The Healthcare Conundrum and Article 21

Right to Life mentioned in Article 21 of the Indian Constitution has been considered to be one of the essential rights available to the citizens. According to the article, “No person shall be deprived of his life and personal liberty except according to the procedure established by law.” A vital indicator of the socio-economic development of a nation is the health of its citizens. India has recognized the importance of the right to health care and protection since early times. Being a founder member of the United Nations, the nation ratified several international conventions promising to uphold security in the sphere of health and right of individuals regarding the same. Although the Indian Constitution does not unambiguously recognize the fundamental right to health, Article 21 of the Constitution of India guarantees a fundamental right to life & personal liberty. This article explains life with human dignity and not mere survival or animal existence. The provision guarantees everyone rights to the highest attainable standard of physical and mental health. Moreover, the right to health is considered integral to the right to life and the government has a constitutional obligation to provide health facilities. The violation of a patient’s right to life may result from the failure of a government’s hospital to provide timely medical treatment. Similarly, the state’s obligation to maintain health services has been upheld by the Court. Public interest petitions have been filed under Article 21 in response to various violations of the right to health. An appeal was filed regarding the rights of HIV/AIDS patients.

hands with latex gloves holding a globe with a face mask
Photo by Anna Shvets on Pexels.com

The above-mentioned article prohibits the deprivation of people regarding the protection of life and personal liberty except according to a procedure established by law. It corresponds to the Magna Carta of 1215, the Fifth Amendment to the American Constitution, Article 40(4) of the Constitution of Eire, 1937, and Article XXXI of the Constitution of Japan, 1946. This article applies to all-natural people. It is available to each person, citizen or alien. Thus, even a foreigner can claim this right. Article 21, however, does not entitle a foreigner to reside and settle in India, as mentioned in Article 19 (1) (e).

The preamble of the Constitution of India strives to provide for a welfare state with Socialistic patterns of society. Article 21 of the Constitution guarantees the right to life and personal liberty aimed at improving the condition of health care of the people. The principle of socialism is also embodied in various provisions of part III & part IV of the Constitution. Part IV of the Indian Constitution which is the Directive Principles of State Policy (DPSP) imposed a duty on states related to the health sector. The provisions in the DPSP directed the state to take measures to improve the condition of health care of the people. Article 21 of the Indian Constitution should be read with Articles 38, 42, 43, and 47 to understand the nature of the obligation of the state regarding observation of the effective realization of this right. Article 38 imposes liability on the state to secure a social order for the promotion of the welfare of the people. Article 39(e) explains how the health of workers is to be protected. On the other hand, Article 41 imposed a duty on the state to provide public assistance to those who are sick and disable. Article 42 it’s a primary responsibility of the state to protect the health of infant & mother by maternity benefit. Article 47 spells out the duty of the state to raise the level of nutrition and the standard of living of its citizens as a primary responsibility. Supreme Court, in its landmark judgment in “Pramand Katara V Union Of India & others” ruled that extension of health services with due expertise to protect right to life was a professional obligation of every government and private hospital. No law or State action can intervene to avoid or delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute, and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained, and must, therefore give way.

Irrespective of the Constitution guaranteeing such a right to the people of India, Chief Minister Arvind Kejriwal recently announced on Sunday that hospitals in Delhi city would only be catering to the residents of Delhi till the rising COVID-19 cases are contained. This move gave rise to a ruckus amongst the mass followed by mounting accusations regarding several instances concerning the poor treatment at Delhi Hospitals in the social media platforms. It was informed that to identify residents, voter IDs, bank passbooks, ration cards, driving licenses, and phone and electricity bills in addition to Aadhaar cards issued before June 7 will be used. In addition to this, the Delhi government also decided to open the borders of the city from June 8. However, while making such an announcement, Mr Kejriwal added that several Central government hospitals in the city would continue to treat all patients, irrespective of their residence.

