Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., decided over a writ petition which was filed through the son of the Petitioner, who was an 83-year old senior citizen, in the hospital run by the Respondent 2. i.e., Institute of Human Behaviour and Allied Sciences (“IHBAS”), on 29-04-2021 due to an emergency medical condition suggesting a neurological ailment.

The petitioner had suffered a brain stroke on 29-04-2021 and was admitted to IHBAS, thereafter he was detected with fever and upon conducting an RT-PCR test, he turned out to be positive for COVID-19. The petitioner in the petition stated that IHBAS, was not a designated COVID-19 hospital thus his attendant was asked to shift the petitioner into a COVID-19 hospital. The petitioner prayed that a direction be issued to Respondent- hospital to treat the patient there itself, and not discharge him, as it would jeopardize his life and chances of survival.

Mr Gautam Narayan, ASC appearing for the GNCTD, submitted that a bed could be made available to the Petitioner, in Lok Narayan Jai Prakash Hospital (“LNJP”), which was also a COVID hospital and also had the facilities even to take care of the Neurological/Cardiac issues of the Petitioner. Mr Tushar Sannu, counsel appearing for IHBAS submitted that the hospital was not treating this case in an adversarial manner, and the patient was currently stable with 5 MTs oxygen. He had been kept in a transit COVID facility, where three COVID patients were currently admitted.

Counsel for the petitioner Mr Kamlesh Kumar submitted that the petitioner as well as the son of the petitioner both had expressed a deep sense of apprehension in shifting the patient from IHBAS to LNJP Hospital, on the ground that the main problem which the Petitioner is facing is a neurological issue, which can be taken care of at IHBAS in a proper manner further, the patient was not comfortable in being moved to a general hospital, and he was satisfied with the treatment he was receiving at IHBAS.

The Court observed that the risks associated with the doctors and arrangements at IHBAS, it being a non- COVID facility, have been appraised of to the counsel and son of the Petitioner, however, despite the choice being available to move to LNJP Hospital, both the counsel and the son of the Petitioner have opted to let the Petitioner remain in IHBAS and view of the above considering the fact that medical acceptability for the Petitioner to move to LNJP hospital was not there, it is directed that the Petitioner- patient, would continue to remain at IHBAS. The Court however made clear that t IHBAS would not be held liable in any manner, inasmuch as the Petitioner and his family were conscious of the fact that the doctors at IHBAS may not have the same specialization required for a COVID patient – it not being a COVID-19 designated hospital and also due to the fact that it is on the Petitioner’s insistence that he is not being moved to a COVID facility.

The Court further considering the acute shortage and severe demand for beds pertaining to COVID-19 patients and COVID-19 related facilities in the city of Delhi, the Principal Secretary, Ministry of Health, GNCTD, shall process the proposal from IHBAS as it had been revealed that IHBAS had a total capacity of over 200 beds, and at this point of time, approximately only about 50 beds were occupied. IHBAS was stated to have already moved a proposal to the GNCTD, to make available about 60 to 80 beds, and convert the same into a COVID facility.

[Brijpal Singh v. Govt of NCT Delhi, 2021 SCC OnLine Del 1998, decided on 07-05-2021]

Suchita Shukla, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Delhi High Court: Taking note of the “imminent need” for drug – Tocilizumab for treating critically ill patients in Delhi, Pratibha M. Singh, J directed the Union of India to apprise it on the available stock of the said drug and has said that,

“The rationing of critical medicines in this manner, owing to lack of supplies from foreign shores and no local manufacturing, is completely unacceptable in a pandemic situation, especially when the consumers are willing to purchase the drug.”

The Court also noticed that a large number of hospitals in Delhi are currently treating COVID-19 patients, and considering that there is a severe shortage in the availability of the said drug – Tocilizumab, 500 vials being made available, would not be sufficient.

Considering the demand for the drug, which is not manufactured in India, even to those patients who are willing to pay and purchase the same, it is clear that adequate quantities are not being made available.

