Gauhati High Court: Songkhupchung Serto, J. was hearing a writ petition of mandamus under Article 226 of the Constitution of India pertaining to violation of the fundamental right to health guaranteed under the right to life of Article 21 of the Constitution.
This writ petition was filed by the son of a woman who died while she was being taken to district hospital for child delivery, praying for a direction to the respondents to pay compensation for the death of his mother and the unborn baby and to pay him and his family a sum of Rs 20,000 as per entitlement under the National Family Benefit (NFB) Scheme.
The counsels for the petitioner, K. Kikhi, Neiteo Koza and Pakinrichapbo, submitted that the Sub-Centre at the petitioner’s village, providing basic facilities for conducting delivery was not equipped properly, therefore institutional deliveries could not be conducted forcing the villagers to conduct delivery at home or at other health centres. It was also submitted that providing of proper health facilities by the State comes under the ambit of Article 21 of the Constitution. Therefore, the State was duty-bound to provide robust health facilities so that citizens not only survive but live in health and dignity.
The counsels for the respondent, A. Ayemi, N. Mozhui, N. Rupreo and Yangerwati, submitted that the writ petition should be dismissed as the petitioner never made any demand by submitting a representation to the authorities concerned. Also, not all the people concerned were made a party in the case. The petitioner’s mother didn’t come to the Sub-Centre and didn’t approach the ASHA to receive the benefits
The Court did not accept the contentions of the respondent for two reasons: (i) because it was the duty of the Sub-centre including the ASHA to spread awareness and to convince such woman to visit the Sub-centre for availing such benefits provided under the scheme; (ii) because it was not plausible that people in such circumstances would have hired a vehicle to go to a hospital situated at the place more than 120 km away from their village while such facility was easily available at their own village.
Also, the submission of demand prior to the filing of a writ petition was not an absolute prerequisite for approaching a writ court under public law and all the responsible persons who were stakeholders had been impleaded in the writ petition.
The Court held that health and medical care came within the sweep of Article 21. Right to healthy life referred to and meant the most attainable levels of health that every human being was entitled to. The Court relied on the case of P. Parmanand Katara v. Union of India, (1995) 3 SCC 248 wherein the Supreme Court had categorically held that Article 21 of the Constitution cast an obligation on the State to preserve life. Therefore, those who were in charge of the health of the community were under obligation to ensure that the basic facilities which were intended to be made available for the poor and needy and in this case women and child reached the targeted persons.
Considering the facts and circumstances of the case the Court directed the respondents to pay a sum of Rs 25 lakhs as exemplary compensation, to pay a sum of Rs 15,000 to meet the legal expenses, to reimburse the amount spent on transportation since the deceased was entitled to free transportation charge for going to the hospital and to pay a sum of Rs 20,000 to the petitioner and his family under the NFB Scheme as the same had not been paid to them. [Moba Changkai v. State of Nagaland, WP (C) No. 179 of 2016, decided on 15-11-2019]