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Updated: Nov 10, 2020

By Shelal Lodhi Rajput, 2nd Year B.B.A., LL.B. Symbiosis Law School, Pune


Medical Emergency Not an Excuse to Trample on Citizen's Fundamental Rights under Article 21 of Constitution: Telangana HC

The constitution of India provides a framework for a socialist/ welfare pattern of development. Our constitution is essentially based on an egalitarian philosophy and it always upholds the spirit of ‘Salus Populi Suprema lex.’ Article 21 and Part III of the constitution envisages these principles and some of the most important parts of upholding various rights. Article 21 is the Article which contains so many rights in itself from the various pronouncement of the judiciary from time to time like Right to livelihood, Right to clean air and some other rights, in a programme by former CJI Deepak Mishra stated that more than 20 rights were added in Article 21 by various judicial pronouncement as fundamental rights under the Right to life & Personal liberty.

When we take into account Medical emergencies and right to life, it cannot be said that due to medical emergencies, states can deny protecting our fundamental rights, especially Right to life given in Article 21 of the constitution of India.

In the present time of pandemic COVID 19, this topic is perfectly popped up as the medical emergency is in India and the whole nation is in lockdown. In the very recent development once again judiciary shows the active approach to uphold the spirit of the constitution and to protect the rights of individuals. The new ruling from Telangana HC stated that Medical Emergency Not an Excuse to Trample On Citizen's Fundamental Rights under Article 21 Of Constitution. The judgement was given by court against the order of state government which compelled citizen to get testing and treatment for COVID 19 from designated government hospitals and a sort of implicit prevention on the individuals to approach the private hospitals and laboratories to test COVID 19 though they have requisite approval from the Indian Council of Medical Research. The Telangana government issued an order in which government hospitals were specially dedicated for treatment and testing of COVID 19 but the question arises here is Why are COVID 19 tests only at government hospitals and not in private one? The court called the bench to answer this question and to protect the fundamental rights of individuals and to make sure that in times of Medical emergency, the state cannot make an excuse of it to trample on citizens fundamental rights. The PIL was filed on this matter and it was prayed in the court that the court should direct the government to allow the testing of COVID 19 also by private hospitals. The judgement delivered by a two-judge bench of Telangana HC comprises Justice MS Ramachandra Rao and K Lakshman. The court pronounced a verdict to safeguard the rights of citizens and also while observing the order of government it was stated that there is no emergency though there is undoubtedly a pandemic. The basis for judgement to quash the order of government can be seen as Right to health is fundamental rights and it cannot be suspended in the normal situation by any executive order without any reasonable grounds. It was in 1995 in Consumer Education and Research Centre v. Union of India3, that the Supreme Court for the first time explicitly held (at SCC p. 70, para 24) that “[the right to health ... is an integral facet of [a] meaningful right to life”. This case was concerning the occupational health hazards faced by workers in the asbestos industry. Reading Article 21 with the relevant directive principles guaranteed in Articles 39(e), 41 and 43, the Supreme Court held that the right to health and medical care is a fundamental right and it makes the life of the workman meaningful and purposeful with the dignity of person [1].

Background of This Judgement

The judgement traces its background from the various precedents which stated that in ordinary times state cannot suspend the fundamental rights of citizens as it is given by the supreme law of India i.e. constitution The PIL was filed to declare the action of the state of Telangana and other respondents are not permitting the “private hospitals” and “diagnostic centres” which are equipped with required equipments and have better hygiene facilities than that of government hospitals. The private hospitals were prohibited from treating COVID 19 patients. The PIL filed in Telangana HC was on the same lines as the order of government is violating Article 21 of the constitution of India which is a fundamental right. The 38-page judgement contains various precedents for their decision of quashing down the orders of government which is discussed as In Assn. of Medical Superspeciality Aspirants & Residents v. Union of India (2019) 8 SCC 607recently, the Supreme Court of India emphasized the primary duty of the State to ‘provide all facilities’ to make meaningful the right of a citizen to secure his health. In Devika Biswas v. Union of India, the Supreme Court reiterated the settled legal position that the ‘right to health’ is a facet of the ‘right to life’ guaranteed by Art.21 of the Constitution of India. The court also referred other precedents while giving its verdict with the famous statement of Lord Atkin in Liversidge v. Anderson to conquer with the contention of learned counsel for the state about the argument for validating the order based on the emergency provision which was rejected by the court, it said “In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.” is very appropriate.

The bench was called to decide on the issue that is about the legality of the order passed by the state government which prohibits the private hospitals from testing and diagnosing COVID 19 and how far it is in against to the rights against citizen, as is there any violation of fundamental rights of individuals or not and if the order is valid and reasonable in consonance with the provisions of the constitution.

Salient Features

In the context of Medical emergency and right to life, the present situation on it is a little bit ambiguous but now it was cleared by the decision of Telangana HC in the recent judgment of Ganta Jai Kumar v. State of Telangana and ors. The court quashed the state government’s total prohibition on treatment and testing of COVID 19 by private hospitals and laboratories as illogical, without legal basis, ‘patently arbitrary and unreasonable’, the court stated it while delivering its verdict. The salient features of this judgement can be analyzed in the following ways as

· An emergency of any sort is not an excuse to trample on the rights under Article 21.

· The present situation is pandemic and till now no emergency is declared under Article 356 of the constitution of India.

· The contention of learned counsel for the state about the situation of emergency was rejected straight forward by judges.

· The order of the state government is not reasonable as it is violative of Article 21 of the constitution of India.

· Freedom of a citizen to approach any private laboratory and hospital approved by the Indian Council of Medical Research (ICMR).

The aforementioned factors are observed by the court while delivering its judgement of quashing the orders of government and directed the state government to allow the private hospitals to diagnose the COVID 19 patients. The learned advocate general of state was not able to prove this act of state as reasonable and valid as the court was unable to agree with the contention that there is a state of emergency in the state because of the pandemic COVID 19 and that such emergency justifies the state action as, during times of a medical emergency or a war emergency, anything can be done by the state. This contention was straight forward rejected by the two-judge bench, it was said by the bench "no emergency has been declared by the Government under Article 356 of the Constitution of India, though there is undoubtedly a pandemic."

Also, bench countered that the ADM Jabalpur ruling, which had espoused a

a similar stance, has since been expressly struck down in the KS Puttaswamy ruling. The court stated that the state cannot compel citizens to get tested and treated in only government hospitals. Also, the court took cognizance of the Epidemics Disaster Act, 1897 either to prevent private hospitals from testing suspected victims of an epidemic.

Relevant Legal Provision

The legal provision here in the context of medical emergency and right to life, one which is of utmost importance is Article 21 of Indian constitution, the other constitutional provisions are Article 39, 41 and 42 which all are DPSPs.

In case of a medical emergency in the present pandemic, some legislation become too important like the Epidemic Act, 1897 and Disaster management Act, 2005. The other relevant provisions from the context of emergency are Article 352; it continues to figure in Article 355. Article 356 provides for the imposition of emergency in a state in case of breakdown of the constitutional machinery in that state. Article 353 permits the central government to direct any state on how to use its executive power; here it becomes a strong contention for the government to put in the present case of Telangana HC decision. In the present time in many states, the aforementioned acts were implemented to combat the pandemic of COVID 19. The big question here is can an epidemic be a ground for an emergency?

In the recent case which was tabled before Telangana HC, it was said that as there is no emergency imposed under Article 356 so the action of passing an order which prohibits private hospitals to diagnose with COVID 19 patients, but in addressing court also made it clear that even in times of emergency right to life cannot be suspended by action of the state.

Critical Analysis

Medical Emergency can’t be a ground for suspension of Right to life as this is one of the most sacrosanct rights given in Indian constitution and time and again we get to see that many new rights were evolved under the umbrella of Right to life and liberty, one of them is Right to health as without a healthy life no assets of personal matters or give him a peaceful and satisfying life. The Right to health is inseparable from Right to life and Right to Medical Facilities. Also even in times of emergency, the right to move the court for violation of Article 20 and 21 cannot be suspended, it was done by 44th Amendment in Article 359.

The Medical emergency cannot be a valid ground at any point of time to take away someone’s right to life, it is just an arbitrary act of state and to control it we have the theory of checks and balances.

If we take the recent judgment of Telangana HC it is stated by the court on the order of state government "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, while judicially reviewing it, know that there is the application of mind to the issue by the authority concerned."

The order was in contravention to Article 21 also if we analyze the other angle it is also violative of Article 19(1)(g) which ensures right to practice any profession as the doctors of the private hospital were not able to freely practice their profession due to the order of the state.


The government cannot act arbitrarily just for their good and neglecting the welfare of citizens of the country and even in times of emergency except some reasonable restrictions government cannot act arbitrarily as we get to see in the recent order of Telangana government and the court ultimately held that the state cannot act arbitrarily and unfairly, as they don’t have any legal backing and reasonable ground.

The court in the aforementioned question also noted that the order of government raises the danger of suppressing figures of infected persons on account of COVID 19 and we also don’t have to forget that every person have a fundamental right to health, right to move freely except some reasonable restrictions and in present government order there is no reasonability was provided. Also, we don’t have to forget that the state's inability to provide quality care for all led to the growth of the private sector.

The prime objective of the constitution is to provide a life of dignity to individuals and to ensure them a life as a human and not just an animal, which empowers that no matter what the situation is never government can act arbitrarily to act according to their will, therefore we have three organs which keep checks on the functioning of each other and no one can act arbitrarily and all must act for the welfare of society and mankind.



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