Procurement of the maximum standard of health care is a non – discriminative fundamental right, as highlighted by the constitution of the World Health Organisation as well. However, at a time when a pandemic ravage the entire country and there is an acute national scarcity in public health care resources, on 7 th June, 2020 the Chief Minister of Delhi, Mr. Arvind Kejriwal announced at a media briefing that most Delhi hospital beds would be ‘reserved’ for the residents of Delhi.Kejriwal cited the coronavirus pandemic as an excuse for imposing this restriction, but this was not the first time that the AAP government issued an order restricting access to healthcare services for non-residents in the national capital.
HOW THE EVENTS UNFOLDED
This Arvind Kejriwal-led AamAadmi Party (AAP) government’s controversial order to restrict access to all hospitals and nursing homes of Delhi only to “bona- fide residents” of the national capital, was so irrational that it was overturned by the Lieutenant Governor Anil Baijal on 8 th June 2020 evening. Earlier in a similar case of Social Jurist, a Civil Rights Group V/s GNCTD and Another,WP (C) No. 10858/2018 a senior lawyer and health activist Ashok Agarwal filed a petition titled challenging the AAP government run GTB hospital’s decision to restrict certain category of services to patients who are not voters in Delhi. It was termed unconstitutional by the Lieutenant Governor later.
This approach of the Delhi Government appears both churlish and selfish which undermines the national unity and the constitutional value of fraternity. It furthermore is an arbitrary denial of the fundamental rights to healthcare services and therefore violates Article 14, 15, 19 and 21 of the Constitution of India.
Notably, vide para 6 of the said order, the Governor has ordered the Government of NCT Delhi to strategically abide by the orders given by ICMR, quashing the previous order of the State. The Delhi Government has previously lied about the number of beds and preparation of COVID-19 as well. Instead of 32,000 beds it claimed to have, it gave in writing that it has only 3,100 beds. The CM here is only contrasting from his own words as he claims that there are sufficient beds for now. Erroneously predicting the surge in cases, it will be unjust and unfair for him to reason his decisions in contrast to his previous statements.
PROBLEMS WITH THE ORDER OF DELHI GOVERNMENT TO RESTRICT BEDS FOR RESIDENTS OF THE NATIONAL CAPITAL
(1) What is astounding is that by passing such an order, the CM of Delhi is classifying and alienating the poorer sections of the State. In one of the many tweets, Mr. Kejriwal clearly said that, the government will take utmost care for migrant workers who have not been able to migrate to their home. These people are the core ingredients of the development of Delhi. Yet, they are mistreated by the authorities via such orders of the State government.
Moreover, amidst a nationwide pandemic that has gravely affected the National capital, the Delhi Government is spending on self-glorifying advertisements on different channels and newspapers and misplacing funds meant for the poor and vulnerable.
(2) The decision has also led many activists, lawyers and citizens to raise a brow and object the unconstitutionality in its orders.
Residents, vide the order, will be identified by voter IDs, bank passbooks, ration cards, driving licences, phone and electricity bills in addition to Aadhaar cards issued before June 7, among other documents bearing a residential address from the city. Remembering how Mr. Kejriwal led government was anti-CAA, he is contradicting his own statements by asking for documents. In fact, in instances of serious emergencies, patients will suffer due to delayed treatment.
(3) The opposition BJP president, Jagat Prakash Nadda, left no opportunity to lash back at the State Government. He underlined the presence of a “diversionary tactic” to distract the people from pointing out on the lack of health care infrastructure in the State. Senior Congress Leader P Chidambaram also questioned the orders validity. He questioned that the AAP led government did not clarify the real interpretation of Delhiites by passing such an order. He states, “Mr Kejriwal says Delhi hospitals are only for Delhiites. Will he please tell us who is a Delhiite? If I live or work in Delhi, am I a Delhiite”.
(4) Considering the official statistics declared by the Delhi Government in its portal, the State currently has 8821 beds and 4334 vacant beds. Yet, it is unclear as to why several people have approached the Delhi High Court to report the unavailability of beds for patients. As per various newspaper reports, even at Delhi’s Mohalla clinics, doctors have been grievously demanding for protective gears from the Government. The Government graciously started these mohalla clinics yet it lacks basic infrastructures and is crumpled with politics.
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(5) Under Article 13(2), a law is void if it is inconsistent with a fundamental right. If any part of the act is inconsistent with the Fundamental rights and still remains operational it would lead to injustice. As mentioned before, the regulation is in coherence to the Epidemics Diseases Act, 1897. Whilst the State Government audaciously drafted an ordinance which is clearly prejudicing several citizens, it is also inconsistent with the basic fundamental rights enshrined in the Constitution of India. Thus, the order is void ab initio.
