‘There is pandemic but no formal emergency, hence fundamental rights can’t be taken away arbitrarily’

The state government had on April 11, 2020, permitted only government hospitals to conduct diagnostic tests and admit Covid patients for isolation and treatment to the exclusion of private hospitals and diagnostic centres. This, a PIL petitioner a...

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NEW DELHI: Though there is a pandemic, no formal emergency has been declared and hence fundamental rights of citizens cannot be taken away arbitrarily and unreasonably, the Telangana High Court has ruled while striking down a state government rule, which had made it mandatory for all to have Covid-19 tests only in government hospitals and not the private ones.

The state government had on April 11, 2020, permitted only government hospitals to conduct diagnostic tests and admit Covid patients for isolation and treatment to the exclusion of private hospitals and diagnostic centres. This, a PIL petitioner argued, was arbitrary, illegal and without power. The high court agreed with him.

“Admittedly, no emergency has been declared by the government under Article 356 of the Constitution, though there is a pandemic situation undoubtedly,” the court said, rejecting the advocate general’s argument that there was a state of emergency in view of the pandemic and that such emergency justified the state action.


The state government had also accused the Hyderabad resident of being a proxy for private hospitals who stood to lose their business from Covid tests but the court rejected all such pleas. “We are unable to agree,” Justices MS Ramachandra Rao and K Lakshman said in a recent judgement, citing Justice HR Khanna’s stirring dissent in the ADM Jabalpur case.

An emergency of any sort — medical or war — is not an excuse to trample on the rights under Article 21 and the courts have the power to see that the state will act in a fair, just and reasonable manner even during emergencies, it said. It can’t be argued that anything can be done by the state, including arbitrarily restricting the right to health conferred under Article 21 on a citizen, it said. The court was acting on a PIL filed by one Ganta Jai Kumar who claimed that he had a fundamental right to health and could go to any private hospital for a Covid-19 test if he had the means to do so and cannot be forced to go to a government hospital.
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