This article is written by Sankalpita Pal, from Symbiosis Law School, Pune. This article will attempt to provide a detailed overview of a recent Telangana High Court judgment.

Introduction

The Telangana High Court gave a refreshing judicial perspective in the recent case of Ganta Jai Kumar v. Telangana [Writ Petition (PIL) No. 75 of 2020]. The judgement was authored by Justices M.S. Ramachandra Rao and K Lakshman. The court observed that medical emergencies cannot be an excuse to trample over the fundamental right under Article 21 of the Indian Constitution. A few government orders were quashed, according to which citizens were compelled to go for COVID-19 screening and treatment, only to designated government hospitals. Private hospitals and laboratories were not allowed to take in COVID-19 patients even though they were approved by the Indian Council of Medical Research (ICMR).

Decided on- May 20, 2020

Coram-  Justice M.S. Ramachandra Rao and Justice K. Lakshman

Facts of the case

A public interest litigation was filed seeking to declare that “private hospitals” and “private diagnostic centres” must be permitted to conduct diagnostic tests for the COVID-19 virus. The Telangana State Government passed an order according to which private hospitals were not permitted to admit COVID-19 patients for treatment even though they were well equipped to do so. This order caused an uproar across the clinical establishments in Telangana, and was viewed as unreasonable and arbitrary. 

Initially, the District Medical and Health Officer, Hyderabad, vide an order permitted private hospitals to treat COVID-19 patients, and instead put a prohibition on ordinary elective procedures and surgeries. However, on the same day, the first order was passed. Another order was passed by the District Medical and Health Officer, Hyderabad, which stated the exact opposite of the first order. According to the second order, private hospitals and diagnostic centres were totally prohibited from admitting and treating COVID-19 afflicted patients.

Issues raised

1. Whether the State action is judicially reviewable in the light of the law laid down by the Supreme Court.
2. The main challenge was with regard to the prohibition with respect to private hospitals as well as private diagnostic centres/laboratories to admit patients infected from COVID-19.

Contentions presented

Contentions made by the petitioner

1. The first contention made was that the State’s sudden order to not let the private hospitals offer treatment for COVID-19 was not revealed to the citizens. 
2. Secondly, Article 21 guaranteed the right to life and personal liberty. Thus, by virtue of which, every citizen has the right to choose his/her own doctor, health clinics, etc. This order unnecessarily compels citizens to choose government hospitals for their treatment.
3. Another contention from an affordability perspective was that a few people can afford treatment in private hospitals. The State cannot restrict them from doing so as it’s unreasonable and illogical. 
4. It is of no surprise that government health facilities for coronavirus patients are unsanitary and lack hygiene. Relevant news items were filed by the petitioner, which made the above statement evident. 
5. Lastly, the State Government’s action is unreasonable and violates the citizen’s fundamental right to exercise choice regarding where they want to be treated. The State shouldn’t interfere illogically with the exercise of such a choice. 

State Government’s justification

The government stated that this state action was justified owing to the pandemic (emergency) condition. The Advocate General of State of Telangana represented the case. As per the State, if there is a medical emergency, the State can impose anything according to their convenience, including arbitrarily restricting the right to health (a subset of right to life) under Article 21. 

Analysis of the court’s decision

The Telangana High Court didn’t agree to the contentions presented by the Advocate General. The Advocate General argued that since there is a state of emergency in view of the Covid-19 situation; such a situation justifies the state’s action. 

In para 50, it is candidly stated that no state emergency has been declared by the government under Article 356 of the Constitution of India. The pandemic situation is definitely an emergency, however the state situation is still stable from a political point of view and doesn’t require the legal machinery under Article 356. It must also be noted that under the Constitution (44th Amendment) Act,  Article 359 was amended, according to which the President cannot suspend the right to move a court if there is a violation of Article 20 and Article 21 in spite of an emergency imposed on the state in order to seek appropriate relief.

In para 57, the issue of whether the state action is judicially reviewable in the light of the law laid down by the Supreme Court or not? Has been answered. The court quoted the famous words by Lord Atkin in Liversidge v. Anderson [1942] AC 206, that even when there is an armed conflict going on in a state and emergency is declared, the laws will not remain silent. Law speaks the same language in war as in peace. This was followed by the Supreme Court’s stance, which agreed to this statement made by Lord Atkin. Thus, any state action is judicially reviewable and can be struck down if found arbitrary or unreasonable. 

It is pertinent to note that in Para 33, the court stated that fundamental rights are not given to the citizens; it is their inherent right from the virtue of them being a human being. Thus, every human being has a natural instinct to protect himself and his kith and kin from danger. Therefore, the state cannot incapacitate its citizens by unreasonably restricting one’s choice, especially when it comes to the treatment of a virus/disease which gravely affects his health and the health of his kith and kin. 

In para 28, the court rightly pointed out that one of the basic principles of administrative law is that every state action which affects the actual rights of citizens must be backed by reason and logic. While judicial review is going on the state must defend its action by showing that there was an application of mind while any order was issued. Thus, the main reasons as to why the court vitiated the order dated 11.4.2020 was the absence of reasons.

