Listen to this articleGursimran
Singh Narula v Union of India
Writ
Petition (C) no.560 of 2020, decided on 5th November, 2020
Bench: Ashok
Bhushan, R. Subhash Reddy, M.R. Shah, JJ.
Facts:
On 18.04.2020,
Director General of Health Services(EMR Division), Ministry of Health and
Family Welfare had issued an advisory against spraying of disinfectants on
people under Covid19 arrangements. Even though in the above advisory, spraying
of individuals or groups was not recommended, several bodies, organizations
started using spraying tunnels to disinfect the human body.
Consequently, a
joint press release was also issued by the National Capital Laboratory, Council
for Scientific and Industrial Research and Pune ICT, stating that the use of
mist-based sanitization is expected to provide safeguard to Frontline health
care professionals including paramedical staff, police and employees providing
essential services. Other public organizations also started using the walk way
spray tunnels, and other measures for disinfecting humans at various public
places.
The present Writ petition
had been filed in the public interest under Article 32 of the Constitution of
India and it prayed to forthwith ban on spraying of all kinds of disinfectants
on human beings which is being done supposedly for protecting the human beings
from the Novel Coronavirus disease 2019(Covid19).
Issues:
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?
(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?
Held:
Since
all the above issues were interrelated to each other, the court analysed them
collectively. Interpreting the expression of ‘liberty’, as mentioned in Article
21 of the Constitution, the court relied on the precedent set in the case of Devika
Biswas v. Union of India [(2016) 10 SCC 726], wherein Right to Health
was held to be an integral facet of Right guaranteed under Article 21 of the
Constitution.
After
acknowledging this, the court considered the present circumstances of Covid19
and asserted that, the provisions of the Disaster Management Act, 2005(DMA,2005)
had been invoked to combat the same. After analysing the applicability of Sections
of DMA,2005 it became fairly clear to the bench that it was the National
Executive Committee, constituted under the DMA 2005, which had the
responsibility for implementing the policies and plans of the National Authority
and ensure the compliance of the directions issued by the Central Government.
Furthermore, under Section 10 (2)(i), it was held that the responsibility of
laying down the guidelines or issuing directions to the concerned ministries or
departments under Government of India and the State Governments regarding
measures to be taken by them in response to any disrupting situation or
disaster fell under the ambit of the responsibilities conferred upon the
Secretary, Ministry of Health and Family Welfare.
On
the basis of the affidavits and counter affidavits presented before the courts,
the bench noted that even though proper advisory was issued by Directorate
General of Health Services clearly declining the spraying of disinfectant on
people for Covid19 management but several contrary opinions were expressed by
other bodies and organisations. The court also pointed out that Section 36 of
the Act, 2005, enumerated the responsibilities of Ministries and departments of
the Government of India.
The court did hold
that all such actions were being undertaken by the respective authorities with
a bonafide intention of controlling the spread of Covid19. However, considering
the precedent laid down in the case of Commissioner of Police v
Gordhandas Bhanji [AIR 1952 SC 16], it was held that 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.
Based on this the
court opined that for spraying disinfectant on human body and fumigation or use
of UV rays against the human body must be regulated properly by the concerned
authorities, they should utilize and exercise the enormous powers provided to
them under the DMA, 2005 and undertake immediate remedial action in regulating
the ban on the usage of disinfection tunnels involving spraying or fumigation
of chemical/organic disinfectants for the human beings and also to prevent
exposure of human being to artificial ultraviolet rays. Furthermore, looking to
the health concern of the people in general, the court provide a time period of
one month to complete such exercise, to the authorities