Citizen Have Freedom To Approach Any Private Laboratory & Hospital Approved By ICMR: Telangana HC

Citizen Have Freedom To Approach Any Private Laboratory & Hospital Approved By ICMR: Telangana HC

June 2, 2020 Case laws telegana hc 0

Ganta Jai Kumar v. State of Telangana [1] 

FACTS

  • Initially the Government permitted all private hospitals to deal with COVID-19 cases from 21.3.2020 till 11.4.2020 but the District Medical and Health Officer, Hyderabad, in his first order dt.11.4.2020, while permitting the private hospitals to deal with COVID-19 cases introduced a prohibition against them from dealing with ordinary elective procedures and surgeries so that the entire attention could be towards treating the COVID-19 patients even by private hospitals. However subsequently by another order dt.11.4.2020, on the same day, the District Medical and Health Officer, Hyderabad canceled the earlier order issued on the same day.
    Therefore, the result is that private hospitals were totally prohibited from treating COVID-19 patients.



  • The petitioner is a resident of Hyderabad claims that the action of the State of Telangana and other respondents in not permitting the “private hospitals” and “diagnostic centers” which are equipped with necessary equipment and personnel and willing to conduct diagnostic tests for COVID-19 virus and to admit patients for isolation and treatment of COVID-19 virus as arbitrary, illegal and without power.

  • The petitioner contends that all citizens should have a right to choose where they can undergo tests and treatment if tested positive for COVID-19, and the respondents cannot compel them to use only Government operated facilities.

  • The contention of the petitioner is to direct the respondents to permit private hospitals and diagnostic centers which are equipped with necessary equipment and personnel and willing to conduct diagnostic tests for COVID-19 virus and to admit patients for isolation and treatment of COVID-19 virus.

ISSUES Before Telegana HC:

  1. Whether all citizens should have a right to choose where they can undergo tests and treatment if tested positive for COVID-19?



  2. Whether the respondents can compel them to use only Government operated facilities?

  3. Whether notification of District and Health Officer (Hyderabad) is arbitrary, illegal and without power?

REFERENCES BY Telangana HC:

  • The High Court while referring to order withdrawn by District and Health Officer (Hyderabad) said that it is the basic principle of administrative law that every action of the State which affects the rights of citizens must be supported by reasons so that a Court can know that there is application of mind to the issue by the authority concerned, which passed the said order.

  • The High Court referred a Constitution Bench Jugment of the Supreme Court in Mohinder Singh Gill v. Chief Election Commr[2] held that:

“when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji [3] :

“Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively (what a reasonable third-party viewer opines) with reference to the language used in the order itself.”

Orders are not like old wine becoming better as they grow older.”

  • The High Court also said that the Right to health is integral to the right to life. Government has a constitutional obligation to provide health facilities. The Court referred to the SC judgment:

    State of Punjab v. Ram Lubhaya Bagga [4]
    The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person. The right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter, and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.”

    Also, the HC referred Devika Biswas v. Union of India [5] the Supreme Court reiterated the settled legal position that the right to health is facet of right to life guaranteed by Art.21 of the Constitution of India.

    Thus as per the judgments of the Supreme Court, the right to health is a facet of Art.21



DECISION:

  • The Telangana High Court said that “In our opinion, limiting the testing centers arbitrarily jeopardizes the health of such serious non COVID patients as well and exponentially increases the risks of spread of the disease in COVID positive cases that remain undetected for prolonged periods. It is imperative to reduce the burden on the health care system and ensure that COVID-19 cases get detected and treated at a faster rate. Also, The Court appreciated the petitioner for approaching this Court and bringing to our notice this important issue concerning the health.

  • Further, the Court (related to above cases mentioned) said that “Every human being has a basic and natural born instinct to protect himself and his kith and kin from danger – be it from human, animal or one in the nature of a disease, by utilizing all the means available in his power. 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.” Therefore, it is settled law that Art.21 of the Constitution of India confers on the citizens the right to lead a dignified and meaningful life and the right to health is an integral facet of this right.

    The Telegana High Court held as follow:

  1. The Court set aside the notification dated 11.04.2020 the District Medical and Health Officer, Hyderabad as violative of Article of Art.14 and Art.21 of the Constitution of India and also the principles of natural justice ( for not giving any reasons) and is set aside;;

  2. The Court held that the respondents cannot compel residents/citizens of the State of Telangana to get (a) testing or treatment/isolation for COVID-19 only in designated hospitals or only in the other designated laboratories decided by them, when the citizens/ residents are willing to pay the cost and get their blood samples tested in the private ICMR approved laboratories or private sector hospitals having the requisite infrastructure by paying the requisite charges;

References:

1.Writ Petition (PIL) No. 75 of 2020

2. (1978) 1 SCC 405, at page 417

3. AIR 1952 SC 16

4. (1998) 4 SCC 117

5. (2016) 10 SCC 726

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