Hence, in order to ensure immediate availability of the drug for administration of the same to critically ill COVID-19 patients who are prescribed the same, in Delhi, the Court directed

  1. The UOI to inform as to how much further stock of Tocilizumab is available for distribution to the hospitals/medical establishments in Delhi.
  2. The UOI to also place on record the details of entities to whom approvals have been granted of Tocilizumab for manufacturing, marketing, importing or selling in India.
  3. Qua the 500 vials of Tocilizumab, which were already allocated to the GNCTD by the Union of India, the GNCTD to inform as to how much of the said stock has been consumed, and if any of the said stock is currently available for administration to any further patients who are being treated in smaller hospitals/ medical establishments, as also to the hospitals where the initial quantity of allocation could not be distributed.

The Court also directed Roche Products (India) Pvt. Ltd., it is the company dealing with the Tocilizumab injection, to inform:

a) Whether immediate quantities of the drug Tocilizumab can be obtained from any of the manufacturing units engaged in manufacture of the said drug, and made available in India, for the purpose of administration to Covid-19 patients in India?

b) The quantities of the drug Tocilizumab to be made available in India either through itself or through its licensee(s) in India on a monthly basis for the next four months.

c) What is the total quantity of this drug- Tocilizumab, that has been imported/sold in India, since March 2020 – either by the company itself or through its licensee(s) or approved importer(s) in India.

[Dharmendra Kumar Aggarwal v. Govt. of NCT of Delhi, 2021 SCC OnLine Del 1995, order dated 05.05.2021]

 For Petitioner: Kunal Tandon, Niti Jain and Kanika Jain, Advocates

 For Respondents: Anuj Aggarwal, ASC, GNCTD with Ayushi Bansal, Advocate Anurag Ahluwalia, CGSC with Abhigyan Siddhant and Nitnem Singh Ghuman, Advocates, Ruby Singh Ahuja, Advocate


Case BriefsHigh Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Rekha Palli, JJ., directed the Delhi Govt. to work out the logistics of procuring the remaining quantity of oxygen which was claimed not to have been supplied out of the allocated 480 MT.

Additional Secretary, DPIIT, Ministry of Commerce and Industry, Sumita Dawra is the in-charge of allocation of medical oxygen to various States in the country in wake of ranging Pandemic.

She gave Bench the history of how industrial Oxygen got diverted from medical use since April, 2020. She also informed the Court about the decision taken on 20-04-2021to increase in allocation for use of medical Oxygen in the NCT of Delhi from 378 MT to 480 MT.

Senior Advocate for GNCTD, Mr Rahul Mehra stated that the NCT of Delhi received somewhere between 200-250 MT of Oxygen today, adding to this he submitted that there were obstructions in the receipt of said Oxygen and the same was delayed for that reason.

Mr Tushar Mehta, Solicitor General requested that the matter be adjourned and at the same time he assured the Court that Centre shall facilitate the supply of 480 MT of Medical Oxygen to Delhi and further assured that Central Government shall also ensure unobstructed and safe passage of the Medical Oxygen tankers to Delhi of the allocated Oxygen.

Bench taking the above statement of Mr Tushar Mehta on record hoped that emergent needs of various hospitals in Delhi including those run by petitioner would be met and no casualties are suffered on account of the discontinuing supply of Oxygen to seriously ill COVID patients, and other serious patients who require Oxygen for support till the matter is take up again.

Hence, Court directed GNCTD to immediately work out the logistics of procuring the remaining quantity which was claimed not to have been supplied out of the allocated 480 MT and the suppliers are directed to comply with allocation order issued by Centre and make supplies on an emergent basis.

During this late-night hearing of the Court, it was informed to the Bench that Oxygen supplies were received by Max Hospital, Patparganj, and Max Hospital, Shalimar Bagh.

