Demolishing unitary spirit: Life seizing order

Author: Himanshu Gupta

THE  CONTROVERSIAL ORDER

That Government Of National Capital Territory Of Delhi, Department of Health and Family Welfare, GNCTD invoking powers under the Epidemic Diseases Act, 1897 and Delhi Epidemic Diseases, COVID-19 Regulations, 2020 issued order that came even as the city’s borders were set to be reopened from 08.06.2020, In view of interstate movement which is expected to further increase in view of MHA’s Order No. 40-3/2020-DM-I(A) dated 30.05.2020 load on COVID & non-COVID Hospitals as patients from other parts of the country would approach Hospitals of Delhi. It was ordered that all the hospitals operating under the Government of NCT of Delhi and all the private hospitals & nursing homes shall ensure that only bona fide residents of NCT of Delhi are admitted for treatment in these hospitals. However, transplantation, oncology, neurosurgeries will continue to function for all patients, irrespective of the place of residence. Also, any Medico-Legal victims of road accidents, acid-attack happening within NCT of Delhi will continue for all patients, irrespective of place of residence.

The order also listed the documents to show residence status, such as Voter ID, Bank/Kisan/Post Office current Passbook, Ration Card, Driving License, Passport, Income Tax Returns, Latest Water/Telephone/Electricity/Gas Connection Bill in the name of the patient or his/her immediate relations like parents, etc, postal department’s post delivered at the patient’s name at given address, Aadhaar card made prior to June 7.

UNDERLYING PROBLEMS

That at a time when a pandemic ravages the entire country and there is an acute national scarcity in public health care resources, it appears both churlish and selfish to restrict the bulk of these hospital resources only to Delhi’s residents. Such an approach undermines national unity and the constitutional value of fraternity.

That The National Disaster Management Guidelines on the Management of Biological Disasters (the “Guidelines“), that were issued in 2008 by the National Disaster Management Agency under the Disaster Management Act, 2005 extensively refers to “triage”, defines the term and recognizes “harmonisation of the concept of triage” to be a “major pillar for supporting effective mass casualty management“. The Guidelines envisage that hospitals will have Disaster Management Plans (“hospital DM Plan“) which will, inter alia, “consider the possibility that a hospital might need to be evacuated or quarantined or divert patients to other facilities.” The Guidelines also envisage that activation of a hospital’s DM Plan will entail triage of patients that involves “prioritisation based on the assessment by the clinical team.” These Guidelines are instructive. They indicate, unequivocally, that “triage” decisions are essentially clinical decisions to be taken at the hospital level by the clinical team.

That there is no suggestion, anywhere in these Guidelines, that State Governments or Union Territory governments can take a policy decision akin to triage, to restrict admissions into hospital based on the place of ordinary residence of the patient. Indeed, the place of ordinary residence of a patient is manifestly an extraneous consideration in a clinical decision of whether a patient requires urgent critical medical care and whether the resources for such treatment are available.

LEGAL ISSUES

• That Order is violative of Fundamental Right ‘guaranteed’ under Article 21 of the Constitution of India. It is submitted that the Hon’ble Supreme Court of India in Navtej Singh Johar v Union of India prophetically expounded the Jurisprudence of the Hon’ble Court with respect to Constitutional Right of medical care and observed as under:

“in the evolution of its jurisprudence on the constitutional right to life under Article 21, this Court has consistently held that the right to life is meaningless unless accompanied by the guarantee of certain concomitant rights including, but not limited to, the right to health.The right to health is understood to be indispensable to a life of dignity and well-being, and includes, for instance, the right to emergency medical care and the right to the maintenance and improvement of public health.”

• That theState is under an obligation under Article 21 to not act in such a way as to interfere with the right to health. The Hon’ble Supreme Court in Navtej Singh Joharobserved as under:

“the jurisprudence of this Court, in recognizing the right to health and access to medical care, demonstrates the crucial distinction between negative and positive obligations. Article 21 does not impose upon the State only negative obligations not to act in such a way as to interfere with the right to health. This Court also has the power to impose positive obligations upon the State to take measures to provide adequate resources or access to treatment facilities to secure effective enjoyment of the right to health.”

• That in a welfare state the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare state. It is submitted that the impugned order is clearly in breach of the government’s obligations in a welfare state.
• That the Hon’ble Supreme Court in Paschim BangaKhet Mazdoorsamity v. State of West BengalAIR 1996 SC 2426 was addressed with the question that, “whether the non-availability of facilities for treatment of the serious injuries sustained by Hakim Seikh in the various Government hospitals in Calcutta has resulted in denial of his fundamental right guaranteed under Article 21 of the Constitution”. The Hon’ble Court emphasizing the ‘Positive Obligations of the State’ observed as under:

“The Constitution envisages the establishment of a welfare state at the federal level as well as at the state level. In a welfare state, the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare state. The Government discharges this obligation by running hospitals and health centers that provide medical care to the person seeking to avail those facilities.”

• That failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in a violation of his right to life guaranteed under Article 21. It was observed in PaschimBangaKhetMazdoorsamity v. State of West BengalAIR 1996 SC 2426

“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. The Government hospitals run by the State and the medical officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in a violation of his right to life guaranteed under Article 21.”

