Article 21 casts duty on state to provide life saving means such as oxygen and drugs: MP High Court

The Court has issued specific directions to the government to cope with supply of oxygen, overcharging by private hospitals and illegal trade of Remdesivir drug


The Madhya Pradesh High Court has issued a slew of directions to the state government to deal with the Covid-19 crisis in the state where people are struggling with inadequate oxygen supply in hospitals, high priced treatments and illegal trade in life-saving drugs like Remdesivir. The bench of Chief Justice Mohammad Rafiq and Justice Atul Sreedharan also highlighted the obligation of the state to ensure fulfilment of right to health guaranteed under the Constitution.

The court had taken suo moto cognizance of the letter forwarded by the Supreme Court whereby Senior Advocate Ashwani Kumar had highlighted a tragic incident where an elderly patient was chained to a hospital bed in Bhopal allegedly on his failure to make payment of fees for his treatment.

In September 2020, the court had directed the state to issue necessary directions to every hospital to display the rates for Covid treatment at their reception counters and publish the same in newspapers, to curb overcharging; and kept issuing slew of directions at following hearings.

The various interventions and submission made by the parties and the issued raised therein were summed up by the court:

  • Several deaths have been reported due to non-availability of Oxygen

  • There is an acute shortage of Remdesivir, a drug widely used in the treatment of Covid-19 and private hospitals are exploiting the situation by over-charging for it

  • No dedicated Covid hospitals in most districts

  • Oral instructions have been issued to all Private Labs/ Private Hospitals/Nursing Homes not to conduct any RTPCR and Rapid Antigen Tests

  • Despite government prescribed rates for treatment, private hospitals were over-charging patients

  • Private hospitals only providing beds to those who are ready to pay higher charges

  • Most of the private hospitals are not providing cashless treatment to the patients having insurance cover

  • the private hospitals empanelled and approved for Covid-19 treatment under Ayushman Bharat Yojana are also not accepting the Covid patients and the patients from Below Poverty Line having BPL cards under Deendayal Antyodaya Upchar Yojana are also not being provided treatment under that scheme by approved Hospitals

  • There is lack of system whereby it could be known as to how many normal beds, ICU beds and Ventilators are available in Government and Private Hospitals as the portal “Sarthak” is not regularly updated

  • Correct number of positive cases being suppressed by district administration

  • Delay in Covid-19 test results and if person dies before getting positive report, the dead body is handed over to family without following Covid protocol

The amicus curiae as well as the counsels for the petitioners said that news reports have stated that patients are being asked to bring their own Oxygen cylinders with them and manage the vials of Remdesivir on their own.

Court’s observations

After taking these submissions into consideration, the court observed thus,

“It is the duty of the Government to ensure that common man is not made to suffer due to non-availability of Oxygen and life saving drug like Remdesivir. The Government has miserably failed to ensurethe availability of treatment to poor and needy, especially in semiurban and rural areas thereby violating the right to life of the citizens enshrined in Article 21 of the Constitution of India.”

The court stated that this was indicative of disorganised health infrastructure and the government miserably failing to manage this medical emergency despite advance warning. “the entire State machinery has been caught off-guard and has been found lacking in its efforts to provide basic health care to the citizens,” the court said.

The court’s directions

  • The court has directed the government to ensure strict compliance of all directions issued by the court in this petition as well as the order issued by the government that private hospitals cannot charge more than 40% of the rate decided by the government for treating patients.

  • The government should fix the rates for being charged by the private Hospitals and labs for treatment/tests

  • State Government should ensure strict compliance of all such directions including about the treatment of poor patients under Ayushman Bharat Yojana reserving 20% beds for Ayushman Bharat Yojana beneficiaries and increase the empanelment of more private hospitals under the said scheme.