Matter to be listed today. [Balaji Medical Research Centre v. Union of India, 2021 SCC OnLine Del 1827, decided on 21-04-2021]

Advocates before the Court:

For the Petitioner: Mr Sandeep Sethi Sr, Adv, Mr Mahesh Agarwal, Adv, Mr Rishi Agrawala, Adv, Mr Karan Luthra, Adv, Mr Ankit Banati, Advs

For the Respondents: Mr. Tushar Mehta, SGI, Mr. Chetan Sharma, ASG, Ms. Monika Arora, CGSC, Mr Anil Soni, CGSC

Mr Rahul Mehra, Sr. Advocate with Mr Satyakam, ASC, GNCTD

Mr Rajiv Nayar, Sr. Advocate with Mr Ajay Bhargav, Mr Aseem Chaturvedi, Mr Saurab Seth Advocates with Mr Siddharth Jain, Whole Time Director for M/s. INOX

COVID 19Hot Off The PressNews

It has come to the knowledge of the Union Health Ministry that few States are trying to curb the free inter-State movement of oxygen supplies by exercising provisions under various Acts and also mandating the manufacturers/suppliers located in the State to restrict their oxygen supplies to only the hospitals of the State.

In view of this, the Health Ministry has reiterated the critical importance of Oxygen in hospitals for management of critical COVID patients. In a letter written to the States/UTs, Union Health Secretary has emphasised that availability of adequate and uninterrupted supply of medical oxygen is an important pre-requisite for managing moderate and severe cases of COVID-19.

The Health Secretary has urged the States/UTs to ensure that no restriction is imposed on the movement of medical oxygen between them. It has been strongly reinforced that it is every State’s responsibility to ensure that every hospitalized COVID patient receives oxygen.

It has been again brought to their notice that medical oxygen constitutes an Essential Public Health Commodity and any impediment in the supplies of medical oxygen in the country may critically impact the management of patients suffering from COVID-19 disease in other parts of the country. Moreover, some of the major oxygen manufacturers/supplies already have existing supply agreements with hospitals in various states with a legal obligation to fulfill such agreements.

The Centre-led COVID management strategy is based on Standard of Care Treatment Guidelines. These Guidelines have ensured a uniform and standardised quality of medical care in all the COVID facilities, including hospitals. For moderate and severe cases, adequate oxygen support, appropriate and timely administration of anti-coagulants and widely available and inexpensive corticosteroids, in accordance with the protocol, can be considered to be the mainstay of COVID-19 therapy.

An adequate supply of oxygen throughout the country has enabled effective clinical care of the hospitalised moderate and severe cases, in conjunction with other measures. The adopted host of strategies have actively resulted in rising Recovery Rate and steadily declining Case Fatality Rate (1.67% currently).  As on date, less than 3.7% of active patients are on oxygen support.

Ministry of Health and Family Welfare

[Press Release dt. 11-09-2020]

Case BriefsHigh Courts

Bombay High Court:  A Division Bench of Dipankar Datta, CJ and Sarang V. Kotwal, J., took up a matter highlighting the concern regarding the inflated charges for Personal Protective Equipment Kits (PPE) by private hospitals and nursing homes.

Petitioner raised the concern that in view of the pandemic, private hospitals and nursing homes have been charging for Personal Protective Equipment Kits on a cost more than the procurement costs.

In view of the above stated concern, petitioner sought a direction for imposing a cap on the prices of PPE Kits charged to COVID/NON-COVID patients in private hospitals and nursing homes.

P.P. Kakade, Government Pleader a/w Nisha Mehra, AGP for State.

Ish Jain a/w Kiran Jain a/w Amruta Thakur for respondent 4.

Therefore, Court directed the parties to file affidavit stating their responses after which on 07-08-2020, the present PIL will be taken up for further consideration. [Abhijit K. Mangade v. State of Maharashtra, 2020 SCC OnLine Bom 827, decided on 28-07-2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: After the Central Government filed an affidavit orders have been issued to comply the directions issued by the Supreme Court on June 19, 2020 in suo motu petition on proper treatment of COVID-19 patients and dignified handling of dead bodies in the hospitals, the bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ said that

“Mere direction to comply the directions is not enough. The steps taken towards compliance of the directions have to be brought on the record.”

The Court also took note of the facts that the State Governments / UTs have not filed affidavits giving details of compliance of various directions issued by it on June 19, 2020. It was, hence, of the view that the Chief Secretaries of the States have to take steps to ensure that directions are complied with and an appropriate compliance report be filed within 2 weeks.

It also directed the Union of India to file detailed affidavit within two weeks giving the details of the various compliance of the directions issued vide order dated June 19, 2020.

The 3-judge bench of Ashok Bhushan, SK Kaul and MR Shah, JJ had, on June 19, 2020, issued detailed directions in the matter relating to deficiencies, shortcomings and lapses in patient care of Covid-19 in different hospitals in National Capital Territory of Delhi and other States where the Court had taken suo motu cognizance on the basis of media reports and programmes aired in several channels presenting horrific scenes from LNJP hospital, which is a COVID-19 dedicated hospital.


Read the detailed report on the directions issued on June 19, 2020 here.

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Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, SK Kaul and MR Shah, JJ has issued detailed directions in the matter relating to deficiencies, shortcomings and lapses in patient care of Covid-19 in different hospitals in National Capital Territory of Delhi and other States where the Court had taken suo motu cognizance on the basis of media reports and programmes aired in several channels presenting horrific scenes from LNJP hospital, which is a COVID-19 dedicated hospital.

The Court had, on June 12, 2020, issued notice to all States and Union Territories seeking Status report with regard to Government hospitals, patient care and the details of the staff, infrastructure, etc.

On the affidavit filed by Delhi Government, the Court noticed that in the entire affidavit, apart from general statement that all steps are being taken, the affidavit does not indicate any mechanism for proper supervision of the functioning of the hospital and steps for improvement. The affidavit tries to give an impression to the Court that everything in the Government hospital in NCT, Delhi is well and all steps are being taken by the Government of NCT of Delhi.

“When the Government does not endeavour to know any shortcomings or lapses in its hospitals and patient care, the chances of remedial action and improvement becomes dim.”

The Court further, said that the necessary guidelines on all aspects of patients’ care, hospital management, testing, infrastructure are in place as has been highlighted by Union of India in its affidavit. However, the main concern is the faithful and strict implementation of the said guidelines which can be only ensured by constant supervision, monitoring and taking remedial steps with regard to improvement of infrastructure, staff, facilities, etc.


On reasonable rates for COVID related facilities/test etc

  • Centre should issue appropriate guidelines/directions to all the States/Union Territories with regard to prescribing reasonable rates of various COVID related facilities/test etc., which need to be uniformly followed by all concerned. In case, with regard to any particular State/Union Territory, there is any difference, the same may be specifically noticed and directed accordingly.

On continuous supervision and monitoring of government hospitals, Covid dedicated hospitals and other hospitals taking care of covid management

  • The Ministry of Health and Family Welfare, Union of India, shall constitute Expert Committees consisting of

a) Senior Doctors from Central Government hospitals in Delhi,

b) Doctors from GNCTD hospitals or other hospitals of Delhi Government,

c) Doctors from All India Institute of Medical Sciences, d) Responsible officer from Ministry of Health and Family Welfare.

  • The Expert Committee shall inspect, supervise and issue necessary directions to all Government hospitals, Covid hospitals and other hospitals in NCT of Delhi taking care of Covid patients. The Expert Committees shall ensure that at least one visit in each hospital be done weekly.
  • The above team may in addition to normal inspection shall also conduct surprise visits to assess the preparedness of the hospitals. The expert team as indicated above after visiting may issue necessary instructions for improvement to the hospital concerned and also forward its report to the Government of NCT of Delhi and the Union of India, Ministry of Health and Family Welfare.
  • States shall also constitute an expert team of Doctors and other experts for inspection, supervision and guidance of Government hospitals and other hospitals dedicated to Covid-19 in each State who may inspect, supervise the hospitals in the State and issue necessary directions for the improvement to the concerned hospital and report to the Government. Chief Secretary of each State shall ensure that such Committees are immediately constituted and start their 8 works within a period of seven days.

On transparency in patient care

  • Footage from the CCTV Cameras shall be made available by the hospitals in NCT of Delhi to the inspecting/supervising expert team or to any other authority or body as per directions of the Union of India, Ministry of Health and Family Welfare for screening the footage and issuing necessary directions thereon.
  • The Chief Secretaries of all States shall take steps regarding installation of CCTV Cameras in COVID dedicated hospitals where COVID patients are taking treatment to facilitate the management of such patients and for the screening of the footage by designated authorities or bodies so that remedial action may be suggested and ensured.

On permitting attendant for COVID-19 Patient

  • All COVID-dedicated hospitals shall permit one willing attendant of the patient in the hospital premise, who can remain in an area earmarked by the hospital
  • All COVID dedicated hospitals shall create a helpdesk accessible physically as well as by telephone from where well-being of patients admitted in the hospitals can be enquired.

On Discharge Policy

  • The Union of India, Ministry of Home Affairs may issue appropriate directions in exercise of power under Disaster Management Act, 2005 to all States/Union Territories to uniformly follow the revised discharge policy dated 08.05.2020 with regard to discharge of different categories of patients as categorised in the revised discharge policy.

The Court will now take up the matter in the third week of July.


Case BriefsCOVID 19High Courts

Allahabad High Court: A Division Bench of Pankaj Mithal and Yashwant Varma, JJ. have asked State Government or CMO to file its reply on whether it would like to revisit its restrictions in regard to opening of OPD for treating non COVID19 patient only in case of emergency in private hospitals and nursing homes.

State Government vide notifications had issued that the government and private hospitals as well as nursing homes in the State of U.P. have restricted from opening the OPD for treating the non COVID19 patients except in case of emergency.

In view of the above, Manish Goyal, Additional Advocate General has been directed to seek instructions as to the present state of affairs and about the viability of continuing with the above stated restrictions.

Adding to the above, it also asked for the State Government or the C.M.O to revisit the guidelines contained in the notifications as mentioned above.

Petition to be listed on 18th June, 2020.[All India Peoples Front (Radical) v. State of U.P., 2020 SCC OnLine All 776 , decided on 15-06-2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: Taking sup motu cognizance on the basis of media reports and programmes aired in several channels presenting horrific scenes from LNJP hospital, which is a COVID-19 dedicated hospital, the 3-judge bench of Ashok Bhushan, SK Kaul and MR Shah, JJ issued notice to all States and Union Terrotiries seeking Status report with regard to Government hospitals, patient care and the details of the staff, infrastructure, etc. on the next date of hearing so that appropriate directions be issued by the Court as found necessary.

“All these facts, which have been brought to the notice of the Court by the media reports, clearly indicate a very sorry state of affairs of the patients of Covid-19 in the Government hospitals in the NCT of Delhi as well as in other States.”

Referring to a program aired on India TV on 10.06.2020, the Court noticed,

“The patients are in the wards and the dead bodies are also in the same wards. Dead bodies are seen also in the lobby and waiting area. The patients were not supplied with any oxygen support or any other support, no saline drips were shown with the beds and there was no one to attend the patients. Patients are crying and there is no one to attend them. This is the condition of the Government Hospital of Delhi which has capacity of 2000 beds.”

The Court also took note of the fact that the Government App itself gives the details of beds occupied in the Government and Private hospitals in Delhi. In the Government hospitals, the number of beds is 5814, out of which 2620 are occupied. It, hence, said,

“The large number of beds in Government COVID Hospital being vacant in a situation where patients suspected of Covid-19 are running from pillar to post to get admission in any hospital tells about the mismanagement and sorry state of Government hospitals in Delhi.”

Coming down heavily of the Government, the Court said that the duty of the State of NCT Delhi does not end in informing the people that it has arranged 5814 beds in Government hospitals and 9535 beds including private hospitals. The State and its officers are also duty bound to ensure that patients are taken care, attended, provided all medical facility, the hospitals have necessary infrastructure and staff.

The Court also took note of the media reports that indicated there is an increase in the number of patients affected by Covid-19 every day in the entire country especially in Delhi, Maharashtra, Tamil Nadu, Chennai and Ahmedabad. The number of patients increasing day by day is 10,000 or more per day.

On the issue of testing gone down in the State of NCT of Delhi, the Court said,

“Non-testing of the patients is not a solution to the problem rather increase in the testing facility is the duty of the State, so that people may come to know about their health status regarding Covid19 and they may take appropriate care and treatment of Covid-19.”

The Court will next hear the matter on 17.06.2020.


Case BriefsSupreme Court

Supreme Court: In the case where a 35-year-old woman was not allowed to abort her foetus by the Patna High Court as her foetus was 24-weeks-old at the time when the High Court was deciding the matter, the 3-judge bench of Dipak Misra, Amitava Roy and AM Khanwilkar, JJ directed the State of Bihar to pay a compensation of Rs. 10, 00, 000 to the appellant as it was due to the laxity of the authorities in terminating her pregnancy as she was 18 weeks pregnant when she expressed her desire to terminate her pregnancy. The Court said that the appellant has to be compensated so that she lives her life with dignity and the authorities of the State who were negligent would understand that truancy has no space in a situation of the present kind.

As per the facts of the case, the woman, a rape survivor who was living on the streets of Patna after being rejected by her husband and family, was brought to a shelter home from footpath. The functionaries of the home found her to be 13 weeks pregnant and took her to Patna Medical College Hospital to terminate her pregnancy with her consent. Her father and brother were called and made to sign a consent form. The appellant was also found to be HIV+. However, the hospital did not terminate her pregnancy and by that time she had entered into 20th week of pregnancy. When the woman approached the High Court, the single judge impleaded the husband and father of the woman. However, the notice was not served to the husband as his name was wrongly mentioned that caused further delay. Director of Indira Gandhi Institute of Medical Sciences was also directed to constitute a Multi-Disciplinary Medical Board to examine the victim with regard to physical and mental state and the condition of the foetus. The Court, after, going through the Medical report, thought is fit to reject the woman’s plea to abort her foetus as the foetus was 23-24 weeks old and the termination of the same would be hazardous to the life of the woman.

Considering the facts of the case, the Court said that it was luminescent that the appellant has suffered grave injury to her mental health and the said injury is in continuance. The bench said that one may have courage or cultivate courage to face a situation, but the shock of rape is bound to chain and enslave her with the trauma she has faced and cataclysm that she has to go through. Her condition cannot be reversed.

The bench also stated that the singe Judge should have been more alive to the provisions of the Medical termination of Pregnancy Act, 1971 and the necessity of consent only of the appellant in the facts of the case. There was no reason whatsoever to implead the husband and father of the appellant. The appellant was a destitute, a victim of rape and further she was staying in a shelter home. Calling for a medical report was justified but to delay it further was not at all warranted. The Court said that the High Courts are required to be more sensitive while dealing with matters of the present nature.

The Court directed that the compensation from the State be kept in a fixed deposit in the appellant’s name so that she may enjoy the interest. It was also directed that the child to be born, shall be given proper treatment and nutrition by the State and if any medical aid is necessary, it shall also be provided. If there will be any future grievance, liberty is granted to the appellant to approach the High Court under Article 226 of the Constitution of India after the birth of the child. [Ms. Z v. State of Bihar, 2017 SCC OnLine SC 943, decided on 17.08.2017]

Case BriefsHigh Courts

High Court of Kerala: While deciding the legality and validity of the amendments brought into the Kerala Tax on Luxuries Act, 1976, making it mandatory that every hospital having not less than five rooms for accommodation of patients and which charges Rs. 1000 or more per room to be registered under the Act and the ‘luxury’ provided in such hospitals, excluding the charges for medicine, food and professional services, would become exigible to luxury tax under Entry 62 List II of Schedule  VII of the Constitution, the Bench comprising of Thottathil B. Radhakrishnan and Devan Ramachandran, JJ., held that the amendments made to the Act, bringing into its sweep luxury in hospitals, do not suffer from any constitutional infirmity as the levy of ‘luxury’ tax is on the adscititious amenities and facilities not intended for recovery, healing or treatment of the patients but for better comfort and pleasure of both the patient and bystander in a room.

