Gujarat High Court: Access to COVID-19 tests is a fundamental right of citizens

The Gujarat High Court division bench that was hearing the suo moto PIL on COVID-19 crisis in Gujarat, has now questioned the Indian Council of Medical Research (ICMR) testing guidelines. On May 22, the bench had passed its order and had questioned the state government over a decreasing number of tests done and had asked for a reply to be submitted by them.

After further proceedings, the bench has passed a new order and directed ICMR to file a report and answer the queries of the court. The queries raised by the court were regarding the government reply citing the guidelines and stating that to be the reason for the govt to be abstaining for carrying out aggressive tests. The guidelines submitted by the experts in the Govt reply stated that there is no need for testing asymptomatic individuals, individuals who's family members have tested positive (which means they would have come in direct contact of Covid19 patients) and also to not carry out community surveillance. To this, the court has directed the ICMR to be joined as a party in this PIL. 

The division bench has also directed the ICMR to submit a report on the questions of the rationale behind the guidelines, information on the number of private laboratories that can conduct covid-19 tests, whether any individual can go and get themselves tested, whether the guidelines issued are statutory in nature and whether these guidelines are binding to state govt or are only recommendatory in nature. 

Added to this, the court had asked several questions to the Government of Gujarat in its order dated May 22 and now several further queries for the govt have been raised by the court.  The bench has asked for the number of laboratories affiliated with ICMR, how many can carry out COVID testing. Most importantly, the court has asked the government whether the right to get covid19 tests is a fundamental right for citizens and a right to health, which has been embodied in the Article 21 of the Indian Constitution. Moreover then, 'can the state government evolve a policy of its own based on the guidelines of the ICMR which prove to be contrary to the fundamental rights of the citizens', the order asked. 

Prudent for testing to await permission?

While appropriate time has been given to the ICMR and the Government of Gujarat to file a response, the division bench has further questioned whether it would be prudent to wait for permissions from Superintendant of GMERS or other District Health Officers before individuals can get covid-19 tests done. The order stated that it was of utmost urgency to address this issue otherwise it will cause 'irreparable and irretrievable losses to patients of certain categories'. 

The division bench pointed out that there are certain patients who are immunocompromised and are already in critical condition to first wait for permission for Covid19 tests and then their surgical procedures to be followed. The order stated that this permission usually takes 2-4 days. But they have given an exemption to critical patients and directed that swift testing should be conducted for patients who have to undergo critical treatments, but not limited to hemodialysis patients and pregnant women. For them, testing has to be done immediately and should be given exemption from going through the tedious process of getting permissions for testing. The rest of the patients will still require permissions, but the court has now stated that this should be done in the time period of 24 hours and not a minute more than that. The court stated that 'this timeline has to be strictly adhered to'. 

Healthcare should be equally available to all

The division bench of Gujarat High Court also noted that 'right to adequate health care flows from the sanctity of human life' and that, 'this dignity belongs to all persons'. It also noted that it is a fundamental human right as it prerequisites social justice and equality. 

Article 21 of the Indian Constitution is the 'Protection of Life and Personal liberty' and the bench stated that in the opinion of the Supreme Court of India, Article 21 imposes a duty on the Government to take whatever steps necessary to ensure everyone has access to good health facilities. In fact, they stated that by the virtue of Article 21, the state is under a legal obligation to provide access to citizens with good health facilities and life-saving drugs. That, 'reasonable and equitable access to life-saving drugs is critical to promoting and protecting the right to health'.

(Image credits: PTI)