Medical Emergency Not An Excuse To evade Fundamental Rights Under Article 21 Of Constitution

It is most heartening, most refreshing and most comforting to note that the Telangana High Court has on May 20, 2020 in a latest, landmark and extremely laudable judgment titled Ganta Jai Kumar Vs State of Telangana Rep. by Chief Secretary and others in Writ Petition (PIL) No. 75 of 2020 authored by Justice MS Ramachandra Rao for himself and Justice K Lakshman has explicitly, effectively and elegantly observed that a medical emergency is not an excuse to trample on the fundamental rights of a citizen under Article 21 of the Constitution. While holding so, the Telangana High Court has quashed a government order which compelled citizens to get testing and treatment for COVID-19 from designated government hospitals and prevented them from approaching private hospitals and laboratories for such purposes even though they have requisite approval from the ICMR. Very rightly so!

                                       Needless to say, the Telangana High Court was unable to agree with the contention of the Advocate General for the State of Telangana that there is a state of emergency in the State in view of the Covid-19 pandemic and that such emergency justifies the State action. It candidly and convincingly stated in para 50 that, “We are unable to agree. Admittedly no emergency has been declared by the Government under Article 356 of the Constitution of India, though there is a pandemic situation undoubtedly.” Besides, it also noted that Article 359 has been amended by the Constitution (44th Amendment) Act to say that the President cannot suspend the right to move a court for violation of Article 20 and Article 21 even in an emergency and seek appropriate relief.

                                     In this backdrop, the Telangana High Court in para 57 then very crucially went on to point out that, “This above decisions of the Supreme Court are a complete answer to the plea of the Advocate General that because there is a medical emergency or a war emergency anything can be done by the State including arbitrarily restricting the right to health conferred under Art 21 on a citizen of the State. An emergency of any sort is not an excuse to trample on the rights under Art 21 and the Courts have the power to see that the State will act in a fair, just and reasonable manner even during emergencies. Whether the State has done so or not is judicially receivable in the light of the law laid down by the Supreme Court.”    

                                          Of course, the Court also in para 56 quoted the famous words of Lord Atkin in Liversidge v Anderson that, “In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.”

                                                 In this context, it would be pertinent to mention that in para 33 of this noteworthy judgment, it is rightly held that, “Every human being has a basic and natural born instinct to protect himself and his kith and kin from danger – be it from human, animal or one in the nature of a disease, by utilizing all the means available in his power. The State cannot incapacitate him by restricting his choice particularly when it comes to a disease which affects his life/health or that of his kith and kin.”

                                                       More relevantly, it is then very rightly pointed out in para 28 that, “It is the basic principle of administrative law that every action of the State which affects the rights of citizens must be supported by reasons so that a Court can, while judicially reviewing it, know that there is application of mind to the issue by the authority concerned, which passed the said order. Absence of reasons would undoubtedly vitiate the later order dt 11.4.2020.”

                                  In the same vein, it is also then noted in para 38 that, “According to the Supreme Court of India, it is imperative that any restriction of right of the citizens in that regard must be by a procedure prescribed by “law” and such “law” must be reasonable, fair and just. It cannot be arbitrary, whimsical or fanciful.” Similarly, it is then observed in para 42 that, “As stated by the Supreme Court, the right to health of a citizen is a fundamental right under Art 21 and restriction thereupon must be reasonable, fair and just.” 

                                        What cannot be overlooked is what is then stated in para 43  while emphasizing the role of private sector that, “It is of utmost importance that each and every case (suspects/confirmed) of COVID-19 is isolated and provided appropriate treatment and their contacts traced at the earliest to break the chain of transmission. It is important that support and cooperation of the private sector is enlisted, in this regard. This is the policy which has been declared by the Ministry of Health and Family Welfare, Government of India in its “Guidelines for notifying COVID-19 affected persons by Private Institutions” notified recently.”

                             While acknowledging the petitioner’s contention, it is then put forth in para 59 that, “As rightly contended by the petitioner, we find that there is no power in Sec. 2 of the Epidemic Diseases Act, 1897 either to prevent private hospitals from testing suspected any victim of an epidemic such as COVID-19 patients or treating confirmed infected patients. In fact in that era (pre 1900), the concept of private sector participation in health care was hardly there in India.”

                                           Furthermore, it is then enunciated in para 60 that, “What the Sec 2 prohibits and what it permits, in a case where there is a dangerous epidemic, disease for which the ordinary provisions of the law are insufficient. In such a case the State may take, require or empower any person to take “such measures” and by public notice such “temporary regulations” to be observed by the public or by any person or class of persons as it shall deem necessary to prevent the outbreak of such disease or the spread thereof.” 

                                      Not stopping here, it is then envisaged in para 61 that, “The Ministry of Health and Family Welfare, Union of India and the ICMR cannot be said to have ignored these provisions of the Epidemic Diseases Act, 1897 and this Court has good reason to believe that the Union of India and the ICMR did give due consideration to this provision of law while permitting testing and treatment of COVID-19 patients by private laboratories and hospitals.”

                                          On similar lines, it is then further conceded in para 62 that, “On the other hand by issuing a set of guidelines called “Guidelines for notifying COVID-19 affected persons by Private Institutions”, the Union of India had clearly applied its mind to the provisions of the above Act which permit the Government “to take measures necessary to prevent the outbreak and spread thereof” by permitting private laboratories and hospitals also to be involved in the said prevention and outbreak and spread of the epidemic.”

