This article is authored by Bhavya Verma of JEMTEC, School of Law, Greater Noida and curated by Yashasvi Kanodia from NMIMS’ Kirit P. Mehta School of Law, Mumbai.
“No person shall be deprived of his life or personal liberty except according to procedure established by law.”
This right is considered the heart of the Constitution, the most organic and progressive provision of our living Constitution; the cornerstone of our laws.
Right to Health refers to and signifies the most attainable level of health to which every human being has a right. The Right to Health creates an obligation on the States to ensure that the very right is respected, protected and fulfilled, and is duly entitled to all its citizens under Article 21 of the Indian Constitution.
The State of Telangana’s order stated total prohibition on treatment and testing of Covid-19 by private hospital and ICMR approved laboratories. The state submitted that the government hospitals are providing the facilities for free and also that during a medical emergency, the state can put restrictions on the Right to Health under Article 21 of the Constitution of India espoused by ADM Jabalapur v. Shikvant Shukla case. The state further submitted that involvement of the private sectors may increase the spread of the virus.
Observations made by the Court:
The Hon’ble Telangana High Court in the case of Ganta Jai Kumar v. State of Telangana declared that medical emergency of the COVID-19 pandemic cannot be cited as an excuse to infringe the Right to Health under Article 21 of the Constitution of India and every action of the State which affects the rights of the citizens must be supported by reasons so that the Court can know that there has been application of mind to the issue by the concerned authority. The Court does not find any rationale for compelling the citizens to approach the government run hospitals when such citizens wish and are able to pay for the private hospitals and laboratories. The State should preserve its limited facilities for the poorest of the poor by giving them free of cost testing and treatment. The gaps in the state hospitals have been contributed by the private healthcare sector.
The ADM Jabalapur Case has been struck down in the case of Justice K.S Puttaswamy v. Union of India and therefore, the Court noted that no emergency has been declared by the Government under Article 356 of the Constitution though undoubtedly, it is a pandemic and Article 359 of the Constitution of India has been amended in the 44th Amendment Act which says that the President cannot suspend the right to move to the court for infringement of Article 20 and 21 during the time of emergency to seek appropriate reliefs.
The bench further declared that the pandemic has exposed the poor medical services in the state with very few government medical centers, doctors and nurses, lack of medicines, poor infrastructure, and in such a situation, casting aspersions on the private sector is not logical. The bench did not find any logic behind the argument of the State that private sectors may increase the spread of the virus as the private sector hospitals and laboratories would take necessary precautions and care to protect their own lives and those of others to prevent spread of the virus.
The bench consisting of Justice MS Ramachandra Rao and Justice K Lakshman observed that the said order of Telangana Government is illogical, without legal basis, patently arbitrary and unreasonable especially when the Union Government has emphasized on the participation and support of private health care sectors. The Indian Council for Medical Research (ICMR) has granted private laboratories to test COVID-19 infection.
The Court added the famous statement of Lord Atkin in the case Liversidge v. Anderson quoting, “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 is very appropriate.”
The Court further showing its concern, stated that the State of Telangana has a population of 3.5 crores and with the easing in lockdown guidelines, it is expected that the spread of virus may increase and the few government testing centres and hospitals cannot be expected to deal with the huge surge of infections.
This was also manifested in the establishment of the “Arogyasri” scheme in Telangana, which the Court pointed out was a scheme that allowed medical treatment in private institutions, which could later be reimbursed by the State.
The bench further raised its concern that the figures shown by the state of COVID-19 are not accurate and the same is being doubted by the Union of India, thereby forcing them to send teams from Ministry of Health, New Delhi to verify the actual situation prevailing in the state.
Directions issued by the Court
Ultimately, the Court allowed the PIL filed to challenge the complete ban on private hospitals and testing laboratories in Telangana to treat / test COVID-19.It directed as follows:
- The State cannot compel the citizens to get COVID-19 testing from only government sectors; if people are willing to pay the costs and obtain their blood samples tested in private ICMR approved laboratories or private sector hospitals with the necessary infrastructure, they should be allowed for the same.
- Citizens and residents of the State of Telangana shall have the right to be tested on a payment basis for COVID-19 in any private laboratory currently approved by the ICMR or to be approved at such rates as may be determined by ICMR or any other competent authority of the Union of India in the future.
- The order issued by the State Government of Telangana was held to be unconstitutional.
- Only those private hospitals which are approved by ICMR shall be permitted to treat COVID-19 patients. Private hospitals may seek the said application from ICMR.