Madhya Pradesh High Court
Sushil Kumar Patel vs Union Of India on 19 April, 2021
Author: Chief Justice
WP No.8914/2020 & Linked Matters
[1]
THE HIGH COURT OF JUDICATURE FOR MADHYA PRADESH,
AT JABALPUR
(DIVISION BENCH)
W.P. No.8914/2020
(IN REFERENCE (SUO MOTU) Vs UNION OF INDIA AND OTHERS)
(Also on Interlocutory Application Nos.4346/2021, 4347/2021 and 4349/2021)
WITH
W.P. No.8696/2020
(P.C. Sharma vs. Union of India and others)
W.P. No.14805/2020
(Dr. Smt. Rakhee Sharma vs. State of M.P. and others)
W.P. No.20889/2020
(Sushil Kumar Patel vs. Union of India and others)
W.P. No.2513/2021
(Umesh Kumar Bohre vs. State of M.P. and others)
&
W.P. No.8753/2021
(Srijan "Ek Asha" vs. Union of India and others)
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Coram:
Hon'ble Mr. Justice Mohammad Rafiq, Chief Justice
Hon'ble Mr. Justice Atul Sreedharan, Judge
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Presence :
Mr. Naman Nagrath, Senior Advocate with Mr. Jubin Prasad,
Advocate appeared as Amicus Curiae in W.P.No.8914/2020.
WP No.8914/2020 & Linked Matters
[2]
Mr. Shekhar Sharma, Advocate for the petitioner in
W.P.No.8696/2020.
Mr. Pawan Dwivedi, Advocate for the petitioner in
W.P.No.14805/2020.
Mr. Shashank Shekhar, Advocate for the petitioner in W.P.
No.8753/2021.
Mr. Sanjay Kumar Verma, Advocate for the petitioner in W.P.
No.20889/2020.
Mr. Jitendra Kumar Jain, Assistant Solicitor General for the
Union of India.
Mr. P.K. Kaurav, Advocate General with Mr. R,.K.Verma and
Mr. Pushpendra Yadav, Additional Advocate General for the
respondents/State along with Ms. Chhavi Bhardwaj, Managing
Director, National Health Mission (M.P.).
Mr. Shivendra Pandey, Advocate for the Indian Medical
Association (respondent No.5 in WP No.8914/2020).
Mr. Shreyas Pandit, Advocate for the Madhya Pradesh Nursing
Home Association (respondent No.8 in WP No.8914/2020).
Mr. Vivek Krishna Tankha, Senior Advocate with Mr. Varun
Tankha, Advocate in I.A. No.4346/2021 (W.P. No.8914/2020).
Mr. Shashank Shekhar, Advocate for the intervenor in
W.P.No.8914/2020.
Mr. Mohd. Vasif Khan, Advocate for the intervenor in
W.P.No.8914/2020
Mr. Subhash Upadhyay, Advocate for the intervenor in
I.A.No.4347/2021 (W.P. No.8914/2020).
Mr. Ajay Raizada, Advocate for the intervenor in I.A.
No.4349/2021 (W.P.No.8914/2020).
Mr. Santosh Sahu and Mr. Rambachan Sahu, Advocates for the
intervenor in W.P.No.8914/2020.
WP No.8914/2020 & Linked Matters
[3]
Mr. Akbar Usmani, Advocate for the intervenor in
W.P.No.8914/2020.
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Heard on: 15.04.2021
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ORDER
(Passed on this 19th day of April, 2021)
Per: Mohammad Rafiq, Chief Justice
The present suo motu Writ Petition No.8914/2020 was
registered on the basis of a letter (dated 08.06.2020) sent by Dr.
Ashwani Kumar, Senior Advocate, Supreme Court of India, New
Delhi to the Chief Justice of India, which was forwarded to the
Registrar General of this Court by the Secretary General of Supreme
Court of India (vide his letter dated 11.06.2020) under His Lordship's
direction. The said letter dated 08.06.2020 had highlighted a tragic
and condemnable sight of an elderly Covid-19 patient, who, as per the
story carried out by a media portal with a photograph, was chained to
bed in a private hospital at Bhopal, the capital city of the State of
Madhya Pradesh, allegedly on his failure to make payment of fees for
his treatment. One wonders if the situation has changed much since
then when the entire country is struggling to survive the second wave
of Covid-19.
This Court has passed number of orders to ensure that the
Covid-19 patients in the State are provided timely treatment inasmuch
as they are not subjected to harassment and exploitation. When the
matter was listed on 07.09.2020, this Court directed the State
WP No.8914/2020 & Linked Matters
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Government to issue necessary directions to every hospital including
the private hospitals to display the rates for treatment of Covid-19
patients at their reception counters and also publish the same for
information of people by publication thereof in the newspapers so that
any incident of overcharging could be brought to the notice of the
District Administration and necessary action be taken. On 09.10.2020
when the matter was next listed, the Coronavirus was at its peak
during the first wave, this Court was informed that 262 hospitals in
the State of Madhya Pradesh have been declared as Covid Care Centre
(CCC), 62 hospitals have been declared as Dedicated Covid Health
Centre (DCHC) and 16 hospitals have been declared as Dedicated
Covid Hospital (DCH), i.e. in all 347 hospitals, which are providing
free treatment and testing to the Covid suspects and patients. This
Court was also informed that there is no shortage of life saving
medicines for Covid-19 treatment; scrupulous measures are being
taken to ensure that no private hospitals/clinics charge exorbitant fee
for such treatment and that rates are being duly exhibited on the
hospital counters across the entire State of Madhya Pradesh. The State
Government was directed to ensure strict compliance of the norms
laid down by the Central Government in their Notification dated
07.04.2020 with regard to infrastructure and other requirements for
CCCs, DCHCs and DCHs. The Commissioner, Health Services was
directed to set up a District Level Cell to receive and attend the
complaints, which should be made functional 24x7. Efforts should be
made by all the stakeholders to educate one and all to scrupulously
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follow the norms of social distancing, use of face masks and washing
hands etc.
2. When the matter was listed before the Court on 10.12.2020, the
State Government filed its response to I.A. No.6360/2020 thereby
placing on record copy of the order dated 04.09.2020 issued by the
Commissioner, Health Services, Department of Public Health and
Family Welfare, Madhya Pradesh issued under the approval of the
Additional Chief Secretary of the State Department, directing that
under no circumstances the Private Hospitals/Nursing Homes/Clinical
Establishments' charges shall exceed by 40% of the rates
communicated on or before 29.02.2020 including all expenses such as
PPE kits etc. The aforesaid order was addressed to all the Chief
Medical & Health Officers of the State, President of the Indian
Medical Association, President of the Nursing Home Association and
the Additional Director, IDSP (MP). It was assured that the said order
shall be prominently published in daily newspapers having wide
circulation in the respective Districts of the State after interval of
every 15 days. It was also informed on behalf of the State that
approximately 1.5 Crore e-cards covering 56% of the beneficiaries
families under Pradhan Mantri Jan Arogya Yojana (which is
hereinafter referred to as "Ayushman Bharat Yojana", as is commonly
known) have been issued; total number of 652 health care providers
have been empanelled in the State; the State Government is providing
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free cashless health facility to all Covid-19 patients at dedicated
Covid-19 hospitals and designated Government facilities.
3. Thereafter, the matter was listed before the Court on 07.04.2021
on two Interlocutory Applications filed by the learned Amicus Curiae.
