NEW DELHI—The Arvind Kejriwal-led Aam Aadmi Party (AAP) government’s controversial order to restrict access to all hospitals and nursing homes of Delhi only to “bonafide residents” of the national capital, with few exceptions for non-residents seeking treatments for ailments other than Covid 19, was overturned by the Lieutenant Governor Anil Baijal on Monday evening.
Kejriwal cited the coronavirus pandemic as a pretext for imposing this restriction, but this was not the first time that the AAP government issued an order restricting access to healthcare services for non-residents in the national capital.
Documents show that a similar attempt, though only limited to the Guru Tegh Bahadur (GTB) Hospital and for a certain category of services, was made by the Arvind Kejriwal led administration in 2018 against people who were not registered as voters in the national capital.
It was declared unconstitutional by the Delhi High Court in a judgment in October 2018 after senior lawyer and health activist Ashok Agarwal filed a petition challenging the AAP government run GTB hospital’s decision to restrict certain category of services to patients who are not voters in Delhi.
In his order overturning Kejriwal government’s directive, LG Baijal quoted this judgment given by the Delhi HC in response to Agarwal’s petition to order that all those who are present in Delhi must be provided healthcare services.
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HuffPost India spoke with the senior lawyer and health activist Ashok Agarwal to understand his views about the second attempt made by the Delhi government to restrict healthcare services.
THE PREVIOUS ATTEMPT
“You are sowing seeds of division among people’s minds, provoking them and using it to pass an illegal order. This needs to be condemned,” said Agarwal about the AAP government’s June 7 order. “This is clearly against the 2018 judgment of the Delhi High Court”.
In its judgment given on 12 October 2018, the Delhi HC held that, “Health care facility and its access to a citizen is a right available under the Constitution and Article 21 of the Constitution imposes a duty on the Government to take whatever steps are necessary to ensure that every citizen has free and fair access to health facilities and treatment in a Government hospital.
In fact, Article 21 of the Constitution not only imposes upon the State a constitutional obligation but also a legal obligation to ensure access to treatment, medicine and other facilities in a hospital.”
It further noted that lack of financial resources cannot be a reason to deny healthcare facilities to those who need them. “It is also a well settled principle of law that non-availability of finance infrastructure facilities cannot be a ground to be put forth by a State to say that medical facilities cannot be made available,” a two judge bench of the Delhi HC noted.
It also cited several Supreme Court judgments while emphasising and reiterating the point that “it is a well settled principle of law that right to health and medical aid so also medical care is a fundamental right envisaged under Article 21 of the Constitution read with Articles 39(e) and 41 of the Constitution.”
“Living a life with meaningful and purposeful reasons and dignity is the mandate of the Constitution,” the Delhi HC noted.
According to Agarwal, the latest order by the AAP government to restrict healthcare services was drafted by following such a process that it sought to render this important October 2018 judgement of the Delhi HC ineffective.
“They have tried to frustrate the order of the High Court by seeking suggestions from people in Delhi about whether it should be done or not. This is undemocratic because this way you can seek a referendum asking people if Delhi should be declared a sovereign state. Can you do it?” he said.
When pointed out that the latest order cited extraordinary legal powers granted to the state government by the Delhi Epidemic Diseases, COVID-19, Regulations 2020 under the Epidemic Diseases Act 1897, Agarwal denied the AAP government has any such powers.
“Firstly, no such powers are there in those rules they have cited. They have cited it only to confuse people but these powers are not available to them at all,” said Agarwal.
The veteran health activist added, even if the AAP government had such powers under the rules it quoted, “Those provisions can’t be above the constitution.”
Agarwal said he was confident enough that the rules do not give AAP such powers and informed that, “I have gone to suggest private hospitals not to obey this order. Because the Supreme Court law says you can disobey any unlawful order.”
You are sowing seeds of division among people’s minds, provoking them and using it to pass an illegal order. This needs to be condemned.Advocate Ashok Agarwal
When further pointed to the specific permission given in the Kejriwal government’s order for patients seeking certain specialised treatments not available anywhere else in the country, Agarwal said implementing such a provision would be flawed and adversely affect patients visiting Delhi from other states.
“A patient wouldn’t come wearing a board displaying his illness. Only a diagnosis from a doctor can tell,” he pointed out. But this may not be possible as “authorities wouldn’t allow patients to enter at the entry point itself, asking for voter identification.”
Agarwal alleged that this provision was added to the order “to confuse people”.
“The literal impact would be that those patients who do not have proof of their illnesses will be denied access to treatment in private as well as government hospitals,” he rued.
LG’s Order Cites 2018 Delhi HC Judgement
The two page order written by LG Anil Baijal on Monday to overturn the Arvind Kejriwal government order also specifically cited the Delhi HC judgement of October 2018.
“And whereas, the Hon’ble High Court of Delhi in WP ( C ) No. 10858/2018 titled as Social Jurist, a Civil Rights Group V/s GNCTD and Another’, after examining the constitutional provisions in details, especially Article 14 and 21, and after looking at relevant jurisprudence in this regard, has held that denying patients medical treatment on grounds of not being resident of NCT of Delhi, is impermissible,” the LG’s order noted.
The order also stated, similar to the references in the Delhi HC judgement of October 2018, that ‘Right to Health is an integral part of ‘Right to Life’ under Article 21 of the Constitution of India’.
Evidently, the LG’s order relied not only the October 2018 judgement of the Delhi High Court but also various other judgements of the Supreme Court cited in it to emphasise the point that healthcare facilities cannot be denied to patients under any circumstances, and certainly not on the basis of not being a resident of the national capital.