Place of Residence As A Criterion To Avail Health Benefits: Making A Case Under Right To Health

By Harsh Khanchandani

BACKDROP

The COVID-19 pandemic has raised repeated concerns about how scarce resources can be allocated to public health. Hospitals and governments were forced to make several tough decisions on how to coordinate the treatment of different groups of COVID-19 patients and other categories of patients needing hospitalization and urgent care. In light of the above situation, the Government of Delhi passed an order dated 7th June 2020¹ which only permitted Delhi’s “Bonafide Residents” to take advantage of hospital services in the state. This included state hospitals as well as private ones. The above order was passed by exercising powers given under Delhi Epidemic Diseases, COVID-19, Regulations, 2020.² These regulations were facilitated by the Epidemic Diseases Act, 1897 which authorized the secretary of Health and Family Welfare department to take containment measures for an epidemic (here COVID-19). The main reasoning given behind this decision was overburdening of health care facilities in Delhi with people from across the country pouring in for treatment.

However, viewing it from a different perspective this decision is a gross violation of Constitutional provisions of Right to Health which is an integral part of Right to Life.³ While most people have not raised voice, such new measures are highly invasive and risk the stigmatization and abuse of individuals who are suffering from the virus and are from outside Delhi.

CONSTITUTIONAL PERSPECTIVE

This process of classifying patients based on having a Delhi resident ID, or otherwise, is not only discriminatory and infringes a citizen’s Fundamental Rights under Articles 14 and 21 but also in nonconformity with Article 47 of the Indian Constitution. Providing health facilities to each and every person is a constitutional obligation. The State can classify people into different categories for the provision of health facilities by following a principle of reasonable classification which must have a connection with the purpose to be attained⁴. However, in the present case, the classification cannot be said to be based on any intelligential or scientific ground.

ARTICLE 21⁵

Health care service and its accessibility to a person is a right provided under the Constitution. It places an obligation on the state to take all measures which are required to ensure that every individual has free and equal access to health services and treatment in a hospital. Besides, Article 21 of the Constitution places not only a constitutional duty on the State but also a legal responsibility to guarantee access to medical care, medication, and other facilities. The Hon’ble Supreme Court in the case of State of Maharashtra v. Chandrabhan Tale⁶ held that the right to life enshrined under Articles 21 of the constitution means more than mere survival. It includes every aspect of life ranging from making an individual’s life meaningful, worth living, and complete. In the case of Ex-Servicemen Assns. v. Union of India⁷ it was stated that the non-availability of supporting healthcare services cannot be a basis for a State to say that it cannot make treatment facilities accessible.

Further in the case of Paschim Banga Khet Mazdoor Samity & Ors. v. State of West Bengal & Ors⁸ the Hon’ble Supreme Court stated that the constitution facilitates the establishment of a welfare state and the sole objective of it is to ensure the welfare of citizens. It was further stated that providing adequate medical and health care facilities is not only essential but also an obligation that the government needs to fulfill. It was also in this case where the courts declared denial of medical aid during an emergency as a violation of mandate under Article 21 of the Indian Constitution. In light of the above provisions and case laws, it is evident that the state has failed to take necessary measures in order to protect the basic right of health of its citizens.

ARTICLE 14⁹

Discussing from the perspective of article 14 the Constitutional Bench of the Hon’ble High Court at Kolkata, in the case of State of West Bengal v. Anwar Ali Sarkar,¹⁰ stated “―In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that that 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 distinct things and what is necessary is that there must be a nexus between them.” Thereafter, in another case of Confederation of Ex-Servicemen Assns. v. Union of India,¹¹ the above principle was reiterated and discrimination done based on the classification was set aside. In the present case, both of these justifications do not meet the dual test for classification.

A legislative classification is said to be valid when it is reasonable. It should always rest upon some substantial or real distinction bearing a reasonable relation to the need and purpose in respect of which classification is made.¹² In view of the same steps taken by the government can be said to be a gross violation of fundamental rights as there is no reasonable nexus between the classification and the purpose of the legislation. Similar was observed in the case of Kailash Chand Sharma v. State of Rajasthan & Ors¹³ where the court was of an opinion that residence be it within a state, district or any other area cannot be a basis for preferential reservation or treatment.

