GURUSIMRAN SINGH NARULA versus UNION OF INDIA & ANR. on 5 November 2020

1. This Writ petition filed in the public interest under Article 32 ofthe Constitution of India seeks direction to forthwith ban on spraying ofall kinds of disinfectants on human beings which is being done supposedlyCfor protecting the human beings from the Novel Coronavirus disease2019 (Covid-19).

2. The World Health Organisation (WHO) declared novelcoronavirus disease, 2019 (hereinafter referred to as Covid-19) as aPandemic on 11.03.2020. All countries including India after spread ofDthe pandemic had taken and are still taking different measures to containthe disease and protect its citizens from Covid-19. On 29.03.2020, Ministryof Health and Family Welfare, Government of India, released guidelineson disinfection of common Public places including Offices. The scopeas contained in the guidelines is to the following effect: - “Scope: This document aims to provide interim guidance aboutEthe environmental cleaning/decontamination of common publicplaces including offices in areas reporting COVID-19.

Coronavirus Disease 2019(COVID-19) is an acute respiratorydisease caused by a novel Cornavirus (SARS-CoV-2), transmittedin most instances through respiratory droplets, direct contact withFcases and also through contaminated surfaces/objects. Thoughthe virus survives on environmental surfaces for varied period oftime, it gets easily inactivated by chemical disinfectants...”

3. On 18.04.2020, Director General of Health Services (EMRDivision), Ministry of Health and Family Welfare, issued an advisoryGagainst spraying of disinfectants on people for Covid-19 arrangements.Even though in the above advisory, spraying of individuals or groups wasnot recommended, several bodies, organizations started using sprayingtunnels to disinfect the human body. The press release dated 23.4.2020was issued by National Capital Laboratory(Council for Scientific andH

Industrial Research) which was joint press release by CSIR-NCL Pune-ICT Mumbai, stating that the use of mist based sanitization is expectedto provide safeguard to front-line health care professionals includingparamedical 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 05.06.2020praying for following reliefs: - “i. Issue a writ in the nature of Mandamus or any other appropriatewrit, direction or order a forthwith ban on the usage, installation,production, advertisement of disinfection tunnels involving sprayingor fumigation of chemical disinfectants for the purposes disinfectinghuman being and/or

ii. Issue a writ in the nature of Mandamus or any other appropriatewrit, direction or order a forthwith ban on usage, installation,production, advertisement of disinfection tunnels involving sprayingor fumigation of organic disinfectants for the purposes disinfectinghuman beings and/or

iii. Issue a writ in the nature of Mandamus or any other appropriatewrit, direction or order a forthwith ban on the usage, installation,production, advertisement of disinfection tunnels exposing humanbeings to ultraviolet rays for the purposes disinfecting them and/or

iv. To pass such other orders and further orders as may be deemednecessary on the facts and in the circumstances of the case”

5. The petitioner in the writ petition referred to and relied theadvisory dated 18.04.2020 and has also referred to press release dated23.04.2020 issued by CSIR-NCL,Pune-ICT,Mumbai, where tunnels forexternal body surface sanitization of personal walk was recommended.

6. The petitioner’s case in the writ petition is that although theMinistry of Health and Family Welfare, Government of India, has notapproved the use of any self claimed organic or ayurvedic disinfectantfor spraying or fumigation purposes nor approved any chemicaldisinfectants on human body but lot of organizations/public authoritiesare using chemical disinfectants for spraying and fumigation. Several AB

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Ainstances in the writ petition of public authorities installing disinfectingtunnel has been given in the writ petition.

7. Publication from World Health Organization has also been reliedwhere it is clearly stated that spraying and introducing bleach or otherdisinfectant into body will not protect against Covid-19 and can beBdangerous. Quoting World Health Organization, it is pleaded that theUltraviolet (UV Lamps) should not be used to disinfect the hands andother areas of the skin. Reference has also been made of advanceddisinfectant tunnel developed jointly by Indian Institute of Technology,Kanpur and Artificial Limb Manufacturing Corporation of India.

