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Inter-State Restrictions On COVID Patients' Access To Medical Care : Breach Of Constitutional Mandate

Baglekar Akash Kumar
25 May 2021 4:39 AM GMT
Inter-State Restrictions On COVID Patients Access To Medical Care : Breach Of Constitutional Mandate
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To curb the spreading of COVID disease from other States in this second wave of ravaging COVID-19 pandemic, the Government of Telangana had issued Guidelines on 11th May 2021, wherein, the COVID patients from other States, who want to get hospitalized and take treatment in hospitals in Telangana, were allowed to cross the State's border only if they were authorised by the...

To curb the spreading of COVID disease from other States in this second wave of ravaging COVID-19 pandemic, the Government of Telangana had issued Guidelines on 11th May 2021, wherein, the COVID patients from other States, who want to get hospitalized and take treatment in hospitals in Telangana, were allowed to cross the State's border only if they were authorised by the State's control room. To get the travel authorisation, the patients from other States shall have a prior tie up with a hospital in Telangana, which in turn will apply to the control room stating that it can accommodate the patient in its hospital. Then the control room issues travel authorisation. The said Guideline has been issued invoking Epidemic Disease Act, 1897 and the Disaster Management Act, 2005.

The COVID patients from other States without travel authorisation were not allowed to cross the State's border, and were returned back. Because of this, it was reported, two COVID patients died while waiting at the State's border.

Responding immediately, a two-judge bench of the Telangana High Court, comprising of Chief Justice Hima Kohli and Justice B. Vijaysen Reddy, sat on 14th May 2021, despite the court's summer vacation and "stayed" the operation of the Guideline, till further orders. The court observed that "No State action can be validated that results in avoiding or delaying access to medical assistance when a patient is in a dire need of such a treatment". It also observed that the act of the State violates sacrosanct right to life guaranteed under Article 21 and operates as a fetter on right to move freely throughout India as enshrined under Article 19(1)(d) of the Constitution of India.

After the Telangana High Court directed the Government of Telangana to allow movement of patients from other States to avail medical treatment in hospitals in Telangana, the Government, this time, started an indirect way of restricting movement of COVID patients. Also, all other vehicles entering Telangana from Andhra Pradesh (A.P.) are also stopped as the Telangana police refused to accept the e-passes issued by A.P. police.

When, during the COVID 1.0, Karnataka Government resorted to similar act by closing its borders for the residents of Kerala, the Kerala High Court observed that restriction on free movement is violative of Article 19(1)(d). And right to access to health is a fundamental right under Article 21, besides Government being under an obligation to provide "medical treatment" as per Article 12 of the International Convention on Economic, Social and Cultural Rights, to which India is a signatory. Also, restriction on transportation of essential food articles breaches Articles 301 to 304 of the Constitution of India. The Kerala High Court directed the Central Government to ensure that roads are kept free of blockades, as National Highways come under administrative jurisdiction of the Central Government.

The Courts response might be called, in some quarters, as "judicial overactivism", but as American jurist Ronald Dworkin, in his book Law's Empire, said - "people often stand to gain or lose more by one judge's nod than they could by any general act of Congress or Parliament (here, executive)", hence, this act of court ensured that atleast some lives might get saved after receiving proper treatment in the hospitals in Hyderabad.

So far as "competency" of the Governments to issue such Guidelines is concerned, there should not be any quibble on it, because such Guidelines can be issued invoking the colonial-era's loosely worded Epidemic Disease Act, 1897 or the Disaster Management Act, 2005. But the question that emanates is whether such Guidelines violates any "fundamental right" guaranteed by the Constitution or is it a reasonable restriction on such fundamental right considering the unprecedented pandemic situation?

After Maneka Gandhi v. Union of India, [(1978) 1 SCC 248], Articles 14, 19 & 21 of the Constitution became such a strongly inoculated triangle that no virus of State's unjust and unfair acts could easily breach their immunity. Therefore, when Article 14 urges from State equal treatment to all equally placed persons (here, COVID patients), and when Article 19(1)(d) allows every citizen to move freely throughout the territory of India, and when bouquet of rights under Article 21 allows an individual to live and enjoy a dignified life, then one State cannot trim other State's residents life-span by restricting their movement, thereby depriving them to avail the best of health remedies.

The Government might argue that seeing the aggravating condition due to COVID, it has taken such decision in the "interest of general public", hence its Guideline is a "reasonable restriction". Infact, in State of U.P. v. Kaushailiya (AIR 1964 SC 416), it was observed by the Supreme Court that "the reasonableness of a restriction depends upon … the circumstances obtaining at a particular point of time when the restriction is imposed, the degree and the urgency of the evil sought to be controlled and similar others". But as Ronald Dworkin in his book, Taking Rights Seriously, rightly says that if a man has fundamental right against the Government, then the invasion of such important right means treating a man as less than a man or as less worthy of concern than other men.

Conspectus of the above discussion is that a patient has a fundamental right to avail the best medical treatment in a place of his own choice in India, subject, of course to the condition that he can afford the private treatment.

In this difficult times, we have to fight against the virus unitedly. And if States fight dividedly by not allowing other States patients by resorting to other similar acts, we will never break the virus chain, instead we will be break down by the virus.

Although, at the time of framing the constitution, none of the constitution framer might have thought that the COVID-like-pandemic will wreak such a havoc in the country where the administration - if it is trying to save lives, ends up depriving livelihoods and if it is trying to save livelihoods, ends up loosing lives (both features of fundamental right), but, nonetheless, constitution framers mandated the State, through Directive Principles of State Policy, to raise the level of nutrition and improve public health by taking them as among its primary duties (Article 47). And the judiciary went a step further and declared "maintenance and improvement of public health as part of Article 21" in Vincent Panikurlangara v. Union of India, [(1987) 2 SCC 165], but, the successive Governments took - investment on defence, rampant corruption, unnecessary freebies - as among their primary duties, thereby leaving health sector to take a back seat or no seat at all - the direct result of which is - lack of infrastructure and medical facilities to deal with COVID-like-diseases and the loss of several innocent lives.

Atleast, it is hoped that, from now onwards, the governments give lion's share to education and health sectors, so that nation becomes self-reliant and healthy.

Views are Personal.


 


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