Telangana HC | Telangana Government’s Order not allowing private hospitals to conduct tests for COVID-19 virus violates Arts. 14 and 21 of Constitution & principles of Natural Justice

Telangana High Court: In the instant PIL wherein the petitioner challenged the Government Order Rc. No. Spl /COVID-19/DMHO/HYD/2020 dated 11-4-2020 (hereinafter the G.O.) via which the State of Telangana did not permit well equipped private hospitals and diagnostic centres to conduct diagnostic tests for COVID-19 virus and to admit patients for isolation and treatment, the Division Bench of M.S. Ramchandra Rao and K. Lakshman, JJ., held that the aforementioned G.O. is not only violative of Arts. 14 and 21 of the Constitution but also of the principles of natural justice, as it is not a reasoned Order. It was also held that the State cannot compel its residents to get their testing done only in Government designated hospitals, especially when the people are willing to pay for the tests conducted by ICMR approved private hospitals.

The petitioner via his counsel V. Venkata Ramana, argued that the G.O. is arbitrary and illegal and therefore the Court should set it aside and direct the Government of Telangana to allow well equipped private hospitals and test centres to deal with Covid-19 crisis as well. The petitioner further contended that the G.O. in question, does not state reasons as to why the private hospitals and diagnostic centres have not been allowed to screen people for Covid-19 virus. It was stated that the Government hospitals that have been identified for the purpose of testing and treatment of Covid- 19 patients have inadequate facilities; and that there are several private hospitals that are willing to screen Covid-19 patients. It was submitted that S. 2 of the Epidemic Diseases Act, 1897, does not mention anything that enables the State Government to restrict private hospitals from conducting tests for determination of the disease or from treating the patients with symptoms. Furthermore all citizens should have a right to choose where they can undergo tests and treatment if tested positive for COVID-19, and the respondents cannot compel them to use only Government operated facilities. Appearing on behalf of the Government, the Additional Advocate General denied the petitioner’s contention and argued that the petitioner has simply relied on news reports to substantiate his plea. However the respondents failed to explain the legal basis for the State to compel the citizens to have samples tested only in State identified laboratories. Given the importance of the matter, the Court deemed it fit to suo motu implead the Indian Council of Medical Research.

Upon proper perusal of the facts and contentions, the Court pointed out that the G.O. does not state reasons to exclude private hospitals from testing and treating, therefore it essentially violates a well known principle of Administrative Law – every action of the State which affects the rights of citizens must be supported by reasons so that a Court, while judicially reviewing it, know that there was application of mind by the issuing authority. The Court observed that given the population of the State, only designated government hospitals cannot deal with the current crisis, therefore if there are people who are able to afford private testing and treatments, then this can take away a great deal of load from the government resources, which then can be utilised better to provide facilities to the poorest of poor. Finally, appreciating the petitioner from bring such an important matter to Court’s notice, the Bench held that the residents have right to get their samples tested either from Government approved hospitals or ICMR approved private hospitals. The Court directed all private hospitals, who wish to provide treatment/ isolation for COVID-19 patients (other than the ones already granted such approval by the ICMR), shall make an application to the ICMR offering their facilities for the said purpose. [Ganta Jai Kumar v. State of Telangana, 2020 SCC OnLine TS 482 , decided on 20-05-2020]

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