Though the Supreme Court has often said there is no hierarchy in the fundamental rights guaranteed under the Constitution, the right to life enshrined in Article 21 has a special place. After all, no other right can be sustained if one is dead.
In 1992, the Supreme Court made it absolutely categorical: there is a Constitutional imperative for the government to ensure access to health because it is an integral part of the right to life. When a person is denied healthcare, their life is in jeopardy and so are all their other rights. Implicit in this declaration is the obligation on the governments to run adequate healthcare services.
On Sunday evening, the Delhi government, after testing the political waters for a week to see if there would be any opposition, declared that hospital beds in Delhi would be reserved for residents of Delhi’s National Capital Territory – except for those needing treatment related to transplants, oncology and neurosurgery. The government went on to list several identity documents that would prove the eligibility of a person admitting herself to a hospital.
The decision was presumably taken as the number of Covid-19 patients in Delhi has been increasing rapidly: there were more than 27,500 positive cases by Tuesday, putting enormous pressure on the state’s health infrastructure. Given the peculiar geographical position of the National Capital Region, which includes districts in Haryana and Uttar Pradesh, the argument was that “outsiders” could potentially take over beds meant for the residents of Delhi.
With this executive order, the Delhi government undermined the fundamental right to life of thousands.
On Tuesday, this decision was subverted by the lieutenant governor, who as the chairman of the Delhi Disaster Management Authority, asked the authorities to treat everyone who comes to hospital –
not just local residents with the necessary identification documents. The order cited a 2018 Delhi High Court judgement that struck down a decision denying free healthcare to people from outside Delhi in the state’s hospitals.
Following this, Delhi Chief Minister Kejriwal said on Twitter that though the lieutenant governor’s order raised problems for Delhi, his government would strive to implement it.
Life or death decisions
Whether it is right for the lieutenant governor to implicitly overrule the decision of the Cabinet is a legal question that will surely be tested in the courts, given that the Supreme Court in 2018 said that the lieutenant governor has to accept Cabinet decisions in all areas except three where the Centre holds the field in Delhi.
But this is not just a legal conundrum. Chief Minister Arvind Kejriwal’s decision to restrict access to healthcare is morally repugnant. India is battling a pandemic. With the number of Covid-19 cases increasing substantially, timely access to health facilities could mean the difference between life or death for thousands.
As the national capital, Delhi is home to people from across India who work or study there. Even though they may have spent years in the state, many of them do not have local identification documents, as it became evident in the reactions on social media on Tuesday,
On the one hand, the government has told people not to undertake any unnecessary travel. When the question of migrant workers came up before courts, authorities promised that they would ensure facilities for them in situ and pleaded with them to stay where they were.
But in direct violation of these positions, the Delhi government on Sunday said that thousands of people who have made Delhi their home or migrant workers who are stuck here due to travel restrictions will not be given a hospital bed if they need emergency treatment due to Covid-19 or any other ailment not listed in the order.
In a crude manner, this meant that the Delhi government had decided that the lives of people with certain sheets of paper are more important than the lives of those without them.
The government had no business choosing one life over the other. That is a decision for the doctors to make in hospitals based on clinical conditions. Not only is Delhi’s decision unconstitutional, it is akin to imposing capital punishment on a class of people for no fault of theirs, except perhaps choosing to live in Delhi.