  • The State Government should ensure regular and continuous supply of Oxygen not only to the Government Hospitals but also to private hospitals

  • Since the State is wholly dependent on supply of Liquid Oxygen from other States it should initiate the process of setting up Liquid Oxygen Plant

  • The State Government must come forward to assist private hospitals in setting up their Oxygen-Concentration Units by providing them soft loan by involving leading Banks and Financial Institutions

  • The State Government should ensure the availability of Remdesivir injection and regulate its supply

  • The State Government should be required to restore the facilities of 262 hospitals Covid Care Centres (CCC), 62 Dedicated Covid Health Centre (DCHC) and 16 Dedicated Covid Hospital (DCH)

  • the State Government shall ensure that the District Collectors and Chief Medical & Health Officers in every District shall periodically hold meetings with the heads of all Government Hospitals, Private Hospitals/Nursing Homes and Diagnostic Centres/Labs to take stock of the day to day situation of the number of patients, availability of normal beds, ICU beds and Ventilators and also as per the requirement consider enhancing the capacity to cater to the need of a given place;

  • the State Government shall ensure displaying of data with regard to availability of normal beds, ICU beds and Ventilators on its Sarthak portal on real time basis

  • On the basis of regular vigil about the availability of normal beds, ICU beds and Ventilators, the District Collector should take day to day decision for increase in the number of such beds by procuring additional infrastructure to ensure continuous availability of medical health care

  • the State Government should require all the private Hospitals/medicine shops to display the rates of Remdesivir per vial, separately for generic and branded injections, and all of them should be mandated not to charge more than the prescribed rates

  • Even if supply of Remdesivir is regulated, the process should be hassle free and requisition by doctor and the supply should not exceed an hour

  • the State Government should give due publicity to the Toll Free Number 1075 (with the STD code number of respective districts) of its Covid Command and Control Centres so that the Covid patients and their family members/attendants having any grievance may lodge complaint

  • The government should take over marriage halls, stadium, schools, and set up more CCC, DCH and DCHC

  • the State Government should consider reappointing those Medical Officers, Para Medical and Nursing Staff, who have retired during past two to three years

  • Hospitals shall not refuse to attend the patients suffering from other serious ailments and provide them timely treatment depending on the seriousness of the ailments.

The court observed that the need of the hour in the time of crisis is to have the best of cooperation and coordination with the Hospitals and Nursing Homes in the private sector and seek their support for timely treatment.

The court has sought action taken reports in regards to these directions at the next hearing, May 10.

Right to health

In its order, the court gave specific emphasis upon the right to good health as being part of the right to life under Article 21 of the Constitution. The court also referred to Article 38, Article 39(e), Article 41 and Article 47, part of Directive Principles of State Policy.

“The right to health can be secured to the citizens only if the State provides adequate measures for their treatment, healthcare and takes their care by protecting them from calamities like Coronavirus,” the court stated. The court also referred to Article 25 of the Universal Declaration of Human Rights, ratified by India, which is considered as having the force of customary international law declares that “Everyone has the right to a standard of living adequate for the health…” as also the International Covenant on Economic, Social and Cultural Rights (ICESCR), which stated that the State should recognize enjoyment of the highest attainable standard of physical and mental health and should take steps for prevention, treatment and control of a pandemic.

The court also cited a catena of judgments passed by the apex court where it has interpreted Article 21 to include individual’s right to health.

“The right of the citizen to adequate healthcare emanates from the dignity and sanctity of the human life which belongs to all of them. Health, besides being a fundamental right, is a basic human right, which no popular government can afford to negate. Health has its own prerequisites of social justice and equality and that it should be accessible to all,” the court observed.

The court stated that the core obligation of the State in securing the right to life to all its citizens is non-negotiable. “Article 21 of the Constitution of India in this regard clearly casts a duty on the State to take whatever steps are necessary in securing such rights to access to health facilities to the citizens. It also includes an obligation on the State in ensuring access to all the citizens inflicted with disease of Coronavirus with life saving means and drugs such as Oxygen and Remdesivir in this case,” the court said.

The complete order may be read here.



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