ColumnsTelangana HC’s Powerful Decision On Right To Health In Times Like COVID-19 Swapnil Tripathi25 May 2020 4:39 AMShare This – xThe Court’s reiteration of its role of enforcing the protections under Article 21 even in times of an emergency is particularly important.The world is currently dealing with the unfortunate COVID crisis. Almost every government across the world has brought in radical measures to curb the transmission of cases and save its citizens from dying. The central and state governments in India have also done the same. The laws and regulations framed by the governments, to either keep COVID infections in check or to provide…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginThe world is currently dealing with the unfortunate COVID crisis. Almost every government across the world has brought in radical measures to curb the transmission of cases and save its citizens from dying. The central and state governments in India have also done the same. The laws and regulations framed by the governments, to either keep COVID infections in check or to provide services to the people, have been criticised for alleged violation of fundamental rights. More than the government, it is the judiciary that has been accused of abdicating its responsibility of protecting fundamental rights, so much so, that some have compared these times to the days of ADM Jabalpur. While I do not wish to comment on these allegations, there is a significant verdict of the High Court of Telangana (GantaJai Kumar v. State of Telangana and Ors., W.P. (PIL) 75 of 2020), which deserves praise. The Court here has strongly reiterated the principles of the Right to Life and the importance of this Right even during a crisis like the present one. In this post, I shall discuss the judgment and the key takeaways from it. Before I discuss the judgment, a brief overview of the legal provisions involved in it i.e. Article 21 of the Constitution and Section 2 of the Epidemic Diseases Act, 1897, would be helpful. Article 21 of the Constitution guarantees to every person in India (not just citizens) the Right to Life and Liberty. The Article states that the said right can be restricted only by a procedure established by law. The ‘law’ in question has to be just, fair and reasonable. It should be noted that judicial pronouncements have read the Article expansively to include the Right to Food, Right to Health, Right to Sleep, Right to Clean Environment etc. The Epidemic Diseases Act, 1897 (“Act”) is a short legislation that aims at preventing the spread of dangerous epidemic diseases. Section 2 of the Act allows the state government to prescribe temporary regulations during the time of an outbreak of a dangerous epidemic disease, if it believes that the ordinary provisions of law are insufficient for preventing the outbreak or spread of the disease. Facts and Issues- In the said case, the Petitioner filed a Public Interest Litigation (“PIL”) before the High Court challenging the order of the state government, according to which private hospitals and diagnostic centres (equipped with the necessary equipment and personnel, and willing) were not permitted to conduct diagnostic tests for the COVID-19 virus and admit patients for isolation and treatment (“Order”). The Petitioner had argued that Article 21 of the Constitution guarantees to every person the Right to Life which includes the Right to Choose her/his doctor and hospital. Therefore, the state cannot restrict this right in the guise of taking steps to prevent the spread of the pandemic. The Petitioner further contended that there is nothing in Section 2 of the Act which allows the government to issue a blanket prohibition on private institutions and hospitals from testing and treating the patients for Covid-19. The Petitioner had emphasised that there was a need to allow private hospitals to conduct the tests and treat the patients as the government facilities were inadequate, lacked hygiene and that methods of treatment adopted were very ordinary. The government had justified its Order stating that the prohibition did not violate the rights enshrined under Article 21, as it was a just, fair and reasonable procedure. The Court agreed with the Petitioner and held that the Act did not empower the government to pass the Order. Therefore, the prohibition on private hospitals and institutions was sans any valid law and it also violated the Right to Life and Choose/Choice of the people. The Court ultimately allowed private hospitals having the capacity for treatment /isolation as per the standard operating procedure/ guidelines to treat/isolate such patients. Key takeaways from the Judgment: The judgment has certain key takeaways that shall be very significant in similar matters in future. a.Maintainability of the Petition- A PIL is admissible only if (a) the petitioner has bona fide credentials, (b) the Court is prima facie satisfied over the correctness of its contents; (c) it has an element of