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"Gross Violation of Cooperative Federalism”: PIL In SC Against Delhi Govt Order to Restrict COVID-19 Medical Facilities For Delhi Residents [READ PETITION]

By ParthThummar      Jun 09, 2020      0 Comments      1,406 Views
[READ PETITION]

A Public Interest Litigation has been filed in the Supreme Court of India on June 08, 2020, challenging the AAP led Delhi government's notification directing private hospitals in Delhi to admit only bona fide residents of NCT of Delhi for treatment amid the COVID-19 pandemic. The PIL has been filed by Sarthak Chaturvedi, Advocate through Advocate on Record Namit Saxena. They have termed notification as "arbitrary, devoid of merits, unjust, unfair and unreasonable and deserves to be quashed for violating Article 14, 15, 19 and 21 of the Constitution."

Grounds raised in the petition:

  1. The expression 'residents of Delhi' is vague and arbitrary. Furthermore, the qualification added to being a bona fide resident is even more arbitrary and without any rationale.
  2. The order/notification deprives the rights of entire citizens from health care and medical treatment.
  3. The notification violative of Article 14 of the constitution by depriving equal protection of laws, it also violates Article 21 of the Constitution by taking away a vital right of subjecting oneself to medical treatment of choice and health care.
  4. The Constitution incorporates provisions guaranteeing everyone’s right to the highest attainable standard of physical and mental health. Article 21 of the Constitution guarantees protection of life and personal liberty to every citizen. The Supreme Court has held that the right to live with human dignity, enshrined in Article 21, derives from the directive principles of state policy and therefore includes the protection of health. Further, it has also been held that the right to health is integral to the right to life and the government has a constitutional obligation to provide health facilities. [Bandhua Mukti Morcha v. Union of India; (AIR 1984 SC 802 & State of Punjab v. Mohinder Singh Chawla; (1997) 2 SCC 83]
  5. It has been held by the Supreme Court that the failure of a government hospital to provide a patient with timely medical treatment results in a violation of the patient’s right to life. (Paschim Banga Khet Mazdoor Samity v. State of West Bengal; (AIR 1996 SC 2426 at 2429 para 9).
  6. The Supreme Court has upheld the state’s obligation to maintain health services. [State of Punjab v. Ram LubhayaBagga; (1998) 4 SCC 117]
  7. The notification creates a class bias amongst citizens with those who are residents of Delhi, those who are ‘bona fide’ residents of Delhi and the rest entire country. That this is not only violative of Article 14 but also violates right to movement under Article 19(1)(d) and right to settle under Article 19(1)(e) of the Constitution to settle in any part of the Country.
  8. By restricting hospitals under the State as well as Private Hospitals in the capital to only provide medical treatment to only residents of one particular area of the country, the notification also violates Article 19(1)(g) of the Constitution.
  9. The notification is in the form of colorable legislation which intends to restrict the entry of citizens coming for medical treatment to Delhi. This is in the form of a political gimmick to show the lesser number of citizens suffering from COVID-19 and this must be discouraged and repelled.
  10. It is trite law under Article 15 of the Constitution that the state shall not discriminate against any citizen on the ground of place of birth. The expression ‘bona fide residents of NCT of Delhi’ is not defined anywhere in the order/notification and means those citizens who are residents of Delhi.
  11. The notification/order is in gross breach of cooperative federalism as the capital of the country is being cut off from the rest of the country in terms of health care and medical treatment.
  12. The notification/order deprives students and many citizens living in Delhi on rental accommodation from availing medical benefits.
  13. Part IV of the Indian Constitution (Directive Principles of State Policy) imposes duties on states. Article 41 imposes a duty on the state to provide public assistance basically for those who are sick & disable. That the impugned notification/order runs diametrically opposite to the mandate of Article 41.
  14. It is trite law that administrative decisions are subject to judicial review under Article 32 of the Constitution where there is a violation of fundamental rights enshrined under the Constitution. The notification/order breaches fundamental rights of a large section of the society suffering from COVID-19.
  15. The notification is untenable on the grounds of perversity, patent illegality, irrationality, and procedural irregularity.
  16. The notification/order stands vitiated by irrationality as it is so outrageous, that it is in defiance of all logic; as no person acting reasonably could have taken the decision, having regard to the materials on record.
  17. The notification/order deserves to be quashed under Article 32 on the ground of illegality. That there is an apparent error of law on the face of the decision, which goes to the root of the decision and/or in other words an apparent error, but for which the decision would have been otherwise.
  18. It is trite law that in the exercise of power under Article 32, Judicial review is directed, not against the decision, but the decision-making process. However, patent illegality and/or error apparent on the face of the decision, which goes to the root of the decision, may vitiate the decision-making process.

Through miscellaneous application along with the PIL, the petitioner has also sought ad interim ex parte stay of operation of the notification. 

Interestingly on the same day, various PILs were also filed in Delhi High Courts. 

 

[READ PETITION]



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