronavirus disease, 2019 (hereinafter referred to as
2

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
3

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
4

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
5

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
6

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
7

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
8

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
9

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
10

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
11

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?

12

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
13

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
14

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
15

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
16

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
17

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: ­
18

“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
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 Covid­19, its prevention,

mitigation and cure are to be dealt with and taken care
19

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.
20

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.”
21

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.
22

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
23

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
24

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
26

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.



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