The Covid-19 pandemic has repeatedly thrown up questions regarding how scarce public health resources should be allocated in a pandemic. Hospitals and governments have been forced to take several hard decisions on how to prioritize treatment of different categories of Covid-19 patients and other types of patients needing hospitalization and emergency care. Early in the crisis, Bhopal saw this in a stark way. The Madhya Pradesh government had initially taken over a hospital that was established specially for the Bhopal Gas Tragedy victims and reserved it exclusively for Covid-19 patients. This decision was reversed only after protests and legal action being taken by the survivors of the Bhopal Gas tragedy. Thereafter, reports have continued streaming in from all over the country about private hospitals turning away Covid-19 symptomatic patients, or patients suffering from health issues other than Covid-19 on account of resource constraints. Reports are also streaming in about curtailed testing for the same reasons. The latest significant development on this front is the Delhi Government's decision to restrict the availability of treatment at Delhi government hospitals in the city only to the residents of Delhi and also requiring private hospitals in the city to reserve beds for Delhi residents.
New Delhi, being the national Capital, has long been the beneficiary of substantially high allocation of funds for the city's growth. Garga Chatterjee, in an article on Firstpost, notes that the city's infrastructure greatly benefits from tax revenue collected from the various States. In perhaps a provocative exaggeration, Chatterjee claims that the Capital "resembles the imperial seat of an empire." However, the city undoubtedly boasts some of the best hospital facilities in the country, and benefits from a bevy of hospitals funded by the Central and State Governments, as well as several excellent private hospitals. 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. It is also an arbitrary denial of the fundamental right to healthcare and therefore violates Articles 14 and 21 of the Constitution for the reasons I state below.
In the public health administrative framework, allocative decisions relating to scarce medical resources within a hospital are generally taken under the rubric of "triage". Triage essentially refers to a process of sorting patients based on their need for immediate medical treatment as compared to their chance of benefiting from such care. The National Disaster Management Guidelines on the Management of Biological Disasters (the "Guidelines"), accessible here, 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. 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.
The Delhi government's decision to restrict health care at its government hospitals to residents of the city was announced by its Chief Minister Arvind Kejriwal at a press conference. At the press conference, Kejriwal added that even private hospitals will have to reserve beds for Delhi residents. He however clarified that Central Government hospitals in the city would however be open to all. Presently, it is not clear as to precisely what legal form the Delhi government's decision would take, but the decision was reportedly taken by the Cabinet and it would likely be implemented through some form of administrative order issued by the Delhi Government's Health and Family Department. If such an administrative order is issued, I submit that it would firstly be arbitrary and violate Article 14 of the Constitution, since it will deny access to critical health care to patients who require it, on a consideration other than their clinical need as assessed by a team of qualified doctors.
Secondly, the Supreme Court has often recognized a fundamental right to healthcare as flowing from Article 21 of the Constitution. In State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83, the Court observed that the "right to health is an integral to right to life. Government has constitutional obligation to provide the health facilities." In Ashwani Kumar v. UOI (2019) 2 SCC 636, the Court emphasized that "the State is obligated to ensure that these fundamental rights are not only protected but are enforced and made available to all citizens." (emphasis supplied). In Navtej Singh Johar vs. Union of India, the Court observed:
"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
Since the right of access to health care is a fundamental right guaranteed by Article 21 of the Constitution, any curtailment of such right would at the least need legislative backing, i.e., the restriction must be imposed through "procedure established by law". Any such restriction without legislative backing will certainly be unconstitutional.
More fundamentally however, the Delhi government's decision is a frontal attack on the constitutional value of fraternity and the idea of India's unity and nationhood. Our founding fathers were keenly aware of the fragile, unstable nature of the Indian union and the fissiparous tendencies of its constituent units. It is for this reason that our Constitution's Preamble 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". Liberty and equality have received the lion's share of attention in our public debate. However, at a time of national health crisis and scarcity, our spirit of brotherhood and fraternity is coming under severe strain. We seem to be unwilling to lend a helping hand to those of our country men and women who most need it. This is perhaps the product of an unforgiving and vicious political atmosphere that has lasted several decades and has been filled with devastating, hate-filled, dog-eat-dog political manoeuvring. There is a crying need for us to again reflect on the ideals and hopes our founding fathers had for us. In 2011, to celebrate Rabindranath Tagore's 150th birth anniversary celebration, the Indian Government had instituted a prestigious international award in his name to "recognise very distinguished contributions towards the promotion of international brotherhood and fraternity." That great poet dreamt of our country as a place "where the world has not been broken up into fragments by narrow domestic walls." Nine years have passed from 2011, and we have come to the sorry pass of forgetting even national, let alone international, brotherhood. The time has come to stem this tide. We must start somewhere, and a pandemic seems as good a place as any.
(Goutham Shivshankar is an Advocate-on-Record at the Supreme Court. He may be reached at firstname.lastname@example.org and tweets at @gousgame. Views are personal)