[COVID-19] An emergency of any sort is not an excuse to trample on the rights under Article 21: Telangana High Court

The Telangana High Court on Wednesday emphasised that the "medical emergency" of the COVID-19 pandemic cannot be cited as an excuse to violate the right to life and health under Article 21 of the Constitution (Ganta Jai Kumar v. State of Telangana and ors). .While striking down the State Government's total prohibition on treatment and testing of COVID-19 by private hospitals and laboratories as illogical, without legal basis, patently arbitrary and unreasonable, the Bench of MS Ramachndra Rao and K Lakshman emphasised,."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."Telangana High Court.The observation was made in response to the State's submissions that during a medical emergency or a war emergency, anything can be done by the State, including the restriction of the right to health under Article 21..The Bench countered that the ADM Jabalpur ruling, which had espoused a similar stance, has since been expressly struck down in the KS Puttaswamy ruling. .Moreover, it was noted that "no emergency has been declared by the Government under Article 356 of the Constitution of India, though there is a pandemic situation undoubtedly.".In any case, the Court pointed out that Article 359 of the Constitution 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 Article 20 and Article 21 even in an emergency and seek appropriate relief.".The Court added, "We may also add that the famous statement 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.” is very appropriate.".State cannot compel citizens to get tested and treated in only Government hospitals .The Court found that the State Government had withdrawn permission earlier accorded for private hospitals and ICMR-approved private laboratories to treat COVID-19 patients/ test for COVID-19 without any reason. .As such, the Bench quashed the State's decision on the issue, given that "It is the basic principle of administrative law that every action of the State which affects the rights of citizens must be supported by reasons so that a Court, can, while judicially reviewing it, know that there is application of mind to the issue by the authority concerned.".The Court found that the State had failed to show any legal basis for compelling citizens to get tested and treated in Government facilities alone, when such citizens wish to and are able to pay for private hospital/ lab facilities. ."... the freedom of the citizen of the State to get tested in a laboratory of his choice or get treated in a private hospital of his choice is curtailed by the State without support of any “law”, much less a reasonable, fair and just law. It’s action is thus patently arbitrary and unreasonable and violates Art.21 of the Constitution of India and is unsustainable."Telangana High Court.This issue assumed more significance amid concerns that the government facilities in Telangana were totally inadequate, dismal and lacking hygiene. In its judgment, the Bench observed, that it may be that the facilities in the Government hospitals are very good. .However, the Court added, "that does not mean that the (Government) can, 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." .Further, it was also noted, "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.".Notably, the Bench pointed out that even the Union Government has emphasised on the support and participation of the private healthcare sector in the fight against COVID-19. .It was with this consideration in mind that the Indian Council for Medical Research (ICMR) decided to grant private laboratories approval to test for COVID-19. This was a reasoned decision, made in compliance with the procedural fairness requirements of Article 21, the High Court observed. .On the other hand, the Bench pointed out that the unreasoned decision of the Telangana government to impose a prohibition on private hospitals/ testing labs in treating or testing for COVID-19 entailed "a total prohibition of a constitutional right" that is not contemplated by Article 21, which requires "every restriction must satisfy a just, fair and reasonable procedure.".Responding to the State's submissions that private players were excluded as COVID-19 treatment is being provided for free in Government hospitals, the Court said, "the State, by allowing people who can afford the private lab testing and treatment/isolation services can preserve its limited facilities for the poorest of the poor by giving them free of cost testing and treatment.".Should not forget that State's inability to provide quality care for all led to growth of Private Sector.The Bench also pointed out that the gaps in State health infrastructure had contributed to the growth of the private healthcare sector. .In Telangana, this also manifested in the setting up of the “Arogyasri” scheme, which the Court pointed out was a scheme that allowed medical treatment in private institutions, which may later be reimbursed by the State. .The Bench added, "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... In this scenario to cast aspersions on all Private Sector hospitals/ private testing laboratories, may not be proper, ironically when respondent No.s 1-4 permit the poor to go some of such private corporate hospitals for treatment for other diseases under the “Arogyasri” scheme." .The Bench also rejected apprehensions raised by the State that with the involvement of private players, there is a risk "of spread of the disease and panic."."This fear is baseless because even in private sector laboratories or hospitals, the doctors, nurses and paramedical staff would take adequate care to protect their own lives and others and take steps to stop the spread of infection", the Court said. .Dangerous to suppress COVID-19 statistics.In the course of its judgment, the High Court also addressed the petitioner's concerns that the figures of COVID-19 positive persons in Telangana release by the State Government were not accurate. .The Court noted that there were several reports that cannot be dismissed as fake, which informed that the "(State) Government’s figures of the infections/deaths due to COVID-19 are being doubted even by the Union of India forcing it to send teams from Ministry of Health, New Delhi to verify the factual situation on the ground." .The Court responded, ."Just as an infected person cannot hide his infection because he may die and also put others at risk, the respondents cannot also hide the COVID-19 infected/dead persons’ statistics as early diagnosis and isolation/quarantine would prevent the spread of infection to others."Telangana High Court.On being informed that only symptomatic people are being tested for COVID-19 in government laboratories as of now, the Court pointed out, "If private laboratories approved by ICMR can test such individuals if they so desire and are willing to pay for it, the State cannot object to it.".In this backdrop, it added, "limiting the testing centers arbitrarily jeopardizes the health of such serious non COVID patients as well and exponentially increases the risks of spread of the disease in COVID positive cases that remain undetected for prolonged periods. It is imperative to reduce the burden on the health care system and ensure that COVID-19 cases get detected and treated at a faster rate.".Directions issued by the High Court.The Court, ultimately, allowed the PIL filed challenging the total prohibition on private hospitals and testing labs to treat/ test for COVID-19 in Telangana. It has ordered as follows:.The State cannot compel citizens to to get COVID-19 testing in NIMS/Gandhi Medical Hospital or only in the other designated laboratories decided by the State and treatment/ isolation only in hospitals designated by them, if persons 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;It shall be the right of the citizens and residents of the State of Telangana to get tested on payment basis, if they choose to do so, for COVID-19 in any private laboratory presently approved by the ICMR or may be approved in future at such rates as may be determined by ICMR or any other competent authority of the Union of India;It is the right of the citizens and residents of the State of Telangana to get treatment on payment basis, if they chose to do so for COVID-19 in any private hospital presently approved by the ICMR or may be approved in future by it; The notification issued by the State Government to the contrary was declared unconstitutional; Only such private hospitals as are approved by the ICMR shall be permitted to treat COVID-19 patients. Private hospitals may make an application to the ICMR offering their facilities for the said purpose..Read the Judgment: