Bombay High Court
Bombay High Court
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Now that COVID-19 has taught a good lesson, give serious thought to increasing budgetary allocation for public health: Bombay High Court

The Court made the observation while rendering its judgment on a batch of over 20 PILs raising numerous issues that had arisen in the wake of the COVID-19 pandemic and lockdown.

Meera Emmanuel

While delivering its judgment on a batch of PIL petitions raising various issues emnating from the COVID-19 pandemic and lockdown, the Bombay High Court on Friday was prompted to observe that it is time to prioritise public health better in budgetary allocation (Jan Swasthya Abhiyan and Anr. v. State of Maharashtra and ors).

Before parting with its 96-page order, the Bench of Chief justice and Justice Dipankar Datta and AA Sayed remarked,

"... now that COVID-19 has taught a good lesson, the desirability of increasing the budgetary allocation for public health and care for setting up more modern facilities to cope up with similar such challenges may be given a serious thought."
Bombay High Court

The judgment notes, inter alia, that Maharashtra presently has the "dubious distinction of being perched at the top of the list of affected States." In view of the crisis that unfolded following the pandemic's onslaught, and the inequities exposed by it, the Bench also pointed out,

"... we need to remind ourselves that despite nearing seventy-five years of our independence, despite the guarantees that Part III of the Constitution envisions and despite the goals engrafted in Part IV of the Constitution which the State ought to strive to achieve, a society which can provide equal opportunities to all is yet a distant reality."
"It has shown how pitiable the conditions of migrant workers in India are. India, as things stand now, can hardly think of a fair and just society any time in the near future."
Bombay High Court

Not opting for judicial management of COVID-19, High Court

In its elaborate judgment, the Court took note of the grievance raised regarding the tall claims of the State authorities that "everything is under control."

The Court noted that while the State's submissions appear to be attractive on paper, the grievances raised for the patients cannot be brushed aside, particularly given the increasing number of COVID-19 affected persons in the State.

The Bench, however, added that "in the absence of specific instances being pleaded, it may not be proper for us to intervene."

Earlier in the course of rendering the judgment, it was observed that rather than "judicial management of COVID-19, there has to be a nuanced administrative and scientific management hitherto unseen."

"Judicial interference by way of a public interest litigation is available, nay warranted, if there is a clear violation of constitutional or statutory provisions or failure of the State to discharge its constitutional or statutory duties. Indubitably, some of these contingencies do arise in the present PIL petitions but in the wake of the unimaginable severity with which the pandemic has struck throwing everything asunder, a balance ought to be struck in exercise of the powers of judicial review", the judgment reads.

Therefore, in the interest of judicial propriety and to ensure that the Court does not usurp the executive's powers in the matter, the Bench has not interfered in some of the pleas before the Court on finding that a specific right violation has not been made out.

However, the Court added that if any one is aggrieved further by any such instance, s/he is free to move the Court by presenting an appropriate application.

"Any one aggrieved is free to pursue his remedy before us by presenting appropriate application."
Bombay High Court

Directions issued

Ultimately, the various directions issued by the Court on the PIL petitions before it include the following:

  • Testing of COVID-19 Frontline Workers: Agreeing with an allied judgment by the Nagpur Bench of the Court, the state authorities have been directed to conduct RT-PCR diagnostic tests for frontline/healthworkers at non-COVID hospitals as well, if they express their willingness for the same. Directions were also to the ICMR to frame appropriate policy and to prescribe for a periodical testing of the frontline workers

  • PPE equipment for healthcare workers would be need-based. No obligation on the State to distribute the same to all and sundry. The Court noted that the prayers made by the petitioners for protective gear for such workers is justified only to the extent of providing face masks and shields, gloves, goggles and sanitisation materials including soaps but not the entire equipment that is worn to minimise exposure. The Court added that a full body-suit could create significant hazards. It went on to agree with the State that there has to be a rational use of PPEs considering the demand for it. However, it was clarified that the distribution of PPEs has to be rational and leave no room for complaint, in keeping with the demands of the situation.

  • Availibiity of Beds: The Court was told that about 80% of beds in private/charitable hospitals were reserved for treatment of COVID-19 patients. Further, 20% of the beds in the private/charitable hospitals are required to be reserved for the poorest and the poor. The Court said that it was not inclined to make any direction which might derail the system in place. It added that the State can take punitive action against errant hospitals.

  • Administration of Hydroxychloroquine for COVID-19 treatment: In the absence of reference to any specific incident where the administration of HCQ has proved fatal, the Court refrained from directing the authorities against administering HCQ as a prophylaxis, However, the Court added that it should not be administered to children below the age of 15 years and to pregnant and lactating women.

  • Set up more helpline: Since a helpline (1916) has been more or less successful, the Court recommended that more Municipal Corporations in the State mayintroduce similar helplines.

  • The Mumbai Municipal Corporation should, without any delay, explore ways and means to set up a grievance redressal cell before which complaints could be lodged online/offline.

  • Treatment of non-COVID patients amid the pandemic: The Court emphasised that non-COVID patients equally have the right to health and medicare as any other COVID-19 patient. Therefore, the Court has directed the State authorities to take all such steps at its disposal to ensure that non-COVID patients do not suffer for want of adequate facilities. "Any slip could be viewed seriously", the Court said.

  • The Court also took note of a suggestion made that Uber services may be utilised to transport patients, where there is a shortage in ambulances. The Court said that "it is always open to the State to requisition certain vehicles and to keep it available for transporting patients to hospitals/care centres, whose physical condition may not require an ambulance. It is ordered accordingly."

  • The Court has also urged for setting up more testing facilities in the State, without wasting any time.

On certain prayers, including those for additional protective measures for senior citizens, installation of CCTV cameras to identify lockdown violators, alleged deficiencies in quarantine centres etc. the Court declined to interfere.

This was either because no specific instance of right violation was presented or because the Court did not wish to step into the executive realm. No directions were given on a prayer to cap the prices of COVID-19 treatment in view of a May 21 circular capping the prices in private/ charitable hospitals.

Further, the Court also urged the State to consider the following additional suggestions:

  • Drive for robust detection of positive cases, intensive contact tracing, aggressive testing, and extensive spread of information and awareness relating to norms to keep one safe for a better future;

  • Develop a wholesome strategy for dealing with all classes of patients, and balancing health care for COVID-19 patients and patients suffering from other diseases alike;

  • Display on the website, all information relating to realtime availability of facilities at State hospitals/clinics as well as private hospitals for COVID-19 patients and patients suffering from other diseases for minimising harassment and inconvenience to the extent possible;

  • Based on statistical data as well as inputs, take an informed decision either on continuation of lockdown or revocation of relaxations to the extent necessary or regulation of human activities to keep the nation working and at the same time preventing further risk;

  • Although unavailability of beds is no excuse for admission of patients, efforts shall be made to first admit those patients who genuinely deserve treatment and care in hospitals in preference to others who out of sheer fear may seek admission but can wait;

  • Encourage invention of vaccine/drug for the treatment of COVID-19;

  • Ensure, with a degree of efficiency, that the instructions issued by the ICMR as well as instructions contained in guidelines/advisories issued by the Central and the State Governments as well as by the Municipal Corporations are adhered to.

Read the Judgment:

Jan Swasthya Abhiyan and Anr. v. State of Maharashtra and ors. - June 12 Judgment.pdf
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