Telangana HC’s Powerful Decision On Right To Health In Times Like COVID-19

first_imgColumnsTelangana 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 Storylast_img read more

Football News Lionel Messi hat-trick boosts Barcelona to top of La Liga table

first_imgMadrid: Lionel Messi continued his sublime form by netting his 31st La Liga hat-trick as Barcelona thrashed Levante 5-0 to regain their three-point lead at the top of the table. The 31-year-old Argentinian arrived in Valencia having scored two free-kicks in last weekend’s derby thumping of Espanyol. He took his goals tally for the season to 20 after a virtuoso display, while also teeing up Luis Suarez’s 35th-minute opener and Gerard Pique’s late fifth. Barca were under pressure after Atletico Madrid and second-placed Sevilla had both moved level on points with the Catalan giants. But after resting his key stars for their final Champions League group-stage match against Tottenham in midweek, coach Ernesto Valverde saw his refreshed side cruise to a third straight league win without conceding a goal.  “At the beginning it was difficult, they squeezed us and had a chance that hit the woodwork,” said Valverde Sunday.  Levante started the game brightly and visiting goalkeeper Marc-Andre ter Stegen was forced into an early save by Ghanaian Emmanuel Boateng. But Barca did not take long to start moving through the gears, with Messi curling wide from long range before testing Oier Olazabal in the Levante goal with a free-kick. Just seconds after Boateng hammered a left-footed strike against the crossbar, the reigning Spanish champions broke the deadlock as Messi jinked through a mesmerised home defence and picked out Suarez who volleyed home.  Read More | Liverpool beat Napoli to enter last 16 of UEFA Champions LeagueBut Levante, who had ended Barcelona’s dreams of going through last season’s La Liga campaign unbeaten with a remarkable 5-4 victory in the penultimate game, came close to a quick response as Jose Luis Morales fired over. The match was all but ended as a contest when Messi bore down on goal two minutes before half-time and drilled low into the net.  Read More | UEFA Champions League: Manchester United lose to Valencia”I’m happy to have won here, because last year we came and they put five goals past us having gone the whole season unbeaten, so we knew about the danger of Levante and it was a match we had marked out,” added Valverde.  He wasted little time after the restart to add his second in the 47th minute, sweeping home Jordi Alba’s clever cutback, before completing his treble with a simple tap-in from Arturo Vidal’s square pass on the hour mark.Messi has scored five goals in two league games since finishing only fifth in the voting for the Ballon d’Or earlier this month.  A bad evening for Levante worsened with 14 minutes to play, as left-back Erick Cabaco was sent off for a reckless lunge on Ousmane Dembele.Centre-back Pique added further gloss to the scoreline in the 88th minute, rampaging forward to collect Messi’s pass, before keeping his cool and rolling the ball home.   Sevilla keep up the pace  Sevilla reclaimed second place earlier on Sunday as second-half strikes from Ever Banega and Pablo Sarabia sealed a 2-0 win over Girona.Pablo Machin’s side are unbeaten in seven league games since a 4-2 loss at Barcain October.  The hosts had to wait until the 55th minute to break the deadlock, when striker Andre Silva was tripped in the area by Girona defender Juanpe.  Argentinian Banega stepped up to send visiting goalkeeper Gorka Iraizoz the wrong way from the penalty spot.  The points were wrapped up only nine minutes later, as Wissam Ben Yedder cut the ball back for the onrushing Sarabia to slide home his 14th goal of the season in all competitions.  “In the first half they (Girona) were very good,” said Machin. “They were very organised and had good chances, when (Sevilla goalkeeper) Tomas (Vaclik) was splendid.  “In the second half we were the better team.” Elsewhere, Villarreal were plunged further into crisis as Samuele Longo’s 93rd-minute strike saw them held to a 2-2 draw at bottom club Huesca.  Villarreal, who replaced Javier Calleja with Luis Garcia Plaza as coach in midweek, are only one point and one place above the relegation zone. Real Betis eased to a 3-1 win at Espanyol to move into fifth place after a third successive league victory.  Espanyol, who led the table earlier in the season, have lost five straight matches to slip into the bottom half. For all the Latest Sports News News, Football News News, Download News Nation Android and iOS Mobile Apps.last_img read more