The first application (IA No.3929/2021) was filed by him on the
premise that he has learnt from reliable sources that the District
Administration, Jabalpur has orally directed all the private Labs and
Hospitals to stop conducting Covid-19 tests from 25.03.2021. The
Chief Medical & Health Officer, Jabalpur (CMHO) who was present
before the Court along with the Regional Director, Health Services,
denied having issued any oral directions and submitted that orders
have been issued to regulate the rates of the tests to be charged by the
private Labs/Hospitals. IA No.4125/2021 was also filed by learned
Amicus Curiae that in view of the second wave of Covid-19, all the
District Administrations of the State should be directed to ensure strict
compliance with the directions of the State Government dated
25.03.2021 and that all hospitals empanelled under Ayushman Bharat
Niramayam Yojana should be directed not to deny treatment to Covid-
19 suspected/confirmed patients falling under that scheme and should
be further required to reserve minimum 20% beds for Covid-19
patients. In response, it was informed on behalf of the State that the
Commissioner, Health-cum-Officiating Secretary, Directorate of
Health Services, Government of Madhya Pradesh had issued an order
on 05.04.2021 thereby prescribing a sum of Rs.700/- as the rate for
WP No.8914/2020 & Linked Matters
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RT-PCR Covid-19 Test and a sum of Rs.300/- for Rapid Antigen
Covid-19 Test, with an additional sum of Rs.200/- if the sample is
required to be collected from the home of the patient, by all ICMR &
NABL approved Private Labs and NABH recognised Private
Hospitals. Another order dated 05.04.2021 was placed on record
whereby the Secretary, Department of Public Health and Family
Welfare, Government of Madhya Pradesh, Bhopal taking note of large
number of grievances raised by public complaining about exorbitant
charges, directed all Private Hospitals/Nursing Homes/Diagnostic
Centres to charge a maximum sum of Rs.3,000/- for Chest CT/HRCT
Scan from Covid-19 suspects/patients. The aforesaid order was to
remain in operation till 30.04.2021.
4. This Court in the aforesaid order dated 07.04.2021 took note of
submissions made by Mr. Shivendra Pandey, learned counsel
appearing on behalf of Indian Medical Association (respondent No.5
in WP No.8914/2020) and Mr. Shreyas Pandit, learned counsel
appearing for M.P. Nursing Home Association (respondent No.8 in
WP No.8914/2020) that in their joint meeting held on 06.04.2021,
they have decided to comply the aforementioned orders of the
Government with regard to charges for RT-PCR Test, Rapid Antigen
Test and Chest CT/HRCT Scan from Covid-19 suspects/patients.
However, they informed the Court that there are in the State,
approximately 3000 Private Hospitals, which are registered with
Indian Medical Association and approximately 3000 Private Nursing
WP No.8914/2020 & Linked Matters
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Homes having membership with the M.P. Nursing Home Association
but only a negligent number of 320 Private Hospitals and Nursing
Homes are presently empanelled under Ayushman Bharat Yojana, of
which only 81 are approved for treatment of Covid-19. This Court
therefore while appreciating the stand taken by both Indian Medical
Association and M.P. Nursing Home Association, also observed that
their members in the time of current crisis faced by the country
following the second wave of Covid-19 should desist from exploiting
the situation by overcharging the affected persons. The Court also
directed the State Government to give wide publicity to above orders
issued by it, in all print and electronic media and by any other means.
The State Government was also directed to increase the empanelment
of Private Hospitals and Private Nursing Homes in the State in
Ayushman Bharat Yojana, which fulfill the relevant criteria prescribed
by the Central Government, for treatment of Covid-19
suspects/patients under the scheme.
5. The matters had to be then urgently listed on 15.04.2021 on
special mention by number of Advocates, who had filed Interlocutory
Applications in the present suo motu writ petition inasmuch as I.A.
No.4347/2021 (regarding passing of directions to all the competent
authority to follow the guidelines issued by the State Government
regarding Covid-19 with immediate effect) has been filed by Mr.
Subhash Upadhyay, Advocate at Indore; I.A. No.4349/2021
(application for permission to intervene in suo motu writ petition) has
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been filed by one Dr. M.A. Khan through Mr. Ajay Raizada,
Advocate; and I.A. No.4346/2021 (subject: Uncontrolled upsurge and
serious mismanagement issue in Covid Pandemic control) has been
registered on the basis of a letter addressed to this Court by Mr. Vivek
Krishna Tankha, Senior Advocate. Besides, a fresh Writ Petition by
way of public interest litigation bearing W.P. No.8753/2021 has been
filed by an NGO, named, 'Srijan Ek Asha'.
6. Mr. Naman Nagrath, learned Amicus Curiae has made his
submissions and given written suggestions. Mr. P.K. Kaurav, learned
Advocate General appearing along with Mr. R.K. Verma, learned
Additional Advocate General, Mr. Pushpendra Yadav, learned
Additional Advocate General and Ms. Chhavi Bhardwaj, Managing
Director, National Health Mission (Madhya Pradesh), aside of making
submissions, filed action plan of the State to manage the situation.
Apart from learned Amicus Curiae, we have also heard Mr. Shashank
Shekhar Dugwekar, Mr. Sanjay Kumar Verma, Mr. Shekhar Sharma
and Mr. Pawan Kumar Dwivedi, learned counsel appearing for the
petitioners in respective writ petitions as well as heard Mr. Jitendra
Kumar Jain, learned Assistant Solicitor General for the respondents-
Union of India and Mr. Vivek Krishna Tankha, learned Senior
Counsel, Mr. Subhash Upadhyay, Mr. Ajay Raizada, Mr. Shivendra
Pandey and Mr. Shreyas Pandit, learned counsel appearing for the
respective intervenors/respondents on Interlocutory Applications filed
in the suo motu writ petition. All of them have, more or less, raised
WP No.8914/2020 & Linked Matters
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similar arguments as to the ongoing crisis faced by the State following
the second wave of Covid-19. A gist of what all of them have
submitted in the course of hearing can be summarized thus:-
(i) there is an acute medical crisis in the State of Madhya
Pradesh due to sudden spread of Covid-19, which has
engulfed not only the urban areas but also reached the
villages;
(ii) many deaths have been reported during the past few days
from various hospitals including the private
Hospitals/Nursing Homes across the State due to non-
availability of Oxygen. There is an acute shortage of
Oxygen in the Government Hospitals as well as Private
Hospitals/Nursing Homes not only in the major cities like
Bhopal, Indore, Gwalior and Jabalpur but also in District
Headquarters and Sub Divisions. Large number of
newspaper clippings have been filed to bring home the
point;
(iii) there is an acute shortage of Remdesivir- a life saving
drug which is quite crucial for saving the life of Covid-19
patients. In most of the Districts of the State including the
major cities like Bhopal, Indore, Gwalior and Jabalpur
one vial of Remdesivir, which costs approximately
Rs.800-1,000, is being sold at an exorbitant price to the
extent of Rs.18,000/-. The private hospitals are exploiting
WP No.8914/2020 & Linked Matters
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the situation by charging arbitrary rates for providing
Remdesivir injections. The black-marketing of
Remdesivir injection is leading to registration of criminal
cases in some instances. Many newspaper clippings have
been produced to substantiate this;
(iv) while dedicated Covid-19 Hospitals have been
established in the major cities like Bhopal, Indore,
Gwalior and Jabalpur but there are hardly any such
hospitals in any other District Headquarters of the State,
with the result that all critical Covid patients have to be
rushed there;
(v) oral instructions have been issued to all Private Labs/
Private Hospitals/Nursing Homes not to conduct any RT-
PCR and Rapid Antigen Tests;
(vi) although the rates have been prescribed by the
Government for all private Hospitals/Nursing Homes for
being charged from Covid-19 patients but most of them
are not abiding by the same;
(vii) the private Hospitals/Nursing Homes are blankly refusing
to have availability of beds for Covid-19 patients
inasmuch as the beds are being provided to only those
who are either ready to pay higher charges or having
some kind of influence. Resultantly, middle class, lower
middle class and poor are worst hit;
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(viii) most of the private hospitals are not providing cashless
treatment to the patients having insurance cover,
inasmuch as, some private hospitals even though they are
approved for CGHS facilities are not accepting the
patients under that head. Similarly, the private hospitals
empanelled and approved for Covid-19 treatment under
Ayushman Bharat Yojana are also not accepting the
Covid patients and the patients from Below Poverty Line
having BPL cards under Deendayal Antyodaya Upchar
Yojana are also not being provided treatment under that
scheme by approved Hospitals;
(ix) there are in the State, 51 District Hospitals; 84 Civil
Hospitals and 330 Community Health Centres with 30
beds facility each; 1199 Primary Health Centres having 6
bed facility each but most of them, apart from having
acute shortage of Medical and Para-Medical Staff, are ill-
equipped to deal with the current crisis. As per the
Annual Report of 2019-20, there are 3620 sanctioned
posts of specialists, as against which nearly 80% of them
(2855 posts) are vacant with only 765 presently working
and there are 5097 posts of Health Officers, as against
which only 3,589 are working and nearly 30% i.e. 1,508
posts are vacant;
(x) there is no system in place whereby it could be known as
to how many normal beds, ICU beds and Ventilators are
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available in Government and Private Hospitals and that
the Covid Portal of the State, namely, "Sarthak"
(https://sarthak.nhmmp.gov.in) is mostly not updated and
therefore, does not provide the correct information;
(xi) every second and third home in cities, namely, Bhopal,
Indore, Ujjain, Jabalpur and Gwalior has a Covid-19
patient but the correct number of patients are being
suppressed inasmuch as the newspapers are widely
reporting much higher number of deaths in the Districts
of the State due to Coronavirus than what is officially
declared by the District Administration which is
corroborated by number of funerals taking place in the
Cremation grounds as per the Corona Protocol;
(xii) the test report of RT-PCR samples is being received with
delay of three to five days in most of the instances. If the
patient in the meantime dies, dead body is handed over to
the family members and the cremation in such cases is
not being conducted as per the Corona Protocol. In some
instances, even after the death of declared Covid-19
patients, the dead bodies are being allowed to be taken to
home rather than being cremated/buried as per the
standard Corona protocol, thus giving rise to spread of
Coronavirus amongst the family members and others;
(xiii) as per the data given in W.P. No.8753/2021, ever since
the onset of second wave of Covid-19 since February,
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2021 till 13th April, 2021, almost 1,38,70,731 Covid-19
cases were detected in India out of which 3,53,632 cases
have till date been traced in State of Madhya Pradesh, of
which total 8,998 Covid-19 positive cases along with 14
deaths were reported in Madhya Pradesh on 13th April,
2021;
(xiv) not many effective steps are being taken by the State
Government to check the citizens who are not wearing
face masks and not maintaining social distance, which
could be easily witnessed at the market places;
(xv) neither any containment zones are being declared nor any
kind of barricading is being done and even the banners or
posters are also not being affixed to warn people about
the severity of the disease, as was a regular feature in
first wave of Covid-19. There are no regular mobile
sanitization units to spray the sanitizer in vulnerable
places of townships and colonies as was a regular feature
in the first wave of Covid-19;
(xvi) there is a crisis of availability of wood in all the funeral
grounds and the electric crematoriums wherever they are
situated, are mostly out of order;
(xvii) there are no beds available in Government as well as
Private Hospitals in cities like Bhopal, Indore, Jabalpur
and other places. ICU beds and ventilators are nowhere
to be found. The private hospitals are taking exorbitant
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charges for ICU beds and Ventilators thereby exploiting
the situation.
7. Learned Amicus Curiae and the learned counsel appearing for
the petitioners and the intervenors have submitted that all the
newspapers in the State of past ten days are replete with stories
pointing out acute medical crisis and total lack of medical facilities
and non-availability of Oxygen and Remdesivir injections throughout
the State of Madhya Pradesh. The patients are being asked to bring
their own Oxygen cylinders with them and manage the vials of
Remdesivir on their own. It is submitted that there is demand of
advance deposit of huge amount by the private Hospital/Nursing
Homes. It is the duty of the Government to ensure that common man
is not made to suffer due to non-availability of Oxygen and life saving
drug like Remdesivir. The Government has miserably failed to ensure
the availability of treatment to poor and needy, especially in semi-
urban and rural areas thereby violating the right to life of the citizens
enshrined in Article 21 of the Constitution of India. There is state of
panic and fear amongst the people who are with every passing day
becoming restless. All these circumstances are pointer towards
disorganized health infrastructure of the State Government, which has
miserably failed to manage this medical emergency despite the
advance warning by World Health Organization (WHO) of
approaching second wave. The State Government has utterly failed to
cope up with the ongoing medical emergency inasmuch as there is
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huge communication gap and lack of coordination amongst various
government functionaries. In fact, the entire State machinery has been
caught off-guard and has been found lacking in its efforts to provide
basic health care to the citizens.
8. Mr. Naman Nagrath, learned Senior Counsel appearing as
Amicus Curiae has submitted that already this Court on 07.09.2020
directed the State Government to issue directions to every private
Hospitals and Nursing Homes to display the rates for treatment of
Covid-19 suspects/patients at their reception counters and give due
publicity to the same. In fact, in the order dated 10.12.2020 it was
clearly noted that the Commissioner, Health Services, Department of
Public Health and Family Welfare has issued an order on 04.09.2020
that under no circumstances the charges of private Hospitals/Nursing
Homes/Clinical establishments shall exceed by 40% of the rates
communicated by them on or before 29.02.2020 including all
expenses such as PPE Kits etc. The direction was also issued that this
information should also be brought in the public domain by getting it
repeatedly published in the daily newspapers having circulation in the
respective districts after interval of every 15 days. Similar direction
was issued by this Court on 07.04.2021. The State Government should
therefore be required to mandate all the private Hospitals/Nursing
Homes/Clinics and Labs to charge only the notified rates, not only for
RT-PCR, Rapid Antigen Tests, Chest CT/HRCT Scan but also all
other hospital charges in that regard. All these directions earlier issued
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by this Court in the suo motu writ petition have regained significance
in view of the current second wave of Covid-19 and therefore, the
State Government should ensure strict compliance of all such
directions including about the treatment of poor patients under
Ayushman Bharat Yojana reserving 20% beds for Ayushman Bharat
Yojana beneficiaries and increase the empanelment of more private
hospitals under the said scheme. The State Government should ensure
regular and continuous supply of Oxygen not only to the Government
Hospitals but also to private hospitals, which are generally denying
treatment to Covid-19 patients due to non-availability of Oxygen.
Since the State is wholly dependent on supply of Liquid Oxygen from
other States for its refueling plants employed for supply of Oxygen
cylinders to the hospitals, it should initiate the process of setting up
Liquid Oxygen Plant in the State of Madhya Pradesh. In the
meantime, the State should maximise its efforts to procure Liquid
Oxygen or filled Oxygen cylinders from other States by all means.
The State Government must come forward to assist private hospitals
in setting up their Oxygen-Concentration Units by providing them soft
loan by involving leading Banks and Financial Institutions so that they
become self-reliant.
9. Learned Amicus Curiae submitted that it has been informed on
behalf of the State Government that the price of Remdesivir injection
has been capped at Rs.3,500/- but such drug is being sold in the
market at an exorbitant price inasmuch as many of the private
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hospitals are found charging Rs.5,400/- per vial for Remdesivir
injection. The State Government should ensure the availability of
Remdesivir injection and regulate its supply but such supply should be
approved as per the prescription of the treating doctors of Covid-19
patients admitted in the hospitals and should not be denied at the
discretion of the Patwari, Tehsildar or any other Administrative
Officers. The State Government should be required to restore the
facilities of number of Covid Care Centres (CCC), Dedicated Covid
Health Centres (DCHC) and Dedicated Covid Hospitals (DCH),
which it informed to this Court on 09.10.2020.
10. Mr. P.K. Kaurav, learned Advocate General, Mr. Pushpendra
Yadav and Ms. Chhavi Bhardwaj, Managing Director of National
Health Mission (MP) have presented the case of the State Government
before this Court, which has been supplemented by a written note of
submissions and future action plan on its behalf. The relevant extract
of the said written note is reproduced as under:-
1. Current Status of Covid in India and Madhya Pradesh
and Trends for the last month:
On 14th April, with the total cases 3.63 lacs, which is about
2.5% of national case load, recovered cases 3.09 lacs, the
present active cases are 49,551 which constitutes about 13.6
% of total cases in MP and 3.2% of national active case load.
The cumulative positivity rate is 5.3%, recovery rate is 85.2%
and fatality rate is 1.2% while that for India is 5.3%, 88.9%
and 1.2%, respectively. However, the weekly fatality rate for
MP is only 0.5% while that for India is 1.3%.
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The surge in cases were observed during the month of March
and April' 2021. During the 1st, 2nd, 3rd and 4thweek of March
the average cases per day were 411, 564, 1019 and 1851,
respectively. Similarly, Nationally, the cases were 18711,
25557, 43846, 62714. And during the current week the
average per day cases in MP were 6477 and nationally 1,84
372. The positivity rate during the same period was 2.6%,
3.6%, 5.3% and 7.1%, respectively and nationally the
positivity rate was 2.5%, 3.0%, 3.9% and 5.3%. During the
current week the positivity rate is 16.4% and nationally 13%.
2. Testing Capacity
The testing capacity has been increased from 20,000 per day
during the month of February' 2021 to 40,000 per day during
April' 2021. Average per day testing during February was
15,228 which has increased to 39,563 during April' 2021.
Rates for testing have been capped for private laboratories. Rs
700/- for RTPCR and Rs. 300/- for RAT.
3. Price Control and Regulating package rates for COVID
treatment
3.1 All nursing homes and clinical establishments have been
directed that treatment charges of COVID 19 patients
availing treatments at their facilities, shall be as per the rate
list (Schedule II and III of the Madhya Pradesh
Upcharyagriha Tatha Rujopchar Sambandhi Sthapnaye
(Registrikaran Tatha Anugyapan) Rules, 1997)
communicated to the Chief Medical and Health Officer of the
respective district in or on before 29th of February 2020.
Under no circumstances the nursing home or clinical
establishment's charges exceed by 40% of the rates
communicated in or before 29th of February, 2020 including
all expenses such as PPE Kits etc.
3.2 The testing charges for COVID-19 or pneumonia
suspects/patients at all private hospital/nursing
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homes/diagnostic centers shall be limited to a maximum of
Rs 3,000/- for Chest CT/HRCT scan.
3.3 The testing charges for COVID-19 or pneumonia
suspects/patients testing at all private hospital/nursing
homes/diagnostic centers shall be limited to a maximum as
detailed below:-
S.No. Test Maximum Rate
(INR)
1 ABG 600/-
2 D-Dimer 500/-
3 Procalcitonin 1000/-
4 CRP 200/-
5 Serum Ferritin 180/-
6 IL 6 1000/-
3.4 The Government has mandated the display of rate list of
treatment, including treatment for COVID-19, at registration
counter by Nursing Homes and Clinical Establishments in the
state. Additionally, all private clinical establishments treating
COVID patients are required to make available their package
rates for treatment for upload at the state COVID portal -
www.sarthak.nhmmp.gov.in. The information pertaining to
the contact numbers and package rates of COVID treatment
are available in public domain on the state COVID portal.
4. Availability of Oxygen
The current status of supply of medicinal oxygen is as below:
(In Metric Ton)
Supply of Medicinal Oxygen
Date INOX INOX PRAX/ ASU TOTAL
Bhopal Indore Inheart
10/4/2021 56.64 52.75 55 55 219.39
11/4/2021 87.36 72.05 21.06 59.63 240.1
12/4/2021 85.92 79.91 37.689 66.24 269.759
13/4/2021 76 60 73.4 66.24 275.64
TOTAL 460.39 395.24 292.149 339.11 1486.889
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Madhya Pradesh is largely dependent for its oxygen supply
on sources located outside of the state. With an in-house
production capacity of 66 MT (Metric Ton) by way of Air
Separation Units (ASUs), MP sources a large part of its daily
oxygen required from steel plants located outside of the state
and suppliers who source it from diverse sources across the
country. With an overall surge in demand and limited supply,
the state is making all efforts to be able to meet its daily
oxygen requirement. The State is expected to have a demand
of 651 MT (Metric Ton) by 30th April, 2021 and is
continuously in talks with GoI regarding our future
requirements of LMO (Liquid Medical Oxygen). The GoI has
proposed Madhya Pradesh to procure around 747 MT from
various sources of LMO (Liquid Medical Oxygen) per the
table below -
S. No. Name of the Supplier Capacity MT
(in Metric Ton)
01 LINDE SAIL BHILAI 72 MT
02 SAIL BHILAI 40 MT
03 GUJARAT HAZIRA 40 MT
04 GUJARAT KARJAN 40 MT
05 GUJARAT DAHEJ 40 MT
06 INOX MODINAGAR 40 MT
07 INOX BHIWADI 40 MT
08 INOX BOKARA 86 MT
09 LINDE JAMSHEDPUR 40 MT
10 JINDALSTEEL ODISHA 20 MT
11 LINDE ROURKELA 40 MT
12 LINDE KALIMNAGAR 40 MT
13 SAIL ROURKELA 21 MT
14 LINDE HALDIA 38 MT
15 LINDE SAIL DURGAPUR 30 MT
16 SAIL BUNPUR 20 MT
17 GUJARAT JAMNAGAR 100 MT
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TOTAL 747 MT
Additionally, the State has installed 5 PSA (Pressure Swing
Absorption) oxygen generation plants and 3 more will be
installed within a week in 8 different districts. The total
capacity of these 8 PSA (Pressure Swing Absorption) plants
amounts to 8 MT (Metric Ton). Furthermore, Public Works
Department has also floated a tender for 13 more PSA
(Pressure Swing Absorption) Oxygen plants of 600 LPM
capacity each for 13 districts and another tender for 10 other
districts will be floated shortly.
5. Availability of Remdesivir -
In accordance with AIIMS' guideline dated April 7, 2021
pertaining to the use of Remdesivir for COVID treatment, the
state has initiated for supply of Remdesivir for COVID
treatment across medical colleges and district hospitals in the
state. Approximately 42000 injections have been supplied in
the government sector as on April 14th.
In view of the shortage of Remdesivir in the private sector,
state government has also facilitated the private sector by
tying up with various suppliers for supply of approximately
more than 39000 Remdesivir injections to private health
institutions. The state government is also supporting private
hospitals by making available part of the government supply
from the stores of the district Chief Medical and Health
Officer (CMHO) to private hospitals.
Of the total government supply being sourced by the state,
approximately 50% is being made available to Government
Medical Colleges and the remaining is being made available
to the Chief Medical and Health Officer (CMHO) of every
district. To support private health institutions, supply
available to CMHO is being allotted to government and
private facilities under the supervision and control of the
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District Collector. While the 7 private contracted facilities in
Indore, Bhopal, Ujjain and Dewas are being issued
Remdesivir free of cost along with the public facilities, other
private facilities are being supported with Remdesivir at the
purchase cost of Rs 1548 per injection from government
supply.
6. Current bed availability and planning for bed capacity:
While Madhya Pradesh has a total of 19948 beds currently
available at public health facilities and another 16756 beds
are currently available at various private hospitals, going by
the current surge in covid cases, the state has planned for
expansion of isolation beds, oxygen supported beds and
HDU/ICU beds at the 13 medical colleges, 51 District
Hospitals, 84 Civil hospitals and 313 CHCs.
It is pertinent to mention here that as on 31st March 2020, 23
district hospitals in the state did not have a single ICU unit. In
light of the Covid pandemic, the state government set up 585
ICU beds across 50 district hospitals in the state and 3700
Oxygen supported beds were also put in place by way of
medical gas pipeline last year. In wake of the current surge
the state plans to further extend the oxygen supported beds
infrastructure at the District Hospitals, Civil Hospitals, and
CHCs thereby increasing the numbers of oxygen supported
beds from 7880 beds to 14770 in the public hospitals next one
month. Similarly ICU/HDU beds at Government Medical
Colleges are planned to be increased from 3258 beds at
present to 4356 beds in the next one month. District
administration is also actively engaging with the private
hospitals to increase the bed capacity for covid patients at
private hospitals.