C8. Articles questioning against the use of disinfectant tunnels havealso been referred to and relied by the petitioner. Certain materials wheredifferent experts have recommended use of UV light and disinfectanttunnel has also been referred to. In view of several discordant noteexpressed by certain experts and organizations, the writ petition prayedfor 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 bedeleted from the array of the parties. The respondent No.1 has filed acounter affidavit dated 01.09.2020 where advisory dated 18.04.2020 aswell as minutes of meeting dated 09.06.2020 held under the chairmanshipEof Director General Health Services, with regard to review on use ofdisinfection tunnel using various chemicals and spraying disinfectantshave been brought on the record. Taking note of the meeting proceedingdated 09.06.200 where spraying disinfectant was not recommended bythe 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 ithas been decided that spraying disinfectants is not recommended.GShri Tushar Mehta, learned Solicitor General submits that relevantdirections and circulars shall be issued to all concerned.

As prayed by Shri Tushar Mehta, learned Solicitor General, listafter two weeks.”

10. After the aforesaid order, another affidavit titled as ‘Complianceaffidavit dated 28.09.2020’ by respondent No.1 where O.M. dated23.09.2020 has been brought on the record reiterating that spraying ofindividuals or groups with disinfectant using any modality is notrecommended and hence, all States/Union Territories are directed toensure that such practices are not implemented in the States/UTs.

11. An additional affidavit has also been filed by respondent No.1with regard to use of Ultraviolet (UV) rays to disinfect/sterilize edibleitems like fruits and vegetables. Petitioner has also filed consolidatedrejoinder affidavit. An intervention application has also been filed by oneIdeal Flow Pvt. Ltd. which claims to be a company which has developedand designed pressurized steam disinfectant chamber. The applicantsubmits that in designed pressurized steam disinfectant chamber, naturaloils are mixed in an emulsifier solution. Applicant claims that the producthas various health benefits. Applicant further submitted that there is amajor difference between disinfectant tunnels spraying chemicaldisinfectant and pressurized disinfection chamber, any blanket ban assought in the writ petition may seriously impact the business of theapplicant, in light of the major difference of the applicant’s product fromthat of disinfection tunnel mentioned in the writ petition.

12. We have heard the petitioner appearing in person, Shri TusharMehta, learned Solicitor General for the respondents and Smt. AnitaShenoy, Senior Advocate for the intervenor.

13. The petitioner submits that although the Ministry of Health &Family Welfare, the respondents No.1 through its advisory dated18.04.2020 had stated that spraying of disinfectant on human being isnot recommended but Union of India has not taken any step to stop use,advertisement and sale of chemical based disinfection tunnels. Thepetitioner submits that there is no study anywhere in the world by anycredible health agency which states that human disinfection tunnels areeffective against Covid-19 virus. On the contrary, there are sufficienthealth advisories by the WHO, respondent No.1 and other internationalagency that tunnels are counter productive and harmful for human health.There has been no advisory issued by respondent No.1 whichrecommends usage of any organic solution for spraying on human bodyagainst Covid-19 pandemic.

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A14. The petitioner submits that in absence of any recommendationof health authorities, there is a trend across the Country where peopleare producing self-certified so called safe disinfection tunnels with varietyof organic solutions. The petitioner submits that the concept of “humandisinfection” through walk in tunnel is flawed and misconceived and benot permitted at any cost in light of Right to Health under Article 21 ofBthe Constitution.

15. Shri Tushar Mehta, learned Solicitor General, submits thatanswering respondent No.1 had not issued any advisory for usage,installation, production, advertisement of disinfection tunnel involvingspraying or fumigation of chemicals/organic disinfectants for the purposeCof disinfecting human beings. Learned Solicitor General has referred toadvisory dated 18.04.2020 issued by respondent No.1. It is furthersubmitted that in the meeting held on 09.06.2020 under the Chairmanshipof Director General Health Services, review on use of disinfection tunnelwas made and it was reiterated that spraying disinfectant is notDrecommended in both health care and non-health care settings. Shri Mehtasubmits that the States/UTs have to implement the guidelines dated18.04.2020 and the role of the Government of India is limited to providingnecessary guidelines and financial support.