                                          Be it noted, it is then observed in para 63 that, “The State Government, in its counter, has not questioned the wisdom of the Union Government and the ICMR in permitting private laboratories to achieve the very object of prevention and spread of the epidemic. On the other hand, the respondent Nos. 1-4 appear to have come to the opposite conclusion, contradicting the wisdom of the Union of India and an expert body like ICMR.”

                                         Going ahead, it is then disclosed in para 64 that, “In fact we find that the ICMR has notified on 3.5.2020, 111 private laboratories and 310 Government laboratories. It is obvious that by permitting 111 private laboratories to conduct COVID-19 tests across the country, the Union Government and ICMR were trying their best to take the private sector on board and to achieve the goal of stopping the spread of the epidemic.”

                                        No wonder, it is then held in para 65 that, “We therefore hold that the respondents Nos. 1-4 have no logical or legal basis to come to an opposite conclusion and come forward with total prohibition.”

                                             More strikingly, in a big setback to the respondents, it is then held in para 66 that, “It is not the case of the respondent Nos. 1-4 that there is a cure for the COVID-19 virus, that only Gandhi Hospital in the State of Telangana has got a vaccine for it, and so everybody in the State of Telanagana, who is infected with the virus has to go to the said hospital. May be the facilities in the said Hospital or other designated Government Hospitals are very good, but that does not mean that the respondent Nos. 1-4 can, under the guise of taking steps to prevent the spread of the Pandemic, restrict the liberty and freedom of a citizen to choose his own doctor and hospital and force him to take a test for COVID-19 infection or treatment from Government sources, if found to be infected with the said virus.” 

                                   Most crucially, it is then observed in para 92 that, “For the elaborate reasons given above, we hereby allow the Writ Petition and we:

(i)                         declare that the proceedings Rc.No.Spl/COVID-19/DMHO/HYD/2020 dt 11.4.2020 issued by the District Medical and Health Officer, Hyderabad which states:

“Adverting to the subject cited above, orders issued by this office regarding certain instructions on treating only emergency cases at notified hospitals in Hyderabad District vide reference 6th cited are hereby cancelled with immediate effect.”

is violative of Art. 14 and Art. 21 of the Constitution of India and also the principles of natural justice (for not giving any reasons) and is set aside;

(ii)                      hold that the respondent Nos. 1-4 cannot compel residents/citizens of the State of Telangana to get (a) testing for COVID-19 in NMS/Gandhi Medical Hospital or only in the other designated laboratories decided by them and (b) treatment/isolation only in hospitals designated by them, when the citizens/residents are willing to pay the cost and get their blood samples tested in the private ICMR approved laboratories or private sector hospitals having the requisite infrastructure by paying the requisite charges;

(iii)                   hold that it shall be the right of the citizens and residents of the State of Telangana to get tested on payment basis, if they choose to do so, for COVID-19 in any private laboratory presently approved by the ICMR or may be approved in future at such rates as may be determined by ICMR or any other competent authority of the Union of India;

(iv)                   hold that it shall be the right of the citizens and residents of the State of Telangana to get treatment on payment basis, if they chose to do so for COVID-19 in any private hospital presently approved by the ICMR or may be approved in future by it; and

(v)                      direct that all private hospitals, who wish to provide treatment/isolation for COVID-19 patients (other than the ones already granted such approval by the ICMR), shall make an application to the ICMR offering their facilities for the said purpose; the ICMR shall nominate qualified and experienced persons to scrutinize the said applications and cause inspections made of the available facilities and infrastructure in the said private hospitals, to verify whether they possess adequate number of qualified doctors, qualified nurses, paramedical staff apart requisite equipment and notify the same. This exercise shall be completed within the shortest possible time in view of the grave urgency and rising cases of persons infected by COVID-19 and deaths caused by it. Only such private hospitals as are approved by the ICMR shall be permitted to treat COVID-19 patients.       

                                           On a different note, it is then further added in this same para 92 that, “It is needless to observe that all protocols approved by ICMR or other competent authority from time to time shall be followed by the ICMR approved private laboratories and hospitals that have already been or would be approved in future by the ICMR for testing or treating/isolation of COVID-19 suspects/patients; and all possible precautions shall be taken by the ICMR approved private laboratories and hospitals to take good care of the suspects/confirmed COVID-19 patients; and the ICMR approved hospitals shall keep the respondent No. 4 or any other authority designated by respondents 1-4 informed on a daily basis of the persons who are being treated by them for COVID-19 and their health status.”

                                       Before parting, the Telangana High Court very commendably observes in para 93 that, “We place on record our appreciation for the petitioner for approaching this Court and bringing to our notice this important issue concerning the health and lives of our fellow citizens.”

                                                     In conclusion, it is a very well written, well balanced and well reasoned judgment. It leaves no room for doubt whatsoever that medical emergency cannot be an excuse to trample upon citizen’s fundamental rights under Article 21 of the Constitution. No doubt, all the State Governments as also the Union Government must from now onwards always in their own best interest bear this latest, landmark and extremely laudable judgment while deciding in such cases of medical emergency! 

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

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