substantial public interest involved; and (d) there is no personal gain or private motive behind it. I have argued previously, that Courts often ignore these guidelines and entertain PILs that do not confirm with them. The High Court in the present case, is an exception to this trend. In the present case, the government opposed the Petition stating that it did not disclose any public interest and was engineered by vested interests on behalf of the private hospitals. The Court outrightly rejected this contention. It held that the question of a citizen having the right to choose her/his doctor or hospitals, certainly involves public interest. Further, (akin to the Tripura High Court in another matter), the Court also remarked that the government cannot make bald allegations regarding the bona fides of the Petitioner without any basis. Such an approach is welcome for two reasons. First, the Court applied the test for admitting the PIL (which it should ideally do) and second, it did not allow the flimsy argument of lack of bona fides, without the Respondents (i.e. the government) tendering any proof. b.Right to Life includes Right to Choose medical care- The Court interpreted the Right to Health under Article 21 expansively to include within its ambit the Right to Choose one’s Medical Care. It held that the Right includes the freedom to get tested in a laboratory of one’s choice and the government cannot take that right away. It should be noted that nature of the disease in question (which is fatal), also played a role in the Court’s interpretation. The Court opined, ‘The State cannot incapacitate him by restricting his choice particularly when it comes to a disease which affects his life/health or that of his kith and kin.’ By adopting such an interpretation, the Court has not only reiterated that the State has a duty to secure the health of its citizens, but has also held that the citizens also have an individual right to a choice of medical treatment (i.e. the doctor and the hospital) and the state cannot restrict it without a valid law. c.The Limited Scope of the Epidemic Act- For restriction of a Right under Article 21, there must be a procedure prescribed by a law, which is just, fair and reasonable. The government contended that the Order in question, is a valid law for the purposes of Article 21, as it has been passed under Section 2 of the Act. The Court here analysed Section 2 of the Act, and held that there is nothing in the Section which can possibly empower the government to pass an Order preventing private hospitals from testing or treating COVID patients or suspects. It can be gleaned from the Court’s observations that the Section only allows the government to pass such temporary regulations which are reasonable in nature. The Court placed reliance on the guidelines issued by the Union Government for testing of COVID patients by private hospitals and laboratories, to reach this conclusion. It observed, “61. The Ministry Of Health and Family Welfare, Union of India and the ICMR cannot be said to have ignored these provisions of the Epidemic Diseases Act,1897 and this Court has good reason to believe that the Union of India and the ICMR did give due consideration to this provision of law while permitting testing and treatment of COVID-19 patients by private laboratories and hospitals.” Therefore, the Court concluded that the Order in question was not ‘law’ for the purposes of Article 21. It observed, “48. Thus, in the instant case 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.” d.Observations on Inviolability of Article 21 during times of Emergency- During the course of the hearing, the learned Advocate General appearing for the Respondents contended that COVID-19 pandemic constitutes a state of emergency in the State and therefore, the drastic State action is justified. The Court rejected this contention remarking that there is no declared Emergency in India. It further observed, that even if there was, it would not be an excuse for the government to infringe the rights of an individual under Article 21. The Court traced the entire saga of the unfortunate judgment in ADM Jabalpur and KS Puttaswamy (where ADM was overruled) and observed that the Court has the power to see that even in times of emergency, the state acts in a fair, just and reasonable manner. The Court opined, “57… 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.” Concluding Remarks- The High Court’s verdict is important for various reasons. However, the Court’s reiteration of its role of enforcing the protections under Article 21 even in times of an emergency is particularly important. Further, the decision is reasoned in its conclusions and allows private testing taking into account the policies of the government, making implementation not an issue. I would call this decision ‘bold’ also because the Court has not shied away from commenting upon the poor state of medical infrastructure in the country. The Court has observed, “72. The Covid-19 pandemic has exposed the poor medical infrastructure in the States where there are too few Hospitals/Primary Health centres, too few Doctors and nurses in Government sector, lack of medicines, and general poor-quality medical infrastructure with honourable exceptions. In fact, the long lockdown was imposed to ramp up the medical infrastructure – buy more medicines, create more isolation facilities, get more ventilators, import a lot of testing kits etc.” [Views are personal] ± The author is a lawyer practicing in New Delhi. The post was first published on his personal blog “The ‘Basic’ Structure”. Next Story