16. Learned counsel for the intervenor has submitted that theEproduct which is being designed by the applicant does not use any chemicalas human disinfectant rather it uses natural oil which promotes health.The applicant opposes any blanket ban on the use of such products forhuman disinfection.

17. We have considered the submission of learned counsel for theFparties and perused the record.

18. The writ petition raises following three questions:-

I) Whether spraying or fumigation of any kind of chemicaldisinfectants on human beings without the approval of the relevantministry is violative of Article 21?GII) Whether spraying or fumigation of any kind of self-claimedorganic disinfectant on human beings without the approval of the relevantMinistry is violative of Article 21?

III) Whether exposure of human beings to artificial ultravioletrays is violative of Article 21?H

All the above questions being inter-connected are being takentogether.

19. Article 21 of the Constitution provides for protection of lifeand personal liberty. The expression ‘life’ used in Article 21 has wideimport and connotation. Article 21 encompasses a bundle of rights whichhave been recognized from time to time by the legislature of this Countryand Courts of this Country including this Court. Right to life as recognizedunder Article 21 is Right to live with dignity. Right to health is alsorecognized as an important facet of Article 21 of the Constitution. Wemay refer to pronouncement of this Court in Devika Biswas versusUnion of India and others, (2016) 10 SCC 726, where this Courtheld that Right to Health is an integral facet of Right guaranteed underArticle 21 of the Constitution. In paragraph 107 of this Court dealingwith Right to Health laid down following: - “107. It is well established that the right to life under Article 21 ofthe Constitution includes the right to lead a dignified and meaningfullife and the right to health is an integral facet of this right. InCESC Ltd. v. Subhash Chandra Bose dealing with the right tohealth of workers, it was noted that the right to health must beconsidered an aspect of social justice informed by not only Article21 of the Constitution, but also the Directive Principles of StatePolicy and international covenants to which India is a party.Similarly, the bare minimum obligations of the State to ensure thepreservation of the right to life and health were enunciated inPaschim banga Khet Mazdoor Samity vs. State of W.B.”

20. In the present case, Right to Health under consideration is inwake of pandemic Covid-19. The provisions of Disaster ManagementAct, 2005(hereinafter referred to as Act, 2005) has been invoked tocombat Covid-19 by different authorities constituted under Act, 2005.Covid-19 is a notified disaster for the purposes of the Act, 2005 by theGovernment of India.

21. The Act, 2005, is an act for effective management of disastersand matters connected therewith and incidental thereto. DisasterManagement includes prevention of danger/threat of a disaster, mitigationor reduction of risk of a disaster, preparedness to deal with the disasterand prompt response to any threatening disaster situation or disaster A

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Aetc.. Under Section 3, National Disaster Management Authority isestablished for the purposes of the Act. Section 8 provides for theconstitution of National Executive Committee. Section 10 deals withpowers and function of National Executive Committee. The NationalExecutive Committee is to assist the National Authority in discharge ofits functions and have the responsibility for implementing the policiesBand plans of the National authority and ensure the compliance of thedirections issued by the Central Government for the purposes of theCentral Government. Sub-Section (2) of Section 10 enumerates variouspowers and functions of the National Executive Committee. Section 10which is relevant for this case is as follows: -C“10. Powers and functions of National ExecutiveCommittee.—

(1) The National Executive Committee shall assist the NationalAuthority in the discharge of its functions and have theresponsibility for implementing the policies and plans of the NationalDAuthority and ensure the compliance of directions issued by theCentral Government for the purpose of disaster management inthe country.