While on the same page in Para 38, the Telangana HC stated that according to the apex court, it is imperative that if a restriction is put on the right of the citizens, then a procedure must be followed which is legally justified. In the present case, the government of Telangana didn’t declare an emergency but passed an order justifying it by utilising emergency as the reason for it. No proper procedure was followed and an order was passed arbitrarily. Similarly, the apex court also declared that the right to health of a citizen is also circumscribed under Article 21. 

The court also mentioned that it would be unwise to not let the private sector participate and cooperate in the COVID-19 treatment. This would in fact reduce burden on private hospitals when the number of cases reaches its peak. Their medical facilities would be effectively utilised. The main aim during such situations is to keep the number of cases under control thus, imposing unreasonable restrictions would hinder the ultimate aim. 

Now elaborating one of petitioner’s contentions. He contended that Section 2 of the Epidemic Diseases Act, 1897 in any of its wordings doesn’t prevent private hospitals from testing and admitting patients afflicted with a virus during an epidemic. 

Furthermore, in para 60 it is then enunciated that, the implications of Section 2 is that the state can impose such temporary regulations that are necessary to prevent the spread of the disease. It shall be noted that the emergency regulations imposed under Section 2 are only temporary. Thus, it can be carried out only till the time the state feels necessary. Some discretion is conferred upon the state however, it is subjected to judicial review. In para 61, the court once again emphasized as why the state was on the wrong when they passed the order. The Ministry of Health and Family Welfare, Union of India and the ICMR cannot ignore the provisions of the Epidemic Diseases Act, 1897. Thus, the Telangana High Court has good reason to believe that the ICMR and the Union must give due consideration to this provision of the present under question. However, the ICMR and the Union Government weren’t completely ignorant as it permitted the private laboratories and hospitals to conduct tests and also carry out treatment of COVID-19 patients provided they must be well equipped.

Similarly, in para 62, the court mentioned that a set of guidelines called Guidelines for notifying COVID-19 affected persons by private institutions is directed for the state Government to follow. The guidelines were drafted by the Union of India. It had provisions of the Epidemic Diseases Act, 1897 which permits the state Governments to take only necessary measures in order to prevent the outbreak. 

The court also pointed out that it’s okay if the state is of the view that treatment in government hospitals are better. However, it is not right to trample over the fundamental rights of the citizens while having the guise of state action during an emergency. The state action was lawful on the face of it however, it doesn’t really have an actual purpose.

Reasons behind the court’s rationale

Summarising the elaborate reasons placed by the court as to why the Writ Petition was allowed. (As according to para 92 of the judgment).

1. The state’s order dated 11.4.2020 was set aside because it trampled upon the fundamental right to life and personal liberty under Article 21 and right to equality under Article 14. Since the state didn’t reveal the order to the citizens, thus breaching the principles of natural justice.
2. The court also held that if any private hospital and diagnostic clinic is well equipped and is approved by the ICMR, then it shouldn’t be barred from taking in COVID-19 patients. The rates of testing and treatment shall be determined by ICMR. This would also reduce the burden of government hospitals and health clinics.
3. Furthermore, the court held that it is the definite right of every citizen to receive treatment from whichever type of hospital one chooses. The state cannot interfere with such a choice by imposing unreasonable restrictions in such desperate times. In doing so Article 21 and Article 14 is violated. Such state actions are in fact arbitrary.
4. The court also issued a few directions for ICMR. In case any private hospital is not approved by the ICMR; it can write an application to the ICMR if they wish to offer their services and facilities. The ICMR must review such applications and approve accordingly.
5. The ICMR shall nominate qualified and experienced persons to scrutinize the said applications. They should also send in medical facility inspectors in order to verify if such applicants have the requisite number of qualified nurses, paramedical staff and doctors who would be able to handle the treatment of COVID-19 patients. The review and inspection process must be completed within the shortest possible time frame.
6. The ICMR must ensure only duly approved hospitals and health care centres are allowed to treat patients.
7. In the end, the court showered recognition and appreciation for the petitioner’s effort to bring such an important issue to their notice. (Part 93 of the judgment)

Conclusion

In conclusion, it can be said the judgment is well written and well balanced. The court applied their judicial mind in a reasonable manner. There is no room for doubt whatsoever that state’s arbitrary action cannot trample over any citizen’s fundamental rights. All state governments should borrow an example from the Telangana High Court’s decision and abstain from imposing unreasonable orders. Fundamental rights are supreme and cannot be disregarded due to any situation. These are desperate times and the citizens need protection more than ever before, rather than states violating the fundamental rights of their own citizens.

References

• http://www.legalservicesindia.com/law/article/1498/24/Medical-Emergency-Not-An-Excuse-To-Trample-On-Citizen-s-Fundamental-Rights-Under-Article-21-Of-Constitution-Telangana-HC
•  https://indiankanoon.org/doc/187546434/

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: