Under the Epidemic Diseases Act and the Disaster Management Act, the government has a duty under Articles 47 and 21 to save and protect lives. It, therefore, cannot put curbs on testing of Covid-19 patients.
By Dr KK Aggarwal
The number of patients suffering from Covid-19 is rapidly increasing worldwide, with the death toll also shooting up. In India, in spite of various measures taken by the government and different states and Union Territories, the number of patients and deaths is increasing daily.
In March 2020, the government invoked the provisions of the Epidemic Diseases Act and the Disaster Management Act to curb the spread of the pandemic. By invoking them, the central and state governments took upon themselves the obligation and responsibility under Article 47 as a part of guarantee under Article 21 of the Constitution to save and protect the lives of the public at large from the pandemic.
The fundamental right under Article 21 states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Right to health has been recognised as a fundamental right. This right is not simply the right not to be unwell, but the right to be well. It encompasses not just the absence of disease or infirmity, but “complete physical, mental and social well-being”, and includes freedoms such as the right to control one’s health and body and to be free from interference (for instance, from non-consensual medical treatment and experimentation), and entitlements such as the right to a system of healthcare that gives everyone an equal opportunity to enjoy the highest attainable level of health.
The fundamental right to health includes healthcare that is accessible and available for the public at large. Healthcare access is the ability to obtain healthcare services such as prevention, diagnosis, treatment and management of diseases, illness and disorders. Right to adequate healthcare flows from the sanctity of human life and the dignity that belongs to all persons.
By invoking both Acts, it is the responsibility and duty of the government to provide adequate healthcare facilities, including proper and timely Covid-19 testing under the provisions of Article 47. As Covid-19 is symptomatic, asymptomatic and pre-symptomatic, timely care attains significance. In such a situation, to wait for the symptoms of the disease to be manifested would amount to failure to discharge the constitutional obligation under Article 47 and denial of the fundamental right guaranteed under Article 21.
With the number of Covid-19 cases increasing, government authorities are in competition to have a better scorecard and show that the cases are not rising. For this, authorities are trying to control Covid-19 testing. This fact was seconded by the managing director of one of India’s top private diagnostic labs who reportedly said that government authorities in some districts had been trying to “control” the process of testing in order to show a “better scorecard”.
A Velumani, founder and MD of Thyrocare Technologies, reportedly said: “Even though testing has been opened up, the government is still controlling private centre testing at district level. It is happening more today than before. We have been told not to pick up samples in many districts in different states, claiming that we are reporting false positives.” He added that around 2,000 of their samples were reduced every day across at least 100 districts because of this, and one of the reasons is that they don’t really want to show a higher positivity scorecard.
This practice of government authorities strikes at constitutional protection, including the right to life, right to health and right to avail of medical facilities under Article 21. Hence, appropriate direction to the state is urgently required. By not allowing or controlling testing, there are chances of an increase in numbers of not only symptomatic patients but asymptomatic and pre-symptomatic ones too who are “silent spreaders” of Covid-19. Testing, therefore, of all such patients should be expanded to include people in close contact with patients with confirmed Covid-19 and asymptomatic cases, clusters of outbreaks and key areas and populations with a high risk of infection.
In June 2020, the Delhi government issued a notification banning Covid-19 testing of asymptomatic and pre-symptomatic patients. Against this notification, the Heart Care Foundation of India filed a PIL, Heart Care Foundation of India versus Delhi Government and Others, in the Delhi High Court. After this filing, the Delhi government withdrew its notification and restored the testing strategy of ICMR, thereby allowing testing of all patients symptomatic, asymptomatic and pre-symptomatic. This was recorded in the order of June 22, 2020, passed by the chief justice of the High Court.
The Supreme Court in State of Punjab and others vs Ram Lubhaya Bagga and others held that the right of one person correlates to a duty upon another, individual, employer, government or authority. The right of one is an obligation of another. Hence, the right of a citizen to live under Article 21 casts an obligation on the State. This obligation is further reinforced under Article 47 and it is for the State to secure the health of its citizens.
The Gujarat High Court in Suo Motu versus State of Gujarat & Others on May 22, 2020, held: “Everyone must be permitted to have a covid test done. However, there must be a specific mention of the following categories of persons for whom the covid test must be mandatory.” The Bombay High Court in Citizen Forum for Equality versus State of Maharashtra & Others on June 1, 2020, too held that all asymptomatic frontline workers can get their Covid test done on expressing their willingness.
On May 29, 2020, the Gujarat High Court in Suo Motu versus State of Gujarat & Others held:
“We are of the view that core obligations under the right to health are nonderogable. This minimum core is not easy to define, but includes at least the minimum decencies of life consistent with human dignity. No one should be condemned to a life below the basic level of dignified human existence….In the opinion of the Supreme Court, Article 21 of the Constitution clearly imposes a duty on the Government to take whatever steps are necessary to ensure that everyone has access to health facilities, goods and services so that they can enjoy, as soon as possible, the highest attainable standard of physical and mental health. By virtue of Article 21 of the Constitution, the State is under a legal obligation to ensure access to life saving drugs to patients. A reasonable and equitable access to life saving medicines is critical to promoting and protecting the right to health.”
Therefore, the State has a moral obligation to provide healthcare to one and all, especially during these pandemic times.
—The writer is President, Confederation of Medical Associations in Asia and Oceania, and former National President, IMA
Lead Picture: UNI