Does Delhi Government’s Order on COVID-19 Treatment Based on Place of Residence Pass the Test of Constitutional Validity?

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The present article delves into the constitutional validity of the order passed by the Delhi Government. The order restricted the beds of state and private hospitals only to Delhi residents.

Delhi Government’s Order

Due to a surge in the number of cases of COVID-19, Delhi Government, on 7 June 2020, passed an order. It allowed only “Bonafide Residents” of NCT of Delhi to avail the services of hospitals. This includes both state and private hospitals. Before this decision, CM Arvind Kejriwal asked for suggestions from the “Aam Janta”. Also, he constituted a five-member committee to look into the matter. 90% of the people were in favour of the decision to restrict Delhi hospital beds only for the residents. Subsequently, the committee concluded that if the beds are kept open to the outsiders, they would be filled in a matter of two days. In addition, the committee said documents like Passport, Voter ID or Ration Card would be proof of residence.

The government passed the order by exercising their powers conferred to them under Delhi Epidemic Diseases, COVID-19, Regulations 2020. These regulations were laid down under the Epidemic Diseases Act, 1897. The Secretary of Health and Family Welfare can take containment measures for COVID-19. The Department of Health and Family Welfare directs him to take steps. Section 16 of the Regulation authorizes the government to do so.

It would not have any effect on the functioning of Central Government hospitals. Also, it wouldn’t affect private hospitals that undertake specialized surgeries. Furthermore, victims of road accidents and acid-attack victims could avail the services. They can get treatment irrespective of the place of residence.

Lieutenant Governor Overruling the Order

After the government’s order, Lieutenant Governor of Delhi, Anil Baijal passed a parallel order. This order directed hospitals not to deny treatment based on place of residence. He is the Chairperson of the Delhi Disaster Management Authority. He passed the order under the powers conferred to him by Section 18(3) of the Disaster Management Act, 2005. Section 18(3) says:

“The Chairperson of the State Authority shall, in the case of emergency, have the power to exercise all or any of the powers of the State Authority. The exercise of such powers shall be subject to ex post facto ratification of the State Authority.”

LG Anil Baijal recognized that the Supreme Court has held that “Right to Health” is an integral part of “Right to Life”. He also cited the case of Social Jurist, Civil Right Group v. Govt. of NCT of Delhi and Another. The Delhi High Court examined Article 14 and 21. It held that “Denying patients medical treatment on the ground of not being resident of NCT of Delhi is impermissible.” The state has a “constitutional obligation” to provide medical treatment to its citizens. It is not absolved on account of financial constraint or non-availability of facilities. In this case, GTB Hospital issued an order denying facilities to certain patients. The ones who could not provide a valid Voter ID card of Delhi were denied treatment. Moreover, the judgment has a definite relevance in the present context. Here also, the Delhi Government is denying treatment to non-Delhi patients.

Constitutional Validity of the Order

The LG recognized that the Supreme Court has held that Right to Health is an integral part of the Right to Life.

Violation of Article 14 and 21 of the Constitution of India

At this stage, it will be propitious to mention some of the judgments reiterating the same. In Consumer Education and Research Centre v. Union of India, the court held that Right to Health is also an integral factor to lead a meaningful life. Thus, Right to Health comes under the Right to Life under Part III of the Constitution. This would also include access to medical care to attain living standards. In the case of State of Punjab v. Mohinder Singh Chawla, the court held that Right to Health is a Fundamental Right. They observed that “the right to health is integral to the right to life, and the government has a constitutional obligation to provide the health facilities.”

1. The Reasonable Classification Test

To determine the constitutional validity, we have to consider Reasonable Classification. This comes under Article 14 of the Constitution. In the case of State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, Reasonable Classification gives us a two-fold test. The classification should be based on an “Intelligible Differentia”, and that “Differentia” must have a “Rational Nexus”. “Intelligible Differentia” determines which group to cover under the classification. “Rational Nexus” interlinks the classification with the purpose it seeks to achieve.

This brings us back to the Delhi High Court judgment of Social Jurist, Civil Right Group v. Govt. of NCT of Delhi and Another. Here, the court held that “the classification is based on no reasonable justification except based on the residence of a person or the availability of a particular identification card. Here, the nexus to be achieved is the decongestion of the hospital. In our view, both these justifications do not meet the twin tests for classification.” It held that the act of the government in creating a class within citizens is impermissible. Hence, it has no rational basis. From these two judgements, we can infer that the order violates Article 14. Moreover, Article 14 and 21 are not the only Articles that the order stands in violation of.

Violation of Article 15(2) of the Constitution of India

Article 15(2) of the Constitution prohibits discrimination on grounds place of birth. In the present case, the order discriminated between the residents and Non-residents. This is a clear violation of Article 15(2).

The Directive Principles of State Policy

Directive Principles of State Policy talks about the Right to Health. This includes proper medical treatment. Article 39(e) of the Constitution provides that the health and strength of workers, men and women, and the tender age of children are not abused. Also, the citizens are not forced by economic necessity to enter jobs unsuited to their age. Article 41 provides for the Right to Work, Education and Public Assistance. This is in cases of Unemployment, Old age, Sickness and disablement. Both the Articles, in their persuasive capacity, have relevance in the present context. Here, the State is denying treatment to the Non-residents in such unprecedented times.

1. Duty to Improve Public Health

Article 47 of the Constitution says that it is the primary duty of the state to improve public health. They must ensure a proper standard of living by sustaining a standard level of nutrition. This Article casts a duty upon the state to abide by certain standards. They have to strive to improve public health. One significant case in the present situation is Ratlam Municipal Corporation v. Vardichand, AIR 1980 SC 1622. It held that it is the primary duty of the state to ensure the living conditions of the people are healthy. Moreover, Article 47 of the Constitution guarantees this. They must enforce this duty against any authority who defaults in doing so. They have to enforce this irrespective of the financial resources it has.

2. The Persuasive Value of DPSP

Hence, Article 39(e) and 41 read with Article 47 have persuasive value. Thus, the state must consider them while passing such orders. Even the Supreme Court observed the same in the case of Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 812. They held that although the DPSP hold persuasive value, the state should implement it. Further, it was in this case that the court had interpreted the dignity and health within the ambit of life and liberty. Hence, this comes under Article 21 of the Constitution of India.

Conclusion

The Delhi Government might be right to restrict beds of state hospitals to residents. Health falls under the ‘State subject’. Their primary responsibility lies towards the safety of the people of Delhi. However, we need to look at the bigger picture in such National Crisis. The person wouldn’t be infected with COVID-19 on the grounds of its place of residence. Delhi Government passed the order for the welfare of Delhi residents. It still hinders the Right to Health and Right to Life of other citizens. The government should look for other alternatives if the city’s health care infrastructure is failing. They could convert halls and stadiums to combat the shortage of beds. Also, various hotels could be converted into quarantine centres.

Political motives and agendas must not come in the way of ensuring the welfare of the people. But the government shall strive to serve every individual in the State, irrespective of their place of residence. Above all, the unity and integrity of the Nation will help India to overcome the COVID-19 pandemic.

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