Chemical Sprays vs. Human Rights in Bareilly

Vrinda Grover, Soutik Banerjee, Ayesha Kidwai

On March 30, 2020, the district administration of Bareilly in the state of Uttar Pradesh, admitted that migrant workers, who had made the harsh (often by foot) journeys home following the sudden announcement of a nation-wide lockdown by the Prime Minister on 23rd March, had been sprayed with Sodium Hypochlorite solution (1% conc.) by state personnel. Videos and images showed state personnel wearing hazmat protective suits spraying a group of working-class poor men and women. The UP state officials said that the aim of this chemical spraying was to ‘sanitise’ and ‘disinfect’ the men and women.

As you see the video, these thoughts and questions may come to mind:

In the face of a highly infectious viral pandemic, is the State not justified in adopting all such measures in order to halt the spread of the disease? Since these people may well be infected with the virus, a disinfecting spray would surely protect these workers’ own families, villagers and local people from contracting the coronavirus? Could it possibly not safeguard the migrant workers themselves from infection? Further, since such workers are ordinarily used to hard manual labour, aren’t their bodies and skin so tough that this chemical spray will not harm or hurt them?

You may also think…

Given the huge influx of migrant workers and the lack of resources, in what other way could the administration respond? In a poor country like India, there are no facilities and resources to disinfect each migrant worker properly. States like Kerala (in its Wayanad district) too have sprayed a group of people considered to be possibly infected exactly in the same fashion—is not the outrage against UP officials politically motivated?

In any case these are extraordinary times…

This is a public health crisis that has brought the world to its knees. Is this the time to criticise state administration and officials? Is this the time to talk about lofty ideals of human rights and dignity?

What is this chemical Sodium Hypochlorite, that was sprayed on the migrant labour?

Sodium Hypochlorite (NaOCl) is a well known chemical solution which is most frequently used as a disinfectant for treating biological waste in water treatment plants or for cleaning hard surfaces. It is colloquially referred to as bleach. However, it is known to be corrosive to metals and has severe adverse health effects when exposed to human skin or the eyes.

Dr. Nicole Girotti from the Western University of Canada in 2015 published Guidelines for the use of sodium hypochlorite as a disinfectant for biological waste. As per the guidelines, the appropriate concentration of sodium hypochlorite for disinfecting general liquid biological waste is 5000 ppm, approximately 0.5%. The guidelines state that as per the Global Harmonized System (GHS) classifications, human exposure to Sodium Hypochlorite (0.5% conc.) solution could result in skin irritation, corrosion and eye damage, and if it is inhaled in any quantity it may result in coughing, irritation and vomiting. 

Sodium Hypochlorite is not a disinfectant to be used on humans. The US National Library of Medicine classifies it as a corrosive hazardous material which causes severe damage to the skin, eyes, respiratory tract, lungs, gastric system and even coma in those who are exposed to it by inhalation or ingestion. Further, symptoms of NaOCl poisoning may not manifest themselves immediately and an immediate referral of exposed individuals to medical attention is required.

Chemical spray will not kill the COVID-19 infection

The group of workers in Bareilly, and elsewhere, who were forcibly ‘disinfected’ are the victims of an egregious crime, irrespective of what the State intended to do. No law or regulation legitimises the forcible ‘disinfection’ through exposure to hazardous material and in fact the World Health Organisation has specifically warned against the use of alcohol or chlorine in humans in trying to combat COVID-19.

Chemical spray is a criminal offence

In India, the corrosive nature of Sodium Hypochlorite solution is well known, and beyond 5% concentration it is treated as a poisonous corrosive substance under The Poisons Act, 1919. Sale or possession of Sodium Hypochlorite solution above 5% concentration is outlawed by various states unless a license has been obtained by the seller or purchaser from the State government. 

Look again at the images and the video. All the state personnel are wearing full hazmat protective suits, indicating that they are cognizant of the serious dangers and harm that this chemical spray can cause to their own bodies; yet they have no compunctions about exposing the workers’ bodies to it. Can the actions of the Bareilly administration to spray migrant workers with the same, putting them at potential risk of multiple health hazards, be brushed aside as an overzealous administrative lapse? 

The chemical spray of Sodium Hypochlorite, depending on the concentration of the solution, amounts to various offences under the Indian Penal Code (IPC). A voluntary act by any person which causes disease to another is defined as ‘hurt’ in Section 319 of the IPC and is punishable under Section 323 IPC with imprisonment up to one year. As a rash and negligent act which endangers personal safety of others, it is punishable under Section 336 IPC with imprisonment up to three months. NaOCl as a corrosive substance also makes it amenable to prosecution under Section 324, punishable up to three years. Further, a voluntary act causing disease by means of poison (which includes Sodium Hypochlorite above 5% conc) is punishable under Sections 326 and 328 IPC punishable with imprisonment up to ten years. Under Section 326 A, if the solution is above 5% concentration, it could amount to an acid attack, punishable up to imprisonment for life.