(2) Without prejudice to the generality of the provisions containedin sub-section (1), the National Executive Committee may—E(a) act as the coordinating and monitoring body for disastermanagement; (b) prepare the National Plan to be approved by the NationalAuthority; F(c) coordinate and monitor the implementation of the NationalPolicy; (d) lay down guidelines for preparing disaster management plansby different Ministries or Departments of the Government of Indiaand the State Authorities; G(e) provide necessary technical assistance to the StateGovernments and the State Authorities for preparing their disastermanagement plans in accordance with the guidelines laid downby the National Authority; H

(f) monitor the implementation of the National Plan and the plansprepared by the Ministries or Departments of the Government ofIndia; (g) monitor the implementation of the guidelines laid down by theNational Authority for integrating of measures for prevention ofdisasters and mitigation by the Ministries or Departments in theirdevelopment plans and projects; (h) monitor, coordinate and give directions regarding the mitigationand preparedness measures to be taken by different Ministries orDepartments and agencies of the Government;

(i) evaluate the preparedness at all governmental levels for thepurpose of responding to any threatening disaster situation ordisaster and give directions, where necessary, for enhancing suchpreparedness; (j) plan and coordinate specialised training programme for disastermanagement for different levels of officers, employees andvoluntary rescue workers; (k) coordinate response in the event of any threatening disastersituation or disaster;

(l) lay down guidelines for, or give directions to, the concernedMinistries or Departments of the Government of India, the StateGovernments and the State Authorities regarding measures to betaken by them in response to any threatening disaster situation ordisaster; (m) require any department or agency of the Government to makeavailable to the National Authority or State Authorities such menor material resources as are available with it for the purposes ofemergency response, rescue and relief;

(n) advise, assist and coordinate the activities of the Ministries orDepartments of the Government of India, State Authorities,statutory bodies, other governmental or non-governmentalorganisations and others engaged in disaster management; (o) provide necessary technical assistance or give advice to theState Authorities and District Authorities for carrying out theirfunctions under this Act; AB

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[2020] 12 S.C.R.

A(p) promote general education and awareness in relation to disastermanagement; and (q) perform such other functions as the National Authority mayrequire it to perform. ”

22. The powers under sub-section (2) of Section 10 clauses (i)Band (l) of Act, 2005, have been delegated to Secretary, Ministry ofHealth and Family Welfare, Government of India, by notification dated11.03.2020. The Notification dated 11.03.2020 is as follows: - “ORDER

C In exercise of the powers conferred under Section 69 of theDisaster Management Act, 2005, Union home Secretary beingChairman of the National Executive Committee(NEC) herebydelegates its power under clauses (i) and (l) of sub-section (2) ofSection 10 of the Disaster Management Act, 2005 to Secretary,Ministry of Health and Family Welfare, Government of India toDenhance the preparedness and containment of novelCoronavirus(COVID-19) and the other ancillary matters connectedthereto. This order shall be deemed to have come into effect from17th January, 2020.

(Sanjeev Kumar Jindal)Joint Secretary to theGovernment of India”

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23. Thus it is the Secretary, Ministry of Health and Family Welfare,who had to lay down the guidelines or give directions to the concernedMinistries or Departments of Government of India, the State GovernmentsFand State Authorities regarding measures to be taken by them in responseto any disrupting situation or disaster. The Pandemic has threatened thehealth of entire citizenry of the country and all facets relating to pandemicCovid-19, its prevention, mitigation and cure are to be dealt with andtaken care of authorities empowered with different duties and functionsunder different statutes including Disaster Management Act, 2005.

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24. We may first refer to the advisory dated 18.04.2020 whichwas issued against spraying of disinfectant on people for Covid-19management. The advisory dated 18.04.2020 states: - “Advisory against spraying of disinfectant on people forCOVID-19 managementH

Ministry of Health & Family Welfare has received many queriesregarding the efficacy (if any) of use disinfectants such as Sodiumhypochlorite spray used over the individuals to disinfect them.The strategy seems to have gained of lot of media attention and isalso being reportedly used at local levels in certain districts/localbodies.

