On May 23, 2020, Senior Advocate at the Supreme Court, Dushyant Dave, had said that in India now, nobody in the government is answerable to anyone and the Judges who have the duty to hold the government accountable have failed in this duty in the last eight weeks. Dave was speaking on the subject of "Role of Judiciary in a pandemic" organized by the All India Lawyers Union. He also recalled a hearing on May 15, 2020, wherein direction was sought to identify migrant laborers who are walking to their native places and ensure that they reach their destination free of cost and in a dignified manner. But the SC had dismissed the petition while remarking “How can we stop them from walking?”
Remarks of Mr. Dave are certainly not true for Hon’ble Gujarat High Court, which had as early as on March 13, 2020, registered a suo motu Public Interest Litigation in the wake of the Coronavirus (COVID-19) pandemic [titled Precautionary Measures In The Wake Of The Pandemic of Corona Virus (COVID-19)]. Last week in the same PIL, the Gujarat High Court Division Bench comprising justices J. B.
Pardiwala and Ilesh J. Vora had on May 14, 2020, directed to the State of Gujarat that private hospitals cannot charge exorbitant fees for the treatment of COVID-19 patients. In continuation of the same, again on May 22, 2020, the Gujarat HC again took charge of the situation and passed a slew of directions to various authorities.
Initially, the Court pursued the Report submitted by the Gujarat Government submitted laying down the arrangements in place as well as important actions taken in the wake of the spread of COVID19, with reference to various aspects indicated by the Court in the order dated May 14, 2020.
The Court made general remarks that “medicine is a humanitarian profession and in the times of national emergencies, the delivery of adequate health care by private and state-run medical facilities should be a top priority” and proceeded to pose questions for private hospitals like,
1. Where will a man with no steady income go when the Government hospitals are full and turn him away?
2. How will he breathe when we eventually run out of ventilators?
3. Where should he turn for treatments when the Government hospitals no longer have the beds and medicines?
4. How do you expect him to pay such a large amount of money when he is practically unemployed, has no current source of income, and has barely any savings?
Calling for private hospitals to help, the Court remarked - “as the situation in Gujarat escalates, it is time for the private hospitals to step in to perform their primary function of saving lives.”
Pursuant to the Order dated May 14, 2020, the Ahmedabad Municipal Corporation (AMC) had issued a notification dated May 16, 2020, bringing within its ambit about 45 private hospitals and fixed the rates/charges which each of these hospitals can levy.
The Court took cognizance of the fact that even after the private hospitals across the city and on the outskirts were requested by the State Government to cooperate and reserve 50% beds for treating the COVID19 patients, and when some of the private hospitals had agreed to treat the COVID19 patients subject to certain terms and conditions and with the rates fixed by the Government (which are almost 150% more than what is being charged at the Civil Hospital and the SVP Hospital in Ahmedabad) unfortunately, some of the private hospitals were not complying with the State Government. In this regard, the Court noted that time had come for it to take some stern action against all those private/corporate hospitals which were not ready and willing to adhere to the terms and conditions of the MoU and also those who had declined to enter into an MoU.
It was argued by the learned counsel appearing in the litigation that the Constitution of India, various other enactments and judicial precedents sufficiently empower the Court and cast a duty upon the authorities to impose reasonable restrictions (including on fees) on the Private/Corporate Hospitals, more particularly in the circumstances like COVID-19. In this regard, the Court delved into various authority to examine the power of the High Court and Authorities to command private hospitals to tender their service and comply with government orders.
The Court referred Article 19(1)(g) which gives freedom to practice any profession or to carry any occupation, trade or business and read it with Article 19(6) which restricts the operation of Article 19(1)(g) in the interests of the general public, Articles 38, 39(e), 41, 47, 48A and concluded that a check on the functioning of the Private/Corporate Hospitals, in these times, is certainly permissible.
According to the Court, a conjoint reading of Section 2 of the Epidemic Diseases Act, 1897, The Gujarat Epidemic Diseases, Covid19 Regulations, 2020, Sections 10, 24, 30, 31, 34, 38, 39, 50 and 65 of the Disaster Management Act, 2005, Section 319 of the Gujarat Provincial Municipal Corporations Act, 1949, GOI – MoHFW – Additional guidelines for quarantine of contacts/isolation of suspect or confirmed cases in private facilities, Indian Medical Council (IMC) (Professional Conduct, Etiquette And Ethics), Regulations 2002 and Clinical Establishments (Registration And Regulation) Act, 2010 was sufficient to empower the commissioner of the AMC to issue directions to private hospitals.
The Court also referred various authorities of the Supreme Court, like CESC Limited v. Subhash Chandra Bose & Ors reported in AIR 1992 SC 573 (in this case right to health was held to be a fundamental right), Janet Jeyapaul v. SRM University Limited reported in 2015 16 SCC 530 (in this case scope of Public Duty under Article 12 was examined), Binny Limited v. V. Sadasivan reported in 2005 6 SCC 657 (in this it was held that a writ of mandamus could be issued even against a private authority if it is discharging a public function).