Chemical spray is a constitutional wrong and torture

Watch the video again. In the absence of a single WHO or GoI guideline that recommended the spraying of humans with this chemical disinfectant, why did the Bareilly administration decide that the migrant workers deserved this treatment? Did their unwashed tired bodies and obviously dirty clothes provoke this response? Was the fact that their existence and needs had been summarily overlooked in the Prime Minister’s address and government lockdown announcements make them dispensable and less-than-human everywhere, even in the places that they hail from?  

In terms of our Constitution, the treatment accorded to these workers is a serious breach of the human rights and fundamental right to life. The fact is that the Bareilly administration had no reason to assume that any in this group of workers were possibly infected with COVID-19, as they were not even subjected to a thermal test that indicated a raised temperature. Further, no official informed them of the health hazards of this spurious disinfection, or sought their consent to this procedure, even on the pretext that it would grant them or their families a measure of protection. The Supreme Court has repeatedly asserted that the right to life guaranteed under Article 21 of the Indian Constitution to all persons, places human dignity at its core and the right does not denote a mere animal existence. These acts of the Bareilly administration also wantonly violate the basic code of equality and non-discrimination that Articles 14 and 15 of the Indian Constitution guarantee to all. 

What the migrants have suffered has a name, a description under international human rights law. Article 15(1) of the UN Convention on the Rights of Persons With Disabilities, specifically states that medical experimentation on humans without their free consent amounts to cruel, inhuman and degrading treatment. In order for conduct to amount to cruel, inhuman or degrading treatment or punishment, it need not involve physical pain and can include acts that cause both physical and mental suffering. Treatment or punishment that humiliates or debases a person, causes fear, anguish or a sense of inferiority, or is capable of possibly breaking moral or physical resistance or driving a person to act against their will or conscience, can be cruel, inhuman or degrading. (Kracke v Mental Health Review Board (2009) 29 VAR 1.The UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, to which India is a signatory, also prohibits the State from employing or excusing any cruel, inhuman or degrading treatment. This prohibition against torture enjoys the status of a jus cogens norm, which means that a State cannot claim any exemption or derogation from this fundamental prohibition under any circumstances. Therefore, even while combating the spread of COVID-19 through a lockdown, the State cannot commit, allow or excuse any acts that are tantamount to torture.

What about the spray on men by police in Kerala?

It has now been confirmed by district officials in Wayanad that no chemicals were sprayed there, instead a soap and water solution had been sprayed on people traveling to Wayanad. This happened more than a week ago and has been discontinued. There was thus no chemical spray on humans in Kerala to combat the spread of coronavirus.

What should have been done?

The orders passed in the State of Uttar Pradesh, as clarified by the District Magistrate of Bareilly, included spraying of disinfectants on buses to clean and purify them to prevent the spread of the virus. It is now contended that the orders were misunderstood and the migrant workers were sprayed. 

No government circular recommends disinfestation of individuals who are suspected to be infected with COVID-19. To detect and combat possible Coronavirus spread the district administration could perhaps have discharged its duty by -: 

  • checking the body temperature of the migrant workers through thermal scans
  • setting up mobile bathrooms and supplying soap and water for bath
  • give a set of clean clothes for them to wear after bath
  • providing hand sanitizers if deemed necessary
  • doctors doing a medical checkup if symptoms show and providing medical treatment, etc. to anyone needing it

These are cost effective, doable solutions and medically acknowledged to be successful. 

What now?

What we have witnessed in Bareilly is therefore not simply a well meaning but misplaced determination to erase the potential of contagion but a grave breach of the law and constitution. The victims of the chemical spray must immediately be provided with:

  • Proper medical treatment free of cost
  • Compensation for cruel, inhuman and degrading treatment
  • Public apology by concerned district administration / State officials

Even in times of COVID19 lockdown, it is imperative to uphold human dignity at every step of fighting the coronavirus, otherwise the virus will end up not only causing damage medically, but also sharpening division and discrimination.  

As the country confronts a difficult, uncertain public health crisis there is an urgent need for Guidelines, protocols and Standard Operating Procedures that inform all state officials, personnel and the district administration across the country, how to perform their duties and discharge their respective roles. State functionaries giving illegal orders and those committing crimes will be culpable and liable.

Mutual trust and respect between the state and peoples will go a long way in tackling this public health crisis. Even in times of COVID19 lockdown the right to dignity, equality and non-discrimination of all citizens under the Indian Constitution must remain alive and singing.