Bad in Law, but not in Taste!

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Ravi Shandilya
The writer is an advocate having more than a decade's experience as an in-house counsel, advisor, and litigator. The writer is a law enthusiast and a perpetual learner. Views are personal and belong solely to the writer. By no means, the views are intended to hurt any religious, ethnic, social, political, and intellectual sentiments of any individual and/or institution.

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On June 7, 2020, the Kejriwal led Delhi Government passed an order to reserve Delhi hospitals specifically for its residents. The executive order, however, did not bring under its ambit, the four hospitals run by the Central Government in Delhi. The order further made an exception to critical care treatments such as oncology, transplantation, neuro-surgeries, road accidents, acid attacks, etc. and said that these treatments shall continue for all patients irrespective of their place of residence.

The decision received sharp reactions and was declared as illegal, draconian and arbitrary by the media and political pundits. Few petitions were also filed before the High Court of Delhi to challenge the vires of the Chief Minister’s Order. However, the petitions became infructuous and the media debates were soon called off because the next day the Lieutenant Governor (hereby referred to as LG) of Delhi passed a parallel order, directing the departments and authorities concerned of NCT of Delhi to ensure that treatment is not denied to any patient on the ground of not being a resident of Delhi. The intervening and overruling LG’s Order was premised on the fact that the right to health is a fundamental right and the Supreme Court of India has recognized the same as an integral part of the right to life.

At the outset, the Lieutenant Governor, being the administrative head of state seemed to be correct in curing the CM’s Order because it was truly on a sticky, legal wicket. However, the important question is that was the CM’s Order an absolute erroneous one, keeping given the global pandemic and the unprecedented crisis which all the stakeholders of the society were witnessing? Was this the first and the only executive order which attempted to undermine and/or breach the fundamental rights of the citizens? Let us delve a bit further and try to get some answers.

Violation of Fundamental rights 

It was 8 pm on March 24, 2020, when the Prime Minister of India came on national television to address the nation about the ongoing global health crisis. The outcome of the address was a 21 day nationwide lockdown was imposed. This was soon followed by an official order issued by the Ministry of Home Affairs. This situation was almost an undeclared social emergency (the term, however, is not defined in the Constitution). Many of the constitutional rights of citizens, and more particularly the fundamental ones went for a toss soon after those 30 minutes of the PM’s address. A bare perusal of the constitutional provisions can establish that the following fundamental rights were violated and/or compromised:

Article 19 (1) (d) – Right to move freely throughout the territory of India (State borders sealed, services of flights, trains, metros, and buses were suspended, movement not allowed, etc.)

Article 19 (1) (f) – Right to practice any profession, or to carry on any occupation, trade or business (Offices were shut down, shops and establishments were closed, people were out of jobs, etc.)

Article 21 – Right to Life, which also includes right to livelihood, right to live with dignity and right to personal liberty (Migrant labors crisis, loss of job and unemployment, police excess in dealing lockdown violations, etc.)

Article 21 – Right to die with dignity (Supreme Court takes suo moto cognizance of undignified treatment, disposal of bodies of corona patients)

Article 21A – Right to Education (Schools were shut down and converted into quarantine centers). Right to Food to the kids was also denied as the mid-day meals were suspended.

Article 32 and 226 – Right to Remedy (Courts taking virtual mode made access to justice a really difficult job for the vulnerable and lesser privileged ones).

Right to Livelihood V/s. Right to Health

The Constitution of India has provided for six fundamental rights to its citizens, in no particular preferential chronological order. However, the Right to Life under Article 21 has to be considered as the most superior and sacrosanct right, because if there is no life, other rights automatically become meaningless. Thanks to some unparalleled judicial activism by the Supreme Court of India, the extended jurisprudence of Right to Life under Article 21 also includes the Right to Livelihood and Right to Health. However, if one has to choose between Right to Health and Right to Livelihood, the latter will unabashedly get precedence. Right to Livelihood, for its obvious nature and reason, has to be considered to be superior to Right to Health, which under the Constitution primarily and originally are within the ambit of directive principles of the state policy, and are not enforceable against the State. The right to life of a person, on the other hand, is inseparable from the right to livelihood.

In the remarkable judgment of Olga Tellis (Pavement dweller’s case), the Supreme Court held that the Right to Life under Article 21 guarantees to the citizens of India the right to earn a livelihood and further held that the State cannot deprive a citizen of his livelihood except in accordance with a  just and fair procedure established by law. A five-judge bench of the Supreme Court implied that ‘right to livelihood’ is borne out of the ‘right to life’, as no person can live without the means of living, that is, the means of livelihood. It, therefore, became more than obvious and explicable, that when the Government of India declared a nationwide lockdown, it would have felt obliged, under the settled law of Olga Tellis, to compensate those whose livelihood would be affected by this lockdown. However, without any choice, means, and caveat, millions of people were deprived of their livelihood almost overnight. In a shameless tale of gross and blatant violations, the executive miserably failed in fulfilling its duty and obligation to examine the scope of its power under the Disaster Management Act to ensure its action is not ultra vires the mandate of Article 21 of the Constitution of India. The Right to Life of the citizens and more particularly the Right to Livelihood was vehemently infringed at the hands of the State itself. The citizens went through a continual pain and agony but still chose to obey the orders because it was a crisis, beyond imagination, and something that was never seen or heard before. Therefore they had no choice but to deal with the government order. 