(6) The ordinance is inconsistent with Article 14 of the Constitution based on the concept of reasonable and intelligible differentia and the object sought to be achieved. Concept of intelligible differentia distinguishes person or things grouped together for the reason of achieving a certain objective. Hence, in this scenario intelligible differentia can only be permitted if the object sought to be achieved is based on fairness. Intelligibility means when the matters of facts arranged in appropriate terms so as to be comprehensible by a person of common or ordinary understanding [Ref : Merrill v. Yeomans, 94 U.S. 568 (1876)]. As far as classifying patients based on their place of birth is concerned, it will not be an intelligible way of classifying the citizens of Delhi in one group for a grievously serious objective of coping up with the deadly Coronavirus pandemic.
(7) Article 15 of the Constitution of India says is that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. This is an important point to be noted. Citizens seeking medical treatment cannot be denied the same for their place of birth.
(8) According to Article 19(1)(e) every citizen of India has the right “to reside and settle in any part of the territory of India”. However, under clause (5) of Article 19 reasonable restriction may be imposed on this right by law in the interest of the general public or for the protection of the interest of any Scheduled Tribe. There is a huge list of documents necessary for a patient to avail treatment at hospitals in Delhi. The list includes:
– Voter ID
– Bank or post office passbook
– Ration card
– Drivers’ license
– Income tax return
– Latest water, telephone or electricity bill issued to the patient or close relative such as parents or spouse
– Proof of postal department’s posts received with the patient’s name in the given address
– Aadhaar card issued prior to June 7
Reasonable restrictions imposed by law means, “that is in the interest of general public or for the protection of the interests of any Scheduled Tribes. An ordinance asking non-residents of Delhi to leave and deny treatments is clearly not a reasonable restriction.
(9) Article 21 of the Constitution guarantees protection of life and personal liberty to every citizen. The Supreme Court has held that the right to live with human dignity, enshrined in Article 21, derives from the directive principles of state policy and therefore includes protection of health. Thus, Failure of a government hospital to provide a patient timely medical treatment results in violation of the patient’s right to life.
Right to Medical Treatment:
Way back in 1989, the Hon’ble Supreme Court in Parmanand Katara v. Union of India(1989 SCC (4) 286) after referring to the Code of Medical Ethics has held that “there can be no second opinion that preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man. The patient, whether he be an innocent person or be a criminal liable to punishment under the laws of the society, it is the obligation of those who are in-charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished….”.
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The basic principles of human rights seek to highlight the importance of right to health. It says: “The principle of non discrimination seeks ‘…to guarantee that human rights are exercised without discrimination of any kind based on race, colour, sex, language, religion, political, or other opinion, national or social origin, property, birth or other status such as disability, age, marital and family status, sexual orientation and gender identity, health status, place of residence, economic and social situation”.
Ranganath Misra J. in his judgment went on to hold that “Article 21 of the Constitution casts the obligation on the State to preserve life. A doctor at the Government hospital positioned to meet this State obligation is, therefore, duty- bound to extend medical assistance for preserving life. Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way.”
As per the present case in hand, the state government clearly neglects the basic human rights for its citizens by unreasonably sealing borders. Failure of Government to give treatment to any person is a violation of Article 21.
(10) In Paschim Banga Khet Mazdoor Samity v. State of West Bengal (1996 SCC (4) 37), it was held that the Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. In a similar case, Sahara House and Sankalp Rehabilitation Trust v. Union of India(W.P. (C) 512 of 1999), filed Public Interest litigation in the Hon’ble Supreme Court for access to equitable treatment for PLHIV (Patient Living With HIV, AIDS). Hence, SC issued directives for equal treatment of patients.
(11) It has to be noticed that the Hon’ble Supreme Court in the above-mentioned cases does not distinguish between a resident or a non-resident of a particular place. The Court also uses the word “person” as in Article 21 of the Constitution. Therefore, the Government of Delhi can by no means prohibit non-residents of Delhi from availing medical treatment at a Delhi Government run hospital or private hospital even during COVID pandemic. Such a measure not only cries foul of Article 21 of the Constitution but it also violates Article 14 of the Constitution that prohibits the State to deny “to any person equality before the law or equal protection of laws” within India. By discriminating between residents and non-residents of Delhi, the State Government cannot act unconstitutionally and arbitrarily to prohibit non-residents of Delhi from accessing either Delhi Government or private hospitals. Such actions are unreasonable, arbitrary and are thus void.
(12) It is the duty of the state to ensure the level of nutrition and the standard of living and to improve public health (Article 47). Moreover, Protection and improvement of environment is also made one of the cardinal duties of the State (48A).
(13) Delhi is close to three states UP, Haryana and Rajasthan. Delhi CM Mr Kejriwal has always been in conflict with his neighbours. Instead of communicating and working in a harmony with the other states CMs, he remained indecisive and issued an announcement of sealing the borders with the neighbouring states. This shows how much self centric he is when it comes to the coordination in a pandemic situation like COVID-19.
