Government should be more stern in their COVID 19 protocols: Supreme Court
The government has officially declared COVID 19 as a disaster under the Disaster Management Act, 2005 and this has put the steps taken against the virus by the government under heavy scrutiny. A concerned citizen approached the Supreme Court by the way of a writ petition contending the steps taken against the spread of the COVID 19 are violative of the Right to Health under Article 21 of the constitution in the matter of Gurusimran Singh Narula V Union Of India &amp; Anr, [Writ Petition (C) NO.560 OF 2020].  The petitioner argued that the spraying or fumigation of any kind of chemical disinfectants on human beings which was being done rampantly in various public places was not protecting against the virus and on the other hand was counterproductive and dangerous to human health without the approval of the relevant ministry is violative of Article 21. The Ultra Violet(UV) rays are being used on human body and various edible items like fruits and vegetables to protect from the virus which is again futile and dangerous. The petition was filed making the Ministry of Health the respondents. The respondent contended that under Section 10 of the Disaster Management Act, 2005, the National Executive Committee is empowered 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. To this, the respondent argued that it was the duty of the Ministry of Health to implement guidelines issues against use of such dangerous practices to protect the health of its citizens instead of leaving scope for practices like these. The Supreme Court in its single bench consisting of Justice Ashok Bhushan held, “States are taking all measures to contain the pandemic and all mitigating steps but the facts which have been brought on record in this writ petition indicate that in the present case, something more was required to be done by respondent No.1 apart from issuing advisory that use of disinfectant on human body is not recommended. When public authorities/ organizations were using disinfectants both chemical/organic on the human body and there are various studies to the effect that it may be harmful to the health and the body. Some more actions were required to remove the cloud of uncertainty and to regulate the use even if it was to either prevent such use or regulate the use so that health of citizens is amply protected.
This Writ petition filed in the public interest under Article 32 of the Constitution of India seeks disinfectants on human beings which is being done supposedly for protecting the human beings from the The World Health Organisation(WHO) declared novel coronavirus disease 2019 as a Pandemic on 11.03.2020. All countries disease and protect its citizens from Covid­19. On 29.03.2020 Ministry of Health and Family Welfare Government of India released guidelines on The scope as contained in the guidelines is to the Scope: This document aims to provide interim guidance about the environmental cleaning decontamination of common public places including offices in areas Coronavirus Disease 2019(COVID­19) is an acute respiratory disease caused by a in most instances through respiratory droplets direct contact with cases and surfaces objects. Though the virus survives on environmental surfaces for varied period of time it gets easily On 18.04.2020 Director General of Health Services EMR Division) Ministry of Health and Family Welfare people for Covid­19 arrangements. Even though in the above advisory spraying of individuals or groups was not recommended several bodies organizations started press release dated 23.4.2020 was issued by National Capital Laboratory(Council for Scientific and Industrial Research) which was joint press release by front­line health care professionals including paramedical staff police and employees providing essential services. Other public organizations also started using the walk way spray tunnels and other measures for disinfecting humans at various public This writ petition under Article 32 has been filed or any other appropriate writ direction or order a forthwith ban on the usage installation production advertisement of fumigation of chemical disinfectants for the purposes disinfecting human being or any other appropriate writ direction or order a forthwith ban on usage installation production advertisement of fumigation of organic disinfectants for the purposes disinfecting human beings iii. Issue a writ in the nature of Mandamus or any other appropriate writ advertisement of disinfection tunnels exposing human beings to ultraviolet rays orders as may be deemed necessary on the facts and in the circumstances of the relied the advisory dated 18.04.2020 and has also referred to press release dated 23.04.2020 issued by CSIR­NCL Pune­ICT Mumbai where tunnels for external body surface sanitization of personal walk was The petitioner s case in the writ petition is that although the Ministry of Health and Family Welfare Government of India has not approved the use of any self claimed organic or ayurvedic disinfectant for spraying or fumigation purposes nor approved any chemical disinfectants on human body but lot of organizations public authorities are using chemical disinfectants for spraying and fumigation. Several instances in the writ petition of public authorities installing disinfecting tunnel has been given in the been relied where it is clearly stated that spraying Quoting World Health Organization it is pleaded that the Ultraviolet 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 tunnels have also been referred to and relied by the petitioner. Certain materials where different experts have recommended use of UV light and disinfectant discordant note expressed by certain experts and This Court issue notice to respondent Nos. 1­3 on 10.08.2020. No notice having been issued to the affidavit dated 01.09.2020 where advisory dated 18.04.2020 as well as minutes of meeting dated 09.06.2020 held under the chairmanship of Director of disinfection tunnel using various chemicals and Taking note of the meeting proceeding dated 09.06.200 minutes This Court