A Bench comprising of Hon’ble Mr. Justice S.C. Sharma and Hon’ble Mr. Justice Shailendra Shukla of the Hon’ble High Court of Madhya Pradesh at Indore (“Hon’ble Court”) in the case of Maharaja Yeshwant Rao Hospital (M.Y. Hospital), Indore Vs. Union of India & 2 Others (being W.P. (C) No. 13812 of 2020) vide its Order dated 16.09.2020, by way of an interim relief directed M/s Inox Air Products Pvt. Ltd. (Respondent No. 3 therein) to continue the supply of liquid medical oxygen to the State of Madhya Pradesh uninterruptedly, until further orders.
The facts ensuing the filing of the Writ Petition under Article 226 of the Constitution of India, are as follows:
That the Maharaja Yeshwant Rao Hospital (hereinafter referred to as “M.Y. Hospital/Petitioner”) is the hospital owned and controlled by the State of Madhya Pradesh. It is the only hospital in the entire region of Malwa under the control of the State Government which is providing all kind of advance treatments including treatment to the Covid-19 patients;
That the State of Madhya Pradesh do not have any Oxygen Manufacturing Plant and that the State has been importing liquid oxygen from the State of Maharashtra, State of Gujarat and State of Chhattisgarh.
That as per the data provided by the Petitioner the total requirement of oxygen in the State of Madhya Pradesh is about 100 tonnes per day and keeping in view the increase in number of Covid patients the Hospitals will be requiring 270 – 280 tonnes of liquid medical oxygen per day.
That an agreement was executed on 21.05.2018 (still in force) by the Petitioner with M/s Inox Air Products Pvt. Ltd. (Respondent No. 3 therein) and twenty tonnes of liquid medical oxygen is being supplied to the State of Madhya Pradesh by M/s Inox Air Products Pvt. Ltd. The said agreement was executed for three years and valid till 20.05.2021.
That a circular dated 07.09.2020 was issued by the State of Maharashtra wherein it was inter alia observed that liquid medical oxygen supply is very crucial to the management of patients infected with Covid-19 and, therefore, 80% of the production is to be used only for Hospitals in Maharashtra.
That vide letter dated 10-09-2020 addressed by the Secretary Health to all Chief Secretaries over the country, the Government of India has categorically written to all the State Governments to continue with the existing supply (under the various agreements with Hospitals and various States).
MAIN POINTS OF CONTENTION AND ANALYSIS
Notification dated 07.09.2020 is discriminatory in nature as it tends to discriminate between the patients based on their domicile and further on the basis of the State where the treatment is going on. It is pertinent to note that the State of Maharashtra itself in its notification has duly admitted that “..Liquid medical oxygen supply is very crucial to the management of patients infected with Covid-19…” Therefore, the discrimination between the Covid-19 patients within various States is unjustifiable and arbitrary.
It is baffling to note that the said notification is being issued while the entire country is struggling each day to fight the Pandemic. Therefore, to prioritize the patients or create an unnatural and unjust split amongst the patients is discriminatory and capricious. The issuance of notification dated 07.09.2020 is an afterthought and is in sheer violation of the fundamental rights enshrined under Article 14 and 21 of the Constitution of India. It is a settled law that right to life includes right to health. That the said notification is in flagrant violation of basic principle of right to health which is an important facet of right to life as observed by the Hon’ble Supreme Court of India in plethora of judgements. The Hon’ble Supreme Court of India in the matter of Assn. of Medical Superspeciality Aspirants & Residents v. Union of India, (2019) 8 SCC 607, has in clear and categorical terms held that the right to health is integral to the right to life. The relevant portion of the said judgement is extracted hereunder, for ready reference:
“26. Right to health is integral to the right to life. Government has a constitutional obligation to provide health facilities [State of Punjab v. Mohinder Singh Chawla, (1997) 2 SCC 83 : 1997 SCC (L&S) 294] . The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person. The right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter, and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and the restriction would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights [Francis Coralie Mullin v. State (UT of Delhi), (1981) 1 SCC 608 : 1981 SCC (Cri) 212]”
Further, in the matter of Devika Biswas v. Union of India, (2016) 10 SCC 726, the Hon’ble Supreme Court has reiterated that right to heath is an integral facet of right to life. The relevant extracts of the said judgement are provided hereunder, for ready reference:
”107. It is well established that the right to life under Article 21 of the Constitution includes the right to lead a dignified and meaningful life and the right to health is an integral facet of this right. In CESC Ltd. v. Subhash Chandra Bose [CESC Ltd. v. Subhash Chandra Bose, (1992) 1 SCC 441 : 1992 SCC (L&S) 313] dealing with the right to health of workers, it was noted that the right to health must be considered an aspect of social justice informed by not only Article 21 of the Constitution, but also the Directive Principles of State Policy and international covenants to which India is a party. Similarly, the bare minimum obligations of the State to ensure the preservation of the right to life and health were enunciated in Paschim Banga Khet Mazdoor Samity v. State of W.B. [Paschim Banga Khet Mazdoor Samity v. State of W.B., (1996) 4 SCC 37]”
Uninterrupted supply of medical oxygen is an important pre-requisite for managing moderate and severe cases of COVID-19 patients and hindrance in any form to the supply of oxygen is manifestly arbitrary as per the standards laid down by the Hon’ble Supreme Court from time to time.
The Hon’ble Supreme Court in the matter of Shayara Bano v. Union of India, (2017) 9 SCC 1 (@ Para 95-97 and 100-01] held that –
“And a constitutional infirmity is found in Article 14 itself whenever legislation is “manifestly arbitrary” i.e. when it is not fair, not reasonable, discriminatory, not transparent, capricious, biased, with favouritism or nepotism and not in pursuit of promotion of healthy competition and equitable treatment. Positively speaking, it should conform to norms which are rational, informed with reason and guided by public interest, etc
Lastly, the notification dated 07.09.2020 seeks to treat equals unequally, by assuming that denial of supply of oxygen in the State of Madhya Pradesh will not affect the health of thousands, in need of the oxygen in the State of M.P. and thus fails to meet the test of proportionality and reasonableness under Article 14 of the Constitution. The Hon’ble Supreme Court in K.S. Puttaswamy (Retired) v. Union of India, (2019) 1 SCC 1 held that “Proportionality is an essential facet of the guarantee against arbitrary state action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law…”
INTERIM RELIEF GRANTED
By way of an interim relief, the Hon’ble High Court vide its order dated 16.09.2020, directed M/s Inox Air Products Pvt. Ltd (Respondent No.3 therein) to continue uninterrupted supply of liquid medical oxygen to the State of Madhya Pradesh including the Petitioner Hospital, without being influenced by the Circular dated 07.09.2020 issued by the State of Maharashtra.