(14) Emergency medical care is incorporated in numerous International human rights documents and it is an inalienable human right. Article 25 of Universal Declaration of Human Rights, 1948; Article 25 and Article 12 of International Convention on Social Economic and Cultural Rights and Article 11 of European Social Chapter of 1961 are other examples in coherence to the present matter in hand.
(15) The order was passed in reference to the Epidemics Diseases Act, 1897. Under Section 2 sub-clause (1), it is clear that state Government may prescribe temporary regulations in situations of outbreak of dangerous epidemic diseases. However, the clause also says that, the regulations must be introduced if it is necessary to prevent the outbreak from spreading and determine in what manner the expenses will be incurred for the same. Additionally, under Section 2 sub-clause (2), the State Government may do so without any prejudice to the generality of the foregoing provisions.
The Delhi Government in passing such an insensitive order, has remained ignorant about the element of “prejudice”. The decision shows clear inhumanity, inequality and insensitivity of the Delhi Government for non-citizens as well as those who seek to avail hospital facilities for Covid-19 at emergencies. Moreover, it is very evident that the Delhi Government has been misleading people in the past. For instance, Delhi Government took 2 months to constitute a health panel since the COVID outbreak was declared. Yet, many people from Delhi itself are denied beds in the hospitals.
(16) Section 4 of the Epidemics Diseases Act, 1897 says that no legal proceedings will be instituted against any individual who breaches the regulation as drafted by State, in “good faith”. It is a simple fact that urgencies are inevitable in any state. And a patient taking his last breaths is denied a bed because he couldn’t provide the required documents; it will be a clear cut case of an inhumane and unjust act. It is astounding how, on the one hand, the Delhi Chief Minister issued guidelines to disclose all paperwork and data regarding the situation of the pandemic in the State; but he isn’t able to convey his prudent reasons for the same.
(1) Many activists like the Jan Swasthya Abhiyan demanded for opening the borders. They state that such an ordinance will call for chaos amongst the marginalised sections of the society. It will add extra burden on people and create delays in admission of patients amidst proving that one is a citizen of Delhi. Denial of health care to anyone is clearly unethical and immoral.
(2) Notably, the ordinance excludes the vulnerable sections and the migrant workers from treatment. Since they stay within the borders, they ought to be treated within the borders itself. Secondly, if vulnerable sections are denied treatment, they will be forced to seek help from private hospitals. Private hospitals have a history of scamming patients with huge fees for basic health check-up as well. PPE’s are sold for large amounts to people unreasonably. Thirdly, such funds for treatment and health are given by the Union Government to the State Government. Hence everybody is entitled to avail the resources.
Coronavirus, the China-born microbe that inflicts infectious respiratory illness, brings the world to its knees. The pandemic is still unraveling and it is too early to gauge its ultimate human and economic impact. The coronavirus outbreak has posed serious challenges to India’s healthcare system, but responses from reasonably priced ventilators to interactive apps are emerging. Companies are reinventing themselves to stay alive and even thrive, as new opportunities open up in online education, entertainment and collaboration. From government think-tank to global multilateral organisations, expert opinions and impact forecasts are being shared. Safe practices and best practices are being proposed across the board. Resilience, hope and compassion are the need of the hour.
However, during this pandemic when India is thing the Delhi Government decisions are a frontal attack on the constitutional value of the fraternity and the idea of India’s unity and nationhood. The Constitution Preamble of India records that the people of India resolved to secure to all its citizens justice, liberty, equality and ‘fraternity assuring the dignity of the individual and the unity and integrity of the Nation’. At a time of national health crisis and scarcity, the spirit of brotherhood and fraternity is coming under severe strain.
The Delhi Government seems to be unwilling to lend a helping hand to those of our country men and women who most need it. While it is quite understandable that the Delhi Government has to take urgent measures to protect the residents of Delhi to whom it owes a collective responsibility, the Government cannot act arbitrarily and unconstitutionally. Though the verdict is still out on whether the Government of Delhi will challenge the Lieutenant Governors reversal of its decision, the Delhi Government simply cannot prohibit non-residents of Delhi from availing medical treatment in Delhi Hospitals. Such decisions, apart from being unconstitutional, would lead to further chaos, confusion and imminent loss of life in these trying times of pandemic proportions. Previously a pregnant woman’s death in Noida due to the denial of timely treatment should be a clarion call for hospitals, which has put lives at risk due to negligence.
– Adv Himanjali Gautam is a practicing lawyer in Supreme Court of India and appear on various national TV Channels as a panelist. She is also Ex President, LC2, Faculty of Law, University of Delhi.