passed following order on 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 recommended. Shri Tushar Mehta learned Solicitor General submits that relevant directions and circulars shall be issued As prayed by Shri Tushar Mehta learned Solicitor General list after two 10. After the aforesaid order another affidavit titled as Compliance affidavit dated 28.09.2020 by respondent No.1 where O.M. dated 23.09.2020 has been brought on the record reiterating that spraying of individuals or groups with disinfectant using any 11. An additional affidavit has also been filed by rays to disinfect sterilize edible items like fruits rejoinder affidavit. An intervention application has also been filed by one Ideal Flow Pvt. Ltd. which pressurized steam disinfectant chamber. The applicant chamber natural oils are mixed in an emulsifier is a major difference between disinfectant tunnels spraying chemical disinfectant and pressurized applicant in light of the major difference of the applicant s product from that of disinfection tunnel 12. We have heard the petitioner appearing in person Shri Tushar Mehta learned Solicitor General for the respondents and Smt. Anita Shenoy Senior Advocate for Health & Family Welfare the respondents No.1 through Union of India has not taken any step to stop use advertisement and sale of chemical based disinfection anywhere in the world by any credible health agency which states that human disinfection tunnels are effective against Covid­19 virus. On the contrary there are sufficient health advisories by the WHO respondent No.1 and other international agency that tunnels are counter productive and harmful for human No.1 which recommends usage of any organic solution 14. The petitioner submits that in absence of any 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 15. Shri Tushar Mehta learned Solicitor General submits that answering respondent No.1 had not issued any advisory for usage installation production or fumigation of chemicals organic disinfectants for the purpose of disinfecting human beings. Learned Solicitor General has referred to advisory dated 18.04.2020 issued by respondent No.1. It is further the Chairmanship of Director General Health Services review on use of disinfection tunnel was made and it was reiterated that spraying disinfectant is not recommended in both health care and non­health care settings. Shri Mehta submits that the States UTs have to implement the guidelines dated 18.04.2020 and the 16. Learned counsel for the intervenor has submitted that the product which is being designed by the applicant does not use any chemical as human health. The applicant opposes any blanket ban on the I) Whether spraying or fumigation of any kind of chemical disinfectants on human beings without the approval of the relevant ministry is violative of claimed organic disinfectant on human beings without III) Whether exposure of human beings to artificial All the above questions being inter­connected are 19. Article 21 of the Constitution provides for life used in Article 21 has wide import and which have been recognized from time to time by the 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 10 SCC 726 where this Court held that Right to Health is an integral facet of Right guaranteed under Article 21 of the Constitution. In paragraph 107 of this Court dealing 107. It is well established that the right to life under Article 21 of the dignified and meaningful life and the right to health is an integral facet of this right. In CESC Ltd. v. Subhash Chandra Bose dealing with the right to health of workers it was noted that the right to health must be considered an aspect of social justice informed by not only Article 21 of the Constitution but also the Directive Principles of State Policy and international covenants to which India is a party. Similarly the bare minimum obligations of the State to ensure the preservation of the right to banga Khet Mazdoor Samity vs. State of 20. In the present case Right to Health under consideration is in wake of pandemic Covid­19. The referred to as Act 2005) has been invoked to combat Covid­19 by different authorities constituted under Act 2005. Covid­19 is a notified disaster for the 21. The Act 2005 is an act for effective management of disasters and matters connected therewith and incidental thereto. Disaster Management includes prevention of danger threat of a disaster mitigation or reduction of risk of a disaster preparedness to deal with the disaster and prompt response to any Section 3 National Disaster Management Authority is established for the purposes of the Act. Section 8 provides for the constitution of National Executive National Executive Committee. The National Executive Committee is to assist the National Authority in authority and ensure the compliance of the directions issued by the Central Government for the purposes of the Central Government. Sub­Section of Section 10 Executive Committee. Section 10 which is relevant for 10. Powers and functions of National assist the National Authority in the discharge of its functions and have the responsibility for implementing the policies and plans of the National Authority and ensure the compliance of directions issued by the Central Government for the purpose of disaster Without prejudice to the generality b) prepare the National Plan to be c) coordinate and monitor the d) lay down guidelines for preparing disaster management plans by different Ministries or Departments of the Government of India and the State to the State Governments and the State Authorities for preparing their disaster management plans in accordance with the guidelines laid down by the National f) monitor the implementation of the National Plan and the plans prepared by the Ministries or Departments of the 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 h) monitor coordinate and give directions regarding the mitigation and preparedness measures to be taken by different Ministries or Departments and i) evaluate the preparedness at all governmental levels for the purpose of responding to any threatening disaster where necessary for