Failure to provide timely treatment is antithetical to Article 21, Patna HC directs the State to take action
The Patna High Court recently comprising Division Bench CJ Sanjay Karol and J. S. Kumar opined that it is the settled position of law that the right to health, including access to basic medical infrastructure, is a facet of Article 21 of the Constitution of India, which the State is duty-bound to provide
“The government hospitals run by the State and the medical officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in a violation of his right to life guaranteed under Article 21.”-observed the bench.
Since the onset of the first wave of current Pandemic Corona Virus Disease-19 (Covid-19), the Court had been monitoring the position within the State of Bihar in several petitions filed in the public interest. With the normalisation of the situation at the ground level and the State taking stand of the subject matter covering all the issues pending consideration before Hon'ble the Supreme Court, desired such proceedings to be closed.
The various directions issued, policies framed and programmes propagated by the Central Government and the State Government under the provisions of Disaster Management Act, 2005 and Epidemic Diseases Act, 1897, needs to be highlighted, popularised and people need to be sensitised, both in the urban and rural areas by all modes of communications, including electronic and print media.
“The Constitution Bench of the Hon’ble Apex Court in Common Cause (A Registered Society) Versus Union of India and another, (2018) 5 SCC 1, reiterated that when it comes to interpretation of fundamental rights, the Court has to adopt a liberal, dynamic, extensive and interpretative approach and needless to add the right to life has to be with dignity is a settled principles of law.”- relied the bench.
Reliance was also placed by the Court on the decision of Supreme Court in Union of India v. Mool Chand Kharaiti Ram Trust, wherein it had been reiterated that the constitutional duty to develop “humanism” as envisaged under Article 51-A(h) applicable to the medical profession.
On 16.12.2020, as instructed by the State, all matters were closed on the ground that Hon’ble the Apex Court in Suo Motu Writ Petition (Civil) No. 7 of 2020, titled as In Re The Proper Treatment of Covid 19 Patients and Dignified Handling of Dead Bodies in the Hospitals Etc., was dealing with all the issues subject matter of the petitions, in which the State has already filed an affidavit.
It is to be noted that till March, 2021, everyone believed the Corona Virus Disease (Covid-19) to have vanished, at least within the State of Bihar and accepted all things to have normalised. However, not accepting the same to be a reality, Ms. Shivani Kaushik, a young law student, filed the instant petition highlighting an equally grave and vital issue of disposal of biomedical wastes generated from equipment used to check Corona Virus.
Pursuant thereto, the Chief Secretary, Government of Bihar, filed his Affidavit dated 09.05.2021. To begin with, the bench noticed that the Affidavit is conspicuously silent on the issue of
- availability, requirement and distribution of Oxygen; and
- disposal of bio-medical waste generated out of all operations concerning Corona Virus.
It is a matter of record that last year, as per the Government’s affidavit filed in Shivani Kaushik during the first wave of Pandemic, more than 40 lakhs residents had returned home. Bihar has got substantial migrant population. How many of those who had again left the State for earning their bread and butter have now returned during the second wave of Pandemic, more so in the rural areas, is not clear. Whether the virus has spread in such regions also resulting in deaths needs to be ascertained by the administration.
The Bench complimented the officials, who have wholeheartedly and dedicatedly devoted themselves to this battle against the corona virus. The Bench opined that as representatives of institutions and pillars of a democracy, it is the collectively responsibility of the Court to ensure that the people get help and are provided with the healthcare they need, especially in these times of great crisis.
In the attending circumstances, when the State is in a state of a medical emergency, for the State itself has imposed lockdown from 06-05-2021, the Bench opined that non-reporting of deaths by the functionaries under the Municipal Act and the Panchayat Act should also entail action for their removal on the ground of non-performance/discharge of their duties.
“Any death, more so, in the rural areas for lack of access to a medical facility, including testing in a violation of fundamental right. Action has to be taken on a priority basis, and the State must furnish information to the Court with promptitude.” –opined the bench.
The learned Advocate General informs that the authorities have already initiated action in disposing of the bodies found flowing in the river Ganga at Buxar and Kaimur. He further states that the Commissioner of the said Districts shall file his personal affidavit on this issue. Let needful be done within next two working days.
Hence, the bench gave the following directions -
(i)The government hospitals run by the State and the medical officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on the part of even private hospitals to provide timely medical treatment to a person in need of such treatment results in a violation of his right to life guaranteed under Article 21.
(ii)The public representatives nominated vide Notification dated 1st of May, 2021 issued by the Additional Chief Secretary, Govt. of Bihar as also the functionaries of the State under the Registration Act, Municipal Act and the Panchayat Act shall take all steps ensuring implementation of the Government policies, including immediate registration of deaths, more so in the rural areas of Bihar.
(iii)The State Government is hereby directed to take all necessary steps for proper implementation of the CRS, and responsibilities enunciated for units of local government under the Registration Act as also the Panchayat Act. All deaths must be reported within 24 hours. A true picture is essential for taking effective steps in defeating this pandemic Covid-19.
(iv)We reiterate the importance and significance of shifting the focus to the rural areas so as to ensure that none is deprived of the medical health infrastructure in connection with pandemic Covid-19.
(v)The Ministry of Health, Government of India/appropriate authority shall, to the extent possible, favourably consider the request forwarded by the State vide communication dated 7th May, 2021 seeking enhancement of the quota of oxygen cylinders. The needful be positively done within next four working days.
(vi) Equally, the State’s request seeking enhancement of quota of oxygen (LMO) forwarded vide communication dated 10th of May, 2021 be favourably considered within very same period.
(vii)The affidavit of the Commissioner of the District Buxar and Kaimur with regard to disposal of the bodies found flowing in the river Ganga be positively filed within next two working days.
(viii)All concerned shall expeditiously take appropriate steps and pass orders for interim release of the case property seized in the shape of oxygen cylinders, which are necessarily required for saving human life. The needful be done as per law ensuring its identification during trial.
(ix)Municipal authorities are directed to take steps for proper collection, treatment and disposal of waste generated from COVID patients in home isolation.
(x)The process of procuring C.T. Scan equipment is directed to be expedited.
(xi)The Chief Secretary, Government of Bihar shall file a fresh affidavit, furnishing complete information in a format (tabular chart) prepared by all the learned counsel in terms of our direction. Needful be positively done within next four working days, failing which, we shall be constrained to ask him for joining the proceedings through a digital mode.
(xii) Fresh data be furnished to this Court, with respect to RTPCR, positivity rate and death etc., making clear the geographical locations, Urban and Rural designations and also, the number of (a) Covid Care Centres (CCC); (b) Dedicated Covid Health Centres (DCHC); (c) Dedicated Health Centre (DHC) or for that matter the private hospitals in each one of the districts. It is to be noted that the information furnished must pertain to the second wave of the pandemic, beginning March 1, 2021.
(xiii) It is open for the parties to respond to the affidavits dated 06.05.2021; 09.05.2021 and 11.05.2021 filed by the Chief Secretary, Government of Bihar.
Case title – Shivani Kaushik v. State of Bihar, 2021