• That,the Impugned Order is violative of Fundamental Right ‘guaranteed’ under Article 14 of the Constitution of India which ensures “Equality before Law” and “Equal Protection of Law” whose ‘humanist dynamism’ was prophetically propounded by Hon’ble Supreme Court in Maneka Gandhi v Union of IndiaAIR 1978 SC 597wherein the Court observed that,

“there can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic, or lexicographic approach. No attempt should be made to truncate it’s all-embracing scope and meaning for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits”^[1].

• That this Hon’ble Court in Social Jurist, A Civil Rights Group v Government of NCT of Delhi WRIT PETITION (CIVIL) NO. 10585 OF 2018 profoundly enunciated the Doctrine of Equality to be the means of achieving the Preambular Goals of Social Justice by observed that:,

 “The constitutional concept of social justice is to ensure and accord justice to all sections of the society by providing to them facilities and opportunities equal in nature and to remove handicaps and disability with which a poor citizen is unable to secure and lead a life of dignity. In fact, social justice is nothing but a comprehensive form to remove social imbalance and to maintain equality in the matter of providing equal opportunities and facilities to citizens of this country.^[2]

• That this Hon’ble Court in Social Jurist, A Civil Rights Group v Government of NCT of DelhiWRIT PETITION (CIVIL) NO. 10585 OF 2018 based on identical facts  where the Delhi Government issued a circular which gave preference to Delhi residents in treatment in public hospital  held as under:

 “Providing medical facilities to each and every citizen is a constitutional responsibility, and the State may in the matter of providing medical facilities classify citizens into different categories by adopting a principle of permissible classification which has nexus to the purpose to be achieved. In the present case, the classification is based not on the basis of any scientific or intelligential classification or system but it is based on the availability of a Voter ID Card and the purpose to be achieved by this classification is to decongest the hospital and to bring in a system of discipline in the functioning of the hospital and running it in a smooth manner. In our considered view, neither is the classification reasonable, is not based on any justifiable reason nor is the nexus said to be achieved a reasonable one.

• That, such differentiation on providing medical treatment on basis of residence speak foul of the Equal Protection guaranteed under Article 14. I was observed by this Hon’ble Court in Social Jurist, A Civil Rights Group v Government of NCT of Delhi, WRIT PETITION (CIVIL) NO. 10585 OF 2018 as under:

“Classification to be reasonable must fulfil the following two conditions: firstly, the classification must be founded on the intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group. Secondly, the differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are two distinct things. What is necessary is that there must be nexus between the basis of classification and the object of the Act. It is only when there is no reasonable basis for a classification that legislation making such classification may be declared discriminatory.”

• That, such classification is unreasonable, arbitrary and whimsical. This Hon’ble Court in Social Jurist, A Civil Rights Group v Government of NCT of Delhi, WRIT PETITION (CIVIL) NO. 10585 OF 2018 where an identical issue arose observed as under:

“as far as classification of patients into two categories are concerned, except for the fact that the patients are classified on the basis of a Voter ID Card, nothing has been brought to our notice to say as to what is the rationale or justification for such a classification… In the present case, the classification is based on no reasonable justification except on the basis of the residence of a person or the availability of a particular identification card and the nexus to be achieved is decongestion of the hospital. In our considered view, both these justifications given do not meet the twin tests for upholding a classification as has been detailed hereinabove.

• That the impugned order is in flagrant violation of Article 19(1)(e) of the Constitution which guarantees the right of the citizens to reside and settle in any part of the territory of India, as the people in need of dire medical attention will be forced to go to other states for being treated. It is submitted that there are a number of people who do not possess the documents as mentioned in the impugned order for identifying Delhiites but have been living in Delhi for educational and professional reasons for a considerable period of time. As a consequence of the implementation of the impugned order, they will be forced to move out of Delhi so as to seek medical help elsewhere in the country which is a direct attack on Article 19(1)(e).
• That the impugned order goes against the duty of the State to adopt measures for the improvement of public health as provided for under Article 47 of the Constitution of India. It deprives the citizens of the medical treatment when most in need and in doing so works towards degrading public health.
• That is the presence of two orders nursing homes and hospitals would be in confusion as to which order to be followed. It is submitted that in any case, under Section 18(3) of the DMA Act, the exercise of such “powers shall be subject to ex post facto ratification of the State Authority.”. It is, therefore submitted that the Petitioner that the question of the validity of the order is still open and it is prayed that this Hon’ble Court may adjudicate the same.
• That the Hon’ble Supreme Court in Kailash Chand Sharma v. State of Rajasthan &Ors, (2002) 6 SCC 562. It has been held that residence by itself – be it within a State, region, district, or a lesser area cannot be a ground to accord preferential treatment or reservation.

CONCLUSION

That the impugned Order is in flagrant violation of cherished Fundamental Rights enshrined under Article 21 and Article 14 of the Constitution of India, as “fonsjuris” to the Preambular Goals of our Constitution of establishing a Welfare and a Socialist State.That discrimination perpetrated by this Order is “criminal” and may lead to “medical destitution” of the economically weaker class by treating patient without proof of residence in Delhi as “less equal” than ones with it.