Reservation In Hospitals: Pettiness During A Pandemic

As the cases of COVID-19 rise day by day, people have to rush to hospitals to get tested and treated properly, scared out of their wits. However, the process only gets tougher from there. With reports coming daily of the gross mismanagement in hospitals across the country, it seems as if even a basic facility such as treatment in a hospital will soon be a luxury. And the situation hasn’t been ameliorated by the recent decision taken by the Delhi Government to reserve hospital treatment for residents of Delhi only, thereby excluding several people from taking benefit of the services.

Beginning of The Issue

Delhi, being the national capital, has one of the best hospital facilities in the country. It is therefore understandable and, indeed, inevitable that people from the neighbouring states have been travelling to the UT to avail the services available there. However, the barrage of people coming from outside the city to benefit from the free treatment in Delhi led the government there to take certain drastic steps.

On June 7, Delhi Chief Minister Arvind Kejriwal announced that the borders of the national capital would be sealed for a week.[1] The announcement came amid indications that beds in Delhi government-run hospitals would be reserved for the city’s residents only.

This decision came after an order was passed by the District Magistrate, Sonipat imposing blanket cross border restrictions between Delhi and Sonipat. Afterwards, a petition[2] was filed in the Delhi High Court, where it observed that prima facie, the order constituted an infringement of Articles 19(1)(d) and 301 of the Constitution of India. Following this, additional advocate general of Haryana undertook the following before the Court:[3]

  • Free movement of trucks carrying essential as well as non-essential goods, between Delhi and Haryana (except to and fro between Containment Zones), as well as transiting through Haryana shall be allowed.
  • Delhi-Haryana border is open and the roads near the border have not been dug up.
  • The border shall be kept open and be manned by security personnel.
  • Movement of people who man essential services as notified by the Central Government, but not limited to doctors, nurses, paramedics, sanitation workers, the staff of Delhi Police, Delhi Transport Corporation, Delhi Jal Board, Municipal Corporations, High Courts, trial courts etc., shall be allowed between Delhi and Haryana on the production of e-passes.

After this incident, the Delhi government, it seems, retaliated with the decision to restrict access to hospitals in Delhi to the residents of the city only.

The justification behind this decision by the Delhi government is that since the city’s healthcare service in the government sector is free – and according to him, also better than in a lot of other states – there is a distinct possibility that, as the number of coronavirus infections increase, patients from outside Delhi would want to get treated in the city. The government is worried that considering the current COVID-19 caseload – the total cases reaching 11,000 – hospitals could get overwhelmed.[4]

There were 6,600 COVID-19 beds in the city hospitals so far, of which 2,586 were occupied. This was supposed to go up to 9,500 within two to three days.[5] The fear that these will get occupied within a couple of days if the free movement was allowed made the government decide to restrict movement between Delhi and its neighbouring states. The restriction extends to private hospitals as well, although hospitals run by the Central Government have been exempted.

This move by the government was severely criticized by the citizens as well other political parties for it excluded several people from availing services they desperately needed, making it a matter of life and death.

But the question remains – Can a State reserve an essential service such as healthcare for the residents of State in question and exclude others from benefitting from it?

Right to Life

In this discussion, it is imperative to highlight Article 21 of the Indian Constitution which guarantees the Right to Life to every person, citizen or non-citizen. Article 21 provides;

“No person shall be deprived of his life or personal liberty except according to the procedure established by law.”[6]

The right to life does not merely mean the continuance of a person’s animal existence, but a quality of life. In Kharak Singh v. State of U.P.,[7] the Supreme Court held;

“By the term, ‘life’ as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.”

Indeed, in the case of Suresh K. Kaushal v. NAZ Foundation,[8] it was established that the right to life guaranteed under Article 21 includes within its ambit the right to health as well. It also held that “the health and strength of the worker was an important facet of the right to life” in Consumer Education and Research Centre v. Union of India.[9]

Further, in Paschim Banga Ket Mazdoor Samity v. State of W.B.,[10] the scope of Article 21 was further widened; herein the court held that it is the responsibility of the government to provide adequate medical aid to every person and to work in the welfare of the general public. Moreover, Article 21 imposes an obligation on the state, the state is required to protect and safeguard the right of every person.[11]

It is also of utmost significance to remember that India is a signatory to the International Convention on Economic, Social and Cultural Rights.[12] Article 12 of this document obliges all State Parties to the Convention to recognize the right of everyone to the highest attainable standard of physical and mental health and to take steps for the creation of conditions which would assure to all, medical service and medical attention in the event of sickness.[13]

 In March 2020 a similar controversy had sprung up down south, between Karnataka and Kerala. Karnataka government had decided to shut its borders connected to Kerala as there had been a large influx of people looking for treatment in the former state. This had led to a lot of people losing their lives, unable to find proper healthcare services. The Kerala High Court had then rebuked the government and had ordered the union government to remove all blockages are removed so that people can 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.[14]

Considering all these precedents, it is only to be expected that this decision by the Delhi government would be criticized heavily. Taking heed of it, Delhi government took steps to remedy the situation.    