Purpose of the document

To examine the merit of using disinfectants as spray over humanbody to disinfect them from COVID-19 and to provide appropriateadvisory Disinfectants are chemicals that destroy disease causingpathogens or other harmful microorganisms. It refers to substancesapplied on inanimate objects owing to their strong chemicalproperties.

Chemical disinfectants are recommended for cleaning anddisinfection only of frequently touched areas/surfaces by thosewho are suspected or confirmed to have COVID-19.Precautionary measures are to be adopted while usingdisinfectants 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 underany circumstances. Spraying an individual or group with chemicaldisinfectants is physically and psychologically harmful.

• Even if a person is potentially exposed with the COVID-19virus, spraying the external part of the body does not kill the virusthat has entered your body. Also there is no scientific evidence tosuggest that they are effective even in disinfecting the outerclothing/body in an effective manner.

• Spraying of chlorine on individuals can lead to irritation of eyesand skin and potentially gastrointestinal effects such as nauseaand vomiting. Inhalation of sodium hypochlorite can lead to irritationof mucous membranes to the nose, throat, respiratory tract andmay also cause bronchospasm.

• Additionally use of such measures may in fact lead to a falsesense of disinfection & safety and actually hamper public A

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Aobservance to hand washing and social distancing measures.”

25. Even though the above advisory was issued by DirectorateGeneral of Health Services not recommending spraying of disinfectanton people for Covid-19 management but several contrary opinion havebeen expressed by other bodies and organisations. In this context,reference has been made to the joint Press Release dated 23.04.2020by NCL (CSIR). The Press Release dated 23.04.2020 states: - B

“Publication and Science Communication Unit Press release April 23, 2020

Safe concentration of disinfectant in walk through spraytunnels and their scientific design C

Joint Press Release: CSIR-NCL Pune and ICT Mumbai CSIR–National Chemical Laboratory (CSIR-NCL), Puneevaluated various concentrations of sodium hypochlorite to findeffective chemical disinfectants for the mist sanitization system.

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The use of mist-based sanitization is expected to providesafeguards to frontline healthcare professionals, includingparamedic staff, police, and employees providing essential services.These people are more likely to get the infection and unknowinglyspread arising from various sources. A lot of advisories haveappeared against the use of such tunnels from various agencies,which does not have any scientific basis.

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Efficacy of sodium hypochlorite, also known as hypo or bleach,ranging from 0.02% to 0.5% weight concentration was studiedon personnel walking through mist tunnel unit, besides antibacterialactivity against standard microorganisms before and after exposurein the walk through. Results indicated that 0.02% to 0.05% weightconcentration did not show an adverse effect on normal skin floraand yet destroyed the standard microbes. Thus, we recommendusing 0.02% -0.05 wt. % sodium hypochlorite solution (200 to 500ppm) for external body surface sanitization of personnel walkthrough the mist tunnel by following standard safety precautions”

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26. The petitioner has also referred to in the writ petition variousarticles where different experts have recommended for effective H

sanitization amid Covid-19 pandemic by disinfection tunnels, differentstudies for and against disinfectment of human body has been referredto and relied in the writ petition.

27. After Notice was issued in the petition, the counter affidavitwas filed. In the Counter affidavit respondent No.1 has also brought onrecord the minutes of the meeting dated 09.06.2020 chaired by DirectorGeneral Health Services where review was made on the use ofdisinfection tunnels. Observations as recorded in the minutes are asfollows: - “1. Use of disinfection tunnel

The matter of spraying of disinfectant on people for COVID-19 management was discussed in the Joint Monitoring Group andan advisory in this regard has been issued by MOHFW/DGHS,EMR Division which is available on the website of the ministry. Itclearly states the following:

“Spraying of individuals or groups is NOT recommended underany circumstances. Spraying an individual or group with chemicaldisinfectants physically and psychologically harmful.