The petitioners moved  the Division Bench against the judgment and order passed by the learned Single Judge, holding the impugned amendment Act to be within the legislative competence of the State, contending that the levy of luxury tax under Entry 62 List II of Schedule VII of the Constitution would be permissible only if ‘luxury’ is provided in the hospitals and since they do not provide any luxury, but are only places of healing, hence the legislature has grossly exceeded in its competence while legislating, for which it had no sanction under the relevant entry of Schedule VII of the Constitution.

The Court upholding the judgment of the learned Single Judge repelled the challenges of the appellants stating that the since the Amendment Act defines the word ‘luxury’ to mean a commodity or service that ministers comfort or pleasure therefore the adscititious amenities and facilities that are provided in a hospital, which are beyond the essential requirements like food, medicine, and professional services and a basic room, the charges for which is one thousand rupees per day or more comes within the ambit of ‘luxury’ and tax can be levied as per  Schedule VII of List II, Entry 62. The Court also stated that the competence of the State Legislature to enact on the matter of ‘luxuries’ is, incontestable since Article 246 of the Constitution grants exclusive power to make laws with respect to any of the matters enumerated in List II to the State Legislature hence, the amendments made by the State Legislature were intra vires the constitutional provisions. [Rajah Healthy Acres (P) Ltd.  v. State of Kerala, 2016 SCC OnLine Ker 29534, decided on 9-12-2016]

Case BriefsSupreme Court

Supreme Court: Reverting back the matter relating to the validity of a circular issued by the Government of J&K which adverted to the provisions of Rule 10 of the Jammu and Kashmir Government Employees (Conduct) Rules, 1971 which prohibits a government servant from taking up any assignment without the permission of the competent authority, the Court asked the High Court of J&K to constitute a Committee of medical experts and administrators to look into the issue of availability of infrastructure and facilities in government hospitals across the state of Jammu and Kashmir and the facilities for the treatment of patients.

The writ petition filed before the High Court sought a prohibition on private tutoring by government teachers. In addition, the respondents also prayed for a complete ban on private practice by government doctors including those working in medical colleges. The Division Bench held that Rule 10 of the Jammu and Kashmir Government Employees (Conduct) Rules, 1971 does not empower the government to issue general instructions of this nature allowing teachers in government schools to pursue private assignments. The grievance of the State of J&K in the present appeal was that the directions issued by the High Court proceeded on the basis that the circular also regulated government medical doctors engaging in self-employment or other activities. It was urged that the rules governing private practice by government doctors were not placed before the Court. Hence, without considering those rules, the High Court has issued a blanket direction erroneously on the basis that the circular of 11 August, 2005 also covered the services of medical doctors.

The Court was of the opinion that quite apart from the issue of whether government doctors should be allowed to engage in private practice, there are other and, perhaps more fundamental aspects which would arise from the Public Interest Litigation that was instituted before the High Court. Stating that the quality of medical care in government hospitals across the state of Jammu and Kashmir is a matter which should receive attention and oversight in the exercise of the jurisdiction under Article 226 of the Constitution, the 3-Judge Bench of T.S. Thakur, CJ and A.M. Khanwilkar and D.Y. Chandrachud, JJ said that the following issues need to be taken care of:

  • The availability of adequate infrastructure in government hospitals;
  • The availability of essential equipment for treatment;
  • The availability of staff-medical, para medical and of a supporting nature;
  • Enforcement of conditions of hygiene to secure proper medical treatment facilities; and
  • The availability of essential medicines.

The Court further said that the Committee shall submit a report on the state of public – government hospitals in the state and covering among other things, the areas which have been emphasised above. The High Court would be at liberty, after scrutinizing the report of the Expert Committee and upon hearing the relevant stakeholders including the state, to issue appropriate directions and monitor compliance. The hospitals which are conducted by the state and by public agencies cater to medical needs of the poorest strata of society. The need for ensuring proper medical care of a requisite standard has to be duly addressed. [State of Jammu & Kashmir v. Vichar Kranti International, 2016 SCC OnLine SC 1160 , decided on 21.10.2016]