The Aftermath

Addressing a digital news briefing, the Chief Minister Kejriwal sought suggestions from the general public on whether the borders should continue to remain sealed beyond that week.

“What should we do? Should Delhi borders be opened? Some people believe that the borders should be opened, but medical treatment in the hospitals should only be given to the residents of Delhi. But Delhi belongs to the people from all over the country and it has treated people from all over the country and it has treated everyone in the past and so how could it refuse now?”[15]

However, relief came only when the Lieutenant Governor of Delhi Anil Baijal overruled the Chief Minister Kejriwal’s decision, saying that everyone will be treated in Delhi. In order, he stated that treatment “should not be denied to any patient on grounds of being a non-resident”.[16]

It is fortunate for the people of the neighbouring states that LG’s order came within a week of the restrictive order of the Delhi government. But it does make beg the question – Whether such a decision could have benefitted the current situation in the country in any way?

Conclusion

COVID-19 is a pandemic which has affected the world across the seven seas, sparing none from its wrath. It does not consider geographical boundaries or superficial divisions in its way. So why should the government of a specific state do so?

The Delhi government had decided to restrict its impressive healthcare services for anyone outside of Delhi, allowing only the residents of the city to avail them. The objective of such a move was ameliorating the situation and help in reducing the pandemic by freeing up beds and other essential equipment for effective treatment. However, that plan backfired quickly due to the lack of thought given to the decision.

A common person, perhaps a destitute migrant stuck in Delhi or a rickshaw-puller in Ghaziabad, if infected with coronavirus, would not be able to get any medical care, for the simple reason that he is not a permanent resident of Delhi.[17]

This may help the case for Delhi residents, but it is imperative to remember that it is not just Delhi which is facing this pandemic alone. The entire country is suffering terribly from COVID-19. In this situation, it is of paramount importance that all the states constituting India assist each other as best as they can, instead of participating in petty politics.

It is the suffering citizens and their health and well-being which must be the priority of the authorities at this crucial time. The states cannot restrict their health services from people on such frivolous grounds when they are needed in such large quantities. No matter their residency, all people have a fundamental right of availing healthcare services.

As the pandemic wreaks havoc on our lives, let us not let politics rule us. For what good would that do, when the people themselves are distraught with worry and sickness?

As Henrietta Newton Martin said:

 “India needs to rise above the constant bickering within her walls for a house divided within herself cannot stand.”    


[1] https://www.newindianexpress.com/cities/delhi/2020/jun/07/delhi-government-reserves-hospital-beds-for-city-residents-even-as-up-haryana-borders-reopen-2153416.html

[2] OP Gupta v Union of India;

[3] https://www.barandbench.com/news/litigation/movement-of-persons-offering-essential-services-allowed-at-delhi-haryana-border-on-epass-haryana-govt-undertakes-before-delhi-hc

[4]https://indianexpress.com/article/explained/delhi-seals-borders-who-all-can-travel-what-are-the-relaxations-6437312/

[5] Ibid.

[6] Article 21, Constitution of India, 1950.

[7] AIR 1963 SC 1295.

[8] AIR 2914 SC 563.

[9] AIR 1995 SC 922.

[10] AIR 1996 SC 2426.

[11] http://www.legalserviceindia.com/legal/article-450-health-as-a-part-of-fundamental-right-under-article-21-a-pursuit-by-india.html

[12] https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx

[13] https://www.thequint.com/voices/opinion/delhi-hospitals-for-delhi-residents-unconstitutional-corona-pandemic-arvind-kejriwal-aap-govt

[14] Ibid.

[15] https://thewire.in/government/arvind-kejriwal-announces-sealing-of-delhis-borders-for-a-week

[16] https://www.telegraphindia.com/states/delhi/coronavirus-lieutenant-governor-anil-baijal-overrules-decision-to-reserve-hospitals-for-delhi-residents/cid/1779419

[17] Supra, note 13.

Garima Chauhan from National Law University, Jodhpur

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