·Even if a person is potentially exposed with the Covid-19virus, spraying the external part of the body does not killthe virus that has entered your body. Also there is noscientific evidence to suggest that they are effective evenin disinfecting the outer clothing/body in an effectivemanner.

·Additionally use of such measures may in fact lead to afalse sense of disinfection and safety and actually hamperpublic observance to hand washing and social distancingmeasures.

It is reiterated that spraying of individuals with disinfectants (suchas tunnels, cabinets, chambers, etc.) is not recommended. Thiscould be physically and psychologically harmful and would notreduce an infected person’s ability to spread the virus throughdroplets or contact. Moreover, spraying individuals with chlorineand other toxic chemicals could result in eye and skin irritation,bronchospasm due to inhalation, and gastrointestinal effects suchas nausea and vomiting.

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2. Use of Chemicals

As per the advisory by MOHFW/DGHS, EMR Division:

Chemical disinfectants are recommended for cleaning anddisinfection only of frequently touched areas/surfaces by thosewho are suspected or confirmed to have COVID-19.Precautionary measures are to be adopted while usingdisinfectants for cleaning – like wearing gloves during disinfection.

Spraying of chlorine on individuals can lead to irritation of eyesand skin and potentially gastrointestinal effects such as nauseaand vomiting. Inhalation of sodium hypochlorite can lead to irritationof mucous membranes to the nose, throat, respiratory tract andmay also cause bronchospasm.

The chemicals such as freshly prepared 1% sodium hypochloriteor 70% ethanol etc., are to be used as indicated, to disinfectinanimate surfaces using mops/wipes for the recommended contacttime.

3. Spraying disinfectants:

Spraying disinfectants is not recommended in both health careand non health care settings.

In indoor spaces, routine application of disinfectants toenvironmental surfaces by spraying or fogging (also known asfumigation or misting) is not recommended for COVID-19 as thedisinfectants may not be effective in removing organic materialand may miss surfaces shielded by objects, folded fabrics orsurfaces with intricate designs. If disinfectants are to be applied,this should be done with a cloth or wipe that has been soaked indisinfectant.

Spraying or fumigation of outdoor spaces, such as streets ormarketplaces, is also not recommended to kill the COVID-19 virusor other pathogens because disinfectant is inactivated by dirt anddebris and it is not feasible to manually clean and remove all organicmatter from such spaces. Moreover, spraying porous surfaces,such as sidewalks and unpaved walkways, would be even lesseffective. Even in the absence of organic matter, chemical sprayingis unlikely to adequately cover all surfaces for the duration of the

required contact time needed to inactivate pathogens. Furthermore,streets and sidewalks are not considered to be reservoirs ofinfection for COVID-19. In addition, spraying disinfectants, evenoutdoors, can be harmful for human health.

The committee referred to the document of the World HealthOrganisation on ‘Cleaning and disinfection of environmentalsurfaces in the context of COVID-19.’

28. It is further relevant to notice that in paragraph 13 of theaffidavit dated 01.09.2020, following statement has also been made:

“13. It is most respectfully submitted that as public health andhospitals are State subject, it is for the States/Union Territories toimplement the guidelines issued by the Ministry of Health andFamily Welfare and the role of Government of India is limited toproviding necessary guidance and financial support.

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29. From the pleadings brought on record on behalf of respondentNo.1, it is clear that although by the advisory by respondent No.1, sprayingof disinfectant on human body is not recommended but respondent No.1has not taken any further steps in the above context taking any measureeither to prevent or regulate the spraying of disinfectant on the humanbody.

30. We have noted above the powers and functions of NationalExecutive Committee under Section 10 of the Act, 2005, which specificallyempowers the National Executive Committee to give directions regardingmeasures to be taken by the concerned ministry and departments of theGovernment, State Governments and State Authorities in response tothe threatening situation or disaster.

