ON the first Sunday afternoon of June 2020, less than 24 hours before Delhi opened its borders, the Chief Minister of Delhi, Mr Arvind Kejriwal announced at a media briefing that most Delhi hospital beds would be ‘reserved’ for the residents of Delhi. Mr Kerjiwal stated that there are 10,000 beds in Delhi Government-run hospitals and 10,000 beds in hospitals run by the Union Government to date. The 10,000 beds of the Delhi Government Hospital would be made available “only” for “residents of Delhi” while the 10,000 beds of the Union Government-run hospitals would be open to persons from all parts of India (presumably because he didn’t have jurisdiction over the Union Government Hospitals). The “reservation of hospital beds only for Delhi residents” applies to all private hospitals situated in Delhi; except those hospitals where specialized surgeries can be conducted such as oncology surgeries, transplantation surgeries or neurosurgeries.
The basic intent appeared to be clear. Delhi hospitals for Dilli Wale’s for a while (the duration of this drastic measure has not been clarified.) In other words, Delhi is open to one and all but at your own risk and consequence. The decision of the Government has caused quite a stir and at the time of writing this piece, reports have already emerged that two University Students from U.P. and Bihar, studying in Delhi, have challenged this decision by the Delhi Government. In addition, another report emerged that the Lieutenant Governor of Delhi has overruled this decision of the Delhi Government. He has directed all hospitals to treat all patients and that no treatment would be denied to any patient on the ground that she was a non-resident of Delhi. However, notwithstanding this latest development, the author will focus on the legal aspects of the Delhi Government’s decision whilst taking a patient-centric approach.
Right to Medical Treatment – Indian Constitutional Law
It is well settled that right to health and immediate medical treatment has been read into right to life under Article 21 of the Constitution of India, 1950 (hereinafter referred to as “the Constitution”). Article 21 clearly states that “no person shall be deprived of his life”. The Article is “person-centric” and is not even “citizen-centric” let alone domicile or area-specific. Way back in 1989, the Hon’ble Supreme Court in Parmanand Katara v. Union of India (hereinafter referred to the “Parmanand case”) after referring to the Code of Medical Ethics has held that “there can be no second opinion that preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man. The patient, whether he be an innocent person or be a criminal liable to punishment under the laws of the society, it is the obligation of those who are in-charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished….”.
Ranganath Misra J. in his judgment went on to hold that “Article 21 of the Constitution casts the obligation on the State to preserve life……A doctor at the Government hospital positioned to meet this State obligation is, therefore, duty-bound to extend medical assistance for preserving life. Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way.” (emphasis supplied)
The aforesaid legal position was reiterated seven years later in Paschim Bengal Khet Mazdoor Samity and others v. State of West Bengal in which the Hon’ble Supreme Court while referring to the Parmanand Case held “ Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare state. The Government discharges this obligation by running hospitals and health centers which provide medical care to the person seeking to avail those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Government hospitals run by the State and the medical officers employed therein are duty bound to extend medical assistance for preserving human life. Failure on the part of the Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21…..” (emphasis supplied)
Notice that the Hon’ble Supreme Court does not distinguish between a resident or a non-resident of a particular place. The Court also uses the word “person” as in Article 21 of the Constitution. Therefore, the Government of Delhi can by no means prohibit non-residents of Delhi from availing medical treatment at a Delhi Government-run hospital or private hospital even during COVID pandemic. Such a measure not only cries foul of Article 21 of the Constitution but it also violates Article 14 of the Constitution that prohibits the State to deny “to any person equality before the law or equal protection of laws” within India. By discriminating between residents and non-residents of Delhi, the State Government cannot act unconstitutionally and arbitrarily to prohibit non-residents of Delhi from accessing either Delhi Government or private hospitals. Such actions are unreasonable, arbitrary and are thus void.
Ironically, in 2018 the Delhi High Court dealt with a similar circular which had limited medical facilities to non-residents of Delhi. The court in Social Jurist, A Civil Rights Group v. Government of NCT of Delhi and Ors quashed the circular for creating a class within a class and thus violating Article 14. Further, the state cannot create a classification between residents and non-residents particularly on issues of health on grounds of insufficient beds. It is true that the State can reserve a certain percentage of beds for poor or needy persons or even for COVID patients, as has been done by certain other State Governments. However, to absolutely prohibit a non-resident of Delhi from availing a bed is impermissible in law. Moreover, in carving out an exception of certain types of surgeries the State Government has again acted arbitrarily. There cannot be any yardstick to state that a particular type of surgery or treatment is more important than another; as this is ascertained on a case to case basis.
Right to Medical Treatment under International Law
The right to medical care is recognized as a human right by the Universal Declaration of Human Rights, 1948 (hereinafter referred to as “UDHR”). Article 25 (1) states, “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” Article 12 of the International Covenant on Economic, Social and Cultural Rights, 1966 (hereinafter referred to as “ICESCR”) also recognizes it as an inalienable right. It speaks of “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”
It further mandates that the State Parties, in order to achieve the full realization of this right, shall take steps for “The prevention, treatment and control of epidemic, endemic, occupational and other diseases” and create conditions “which would assure to all medical service and medical attention in the event of sickness.”. Notwithstanding the fact that India is a signatory to both the UDHR and the ICESCR, the principles laid down in both these International Documents are a part and parcel of Customary International Law and cannot be deviated from by the Nation States. In order words, these general principles of International Law cannot be deviated from or violated irrespective of whether a Nation-State is a party to or has signed the aforesaid documents.
Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002
It is also worth mentioning that in 2002, the Indian Medical Council introduced the Professional Conduct, Etiquette and Ethics for registered medical practitioners. Chapter 2 of the regulations dealing with the Duties of Physicians to their Patients specifically states that physicians have obligations to the sick and in case of an emergency a physician must treat the patient (See Regulation 2.1). More importantly, Regulation 2.4 clearly states that a Patient must not be neglected and a physician should respond to any request for assistance in case of an emergency. Therefore, these regulations being statutory in nature and having the force of law cannot be violated by the State Government itself by restricting hospital beds only for residents of Delhi.
There are also serious practical difficulties that could arise because of this decision. Consider a given case where a daily wage earner or regular office goer who lives in NCR but works in Delhi. In case he requires immediate medical attention for say cardiac arrest or an accident while he is in Delhi, then will the State Government or private hospital prohibit its doctors from treating such a person? Or consider another case where a person travelling on business to Delhi from Mumbai lands at Indira Gandhi International Airport. Just as she is about to board a taxi at the airport, she has a fall and fractures her ribs. Will such a person not be entitled to treatment in a Delhi State Government or private hospital? Or is she expected to book an immediate flight back to Mumbai for medical treatment? It appears that the State Government has either not considered such kinds of eventualities or, assuming it has, it would appear that even in such cases the hospital doors would remain shut for non-residents of Delhi.
While it is quite understandable that the Government of Delhi has to take urgent measures to protect the residents of Delhi to whom it owes a collective responsibility, the Government cannot act arbitrarily and unconstitutionally. Though the verdict is still out on whether the Government of Delhi will challenge the Lieutenant Governors reversal of its decision, the Delhi Government simply cannot prohibit non-residents of Delhi from availing medical treatment in Delhi Hospitals. Such decisions, apart from being unconstitutional, would lead to further chaos, confusion and imminent loss of life in these trying times of pandemic proportions.