Delhi Hospitals Treating Only ‘Residents’ Is Unconstitutional
Dear Arvind Kejriwal-led Delhi govt, who exactly qualifies as a ‘resident’ of Delhi? It’s inhuman to discriminate.
The Delhi government announced on Sunday, 7 June, that hospitals in Delhi would only treat residents of Delhi until the COVID-19 situation improves. The restriction extends to private hospitals as well, although hospitals run by the central government have been exempted. While extreme measures are required to tackle the pandemic, the government appears to have ignored the constitutional scheme of things.
Before proceeding to evaluate the move on legal footing, it might be appropriate to give a background regarding healthcare facilities in states surrounding Delhi.
The legal aid clinic of the authors’ law school, of which one of the authors was a member, had a committee on right to health – and was regularly involved in helping people in rural Haryana enforce this right. It was very common to observe the local dispensaries and hospitals lacking basic equipment, staff, medicines, and often operating from dilapidated buildings. We found that many people from these rural outskirts prefered travelling to Delhi for treatment. Clearly, the situation would have worsened with the pandemic, creating even greater burden on the city’s health infrastructure.
Right to Life
The Constitution of India guarantees to every person the Right to Life under Article 21. In countless judgments of the Supreme Court and many High Courts, this has been held to include the Right to Health. For instance, in the Paschim Bangal Khet Mazdoor Samiti case, the Supreme Court had ruled that “it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people.” As such, it is well settled that it is the State – which constitutionally includes the government authorities at all levels – to provide adequate health facilities to everyone. The Delhi government’s decision to exclude people residing out of Delhi, thus, falls foul of Article 21 to begin with.
Let us also recall the issue between Karnataka and Kerala just two months ago. The Karnataka government’s decision to shut its borders led to multiple deaths in Kerala, as people were not able to travel for their treatment. The Kerala High Court had then rebuked the government and had ordered the union government to ensure that all blockades are removed so that people are able to access hospitals. It held that any move to deprive persons of other states or union territories of access to healthcare is a violation of Article 21 as well as the International Convention on Economic, Social and Cultural Rights.
It might also be relevant to remember that the Delhi High Court recently had to intervene after Haryana had sealed its borders, cutting the supply of essential goods and services to Delhi, and thus creating problems for residents of Delhi.
The Delhi government, thus, needs to apply the same principle upon itself as well – and treat everyone equally as citizens of this country rather than residents of each state.
Right to Equality
Interestingly, however, the Constitution does not explicitly prohibit discrimination on the basis of place of residence (except for matters of public employment). While Article 15 prohibits discrimination on grounds of religion, race, caste, sex and place of birth, this move by the Delhi government does not violate Article 15 of the Constitution. However, an argument is to be made for the violation of Article 14 – which mandates that the government give equal treatment to every individual in India.
For a classification to be reasonable under Article 14, it has to be based on intelligible differentia, that is, the classification must be able to properly distinguish persons included and excluded from the group in question. Further, there has to be a reasonable nexus between the intelligible differentia and the objective sought to be achieved (that is, tackling the pandemic).
Delhi Govt’s Arbitrary Classification Is Against Article 14 Of Indian Constitution
The guidelines issued by Delhi government’s health department do not show any intelligible differentia – the factors to determine classification are inherently arbitrary. The guidelines state that as proof of residency of a patient, documents such as passport, Aadhar card, etc would be used. As such, the guidelines clearly exclude people who might be in Delhi otherwise – for instance, students or workers who might not be permanent residents of Delhi (and thus, do not have passports with a Delhi address), but might be temporarily residing in Delhi. The move also fails the reasonable nexus test – for instance, a migrant worker passing through Delhi could fall sick but would not be provided any treatment.
The classification would prevent persons needing medical attention from availing it, and thus, the objective (that is, tackling the pandemic) would remain unfulfilled.
As such, even the criteria of classification opted by the Delhi government falls foul of Article 14 of the Constitution.
Further, the guidelines make an exception for acid attack and road accident victims, provided the incident occurs within Delhi. There is absolutely no basis for the government to have made this classification. Reserving beds for residents of Delhi while ignoring a victim of acid attack seeking medical attention simply because the attack occurred, say, at the border, is not just violative of Article 14 but is also against the Right to Dignity of such victims. This classification is not just unconstitutional, but also asks doctors to ignore their Hippocratic Oath.
India – Not Just Delhi – is Dealing With a Pandemic
The first article in the Indian Constitution describes the vision of a singular nation. It states, “India, that is Bharat, shall be a union of states”. All governments are the constituents of the Indian nation, and cannot shed their responsibilities towards the Indian citizens. It also needs to be borne in mind that politico-geographical differences do not dissuade the coronavirus from infecting any human, and refusing a common person proper treatment, simply because they live across the border of the national capital, would be uncivilised and inhuman.
Decisions by various governments in isolation from other states, and complete disregard for the greater goal of the welfare of the nation, cannot be permitted.
The governments appear to be practising the wrong kind of isolation. The common person, perhaps a destitute migrant stuck in Delhi or a rickshaw-puller in Ghaziabad, if infected with coronavirus, deserves proper treatment irrespective of whether they permanently reside in the national capital or not.
(Nipun Arora is an advocate practicing in Delhi. He can be reached at email@example.com. Annanya Mehan is a law researcher currently working in the Delhi High Court. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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