31. Section 36 of the Act, 2005, expressly enumerates theresponsibilities of Ministries and departments of the Government ofIndia. Section 36 which is relevant for the case is as follows: - “36. Responsibilities of Ministries or Departments ofGovernment of India.—It shall be the responsibility of everyMinistry or Department of the Government of India to—

(a) take measures necessary for prevention of disasters, mitigation,preparedness and capacity building in accordance with theguidelines laid down by the National Authority; A

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(b) integrate into its development plans and projects, the measuresfor prevention or mitigation of disasters in accordance with theguidelines laid down by the National Authority;

(c) respond effectively and promptly to any threatening disastersituation or disaster in accordance with the guidelines of theBNational Authority or the directions of the National ExecutiveCommittee in this behalf; (d) review the enactments administered by it, its policies, rulesand regulations, with a view to incorporate therein the provisionsnecessary 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 StateGovernments for—

(i) drawing up mitigation, preparedness and response plans,capacity-building, data collection and identification and trainingof personnel in relation to disaster management; D

(ii) carrying out rescue and relief operations in the affectedarea;

(iii) assessing the damage from any disaster; E

(iv) carrying out rehabilitation and reconstruction; (g) make available its resources to the National ExecutiveCommittee or a State Executive Committee for the purposes ofresponding promptly and effectively to any threatening disasterFsituation or disaster, including measures for—

(i) providing emergency communication in a vulnerable oraffected area;

(ii) transporting personnel and relief goods to and from theaffected area; G

(iii) providing evacuation, rescue, temporary shelter or otherimmediate relief;

(iv) setting up temporary bridges, jetties and landing places; H

(v) providing, drinking water, essential provisions, health care,and services in an affected area; (h) take such other actions as it may consider necessary fordisaster management. ”

32. When respondent No.1 has issued advisory that use ofdisinfectant on human body is not recommended and it has been broughtinto its notice that despite the said advisory, large number of organizations,public authorities are using disinfectants on human body, it was necessaryfor the respondent No.1 to issue necessary directions either to preventsuch use or regulate such use as per requirement to protect the health ofthe people. The provisions of Disaster Management Act, Section 10, 36and other provisions are not only provisions of empowerment but alsocast a duty on different authorities to act in the best interest of the peopleto sub-serve the objects of the Act.

33. We have extracted paragraph 13 of the Counter Affidavitwhere it has been stated by the respondent No.1 that public health andhospitals, it is for the States/UTs to implement guidelines by the Ministryof Health and Family Welfare and role of the Central Government islimited to provide necessary guidelines and financial support.

34. No exception can be taken to the above pleading but theprovisions of the Act, 2005, confer certain more responsibilities and dutieson the respondent No.1 apart from issuance of guidelines and providingfinancial support. The Act, 2005, is special legislation containing self-contained provisions to deal with a disaster. The Pandemic being a disasterwithin the meaning of Act, 2005, has to be dealt with sternly andeffectively.

35. We have no doubt that the Union and the States are taking allmeasures to contain the pandemic and all mitigating steps but the factswhich have been brought on record in this writ petition indicate that inthe present case, something more was required to be done by respondentNo.1 apart from issuing advisory that use of disinfectant on humanbody is not recommended. When public authorities/ organizations wereusing disinfectants both chemical/organic on the human body and thereare various studies to the effect that it may be harmful to the health andthe body. Some more actions were required to remove the cloud ofuncertainty and to regulate the use even if it was to either prevent suchuse or regulate the use so that health of citizens is amply protected.

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A36. When a statute confer power on authority and that power isto be exercised for the benefit of the people in general, the power iscoupled with the duty. This Court in Commissioner of Police versusGordhandas 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 underR.250 has been conferred upon him for public reasons involvingthe convenience, safety, morality and welfare of the public at large.An enabling power of this kind conferred for public reasons andfor the public benefit is, in our opinion, coupled with a duty toexercise it when the circumstances so demand. It is a duty whichCcannot be shirked or shelved nor it be evaded, performance of itcan be compelled under S.45.”