Mr Letts’ parents, speaking to The Guardian about how he learned Arabic, said, “He dropped out of school and taught himself Arabic on his own because he wanted to be useful; said he wanted to help medical staff but had no medical skills.” When he first left Britain in 2014, he is believed to have told his parents that he was traveling to Kuwait to study Arabic.Mr Letts himself has made it clear that he is not a member of IS. In correspondence with The Independent over Facebook, he described how he felt about his media coverage. “It’s sort of awkward when the media thinks you’re ISIS and you’re not,” he said. Speaking about his frustration with the way the British media covered converts to Islam, he said, “The formula with the media is simple: English guy became Muslim + went to the Middle East + followed Islam = ISIS + eats babies x evil.”In a case where many of the facts remain uncertain, there has been concern in Oxford University’s Muslim community that Jack’s case represents another case of the national press jumping to conclusions about the behaviour of young British Muslims. Sameer Farooq, OU Islamic Society’s Media and Student Politics Chair, brought this story to Cherwell’s attention because of the lack of clarity of the case. Cherwell has spoken to a number of Oxford students who would like to remain anonymous who have said that conclusions about Mr Letts have been drawn too soon.Writing in response to the media coverage, the leaders of Oxford’s four leading mosques have released a statement in which they expressed their support for Mr Letts’ family. The statement reads, “We are deeply shocked and saddened to hear from reports that the individual named as Jack Letts has travelled to war-torn Syria.“Although the exact nature of his visit has yet to be confirmed, our thoughts and prayers are with the Letts family in Oxford, at what must be a very difficult and distressing time for them.”Moving on, the leaders maintained their commitment to the handling of extremist behaviour in the Oxford Muslim community, saying, “Mosques in Oxford have measures in place to promptly report any form of extremist and suspicious behaviour, and such measures will continue to be developed and implemented in liaison with and following advice and guidance from local law enforcement authorities.” A former student of the local Cherwell Academy School is alleged to have become a member of the Islamic State group (IS). Labelled ‘Jihadi Jack’ by a number of news agencies, including the Mail Online, Jack Letts denies being a member of the Islamic State group. The former Oxford resident, aged 20, is thought by some to be living in the IS-occupied city of Raqqa with an Iraqi wife and a son, Muhammed.Claims that their son has joined the Islamic State have been refuted by his Oxford-based parents. Speaking in an interview with The Guardian, his father stated that “Jack never had a weapon, never posed in a photo with a weapon, but every article mentions it.” He went on to describe his response to media coverage of his son’s situation, saying, “It’s all insinuation, forcing connections that don’t exist.” In an earlier discussion with The Times, his parents said that he had told them that he was in Syria as long ago as September 2014.Mr Letts has been depicted in Facebook photos at the Tabqa Dam in Syria, famously thought to be one of the main hideouts of IS’ leadership. The emergence of this photo has prompted questions over to what extent he has been engaged with the terrorist organisation.Classmates of the organic farmer’s son have spoken about their experiences of him. Described in The Independent as “very much the class clown” and “liked by a lot of students,” Mr Letts is described to have been an avid Liverpool Football Club fan, who prior to his conversion to Islam was known to have drunk alcohol.Thought to be a fan of the street artist, Banksy, Mr Letts is rumoured to have first taken interest in Islam during the Arab Spring in 2011. He is subsequently thought to have attended Oxford’s Madina Masjid.Over time, it is thought that the young convert to Islam became of increasing interest to the local authorities. It is understood that the police had raided his family home two times before he left, confiscating laptops and mobile phones. The police, however, do not seem to have found any evidence that he had broken any laws.