Below is the current and planned status of beds - isolation
beds, oxygen supported beds and ICU/HDU beds across
public and private health facilities in the state. Planned bed
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capacity is basis a projected case load of one lakh active cases
on 30th April, where 50 % of the active cases continue to be in
home isolation and the remaining occupy beds in public and
private facilities.
Government Status As on, 14-Apr-2021, 12:00 PM
Bed Type Current Planned (30-40 days)
Isolation Beds 8810 25000
O2 Beds 7880 14770
HDU/ICU Beds 3258 4356
Total Govt Beds 19948 44126
Private
Isolation Beds 3938 4435
O2 Beds 8965 9767
HDU/ICU Beds 3853 4091
Total Pvt Beds 16756 18293
Total Beds 36704 62419
3225 beds have been reserved for free of cost treatment of
patients in private facilities by way of a service provider
agreement between State government and the private facility.
Government of Madhya Pradesh has setup Dedicated COVID
Command and Control Centers in each of the 52 districts. The
toll free number for this Covid Command and Control center
is - (STD code of the District) - 1075. Citizens can directly
call at this number to avail of information about bed
availability in government and private health facilities. All
Government and private health facilities are currently
updating their bed occupancy twice a day on the SARTHAK
portal (sarthak.nhmmp.gov.in) and this bed availability
information is being provided to citizens from the District
Covid Command and Control Centre. Further the contact
details of nodal persons in all public and private hospitals as
well as package rates for covid treatment in private facilities
have been made available in the public domain on
sarthak.nhmmp.gov.in
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7. Additional Human Resource Capacity
In light of the COVID-19 pandemic,472 MBBS doctors who
had completed internship from different medical colleges of
Madhya Pradesh as on 31st March 2021 have been posted to
District Hospitals and other public health facilities of the
State. National Health Mission has additionally given
sanctions to the District Health Societies to recruit and deploy
additional human resource locally as follows:
Additional Temporary
Cadre
HR Sanctioned
Ayush MO 1544
Staff Nurse 3007
Support staff/ Ward Boy 1024
Lab Technician 1741
Total 8843
8. Ayushman Bharat "Niramayam"
Ayushman Bharat Niramayam empanelled healthcare
providers under the General Medicine (M2) specialty and
having bed capacity of 50 or more have been directed that
COVID 19 suspected and confirmed patients falling under
Ayushman Bharat Niramayam beneficiary category shall not
be denied COVID -19 treatment at healthcare provider's
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facility at prescribed rates. A minimum of 20% beds are to be
reserved at all times for COVID-19 patients. The
denial/diverting of COVID 19 patients is being treated as a
violation inter alia Memorandum of Understanding, the
Disaster Management Act, 2005, the Madhya Pradesh Public
Health Act, 1949, the Madhya Pradesh Upcharyagriha Tatha
Rujopchar Sambandhi Sthapnaye (Registrikaran Tatha
Anugyapan) Adhiniyam, 1973, the Madhya Pradesh
Atyavashyak Seva Sandharan Tatha Vichchinnata Nivaran
Adhiniyam, 1979, the Madhya Pradesh Upcharyagriha Tatha
Rujopchar Sambandhi Sthapnaye (Registrikaran Tatha
Anugyapan) Rules, 1997 and the Madhya Pradesh Epidemic
Diseases, COVID-19.
Currently, 770 Health Facilities across the State are
empanelled under Ayushman Bharat 'Niramayam'. Out of the
770 Health Facilities, 320 are Private Hospitals. Every
Ayushman Bharat empaneled hospital is required to reserve
20% of its available beds for treatment of COVID patients.
Last year, Government of Madhya Pradesh had temporarily
relaxed the empanelment criteria for Ayushman Bharat in
order to broad base the availability of Private Facilities for
COVID-19 treatment. Consequently, 111 facilities were
empanelled after the relaxation of empanelment norms.
Presently, 16834 COVID-19 patients are being treated across
Ayushman Bharat empanelled hospitals.
9. COVID Vaccination Status till 15th April' 2021:
1st Dose 2nd Dose TOTAL
Health Care Worker 4,27,498 3,11,417 7,38,915
Front line Worker 3,88,660 2,38,874 6,27,534
Citizens- 45-59 Years 27,78,561 40,418 28,18,979
Citizens - 60+ Years 28,14,863 1,29,587 29,44,450
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TOTALDOSES
64,09,582 7,20,296 71,29,878
ADMINISTERED
11. Mr. Shivendra Pandey, learned counsel appearing for Indian
Medical Association and Mr. Shreyas Pandit, learned counsel
appearing for the M.P. Nursing Home Association, submitted that
howsoever the Government may assert that it is continuously making
the Oxygen cylinders available to all the private hospitals in the State
but the fact is that many private hospitals are struggling with the acute
shortage of Oxygen throughout the State. Some of them may not be in
a position to admit the patients infected with Coronavirus for reason
of non-availability of Oxygen but when the attendants or family
members of the patients are so informed, it results in law and order
situation. Apart from Oxygen, there is acute shortage of availability of
Remdesivir injection. Many of the private Hospitals/Nursing Homes
are in negotiation with the Government authorities to increase their
bed capacity by using casualty wards and even the labour rooms for
treatment of Covid-19 patients. Even when the beds are not available,
they do not refuse admission even if the patients have to be
accommodated in the corridors. Learned counsel submitted that the
State Government ought to consider either by itself or through the
leading Banks/Financial Institutions for providing interest free loan or
at the reasonable rate of interest, to major private hospitals, for setting
up their own Air Separation Units, which may cost hardly between
Rs.50.00 Lac to Rs.1.00 Crore but which takes only 5-7 days to set up
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such units. The State Government may also make an endeavour to
engage the medical students who have recently passed out and have
completed their clinical training. The private hospitals can also
consider engaging such medical graduates even in their set up. It is
contended that a joint meeting of the members of the Indian Medical
Association and M.P. Nursing Home Association was convened on
14th April, 2021 and they have decided to honour the rates for
treatment of Covid-19 patients fixed by the Government in terms of
the order of the Government dated 04.09.2020, which provided that
their charges should not exceed 40% of the rates communicated on or
before 29.02.2020. The rates of treatment so prescribed by the State
Government are being adhered to by the private Hospitals/Nursing
Homes and they are displaying such rates on their reception counters
prominently. Learned counsel further argued that the gravity of illness
of Covid-19 patients may vary from patient to patient. All Covid
patients need not be prescribed same medicines inasmuch as they
cannot be subjected to same kind of treatment. Therefore, the charges
for critical patients may differ from those who may be having mild
symptoms. Thus, there cannot be any uniformity with regard to
charges/expenses of the treatment.
12. Mr. Jitendra Kumar Jain, learned Assistant Solicitor General for
the respondent-Union of India submitted that the ICMR Laboratories
in the State are conducting more than 13,000 RT-PCR tests per day.
The Central Government has recently issued licences to five new
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pharmaceutical companies for manufacturing of Remdesivir and they
are likely to commence the production shortly. Thus, there will be no
shortage of Remdesivir.
13. We have given our thoughtful consideration to the submissions
made by the learned counsel for the parties at the Bar.
14. Article 38, Article 39(e), Article 41 and Article 47 in Part-IV of
the Constitution of India as well as the fundamental right guaranteed
vide Article 21 of the Constitution of India deal with potent and
substantive contents of the right to life which in its broad sweep also
includes right to good health. The Supreme Court of India in catena of
judgments has given dynamic interpretation to Article 21 of the
Constitution of India thereby expanding the meaning of right to life to
also include the right to health. Thus, the right to health forms an
integral component of right to life enshrined under Article 21 of the
Constitution of India. The right to health can be secured to the citizens
only if the State provides adequate measures for their treatment,
healthcare and takes their care by protecting them from calamities like
Coronavirus. A reference in support of this proposition can be made to
the judgments of Supreme Court in Pt. Parmanand Katara vs.
Union of India (1989) 4 SCC 286; Consumer Education and
Research Centre vs. Union of India (1995) 3 SCC 42; Paschim
Banga Khet Mazdoor Samity vs. State of West Bengal (1996) 4
SCC 37; M.C. Mittal vs. Union of India (1999) 6 SCC 9 and Murli
S. Devda vs. Union of India (2000) 8 SCC 765. The Supreme Court
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in all these cases has held that preservation of one's life is the
necessary concomitant of the right to life enshrined under Article 21,
fundamental in nature, secured, precious and inviolable.
15. Article 25 of the Universal Declaration of Human Rights,
ratified by India, which is considered as having the force of customary
international law declares that "Everyone has the right to a standard
of living adequate for the health and well-being of himself and of his
family, including food, clothing, housing, and medical care and
necessary social services, and the right to security in the event of
unemployment, sickness, disability, widowhood, old age or other lack
of livelihood in circumstances beyond his control". Similarly, Article
12 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR), which also has been ratified by India, details out
the different facets of the right to health and provides that "(1) The
States Parties to the present Covenant recognize the right of everyone
to the enjoyment of the highest attainable standard of physical and
mental health" and that "(2) The steps to be taken by the States
Parties to the present Covenant to achieve the full realization of this
right shall include those necessary for: (a).........; (b)............; "(c)
the prevention, treatment and control of epidemic, endemic,
occupational and other diseases" and "(d) the creation of conditions
which would assure to all medical service and medical attention in the
event of sickness". The Protection of Human Rights Act, 1993
recognizes all the above conventions as part of human rights law,
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therefore above referred to international human rights norms, as
contained in the Conventions, which have been ratified by India, are
binding on India to the extent they are not inconsistent with the
domestic law norms. Section 2(d) of the Act of 1993 (supra) defines
"human rights" to mean "the rights relating to life, liberty, equality
and dignity of the individual guaranteed by the Constitution or
embodied in the International Covenants and enforceable by courts in
India". In view of above, it must be held that right to health and
medical care is one of the facets enshrined under Article 21 of the
Constitution of India.
16. The Supreme Court in Association of Medical Superspeciality
Aspirants and Residents and others v. Union of India and others,
(2019) 8 SCC 607 with regard to effect of ratification of the
aforementioned declaration/covenants by the country, made the
following observations in para-32 of the judgment:-
"32. The Universal Declaration of Human Rights (UDHR)
recorded in the Preamble its recognition of the inherent dignity and
of the equal and inalienable rights of all members of the human
family as the foundation of freedom, justice and peace. The
International Covenant on Economic, Social and Cultural Rights
(ICESCR) recognizes the right of every person to the enjoyment of
the highest attainable standard of physical and mental health.
ICESCR mandates the States Parties to achieve full realization of
the aforementioned right through the creation of conditions which
would assure to all, medical service and medical attention in the
event of sickness, inter alia."
17. The Supreme Court in Pt. Parmanand Katara vs. Union of
India, (1989) 4 SCC 286 has recognised the obligation of the
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Government to preserve life. In the said case, the victim of a scooter
accident was denied treatment as the hospital did not attend him and
told that he be taken to another hospital, which was authorised to
handle medico-legal cases. The failure to receive treatment, eventually
led to victim's death. While interpreting the ambit of the right to life
under Article 21 of the Constitution, the Supreme held that "Article 21
of the Constitution casts the obligation on the State to preserve
life...... The obligation being total, absolute and paramount, laws of
procedure whether in statute or otherwise, which would interfere
with the discharge of this obligation cannot be sustained and must,
therefore, give way."
18. The Supreme Court in Paschim Banga Khet Mazdoor Samiti
vs. State of West Bengal, (1996) 4 SCC 37 dealing with a case of
member of the petitioner Samiti, who suffered a brain injury after
falling from train and was denied treatment at several hospitals due to
lack of expertise and non-availability of bed was forced to avail
treatment at a private hospital. The Supreme Court way back in the
year 1996 made certain observations which continue to be relevant
even for the present purpose. While dealing with a claim of
compensation and the expenses incurred, the Supreme Court in that
case further observed that the obligation to provide medical care was
an obligation of welfare State and in para 9 of the report held that
"The Constitution envisages the establishment of a welfare State at
the federal level as well as State level. In a welfare State the primary
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duty of the Government is to secure the welfare of the people.
Providing adequate medical facilities for the people is an essential
part of the obligation undertaken by the Government in a welfare
State. The government discharges this obligation by running hospitals
and health centres which provide medical care to the person seeking
to avail these facilities. Article 21 imposes an obligation on the State
to safeguard the right to life of every person. Preservation of human
life is thus of paramount importance. The government hospitals run by
the State and the medical officers employed therein are duty-bound to
extend medical assistance for preserving human life. Failure on the
part of a government hospital to provide timely medical treatment to a
person in need of such treatment results in violation of his right to life
guaranteed under Article 21.".......Their Lordships then in para 16 of
the report further held that "It is no doubt true that financial resources
are needed for the providing these facilities. But at the same time it
cannot be ignored that it is the constitutional obligation of the State to
provide adequate medical services to the people. Whatever is
necessary for this purpose has to be done. In the context of the
constitutional obligation to provide free legal aid to a poor accused
this Court has held that the State cannot avoid its constitutional
obligation in that regard on account of financial constraints...."
19. The Supreme Court in Devika Vishwas vs. Union of India,
(2016) 10 SCC 726 while reiterating the settled law held that "right to
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health" is a facet of the "right to life" guaranteed vide Article 21 of the
Constitution. The Court in paras 107, 108 and 109 held as under:-
"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, (1992) 1 SCC
441 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.
108. In Bandhua Mukti Morcha v. Union of India, (1984) 3
SCC 161 this Court underlined the obligation of the State to ensure
that the fundamental rights of weaker sections of society are not
exploited owing to their position in society.
109. That the right to health is an integral part of the right to life
does not need any repetition."
20. The Supreme Court in the case of Union of India Vs.
Moolchand Kharaiti Ram Trust (2018) 8 SCC 321 held as under:-
"65. The State has to ensure the basic necessities like food,
nutrition, medical assistance, hygiene etc. and contribute to the
improvement of health. Right to life includes right to health as
observed In State of Punjab v. Mohinder Singh Chawla (1997) 2
SCC 83. Right to life and personal liberty under Article 21 of the
Constitution also includes right of patients to be treated with
dignity as observed by this Court in Balram Prasad v. Kunal
Saha (2014) 1 SCC 384. Right to health i.e.right to live in a clean,
hygienic and safe environment is a right under Article 21 of the
Constitution as observed in Occupational Health and Safety
Association v. Union of India (2014) 3 SCC 547=AIR 2014 SC
1469. The concept of emergency medical aid has been discussed
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by this Court in Pt. Parmanand Katara v. Union of India (1989)
4 SCC 286. In Paschim Banga Khet Mazdoor Samity and
others v. State of W.B. (1996) 4 SCC 37, right to medical
treatment has been extended to prisoners also."
21. The Constitution Bench of the Supreme Court in Navtej Singh
Johar and others Vs. Union of India (2018) 10 SCC 1, upon survey
of previous case law held that right to health and health care is one of
the facets of right to life under Article 21 of the Constitution of India.
It was held that "the right to life is meaningless unless accompanied
by the guarantee of certain concomitant rights including, but not
limited to, the right of health. The right of health is understood to be
indispensable to a life of dignity and well-being, and includes, for
instance, the right of emergency medical care and the right to the
maintenance and improvement of public health". (See para 483 of the
report).
22. The Supreme Court in Association of Medical Superspeciality
Aspirants and Residents (supra) held that the primary duty of the
State is to "provide all facilities to make right of a citizen to secure his
health meaningful." The relevant discussion is to be found in paras 25
and 26 of the judgment, which are reproduced hereunder:-
"25. It is for the State to secure health to its citizens as its
primary duty. No doubt the Government is rendering this
obligation by opening Government hospitals and health centers,
but in order to make it meaningful, it has to be within the reach of
its people, as far as possible, to reduce the queue of waiting lists,
and it has to provide all facilities to employ best of talents and tone
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up its administration to give effective contribution, which is also
the duty of the Government.
26. Right to health is integral to the right to life. Government has a
constitutional obligation to provide health facilities 21. 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."