enhancing such j) plan and coordinate specialised for different levels of officers k) coordinate response in the event of any threatening disaster situation or l) lay down guidelines for or give Departments of the Government of India the State Governments and the State by them in response to any threatening m) require any department or agency of the Government to make available to the National Authority or State Authorities such men or material resources as are available with it for the purposes of emergency response rescue and relief n) advise assist and coordinate the activities of the Ministries or Departments of the Government of India State Authorities statutory bodies other organisations and others engaged in or give advice to the State Authorities and District Authorities for carrying out p) promote general education and awareness in relation to disaster q) perform such other functions as the National Authority may require it to 22. The powers under sub­section of Section 10 clausesandof Act 2005 have been delegated to Secretary Ministry of Health and Family Welfare In exercise of the powers conferred under 2005 Union home Secretary being Chairman of the National Executive Committee(NEC hereby delegates its power under clauses Secretary Ministry of Health and Family Welfare Government of India to enhance the preparedness and containment of novel Coronavirus(COVID­19) and the other ancillary matters connected thereto. This order shall be deemed to have come into 23. Thus it is the Secretary Ministry of Health and give directions to the concerned Ministries or Departments of Government of India the State be taken by them in response to any disrupting health of entire citizenry of the country and all facets relating to pandemic Covid­19 its prevention of authorities empowered with different duties and functions under different statutes including Disaster which was issued against spraying of disinfectant on people for Covid­19 management. The advisory dated received many queries regarding the efficacy 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 To examine the merit of using disinfect them from COVID­19 and to Disinfectants are chemicals that destroy microorganisms. It refers to substances applied on inanimate objects owing to cleaning and disinfection only of who are suspected or confirmed to have adopted while using disinfectants for cleaning like wearing gloves during In view of the above the following recommended under any circumstances Spraying an individual or group with chemical disinfectants is physically and with the COVID­19 virus spraying the external part of the body does not kill that they are effective even in lead to irritation of eyes and skin and potentially gastrointestinal effects such as nausea and vomiting. Inhalation of of mucous membranes to the nose throat respiratory tract and may also cause safety and actually hamper public observance to hand washing and social 25. Even though the above advisory was issued by spraying of disinfectant on people for Covid­19 management but several contrary opinion have been expressed by other bodies and organisations. In this context reference has been made to the joint Press Release dated 23.04.2020 by NCL for external body surface mist tunnel by following standard safety 26. The petitioner has also referred to in the writ recommended for effective sanitization amid Covid­19 and against disinfectment of human body has been 27. After Notice was issued in the petition the counter affidavit was filed. In the Counter affidavit of the meeting dated 09.06.2020 chaired by Director General Health Services where review was made on the use of disinfection tunnels. Observations as recorded The matter of spraying of disinfectant on people for COVID­19 management was discussed in the Joint Monitoring Group and an advisory in this regard has been issued by MOHFW DGHS EMR Division which is available on the website of the recommended under any circumstances Spraying an individual or group with chemical disinfectants physically and • Even if a person is potentially exposed with the Covid­19 virus does not kill the virus that has entered your body. Also there is no scientific evidence to suggest that they are effective even in disinfecting the outer clothing body in fact lead to a false sense of disinfection and safety and actually hamper public observance to hand washing and social distancing It is reiterated that spraying of individuals with disinfectants is This could be not recommended physically and psychologically harmful and would not reduce an infected person s ability to spread the virus through droplets or contact. Moreover spraying individuals with chlorine and other toxic chemicals could result in eye and skin irritation bronchospasm due to inhalation and gastrointestinal As per the advisory by MOHFW DGHS EMR Chemical disinfectants are recommended for cleaning and disinfection only of frequently touched areas surfaces by have COVID­19. Precautionary measures are to be adopted while using disinfectants for cleaning like Spraying of chlorine on individuals can potentially gastrointestinal effects such as nausea and vomiting. Inhalation of sodium hypochlorite can lead to irritation of mucous membranes to the nose throat respiratory tract and may 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 Spraying disinfectants is disinfectants to environmental surfaces by spraying or fogging is not recommended for COVID­19 as the disinfectants may not be effective in removing organic material and may miss surfaces shielded by objects folded fabrics or surfaces with intricate designs. If disinfectants are to be applied this should be done with a cloth or wipe that has been soaked in Spraying or fumigation of outdoor spaces such as streets or marketplaces is also not recommended to kill the COVID­19 virus or other pathogens because disinfectant is inactivated by dirt and debris and it is not feasible matter from such spaces. Moreover spraying porous surfaces such as of organic matter chemical spraying is unlikely to adequately cover all surfaces for the duration of the required contact time needed to inactivate pathogens. Furthermore 19. In addition spraying disinfectants The committee referred to the document of the World Health Organisation on Cleaning and disinfection of 28. It is further relevant to notice that in paragraph 13 of the affidavit dated 01.09.2020 following 13. It is most respectfully submitted that as public health and hospitals are Territories to implement the guidelines issued by the Ministry of Health and ... .... 