The decision of the Kejriwal government was countered by a sharp response from the Congress government. Delhi Congress leader, Ajay Maken, believed pieces of evidence showed that 33 out of the 38 government hospitals seemed to be not treating COVID-19 patients. Ajay Maken also made it clear that he was against Delhi’s move regarding unlock that would throw open the gates of several malls, restaurants, and places of worship from Monday. Claiming the prevailing pandemic to be a huge and unprecedented challenge, Mr Kejriwal while addressing an online press conference, urged that the maintenance of a balance of hospital beds was necessary. “For now, we have decided that the 10,000 beds under the Delhi government will be kept for residents. The beds under the Central government can be used by all,” said Mr Arvind Kejriwal.

“The decision was taken after nearly 90% of people of the 7.5 lakh people who sent their suggestions said that till the COVID situation exists, the Delhi hospitals should be reserved for the people of Delhi,” the Chief Minister said. The decision of the city and its people regarding reservation of hospital beds has been cited as the source for such a move by the government. A five-member expert committee studied the situation in light of the increasing number of cases and concluded Delhi by the end of June would face a requirement of nearly 15,000 beds for COVID-19 patients. “They have suggested reserving the Delhi hospitals for the people of Delhi because if we open the hospitals for all then the COVID beds we have will be filled within three days,” said Mr Kejriwal.

It is believed that 60-70% of patients in Delhi hospitals are usually from other States and the government has never denied treatment to anyone. However, the current scenario has compelled the government to arrange more beds for the people of the city. Dr Randeep Guleria, direct of the All India Institute of Medical Science, responding to the new order by the government made it clear that living with COVID-19 is now the new normal for all of us. “Every individual should take the responsibility to protect oneself and family from COVID-19 and arrest the spread of the virus,” Dr Guleria said. Nevertheless, the Arvind Kejriwal-led government’s decision to “reserve” government-run and private hospitals for the treatment of solely Delhi residents was struck down by Delhi Lieutenant Governor (LG) Anil Baijal reported several media houses on 9th June.

Order of the Lieutenant-General, Anil Baijal, was based on several verdicts of the Supreme Court asserting that the right to health was an integral part of the right to life and is guaranteed by the Constitution. Baijal reiterated that all government and private hospitals and nursing homes are to extend COVID-19 treatment facilities without discrimination against residents or non-residents. In response to the order, Mr Arvind Kejriwal stated that such a decision meant trouble for Delhi as the number of people infected was increasing day in and day out. Controlling the virus now seemed to be a bigger challenge than it was before as providing treatment to Corona infected patients coming from all over the country would put a crimp in the treatment of infected patients who are residents of the city.

LG responded to the decree issued by the Chief Minister of Delhi with criticism along with the claim that such a move was ‘unconstitutional’. A statement issued by the LG’s office clarified the official position on the matter which was articulated in a meeting held by the State Disaster Management Authority (SDMA) headed by the LG himself. “In the meeting today, it was clarified by Hon’ble Lt. Governor that he had reversed the order of Delhi Government as it violated the constitutional rights of Equality and Right to Life which include Right to Health. A similar directive earlier issued by GNCTD to discriminate in providing healthcare facilities to patients based on their residence was struck down by the Hon’ble High Court of Delhi,” read the statement.

In light of these informative pieces, it can be very well said that the decision of the government to roll out such a measure to cope up with the pandemic is erroneous, to say the least. It cannot deny any citizen or an alien treatment on any ground whatsoever. A capital city of a nation is one from where the government of a particular country functions and also, is in the limelight on all occasions. As a result, such an order had the potential to draw negative media coverage and global criticism. This authoritative directive by the Delhi government, furthermore, encouraged to some extent the deprivation of people in the field of health which is, in turn, a conceptual contrast to the right guaranteed by the Constitution of India in Article 21. Moreover, the statement issued by the office of the LG regarding a large increase in the sphere of activity concerning the medical infrastructure of the city made clear that the utilization of several banquet halls, marriage places, etc., was decided.

By: Sagarika Mukhopadhyay

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