Can COVID-19 Justify Denial of Medical Treatment on the Basis of Place of Residence?

By Sanobar Faisal

“The capital city is not just a part of India. It is miniaturized India… Anyone who lives inside India can never be considered an ‘outsider’ in Delhi.”

The COVID-19 pandemic has exposed the pitiable state of public healthcare infrastructure in the country. Governments are trying to prioritize the life of Indians by categorizing them into the natives of a particular State or Union Territory.

One such, the Government of NCT of Delhi (‘GNCTD’) passed an order on June 7, 2020 (‘Govt. order’), whereby it categorized the general population of Delhi into “bona fide and non-bona fide residents”. The relevant excerpt of the said order is reproduced below:

“It has been observed that there has been a surge in the number of positive cases of COVID-19 in the last few days in Delhi, resulting in additional demand for hospital beds, consumables, and infrastructure.

“Now, therefore, in the exercise of powers conferred by the Delhi Epidemic Diseases, COVID-19, Regulations, 2020 under the Epidemic Diseases Act, 1897, it is hereby ordered that all hospitals operating under Government of NCT of Delhi and all private hospitals and nursing homes shall ensure that only bona fide residents of NCT of Delhi are admitted for treatment.”

However, this order was overturned the following day by the Lieutenant Governor of Delhi (‘LG’). The LG in his order directed all the government and private hospitals and nursing homes situated in NCT of Delhi to extend medical facilities to all the COVID-19 cases without any discrimination on the basis of residence. The LG recognized the Right to Health as an extension of the Right to Life under Article 21 of the Constitution of India, and cited the High Court of Delhi’s (‘Delhi HC’) decision in Social Jurist, a Civil Rights Group v. Government of NCT of Delhi wherein it was held that, “denying patients medical treatment on the ground of not being resident of NCT of Delhi, is impermissible.”

This tussle between the NCT government and the LG brought us to two major questions, (a) the constitutionality of the Govt. order, and (b) the authority of the LG over the NCT government.

The Constitutionality of the Govt. Order

We are well aware that the Preamble comes under the Basic Structure of the Constitution, any violation of which would be a gross injustice. The word “socialist” in the Preamble must be read from the goals Articles 14, 15, 21 and all other cognate articles seek to establish, i.e. to reduce inequalities in status and to provide equality of opportunity and facilities. Equal protection as envisaged in Article 14 of the Constitution means a right for equal treatment in similar circumstances as laid down by the Supreme Court of India in Ram Krishna Dalmia v. Justice S. R. Tendolkar. Moreover, Article 15(2) prohibits discrimination on the basis of place of birth. Also, it is a well-settled principle of law that the right to health and medical aid is a fundamental right envisaged under Article 21 read with Articles 39(e) and 41 of the Constitution of India.

The Case of Social Jurist v. GNCTD

There was an order in question issued by a government hospital that said that all hospital services would be provided only to the patients having a Delhi Voter ID Card whereas others, i.e. non-Delhi residents could seek certain limited medical facilities only, the reason being a pilot project to decongest the hospital.

The Delhi HC while adjudicating on a challenge to this order said that this classification made by the State was not reasonable, as it was not based on any scientific or intelligential distinction but the availability of a Voter ID Card, and the purpose to be achieved by this – to decongest the hospital and bring in a system of discipline and efficiency in its functioning – was against the concept of a welfare state. Consequently, the order in question was struck down.

The Supreme Court in Kailash Chand Sharma v. the State of Rajasthan has held that residence by itself – be it within a state, region, district or a lesser area cannot be a ground to accord preferential treatment. Furthermore, in Paschim Banga Khet Mazdoor Samity v. State of West Bengal, the apex court said that financial resources cannot be a constraint in the matter of providing medical facilities to a citizen. Also, providing adequate medical facilities to the people is not only an essential part, but 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.

The Concept of ‘Reasonable Classification’

Article 14 of the Constitution states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. It forbids class legislation but it does not forbid reasonable classification. Class legislation is that which makes improper discrimination by conferring particular privileges upon a class of persons arbitrarily selected from a large number of persons all of whom stand in the same relation to the privilege granted, and no reasonable distinction or substantial difference can be found justifying the inclusion of one class and the exclusion of the other. Reasonable classification, on the other hand, has been permitted, but it must not be “arbitrary, artificial or evasive”.

The Constitution Bench of the Supreme Court in the case of State of West Bengal v. Anwar Ali Sarkar has laid down the Twin Test for classification to be called a reasonable one, wherein two conditions are to be met: firstly, the classification must be founded on an intelligible differentia; secondly, the differentia must have a rational nexus to the object sought to be achieved. It is only when there is no reasonable basis for a classification that it may be declared discriminatory.

It has also been stated that there is bound to be some degree of inequality when there is segregation of one class from the other. However, such segregation must be rational. Also, if the object itself is discriminatory, then the explanation that classification is reasonable having rational relation to the object is immaterial.

It can thus be said that, the Govt. the order in question was discriminatory as the classification based on the residence is purely arbitrary; there was neither an intelligible differentia nor a rational nexus to the object sought to be achieved. Moreover, contending the lack of facilities and infrastructure for creating such a classification is in itself contrary to the goals of a welfare state, hence it falls short of a constitutional backing.

The Authority of the LG over the NCT Government

The LG’s order overriding the Govt. the order was seen by many as an attack on democracy and federalism. However, the NCT government did not raise any objection and readily agreed to implement it. In this background, the constitutional position of the LG vis-à-vis the NCT government as enunciated by the Supreme Court in Government of NCT of Delhi v. Union of India comes to light.

The LG passed the order in exercise of his powers conferred under Section 18(3) of the Disaster Management Act, 2005 (‘DMA’) in his capacity as the Chairperson of the Delhi Disaster Management Authority (‘DDMA’). As per Section 14 of DMA, the Chief Minister of every State is the Chairperson of the State Disaster Management Authority; however, for Delhi, the second proviso to Section 14 makes LG the Chairperson of DDMA. This makes him the sole repository of the powers given to DDMA in case of an emergent situation under Section 18(3). This authority given to the LG in DMA flows from his authority under Article 239AA(4) of the Constitution.

The key issue before the Supreme Court in the aforementioned case was under this very Article, about the relationship between an elected government and the LG. Article 239AA deals with the administration of the National Capital Territory. Clause (4) says that the Chief Minister shall be the head of the Legislative Assembly “to aid and advise the Lieutenant Governor in the exercise of his functions”. The Court held that the LG is bound by the aid and advice of the Council of Ministers, but this was immediately followed by the proviso that in case of a conflict of opinions, the LG can refer the matter to the President for the decision, but pending such decision, if the LG believes the matter to be urgent, s/he can take immediate action.

Conclusion

After looking at various provisions and judicial pronouncements, it can be inferred that the NCT government was trying to shirk away from discharging its constitutional obligation by contending lack of facilities like infrastructure, manpower, as against the patient influx in the capital. The Govt. order was discriminatory and unconstitutional, for not only did it fail to fulfill the socialistic goal of a welfare state, but also failed to satisfy the Twin Test as the classification of Indians based on place of residence was neither based on an intelligible differentia nor did it have a rational nexus with the object sought to be achieved.

As for the subsequent order passed by the LG, he was well within his rights, having a Constitutional mandate and specific powers granted to him by the DMA.

(Sanobar Faisal is a fourth-year student at National Law Institute University, Bhopal. She is also the Co-Convenor of the NLIU Centre for Knowledge and Policy Discussion (Manthan) .)