GURUSIMRAN SINGH NARULAversusUNION OF INDIA & ANR.

                          [2020] 12 S.C.R. 351                            351


                GURUSIMRAN SINGH NARULA                                   A
                                  v.
                    UNION OF INDIA & ANR.
                 Writ Petition (Civil) No. 560 of 2020
                       NOVEMBER 05, 2020                                  B
      [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
                                                                          C
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            D
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
                                                                          E
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            F
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
                                                                          G
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.

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                                  351
352            SUPREME COURT REPORTS                    [2020] 12 S.C.R.


A           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
B     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,
C     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
D     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
E     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
F     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
G     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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GURUSIMRAN SINGH NARULA v. UNION OF INDIA & ANR.                       353


disinfectants both chemical/organic on the human body and there        A
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]
                                                                       B
      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            C
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          D
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               E
      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                               F
(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        G

      CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
560 of 2020.
           (Under Article 32 of the Constitution of India)
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354             SUPREME COURT REPORTS                          [2020] 12 S.C.R.


A          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
B
            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
C     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
D     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
E
            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
F
            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
G     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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GURUSIMRAN SINGH NARULA v. UNION OF INDIA & ANR.                              355
              [ASHOK BHUSHAN, J.]

Industrial Research) which was joint press release by CSIR-NCL Pune-          A
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.
                                                                              B
      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    C
      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    D
      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        E
      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       F
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           G
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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356             SUPREME COURT REPORTS                          [2020] 12 S.C.R.


A     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
B     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.
C            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.
D
             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
E     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: -
F                                        “ 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.
G           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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GURUSIMRAN SINGH NARULA v. UNION OF INDIA & ANR.                               357
              [ASHOK BHUSHAN, J.]

      10. After the aforesaid order, another affidavit titled as ‘Compliance   A
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.
                                                                               B
       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             C
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          D
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            E
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,         F
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.       G
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.

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358             SUPREME COURT REPORTS                          [2020] 12 S.C.R.


A            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
B
      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
C     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
D     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
E     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
F     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?
G
            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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GURUSIMRAN SINGH NARULA v. UNION OF INDIA & ANR.                                359
              [ASHOK BHUSHAN, J.]

      All the above questions being inter-connected are being taken             A
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       B
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        C
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       D
      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.             E
      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                F
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        G
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

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360            SUPREME COURT REPORTS                          [2020] 12 S.C.R.


A     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
B
      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: -
C           “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
D           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—
E
            (a) act as the coordinating and monitoring body for disaster
            management;
            (b) prepare the National Plan to be approved by the National
            Authority;
F           (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;
G           (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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GURUSIMRAN SINGH NARULA v. UNION OF INDIA & ANR.                           361
              [ASHOK BHUSHAN, J.]

   (f) monitor the implementation of the National Plan and the plans       A
   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      B
   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        C
   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              D
   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
                                                                           E
   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
                                                                           F
   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                G
   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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362             SUPREME COURT REPORTS                          [2020] 12 S.C.R.


A           (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)
B     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

C              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
D            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)
E                                                            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
F     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.
G
            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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GURUSIMRAN SINGH NARULA v. UNION OF INDIA & ANR.                            363
              [ASHOK BHUSHAN, J.]

     Ministry of Health & Family Welfare has received many queries          A
   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.
                                                                            B
   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                 C
   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          D
   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:
                                                                            E
   • 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
                                                                            F
   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   G
   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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364            SUPREME COURT REPORTS                          [2020] 12 S.C.R.


A           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,
B     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

C             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
D           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
E           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
F           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
G           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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GURUSIMRAN SINGH NARULA v. UNION OF INDIA & ANR.                               365
              [ASHOK BHUSHAN, J.]

sanitization amid Covid-19 pandemic by disinfection tunnels, different         A
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         B
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-           C
      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              D
      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            E
             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        F
             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            G
      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.
                                                                               H
366      SUPREME COURT REPORTS                          [2020] 12 S.C.R.


A     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.
B     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
C     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
D     time.
      3. Spraying disinfectants:
      Spraying disinfectants is not recommended in both health care
      and non health care settings.
E     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,
F
      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
G     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
H
GURUSIMRAN SINGH NARULA v. UNION OF INDIA & ANR.                               367
              [ASHOK BHUSHAN, J.]

      required contact time needed to inactivate pathogens. Furthermore,       A
      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              B
      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   C
      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.
      ....       ...        .... ....”
                                                                               D
       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.                                                                          E
       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             F
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                    G
      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;                          H
368      SUPREME COURT REPORTS                         [2020] 12 S.C.R.


A     (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
B     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;
C     (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—

D        (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;
E        (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
F     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
G        affected area;
         (iii) providing evacuation, rescue, temporary shelter or other
         immediate relief;
         (iv) setting up temporary bridges, jetties and landing places;

H
GURUSIMRAN SINGH NARULA v. UNION OF INDIA & ANR.                                 369
              [ASHOK BHUSHAN, J.]

          (v) providing, drinking water, essential provisions, health care,      A
          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            B
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            C
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           D
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     E
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.
                                                                                 F
       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             G
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.
                                                                                 H
370            SUPREME COURT REPORTS                           [2020] 12 S.C.R.


A            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: -
B           “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
C           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: -
D
            “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.
E           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
F     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
G     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.”
H
GURUSIMRAN SINGH NARULA v. UNION OF INDIA & ANR.                                 371
              [ASHOK BHUSHAN, J.]

       39. With regard to judicial process, important observations were          A
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       B
       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          C
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        D
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        E
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               F
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             G
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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372                SUPREME COURT REPORTS                       [2020] 12 S.C.R.


A            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.
B            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
C            aforesaid exercise be completed by respondent No.1 within a
             period of one month.


      Ankit Gyan                                            Writ petition disposed of.

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