29. From the pleadings brought on record on behalf of respondent No.1 it is clear that although by the 30. We have noted above the powers and functions of National Executive Committee under Section 10 of the Act 2005 which specifically empowers the National Executive Committee to give directions regarding measures to be taken by the concerned ministry and departments of the Government State Governments and State Authorities in response to the threatening 31. Section 36 of the Act 2005 expressly enumerates 36. Responsibilities of Ministries or Departments of Government of India.—It shall be the responsibility of every Ministry or Department of the Government of disasters mitigation preparedness and capacity building in accordance with the guidelines laid down by the National b) integrate into its development plans or mitigation of disasters in accordance with the guidelines laid down by the c) respond effectively and promptly to any threatening disaster situation or of the National Authority or the directions of the National Executive it its policies rules and regulations with a view to incorporate therein the provisions necessary for prevention of disasters mitigation or preparedness e) allocate funds for measures for prevention of disaster mitigation f) provide assistance to the National up preparedness and response plans capacity­building data collection and identification and training of personnel in relation to disaster ii) carrying out rescue and relief iii) assessing the damage from any iv) carrying out rehabilitation and g) make available its resources to the National Executive Committee or a State Executive Committee for the purposes of threatening disaster situation or ii) transporting personnel and iii) providing evacuation rescue temporary shelter or other immediate iv) setting up temporary bridges v) providing drinking water essential provisions health care take such other actions as it may consider necessary for disaster disinfectant on human body is not recommended and it advisory large number of organizations public 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 33. We have extracted paragraph 13 of the Counter Affidavit where it has been stated by the respondent No.1 that public health and hospitals it is for the Health and Family Welfare and role of the Central Government is limited to provide necessary guidelines the provisions of the Act 2005 confer certain more responsibilities and duties on the respondent No.1 apart from issuance of guidelines and providing financial support. The Act 2005 is special legislation containing self­contained provisions to deal with a disaster. The Pandemic being a disaster within the meaning of Act 2005 has to be dealt with taking all measures to contain the pandemic and all on record in this writ petition indicate that in the public authorities organizations were using disinfectants both chemical organic on the human body be harmful to the health and the body. Some more actions were required to remove the cloud of either prevent such use or regulate the use so that 36. When a statute confer power on authority and that in general the power is coupled with the duty. This Court in Commissioner of Police versus Gordhandas Bhanji AIR 1952 SC 16 speaking through Vivian Bose J. had laid down the off­quoted preposition in 28. The discretion vested in the Commissioner of Police under R.250 has 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 be evaded performance of it can be 37. This Court again in L.Hirday Narain versus income Tax Officer Bareilly 2 SCC 355 reiterated the 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 right to apply moves in that behalf and circumstances for exercise of authority in the statute are prima facie enabling the Courts will readily infer a duty to enforcement of a right­public or private­ above principle in Municipal Council Ratlam versus case was a case where Municipal Council Ratlam was to the Municipal Corporation which came to be Benjamin Bisraiely in paragraph 9 of the judgment the people and for the people all springs and all must exist.” Discretion home the circumstances for its benign 39. With regard to judicial process important is to make remedy effective failing which the right becomes sterile. In paragraph 16 of the judgment 16...The nature of the judicial process is not purely adjudicatory nor is it functionally that of an umpire only Affirmative action to make the remedy effective is of the essence of the right 24. ...The State will realise that of governance that steps are taken for the improvement of public health as 41. An additional affidavit has been filed by the respondent No.1 where details regarding use of items like fruits and vegetables has been quoted. In additional affidavit rules have been relied namely Product) Rules 2012 which rules require that no license for radiation processing of food and allied radiation processing facility for food and allied product. There are hosts of regulatory measures of other articles. We are of the view that for spraying disinfectant on human body fumigation or use of UV 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 to be immediate remedial action and respondent No.1 cannot stop only by saying that such use is not 42. In view of the foregoing discussion we are of the view that ends of justice be served in disposing the i) The respondent No.1 may consider and issue it under the Disaster Management Act 2005 regarding ban Regulation on the usage of disinfection tunnels involving spraying or ii) There shall be similar consideration and directions by the respondents as indicated above general the aforesaid exercise be completed by 