In another case of Social Jurist, Civil Right Group v. Govt. of NCT of Delhi and Another,¹⁴ the court had a similar situation in front of it. The petitioner in this case filed a writ petition against an order given by the medical director of Guru Teg Bahadur Hospital wherein patients with no valid voter ID card of Delhi were treated as outsiders and thereby denied availing any health care and treatment benefits in the government hospital. The court in this case analysed the situation in the backdrop of several legal provisions like Article 14 & 21 and declared “Denying patients medical treatment on the ground of not being residents of NCT of Delhi is impermissible.” The court in the above case relied on Bir Singh v. Delhi Jal Board¹⁵ where the bench examined the validity of reservation for the locals in Delhi’s medical college and J. Pandurangarao etc. v. Andhra Pradesh Public Service Commission¹⁶ where the case dealt with Article 14 and the principle forbidding class legislation.

ARTICLE 47¹⁷

This article directs the state to raise the level of nutrition, improve public health, and increase the level of standard of living as amongst its primary duties. While not legally enforceable, it acts as a guiding force that directs the state for its effective functioning. Improving public health constitutes a very significant element of this article. As one person’s right is correlated with another’s duty, on similar lines right to health is directly proportional to the State’s duty as held in the case of Ram Lubhaya¹⁸.

CONCLUSION

Similarly, the above order given by the secretary in the backdrop of various legal principles is a trial to create a class within a class, and thereby providing medical and health benefits on such classification can be regarded as impermissible. Even after Lieutenant Governor of Delhi overruled the order¹⁹ by virtue of the powers given to him under Section 18 clause 3 of the Disaster Management Act, 2005²⁰. The Decongestion of hospitals by prohibiting medical treatment to non-residence has no rationale behind it. Furthermore, it is a clear violation of Article 47 and Article 15(2) of the Indian Constitution which lays down primary duty on part of the state to improve public healthcare and prohibits discrimination on the ground of birth respectively. With thousands of lives at stake, such measures must not come in the way of ensuring welfare to the citizens of our country. Only the integrity and unity of the nation would help us flight this deadly pandemic.

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[1] Sourav Roy Barman, Only Delhiites will get beds in private, Delhi govt-run hospitals, Indian Express (July 10,2020, 10:30 AM), https://indianexpress.com/article/cities/delhi/only-delhiites-will-get-beds-in-private-delhi-govt-run-hospitals-6447863/.

[2]See The Delhi Epidemic Diseases, COVID-19 Regulations, 2020 at https://main.sci.gov.in/pdf/cir/covid19_14032020.pdf.

[3] State of Punjab v. Mohinder Singh Chawala. A.I.R 1997 S.C. 1225.

[4] Shri Ram Krishna Dalmia vs Shri Justice S. R. Tendolkar., AIR 1958 SC 538.

[5] Constitution of India, 1950, Art. 21 (India).

[6] State of Maharashtra v. Chandrabhan Tale., AIR 1983 SC 803.

[7] Confederation of Ex-Servicemen Assns. v. Union of India., (2006) 8 SCC 399.

[8] Paschim Banga Khet Mazdoor Samity & Ors. v. State of West Bengal & Ors., (1996) 4 SCC 37.

[9] Constitution of India, 1950, Art. 14 (India).

[10] State of West Bengal v. Anwar Ali Sarkar., AIR 1952 SC 75.

[11] Confederation of Ex-Servicemen Assns. v. Union of India., (2006) 8 SCC 399.

[12]V.N. Shukla, Constitution of India 387 ( 13th ed. 2017).

[13] Kailash Chand Sharma v. State of Rajasthan & Ors., (2002) 6 SCC 562.

[14] Social Jurist v. Govt. of NCT of Delhi., Civil Appeal №6833 of 2012 (for directions) in W.P.© 8434 of 2011.

[15] Bir Singh v. Delhi Jal Board., (2018) SCC Online SC 1241.

[16]J. Pandurangarao etc. v. Andhra Pradesh Public Service Commission, Hyderabad & Anr., AIR 1963 SC 268.

[17]Constitution of India, 1950, Art. 47 (India).

[18] State of Punjab and Ors v. Ram Lubhaya Bagga., (1998) 4 SCC 117.

[19] FE Online, LG reverses Arvind Kejriwal’s order on hospitals; CM says huge problem for Delhi people, Financial express (July 14, 2020, 10:30 AM), https://www.financialexpress.com/lifestyle/health/delhi-hospital-lg-anil-baijal-arvind-kejriwal-order/1985097/.

[20] Disaster Management Act, 2005, Section 18(3) (India).

The author is a Year II B.A.LL.B student at the Symbiosis Law School, Pune.

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