Right to Health already breached

Now, let’s come back to the LG’s Order which cited the Right to Health to all and overruled the CM’s order to reserve the Delhi hospitals for its residents.  The Prime Minister in his 24th March address to the nation appealed to the citizens to keep their surgeries on hold and avoid visiting hospitals for general check-ups. In an unprecedented move, the OPD service in India’s biggest and arguably the best hospital, AIIMS were suspended. The state borders including internal district borders were sealed. Police assumed an extraordinary power and authority in dealing with all the lockdown violation cases without taking into account the reasons behind the same. There are ample of videos that were circulated in media that can vouch for this undesirable truth. The majority of private practitioners and clinics suspended their medical and healthcare services. Throughout the country, people were denied admission to hospitals and left to suffer in pain. The Lieutenant Governor while putting reliance on the Right to Health has failed to interpret that the term ‘health’ implies more than an absence of sickness. The Lieutenant Governor further failed to appreciate the fact that health is a state of complete physical, mental and social well being and not merely the absence of disease or infirmity, as held by the Apex Court in CESC Limited case. The Right to Health, along with several other basic rights was already compromised and undermined by this pandemic and subsequent lockdown orders, much before the controversial 7th June order. The intervening LG’s Order, therefore, was nothing but a limbo and it is trite law that the legal system does not function in a vacuum.

The Rationale

The national capital is reeling under the crisis of Covid-19. The Delhi government estimates that more than 5.5. lakhs people would be infected in Delhi by the end of July and a total of 80000 hospital beds would be required in Delhi itself to cater to the situation. The CM’s Order, as stated, was based on inputs received from the people; as well as an expert committee headed by Dr. Mahesh Verma, who is a revered health practitioner and academician. The CM’s office further claimed that 90% of 7.5 lakh respondents to the government’s invitation for suggestions had expressed themselves in favor of reserving beds for Delhiites only. It is a matter of record that there are 38 health facilities, including AYUSH hospitals, under the Delhi government, with a combined bed capacity of around 11,000. The five-member expert committee assessed the situation and found that by the end of June, Delhi will require around 15,000 beds to treat corona patients and the same requirement can go up to 80000 beds by end of July 2020. The expert panel further estimated that all beds available for Covid-19 patients would be taken within three days if people from across the country were admitted in Delhi. The CM’s office while justifying its controversial order said that Delhi has never refused treatment to those from other states at any given time, who form more than 60% of patients in Delhi government hospitals. The contentious CM’s Order was only for a limited time and was aimed at “striking a balance” given the alarming situation of Covid-19. 

Public health, along with law and order, is a state subject and falls under List II of the 7th Schedule of the Constitution of India. Since March 24, 2020, when the Prime Minister declared a nationwide lockdown, many states had imposed various restrictions on free movement and also sealed its borders with their neighboring states. There were many states which were reluctant and even refused to take back their migrant workers and students who wanted to come back to their native places. In fact, even after Unlock 1 which is in effect from June 8, 2020, Noida has still kept its borders sealed for people coming from Delhi; Gurgaon and has opened it only a few days back. Rajasthan and a few of the states in the south have continued to keep their borders sealed. 

All these restrictions violate the fundamental rights of the citizens, viz. right to movement, right to earn a livelihood, right to do business and profession, etc. This entire exercise of restrictions by the respective states has been done in view of the extraordinary situation of Covid-19 in order to protect the health, interests, and well-being of its residents. This extraordinary pandemic has created a crisis where the violation of fundamental rights has become a trivial issue. 

Opinion

As of now, the issue seems to be resolved and settled. Underscoring that it is not the time for disagreements, CM Kejriwal stated that the LG’s Order will be followed in true letter and spirit. In my humble opinion, Kejriwal’s Order dated 7th June did not mean to override the fundamental rights of any citizen but aimed to protect the larger interests of Delhi’s residents who have voted him to power with a historical mandate. Like any other Chief Minister, he was well within his rights to seal, limit, and reserve his resources. I would further go and opine that the order was not a restraining order, but merely a regulatory one as it was for a limited time and still allowed treatments in many medical cases in the Delhi hospitals.  The CM’s Order, therefore, may be bad in law, but definitely, it was not bad in taste.


This Article is written by Mr. Ravi Shandilya.

The writer is an advocate having more than a decade’s experience as an in-house counsel, advisor, and litigator. The writer is a law enthusiast and a perpetual learner. 

Views are personal and belong solely to the writer. By no means, the views are intended to hurt any religious, ethnic, social, political, and intellectual sentiments of any individual and/or institution.


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