23. The action plan produced by the State Government before this
Court clearly indicates that apart from having an in-house production
capacity of 66 Metric Ton by way of Air Separation Units, it has now
swung into action to utilize all the resources at its command for
arranging the Oxygen to procure 747 Metric Ton of Liquid Medical
Oxygen from Steel Plants located in different parts of the country with
the assistance from the Government of India to meet the expected
demand of 651 Metric Ton by 30th April, 2021. It has installed 5
Pressure Swing Absorption (PSA) Oxygen Generation Plants and is
likely to install three more, thus catering to the need of eight different
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districts to the extent of 5 Metric Ton. The State Government has also
floated tenders for 13 more Pressure Swing Absorption Oxygen Plants
of 600 LPM capacity for 13 districts and has decided to float another
tender for 10 other districts shortly. According to the submission made
on behalf of the State, 42,000 injections of Remdesivir have been
supplied in government sector as on 14.04.2021 and that it is in
negotiation with different manufacturers for supply of more than
39,000 Remdesivir injections to the private Health Care Institutions.
Apart from this, the State Government has promised to ensure supply
of Remdesivir injections to the private hospitals from the stores of the
district Chief Medical & Health Officers. Of the total supply sourced
by the State Government, approximately 50% is being made available
to the Government Medical Colleges and remaining 50% is being
given to the Chief Medical & Health Officer of every district out of
which supply of Remdesivir is also made to the private hospitals
under the supervision and control of the District Collector. According
to the State, there is availability of 19,948 beds in the Government
Hospitals (which includes 7880 Oxygen beds and 3258 ICU beds) and
16,756 beds in various private hospitals (which includes 8965 Oxygen
beds and 3853 ICU beds), thus totaling to 36,704 beds whereas it is
planning to increase 44,126 beds in Government Hospitals (which
would include 14,770 Oxygen beds and 4356 ICU beds) and 18,293
beds in private hospitals (which would include 9767 Oxygen beds and
4091 ICU beds) by next 30-40 days. Apart from this, the State
Government has set up Covid Command and Control Centres in each
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of the 52 districts with 1075 as the toll free number and has submitted
that it keeps updating bed occupancy and non-availability twice every
day on the Sarthak portal. It has engaged 8843 additional human
resource locally, which includes 472 MBBS doctors, who have
completed their internships as on 31.03.2021, 93 PGMOs and 276
MOs. It is trying to increase the coverage of Ayushman Bharat
Niramayam Yojana to bring many more private hospitals under its
umbrella. It has so far administered first dose of Covid vaccine to
64,09,582 and second dose to 7,20,296 citizens. The work undertaken
in the State Government within the past month or so is commendable
and its preparation for the future is also quite impressive, however,
efforts that it is making should also reflect on ground and benefit
thereof should reach the common man. It therefore needs to work hard
towards that aim and goal.
24. Although it is true that in the past few days there has been a
spate of new reports putting all kind of blames on the Private
Hospitals and Private Nursing Homes, but at the same time, one
should not lose sight of the fact that there are more than 6000 Private
Hospitals and Private Nursing Homes in the State and therefore it is of
utmost importance and necessity that support and cooperation of the
private sector to combat the menace of Covid-19 is enlisted which is
why the Ministry of Health and Family Welfare, Government of India
recognized the need and importance of seeking their support and for
that purpose has issued the "Guidelines for notifying Covid-19
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affected persons by Private Institutions" which can be found on the
website of the Ministry. The Indian Council of Medical Research has
also approved hundreds of the private laboratories to test the
suspects/patients of Covid-19. Need of the hour in this time of crisis
therefore is to have best of cooperation and coordination with the
Hospitals and Nursing Homes in the private sector and seek their
support for timely treatment of the Covid-19 patients so as to save
their lives. The State Government can in that behalf even invoke the
Epidemic Disease Act, 1897 and Disaster Management Act, 2005 to
the extent necessary.
25. Coronavirus, if not treated timely, may in certain cases prove a
deadly disease, especially for those citizens who suffer from different
kind of morbidities and are elderly in age. This has had catastrophic
effect on the citizens of the country. It has befallen on the countrymen
unpredictably more than a year ago. The right of the citizen to
adequate healthcare emanates from the dignity and sanctity of the
human life which belongs to all of them. Health, besides being a
fundamental right, is a basic human right, which no popular
government can afford to negate. Health has its own prerequisites of
social justice and equality and that it should be accessible to all. It
includes the ability to obtain all kind of healthcare services including
prevention, diagnosis, treatment and management of diseases,
management of health disorders, diseases and illness as also the
management of other health impacting conditions. Such health care
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should not only be accessible but also be conveniently affordable to
all the citizens. The core obligation of the State in securing the right to
life to all its citizens is non-negotiable. Article 21 of the Constitution
of India in this regard clearly casts a duty on the State to take
whatever steps are necessary in securing such rights to access to
health facilities to the citizens. It also includes an obligation on the
State in ensuring access to all the citizens inflicted with disease of
Coronavirus with life saving means and drugs such as Oxygen and
Remdesivir in this case.
26. Even though we may make it clear that we are not experts in the
field of Medicine but at the same time we are also cognizant of the
fact that the State of Madhya Pradesh in past few days has faced a
crisis like situation never seen before where a lot of hue and cry by the
people in different forms is being witnessed when their near and dear
ones are infected with Coronavirus and some of them lose their life.
The newspapers of the State during last week or so, are replete with
the reports of incidents where either the patients are allegedly not
being admitted or are being allegedly exploited by exorbitant charges
by the private hospitals. The Remdesivir injection is being sold in the
black-market and certain arrests have also been made. The attendants
and the family members of the Covid patients are being found
complaining about non-availability of Oxygen, Remdesivir and beds
in the hospitals. Non-availability of ICU beds and Ventilators is also a
common complaint. We are inclined to believe that these news items
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may have reported only part truth and part emotions of those who
have gone through such agony. But even if only part of it is true, the
situation is really very grim. This is a scenario which is emerging
from major cities like Bhopal, Indore, Gwalior and Jabalpur. One can
easily imagine the situation of district headquarters, sub-divisions and
rural areas where the disease of Coronavirus is said to have made
inroads. Ordinarily these matters lie in the domain of the Executive,
who has the responsibility to resolve all the identified problematic
issues. However, despite being cognizant of its jurisdictional
limitations, this Court, in an extraordinary situation like the present
one, when they are brought to its notice, cannot just play a silent
spectator. In this scenario, the Court has the responsibility to see that
the faith of the people in the system is not eroded and if erosion to
some extent has taken place, is restored. Towards that end, the Court
can play the role of a catalyst by reminding the State of its duties, for
reassuring the people to continue to have faith in the system so as to
revive their confidence.
27. In view of the above discussion, we deem it appropriate to issue
the following directions to the State Government:-
(i) The State Government shall ensure continuous and
regular supply of Oxygen and Remdesivir not only to all
the Government Hospitals, City Hospitals, District
Hospitals but also to the Private Hospitals/Nursing
Homes, which may give Indent of their requirement of
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Oxygen as well as Remdesivir in advance, depending on
the load of the patients and their condition, as per the
modalities decided by the State, to the Collector/Chief
Medical & Health Officer concerned and/or Officer
nominated by the State;
(ii) the State Government shall, if it has already not done so,
consider immediately reactivating 262 hospitals Covid
Care Centres (CCC), 62 Dedicated Covid Health Centre
(DCHC) and 16 Dedicated Covid Hospital (DCH) as per
the details furnished to this Court in its order dated
09.10.2020;
(iii) the State Government shall consider strengthening/
augmenting all the District Hospitals and City Hospitals,
which generally cater to the medical needs of middle
class/lower middle class and poor/below poverty line
families, by providing them necessary equipments and
the required quantity of Oxygen, Remdesivir injections
and other requisite medicines so that considering the
spread of Coronavirus, focus of the Covid-19 patients
does not entirely remains on major cities like Bhopal,
Indore, Jabalpur and Gwalior where due to huge
population, the medical facilities are already under
immense pressure and rush of the Covid patients to these
cities is dissuaded;
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(iv) the State Government shall ensure that the District
Collectors and Chief Medical & Health Officers in every
District shall periodically hold meetings with the
Superintendents/Directors/Head/Representatives of all
Government Hospitals, Private Hospitals/Nursing Homes
and Diagnostic Centres/Labs to take stock of the day to
day situation of the number of patients, availability of
normal beds, ICU beds and Ventilators and also as per the
requirement consider enhancing the capacity to cater to
the need of a given place;
(v) the State Government shall, if it has not already notified
the rates, fix the rates for being charged by the private
Hospitals/Nursing Homes and private Pathological Labs/
Diagnostic Centres for treatment/tests in consonance with
its earlier order dated 04.09.2020, 25.03.2021 and
05.04.2021 by indicating capping of such charges and
should ensure that these rates are adhered to by them. In
doing so, the State Government should also take note of
the concerns of the private Hospitals/Nursing Homes
with regard to differentiation of charges based upon
seriousness of illness of patients;
(vi) the State Government shall in consultation with
representatives of Indian Medical Association and M.P.
