Shivkrit Rai

| @ShivkritR | July 3,2020

The burgeoning stress of COVID-19 has brought to fore glaring inadequacies in India’s healthcare system. To address this the Supreme Court took suo moto cognizance of media reports on patient suffering in government hospitals. In this context, the author writes on the state’s duty to safeguard citizen’s right to health and the jurisprudence behind it.

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On 11th June, the Supreme Court took suo-motu cognizance of the deplorable health conditions in hospitals throughout the country. More particularly it noted Delhi Government’s failed response to providing healthcare to its residents. The court took cognizance based on news reports which depicted how the right to health of COVID-19 patients admitted in Delhi Government Hospitals was constantly violated. In two detailed orders dated 12th June and 19th June, 2020, the three- judge bench of the Supreme Court reiterated that it is the duty of the State to ensure the right to health. The Court also noted a decrease in COVID-19 testing and directed that there should be a steep increase in testing by the state. Court has ordered installation of CCTV cameras in the government hospitals and constituted a committee to oversee the condition of hospitals in Delhi.

 

With reports suggesting that a new wave of COVID-19 cases is expected in the coming days, this was judiciary’s last attempt to safeguard right to health for all, and avoid a deferred reaction which the judiciary has been recently critiqued for. The situation called for the Court to take a much-needed activist approach, which it has taken time and again in judgments such as the Bandhua Mukti Morcha case, Vishakha judgment and the Rakesh Chandra Narayan case. It has also given the Supreme Court an opportunity to develop on the existing healthcare jurisprudence envisaged in the constitutional discourse on Fundamental Rights. While the court did take an activist approach, it missed out on a few takeaways from the landmark judicial precedents.  

 

Revisiting Rakesh Chandra Narayan v. State Of Bihar

 

The jurisprudence with respect to the right to health can be traced back to 1988. The Supreme Court in the case of Rakesh Chandra Narayan held that the Government has an obligation to ensure that medical attention is provided to every citizen in the country. This was one of the first instances where the Supreme Court went on to merge the non-justiciable Directive Principles of State Policy with justiciable Fundamental Rights. The case adjudicated on the deplorable condition in a mental hospital in Ranchi and was filed in the form of a letter petition under Article 32 of the Indian Constitution. 

 

“The Supreme Court noted that an institution of such a big magnitude cannot be run unless there are administrative changes made to it.”

 

The Supreme Court ordered the Chief Judicial Magistrate (CJM), Ranchi, to investigate the matter. The outcome of the report by the CJM highlighted the sorry state of affairs in the hospital. The Supreme Court noted that an institution of such a big magnitude cannot be run unless there are administrative changes made to it. Furthermore, the court noted that the scheme which had been furnished to the court to bring improvement to the mental hospital was half-hearted, and did not attempt to cure the shortfalls in the existing system. In an unprecedented move, the court constituted a Committee of Management and laid down guidelines regarding the functioning and management of the hospital.

 

The Supreme Court tried to be an activist one. The Court in its order dated 19.06.2020 had directed the Ministry of Health and Family Welfare to constitute a committee that would inspect the hospitals and conduct surprise visits from time to time.  The committee required Senior Doctors from Central government hospitals in Delhi, doctors from other GNCTD hospitals, doctors from AIIMS, and officers from the ministry as members.

 

“This is because the State has been entrusted with the power to report on its own actions”

 

The problem with such a committee would is that the reports submitted to the Supreme Court on subsequent dates can be biased, and maybe unreliable. This is because the State has been entrusted with the power to report on its own actions. Instead, the Court should have appointed a Chief Judicial Magistrate, as someone not answerable to the executive or the legislature, to investigate the matter. Such an authority would give a detailed and unbiased report of ground realities. 

 

Distrust With The State: Need For An Independent Inquiry

 

Recently, the Delhi Chief Minister, Arvind Kejriwal on May 25th had stated that the situation in Delhi is “under control” and the State Government was “ready for a possible upsurge in the number of coronavirus patients”. The current situation in Delhi seems to be completely opposite of the claims made by the State. Every piece of information, which is presented before the Supreme Court has to be subjected to higher scrutiny. An independent investigation is also required because of the recent distrust created by the previous flimsy statements of the State Government and Central Government.

 

Quite interestingly, the Supreme Court in the Rakesh Chandra Narayan judgment had also analyzed the report of the Chief Secretary of the State with a tinge of distrust. The court noted: 

“The hospital authorities would not, in their own interests, be too ready to expose their own deficiencies during the visit of the Chief Secretary. Therefore, to have been satisfied and to report that during his visit he did not find any patient being given inadequate food or medicine is no appraisal of the situation.”

 

A similar distrust was observed in the order dated 19.06.2020 by the Supreme Court. The Court observed that : 

“……… in the entire affidavit, apart from general statement that all steps are being taken, the affidavit does not indicate any mechanism for proper supervision of the functioning of the hospital and steps for improvement. The affidavit tries to give an impression to the Court that everything in the Government hospital in NCT, Delhi is well and all steps are being taken by the Government of NCT of Delhi. When the Government does not endeavour to know any shortcomings or lapses in its hospitals and patient care, the chances of remedial action and improvement becomes dim.”

 

It is therefore pertinent that the bench oversees the fact that it receives an unbiased report and updated information from the Committee. 

 

Overcoming A Legislative Void 

 

There seems to be no state legislation to safeguard the right to health in Delhi. In such a situation, it was incumbent upon the Supreme Court to spell out the ambit of the right. This would allow the State to understand the Supreme Court’s reading of Right to Health as interpreted through Article 21 of the Indian Constitution. The court, in the suo moto matter, dealt with two aspects – economic one, where the court delved into the cost of COVID-19 testing; and an administrative one, where the court analyzed failure in the implementation of the guidelines with respect to patients’ care, hospital management, and infrastructure.

 

“There seems to be no state legislation to safeguard the right to health in Delhi.”

 

Quite interestingly, the Supreme Court has tried to understand the state’s failure not only from a budgetary perspective but also from an administrative standpoint. The court has made sure that the committee formed by the state which includes doctors is also empowered to issue necessary directions with respect to taking care of COVID-19 affected patients. By empowering the committee to issue directions, the court has created a new administration with the objective to fill in the lacunas in the existing system. 

 

However, more can be done. A perusal of the two orders (12th June and 19th June) showcases that the court has merely accepted the recommendations made by the State through its affidavits. In the days to come, the judiciary might be required to see whether the recommendations made by the State are effective or half-hearted. This will allow the Court to effectively deal with the rampant violation of the right to health of COVID-19 patients in Delhi while guaranteeing the right to health, which has in past existed on paper but failed in reality.  

(The author is a Law Researcher at Delhi High Court. Views expressed are personal.)

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