37. This Court again in L.Hirday Narain versus Income TaxOfficer, Bareilly, (1970) 2 SCC 355, reiterated the same principle infollowing words: -D

“13....if a statute invests a public officer with authority to do anact in a specified set of circumstances, it is imperative upon himto exercise his authority in a manner appropriate to the case whena party interested and having a right to apply moves in that behalfand circumstances for exercise of authority are shown to exist.EEven if the words used in the statute are prima facie enabling theCourts will readily infer a duty to exercise power which is investedin aid of enforcement of a right-public or private- of a citizen.”

38. Justice V.R. Krishna Iyer had elaborately dealt the aboveprinciple in Municipal Council, Ratlam versus Shri Vardichan andFothers, (1980) 4 SCC 162. The above case was a case whereMunicipal Council Ratlam was entrusted with certain duties to the publicwhich was sought to be enforced by the residents through Section 133Cr.P.C. where Magistrate issued certain directions to the MunicipalCorporation which came to be challenged in this Court. Justice KrishnaGIyer quoting Benjamin Bisraiely, in paragraph 9 of the judgmentstated: - “9. ...”All power is a trust – that we are accountable for its exercise– that, from the people, and for the people, all springs, and allmust exist.” Discretion becomes a duty when the beneficiary bringshome the circumstances for its benign exercise.”H

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

39. With regard to judicial process, important observations weremade by this Court in the above case that affirmative action taken in thejudicial process is to make remedy effective failing which the rightbecomes sterile. In paragraph 16 of the judgment, following observationshave been made: - “16...The nature of the judicial process is not purely adjudicatorynor is it functionally that of an umpire only. Affirmative action tomake the remedy effective is of the essence of the right whichotherwise becomes sterile...”

40. Justice Krishna Iyer also laid down that improvement of publichealth is paramount principle of governance. In paragraph 24, followinghas been observed: - “24. ...The State will realise that Article 47 makes it a paramountprinciple of governance that steps are taken ‘for the improvementof public health as amongst its primary duties’...”

41. An additional affidavit has been filed by the respondent No.1where details regarding use of Ultraviolet UV rays disinfectant/sterilizeedible food items like fruits and vegetables has been quoted. In additionalaffidavit, rules have been relied namely ‘Atomic Energy (RadiationProcessing of Food and Allied Product) Rules,2012’, which rules requirethat no person shall operate the facility without obtaining a license forradiation processing of food and allied products under the Rules. Facilityhas been defined as radiation processing facility for food and allied product.There are hosts of regulatory measures of radiation for use of UV rayswith regard to food and other articles. We are of the view that for sprayingdisinfectant on human body, fumigation or use of UV rays against thehuman body, there has to be regulatory regime when respondent No.1itself is of the view that such use is not recommended. The respondentNo.1 has wide powers and responsibilities under Act, 2005, which couldhave been utilized to remedy the situation. In event, use of disinfectanton human body is to cause adverse effect on the health of the people,there has to be immediate remedial action and respondent No.1 cannotstop only by saying that such use is not recommended.

42. In view of the foregoing discussion, we are of the view thatends of justice be served in disposing the writ petition by issuing thefollowing directions:- A

B

C

D

E

F

G

H

A

i) The respondent No.1 may consider and issue necessarydirections in exercise of powers vested in it under the DisasterManagement Act, 2005, regarding ban/Regulation on the usageof disinfection tunnels involving spraying or fumigation of chemical/organic disinfectants for the human beings.

Bor

ii) There shall be similar consideration and directions by therespondents as indicated above with regard to exposure of humanbeing to artificial ultraviolet rays.

iii) Looking to the health concern of the people in general, theCaforesaid exercise be completed by respondent No.1 within aperiod of one month.

D

Ankit Gyan

Writ petition disposed of.

E

F

G

H