Is Denying Health Services to Non-Domicile in Delhi Violative of Fundamental Rights?

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Recently, Delhi Government issued an order to restrict the treatment in State government run hospital as well as private hospitals and nursing homes to bonafide residents of Delhi only. The order was issued by the Health and Family Welfare Department dated 07.06.2020 in which it was mentioned that, In exercise of powers conferred by the Delhi Epidemic Diseases, Covid-19, Regulation under the Epidemic disease Act,1897, it is hereby ordered that all the hospitals operating under government of NCT of Delhi are admitted for treatment in these hospitals.

The order issued by the government of Delhi is arbitrary and there is no intelligible differentia between the said order and the object sought to be achieved. Also, the said order is violative of Article 14, 15 19(1)(e) and Article 21 of the constitution of India. Also, under the umbrella of the impugned notification the government of NCT of Delhi is not only discriminatory, arbitrary and violative of fundamental rights but at the same time the said order will lead to escalation of COVID-19 cases as the Non-Resident infected individuals will not be identified which will further add the fuel to the fire.

The said order will promote malpractices amongst the private hospitals by selling the bed to the highest payer, this is again grave violation of the fundamental rights of the excluded group i.e. Non-Resident the objective behind bringing the said order as stated by the government of Delhi is due to surge in COVID-19 positive cases leading to demand of additional beds, the government issued these order that ensures that only residents of NCT of Delhi are admitted for treatment in these hospitals. Just because government fails to arrange more beds doesn’t means that the government will create a distinction between resident and Non-resident.

Delhi being the National Capital, many Non-residents resides in the territory due to available economic opportunity the government cannot completely ignore the Non-residents and give priority to the residents. A patient is a patient a distinction cannot be created on the basis of domicile for the health services. The concept of social justice is to ensure and accord justice to all sections of the society by providing to them facilities and opportunities equal in nature. In fact, social justice is nothing but a comprehensive form to remove social imbalance and to maintain equality in the matter of providing equal opportunities and facilities to citizens of this country.

Health care facility and its access to a citizen is a right available under the constitution and Article 21 of the constitution imposes a duty on the government to take whatever steps are necessary to ensure that every has free and fair access to health facilities and treatment in government hospitals. In fact, Article 21 of the constitution not only imposes upon a state a constitutional obligation but also a legal obligation to ensure access to treatment, medicine and other facilities in a hospital.

In the case of Social Jurists, a Civil Rights Group vs Government of NCT of Delhi[1] it was held by the High court that “ If we analyse the justification given by the State government in the present case, it would be seen that the state is shrinking away from discharging its constitutional obligation and liability by contending lack of facilities like infrastructure, manpower and law and order situation created by outburst of population, the number of patients coming to the hospitals for treatment. In our considered view, this is not permissible. A state is obliged and mandated to provide all such facilities as are to be provided to a citizen, particularly, the requirement envisaged under Article 21 of the constitution and the reasons given before us cannot be substantial or reasonable reasons for shrinking away from discharging the constitutional liability.”

In the same case it was also held by the Hon’ble court that “ A complete reading of the preamble and various provisions of the constitution indicates that if a provision or a statute is read in the backdrop of the requirement of Article 14 of the Constitution, anything done which fails to achieve the socialist goal to its fullest extent or which adopts a classification which is not in tune with the establishment of a welfare society is unsustainable and unconstitutional.”

In the case of Paschim Banga Khet Mazdoor Samity & Ors. v. State of West Bengal & Ors.[2] It was held that “ Providing adequate medical facility to the people is not only an essential part but it is also an obligation undertaken by the government in a welfare state and for discharging this obligation running of hospitals and health centers and providing medical care to the people seeking the same is a requirement of Article 21 of the constitution.”

In the case of Kailash Chand Sharma v. State of Rajasthan & ors.[3] it was held that “residence by itself be it within a state, region, district or lesser area within a distinct cannot be a ground to accord preferential treatment or reservation, as provided in Article 16(3).”

Also, it is worthy to observe the decision of the Hon’ble supreme court in Bir Singh v. Delhi Jal Board[4], a constitution bench of supreme court held that “The capital city is not just part of India. It is miniaturized India, a fact often forgotten by the administration in the field of culture and education, especially regional minorities. Anyone who lives in India can never be considered an outsider in Delhi.”

As we can see there are plethora of judgments in which it has been established by the Hon’ble courts the constitutional obligation of providing health services to the citizens of the state without creating distinctions. So, the said order of Delhi government is unconstitutional and unsustainable.

Takedown order by the Lt. Governor

On 8th June 2020 the Lt. Governor of Delhi Anil Baijal issued an order invoking power as the chairperson of Delhi Disaster Management Authority, the Lt. Governor ordered that no person should be denied treatment on the grounds of not being a resident of Delhi. Re- assuring that the medical facilities will be provided to every citizen, the order issued by the Lt. Governor was exercise of powers under Section 18(3) of the Disaster Management Act.

The order further stated that “ Now, therefore, in exercise of powers conferred under section 18(3) of the DMA, the undersigned in his capacity as the chairperson of the DDMA, hereby directs all the departments and the authorities concerned of NCT of Delhi, to ensure that the medical treatment is not denied to any patient on the grounds of not being a resident of Delhi.”

The order recognizes that ‘Right to Health’ is an integral part of ‘Right to Life’ under Article 21 of the constitution. It also mentions that in social jurist, a civil rights group v. NCT & Ors. the Delhi High Court had held that “denying patients medical treatment on the ground of not being resident of NCT of Delhi, is Impermissible.”

The Takedown order issued by the Lt. Governor is going to upheld the constitutional values and obligations as Guaranteed under Article 21 and no distinction made by the Delhi Government will stand valid in matter of Health services

[1] Social Jurist, a Civil Right Group v. Government of NCT of Delhi W.P. (C) 10585/2018

[2] Paschim Banga Khet Mazdoor Samity & Ors. v. State of West Bengal & Ors. 1996 4 SCC 37

[3] Kailash Chand Sharma v. State of Rajasthan & ors. 2002 6 SCC 562.

[4] Bir Singh v. Delhi Jal Board, 2018 SCC 1241

Image from https://patientengagementhit.com/features/strategies-for-rural-patient-healthcare-access-challenges

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