In cases like the Islamic Academy of Education and Ors. vs. State of Karnataka and Ors. reported in 2004 13 SCC 3 and Modern Dental College & Research Centre v. State of Madhya Pradesh reported in 2016 7 SCC 353, the fees regulation by the Government was upheld to stop the commercialization of education.
In Social Jurists, A Lawyers Group vs. Government of NCT of Delhi and others reported in (2007) 140 DLT 698 (DB) where the Delhi HC had held that if private hospitals are in an advantageous situation because of the help or allotment of a vital asset, which would be impossible to be gathered in a city like Delhi where the land is not available in feet, much less in acres, which the State at the cost of its own projects had provided land at concessional rates to these hospitals, then the principle of equality, fairness, and equity would command these hospitals to discharge their obligations of free patient treatment to poor strata of Delhi.”
Based on the provisions of law as set out above, it was concluded that it the circumstances as the present one, it was the incumbent duty of the State authorities to take steps to make available easy and smooth access to health care to one and all – thereby making it an extension of the public healthcare function. The Court noted that the steps taken by the AMC like fixing the rates and fee schedules for the private hospitals to charge for treatment of COVID-19 infected patients, invoking the provisions of the law were an extension of public healthcare function and public duty.
In this regard, the Court directed the State Government to initiate appropriate legal proceedings (like the institution of prosecution for the offense punishable under Section 188 of the Indian Penal Code and Sections 57 and 58 respectively of the Disaster Management Act.) against all those private/corporate hospitals who were not ready and willing to honor the understanding arrived at with regard to treating the COVID19 patients.
The Court noted that one private hospital was included in the earlier notification, but was omitted in the latest amended notification and asked the State to submit the decision-making process and the reasons/criteria for such inclusion and/or exclusion to ensure that there is no foul play.
The Court also noted that 8 reputed private hospitals capable of admitting thousands of patients in all were not included in the notification and asked the State whether any talks were initiated in this regard with the management of the above-referred hospitals. The Court also directed the State Government to initiate talks with all the eight hospitals named above and enter into a Memorandum of Understanding in this regard. The Court also noted that the KD Hospital situated at Vaishno Devi Circle, Ahmedabad, which is a charitable hospital being a charitable hospital, it was expected to come forward to render help in these difficult times. The Court sought the reason as to why its name was not in the list of the designated hospitals.
The Court also sought to know the manner in which the rates had been worked out with the private/corporate hospitals, more particularly, as to what was included and what was not included in the rate. The Court also found the rates to be on a higher side and directed the State Government to once again renegotiate with all the private/corporate hospitals in this regard to make the rates reasonable and affordable.
The Court also took note of the pathetic situation at the Civil hospital, Ahmedabad (managed by the State Government with the capacity of 1200 bed making it Asia's biggest hospital and treating almost 80% cases of COVID19 positive patients of Gujarat) as out of total 625 deaths in Gujarat, 570 deaths had been recorded in the Ahmedabad City till May 20, 2020, and out of total 570 deaths, 351 deaths have been recorded in Ahmedabad among which the Civil Hospital had contributed to 62% of the total deaths. The Court also noted that the mortality rate in the Civil Hospital was 13% as against 7% in the SVP Hospital (managed by the AMC). This was sufficient for the Court to conclude that everything was not up to mark in the Civil Hospital. The Court also put in the record an anonymous letter from a resident doctor serving at the Ahmedabad Civil Hospital which had raised issues about the mismanagement happening in the Civil hospital.
In this regard, the Court wondered as to how many times the Health Minister of the State had visited the Civil Hospital at Ahmedabad to keep a watch or take stock of what was going on at the Civil Hospital. The Court also wondered as to whether the Health Minister or the Chief Secretary of the Health Department of the State of Gujarat had any idea about the problems which the patients, doctors, nursing staff, and other employees were facing?
Posing these questions, the Court directed the State Government to take up this issue very seriously and revert to the Court on the next date of hearing with steps taken. The Court also made it clear that if the Court will not be convinced with the report of the State Government, then it shall be compelled to have a video conferencing with all the doctors at the Civil Hospital to ascertain from them as to what are the difficulties, problems, etc.
When the issue was raised that proper testing of the COVID-19 suspects and doctors were not being done, the Court remarked that,
“The argument that ‘more number of tests which lead to 70% of the population testing positive for COVID-19, thereby leading to fear psychosis’ should not be a ground to refuse or restrict the testing.”
The Court also directed the State Government to ensure that all the private clinics/hospitals/nursing homes, which had been closed by their owners /management for the past two months, are immediately opened up to make the supplement health facilities available to the non-CORONA patients at large.
Regarding the railway charging the fare from the migrant workers, the Court directed the Railway authorities to waive of one-way charges of these migrant laborers or in the alternative, directed the State Government to bear such charges.
In the end, the Court directed that all those accused who have been released on temporary bail upon recommendations of the High Power Committee shall continue to remain on bail for a further period of forty-five days.
The matter is posted for further hearing on May 29, 2020.