The Telangana High Court on Wednesday observed that a medical emergency is not an excuse to trample on the fundamental rights of a citizen under Article 21 of the Constitution.
Holding thus, the Court quashed a government order which compelled citizens to get testing and treatment for COVID-19 from designated government hospitals and prevented them from approaching private hospitals and laboratories for such purposes even though they have requisite approval from the ICMR.
The Court was unable to agree with the contention of the Advocate General for the State of Telangana that there is a state of emergency in the State in view of the Covid-19 pandemic and that such emergency justifies the State action.
"Admittedly, no emergency has been declared by the Government under Art.356 of the Constitution of India, though there is a pandemic situation undoubtedly.", it stated.
Besides, it expressed that Art.359 has been amended by the Constitution (44th Amendment) Act to say that the President cannot suspend the right to move a court for violation of Art. 20 and Art.21 even in an emergency and seek appropriate relief.
"The basis of the above decision (in ADM Jabalpur) was that Constitution was supreme and if it ordains that a person who is detained otherwise than in accordance with law would not be entitled to enforce the right of personal liberty, the Court was duty bound to give effect to it...But this decision was expressly overruled by a 9 Judge Bench of the Supreme Court in K.S.Puttaswamy v. Union of India", stated the judgment in the instant case Ganta Jai Kumar vs State of Telangana and others.
The Court also quoted the famous words of Lord Atkin in Liversidge v. Anderson that:
"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."
In this backdrop, the Court said :
"This above decisions of the Supreme Court are a complete answer to the plea of the Advocate General that because there is a medical emergency or a war emergency, anything can be done by the State including arbitrarily restricting the right to health conferred under Art.21 on a citizen of the State.
An emergency of any sort is not an excuse to trample on the rights under Art.21 and the Courts have the power to see that the State will act in a fair, just and reasonable manner even during emergencies. Whether the State has done so or not is judicially reviewable in the light of the law laid down by the Supreme Court", observed a division bench comprising Justices M S Ramachandra Rao and K Lakshman.
[COVID-19] 'State Cannot Compel Testing/Treatment In Govt. Facilities When Citizens Willing To Bear Expenses Of Eligible Private Entities': Telangana HC
Private entities not prevented from dealing with the pandemic
The Court proceeded to observe that there is no power in Sec.2 of the Epidemic Diseases Act, 1897 either to prevent private hospitals from testing suspected any victim of an epidemic such as COVID-19 patients or treating confirmed infected patients. In fact in that era (pre 1900), the concept of private sector participation in health care was hardly there in India.
"The Ministry Of Health and Family Welfare, Union of India and the ICMR cannot be said to have ignored these provisions of the Epidemic Diseases Act,1897 and this Court has good reason to believe that the Union of India and the ICMR did give due consideration to this provision of law while permitting testing and treatment of COVID-19 patients by private laboratories and hospitals", commented the bench.
Moreover, it noted that by issuing a set of guidelines called "Guidelines for notifying COVID-19 affected persons by Private Institutions", the Union of India had clearly applied it's mind to the provisions of the above Act which permit the Government "to take measures necessary to prevent the outbreak and spread thereof" by permitting private laboratories and hospitals also to be involved in the said prevention and outbreak and spread of the epidemic.
"The State Government, in it's counter, has not questioned the wisdom of the Union Government and the ICMR in permitting private laboratories to achieve the very object of prevention and spread of the epidemic. On the other hand, the respondent No.s 1-4 appear to have to come to the opposite conclusion, contradicting the wisdom of the Union of India and an expert body like ICMR", the Court remarked.
"It is not so that there is a cure for the COVID-19 virus, that only Gandhi Hospital in the State of Telangana has got a vaccine for it, and so everybody in the State of Telangana, who is infected with the virus has to go to the said hospital. May be the facilities in the said Hospital or other designated Government Hospitals are very good, but that does not mean that the respondent , under the guise of taking steps to prevent the spread of the Pandemic, restrict the liberty and freedom of a citizen to choose his own doctor and hospital and force him to take a test for COVID-19 infection or treatment from Government sources, if found to be infected with the said virus", the Court articulated.
It asserted that Free of cost testing for the virus can be given by the respondent to those who cannot afford the private laboratory/private hospital facilities and it can thus the State can conserve it's financial resources which have been greatly reduced by the lockdown it has imposed for more than 2 months.
Besides, it was found that the excuse of coordination among various departments of the State of Telangana for identifying and tracing contacts, isolation/quarantine, creating containment zones, buffer zones, initiate disinfection etc, can hardly be a reason to restrict the citizen's right to get quick test from an ICMR approved private laboratory or get treatment in a private hospital of his choice. The private laboratories or the private hospitals can also be directed to report the COVID-19 positive cases so that all the measures mentioned above can then followed up by the respective departments.
Moreover, the Court observed that in the State of Telangana and previously the composite State of Andhra Pradesh, there is a scheme for at least last 20 years called "Arogyasri" run by its "Arogyasri Health Care Trust" where it facilitates poor people to be given diagnosis and treatment in designated Private health care institutions which are reimbursed by the State later.
"The State cannot forget that because of it's Hospitals' inability to provide quality proper medical care to all the poor, it has encouraged Private Sector Medical Health Care in the State and schemes such as the "Arogyasri" scheme run by it's "Arogyasri Health Care Trust". The Covid-19 pandemic has exposed the poor medical infrastructure in the States where there are too few Hospitals/Primary Health centers, too few Doctors and nurses in Government sector, lack of medicines, and general poor quality medical infrastructure with honourable exceptions", the court said.
It continued to observe that in fact the long lockdown was imposed to ramp up the medical infrastructure – buy more medicines, create more isolation facilities, get more ventilators, import a lot of testing kits etc. "
In this scenario to cast aspersions on all Private Sector hospitals/ private testing laboratories, may not be proper, ironically when respondents permit the poor to go some of such private corporate hospitals for treatment for other diseases under the "Arogyasri" scheme", reads the judgment.
Moreover, the Court took note of the fact that the lock down is slowly being eased to reduce the financial hardship to the State and private businesses; on 11.5.2020, even train travel bookings were started by Indian Railways; Liquor outlets have been opened by that date; in orange and green zones certain limited industrial activity has also been allowed to commence.
"After easing of lock down at some point of time, it is widely expected that infections would increase. The State of Telangana has a population of about 3.5 Crores, and the few Government testing centers/ few Government designated hospitals, cannot reasonably be expected to deal with the possible huge surge in infections", it stated.
The Court ultimately held that the state cannot compel residents of Telangana to get (a) testing for COVID-19 in NIMS/Gandhi Medical Hospital or only in the other designated laboratories decided by them and (b) treatment/isolation only in hospitals designated by them, when the residents are willing to pay the cost and get their blood samples tested in the private ICMR approved laboratories or private sector hospitals having the requisite infrastructure by paying the requisite charges.
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