Nursing Home Association require the private
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Hospitals/Nursing Homes to refrain themselves from
demanding hefty amount as advance deposit for starting
treatment of Covid-19 patients;
(vii) the State Government shall ensure displaying of data
with regard to availability of normal beds, ICU beds and
Ventilators on its Sarthak portal (https://sarthak.nhmmp.gov.in)
in all the Government Hospitals and Private Hospitals/
Nursing Homes on real time basis. The Chief Medical &
Health Officers of the districts concerned should keep a
regular watch over such availability and randomly cross-
check the same to verify its correctness. On the basis of
regular vigil about the availability of normal beds, ICU
beds and Ventilators, the District Collector, in
consultation with the Chief Medical & Health Officers,
should take day to day decision for increase in the
number of such beds by procuring additional
infrastructure/hardware/machines etc. from the State
Government to ensure continuous availability of medical
health care to the increasing number of Covid patients;
(viii) the State Government should require all the private
Hospitals/Nursing Homes, Chemists/Medical Shops to
display the rates of Remdesivir per vial, separately for
generic and branded injections, and all of them should be
mandated not to charge more than the prescribed rates;
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(ix) even though the State Government may regulate the
supply of Remdesivir injections and other life saving
drugs but the process adopted for this purpose should be
so hassle free and should not be cumbersome as to ensure
the supply of the drug in such a way that time limit from
requisition by the treating doctors and supply of
medicines does not exceed an hour;
(x) the State Government, through its representatives,
preferably the District Collectors and the Chief Medical
& Health Officers shall have regular consultation with
the Superintendents/Directors/Heads of the Government
Hospitals and leading private Hospitals/Nursing Homes
to resolve the day-to-day problems faced not only by the
patients but also by such private Hospitals/Nursing
Homes, either by physical or virtual mode;
(xi) the State Government should give due publicity to the
Toll Free Number 1075 (with the STD code number of
respective districts) of its Covid Command and Control
Centres so that the Covid patients and their family
members/attendants having any grievance with any
government or private hospital, may immediately lodge
their complaint with such Centres. In that event,
expeditious remedial action should be taken to redress
the grievances by knowing the stand of both the parties;
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(xii) the State Government should by taking over the buildings
of government and private schools/colleges, Training
Centres, Marriage Halls, Hotels and Stadiums etc.
wherever needed, set up more number of Covid Care
Centres (CCC), Dedicated Covid Health Centres (DCHC)
and Dedicated Covid Hospitals (DCH), either by itself or
by involving the private hospitals or reputed NGOs;
(xiii) the State Government should take steps to setup more
number of Electric Crematoriums, in at-least big cities of
the State, and get the Electric Crematoriums repaired,
wherever they have gone out of order;
(xiv) the RT-PCR and Rapid Antigen Tests shall be conducted
by the Government Laboratories as well as duly
approved private Pathological Labs/Diagnostic Centres.
The State should consider increasing per day testing
number of Covid infected persons for their early
detection so as to prevent further spread of Coronavirus.
Test reports should be provided to concerned patients
positively within 36 hours from the time of collection of
sample;
(xv) the State Government ought to consider the suggestions
made on behalf of Indian Medical Association and M.P.
Nursing Home Association for providing them soft loan
to set up their own Air Separation Units so that some of
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them may become self-reliant with regard to their
requirement of Oxygen;
(xvi) the State Government should work out the modalities for
ensuring that patients from Below Poverty Line families
having BPL Cards under Deendayal Antyodaya Upchar
Yojana and those having Ayushman Cards and CGHS
coverage facilities are not dishonoured by the
Hospitals/Nursing Homes if they are approved for their
treatment;
(xvii) in W.P. No.8753/2021 purportedly based on the Annual
Report 2019-2020 it has been asserted that as against
3620 sanctioned posts of specialists, only 765 are
presently working and nearly 2855 are vacant. Moreover,
as against 5097 posts of Health Officers, only 3,589 are
working and 1,508 posts are vacant. In this respect, the
State Government should place on record correct data
with regard to number of sanctioned posts and working
strength of Senior specialists, Specialists, Medical
Officers, Health Officers, PGMOs, Ayush Medical
Officers, Staff Nurse, Support Staff/Ward Boy, Other
Health Care Workers, Lab Technicians, ECG
Technicians, X-ray Technicians, Scientists, OT
Technicians, Radiographers, Lab Attendants,
ICU/Ventilator Technicians, Pharmacists, and Oxygen
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Technicians etc., within a period of 15 days. If the
furnished data are correct, such huge vacancy position in
the Government Hospitals, City Hospitals and District
Hospitals poorly reflects on the health care system of the
State. The State Government ought to therefore consider
engaging the Medical Officers on emergent and short
term basis on the basis of walk-in interviews by issuing
advertisement for short duration so as to cater to the
emergent requirements of Districts & City Hospitals and
Primary Health Centres (PHCs) and Community Health
Centres (CHCs);
(xviii) looking to the scarcity of adequate number of staff in the
emergent situation, the State Government should
consider reappointing those Medical Officers, Para
Medical and Nursing Staff, who have retired during past
two to three years, to cope up with the ongoing crisis;
and
(xix) all the hospitals whether government or private, shall not
refuse to attend the patients suffering from other serious
ailments and provide them timely treatment depending on
the seriousness of the ailments.
28. Apart from Madhya Pradesh, this Court can also take judicial
cognizance of the fact that similar problem with regard to scarcity of
Oxygen and Remdesivir is being faced by several other States. This
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being a national calamity and country-wide problem, the Central
Government should consider stepping in to arrange the Oxygen firstly,
by diverting the available stock of Liquid Medical Oxygen from the
Steel Plants and other industries located in different parts of the
country and secondly, if that is not sufficient, by importing the
Oxygen. The Central Government should also consider to step in to
ensure increase in the production of Remdesivir and till such time it is
not done, it should consider procuring the Remdesivir by importing it
so that by the time the peak of Coronavirus is reached, Oxygen and
Remdesivir both remain available to the affected persons in sufficient
quantity, to tide over the crisis.
29. In view of the aforesaid, Interlocutory Application
Nos.4346/2021, 4347/2021 and I.A. No.4349/2021 filed in W.P.
No.8914/2020 are disposed of. Similarly, W.P. No.8696/2020, W.P.
No.14805/2020, W.P. No.2513/2021 & W.P. No.8753/2021 are also
disposed of in terms indicated hereinabove. No order as to costs.
30. Action taken report/progress report on the basis of the aforesaid
directions shall be filed by the respondents-State, on or before the next
date of hearing in Suo Motu Writ Petition No.8914/2020, which shall
come up again for further consideration along with W.P.
No.20889/2020, on 10.05.2021.
(Mohammad Rafiq) (Atul Sreedharan)
Chief Justice Judge
S/
Digitally signed by SACHIN CHAUDHARY
Date: 2021.04.19 14:39:22 +05'30'
