Sudhir Kumar Rakesh
IAS (Retd.)
Patna : There are reports suggesting that the Delhi Chief Minister / Delhi Cabinet has taken a policy decision to reserve a major percentage of hospitals beds in Delhi for residents of Delhi alone. Both Electronic News Channels and Social Media are debating the desirability of such a decision. In the process, the politics around such a decision is also being debated.
I am not concerned with the politics. However, being a citizen of India, I am interested in knowing and examining whether the Delhi Chief Minister or his Cabinet enjoy such a power within the legal framework. Delhi is a Union Territory (and not a State) with an elected Legislative Assembly. Hence it can not take a decision like the states.
The Disaster Management Act, 2005, is a special piece of Legislation. Section 72 of the Act stipulates that the provision of this Act shall have overriding effect anything inconsistent therewith in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act notwithstanding.
Under Section 6 of the Disaster Management Act, 2005, the National Authority is empowered for laying down the policies, plans and guidelines for Disaster Management for ensuring timely and effective response to disaster. The Prime Minister of India is the Chairperson of the National Authority (Section-3).
Similarly, at the State level, a State Disaster Management Authority has been provided and the State Authority has the responsibility for laying down policies and plans for disaster management in the State.
Under the provisions of Section -14 of the Act (Proviso to Sub Section-4), the Lieutenant Governor of the Union territory of Delhi shall be the Chairperson and the Chief Minister thereof shall be the Vice-Chairperson of the State Authority.
Thus it is clear that it is the Lieutenant Governor of the Union territory of Delhi not the Chief Minister thereof is the Chairperson of the State Disaster Management Authority of Delhi.
Under provisions of Section-18 (3) of the Act, “The Chairperson of the State Authority shall, in the case of emergency, have power to exercise all or any of the powers of the State Authority but the exercise of such powers shall be subject to ex post facto ratification of the State Authority.”
Now let us examine the provisions of the Constitution of India, specially Articles 13, 14 and 21.
Article 13(2) of the Constitution mandates that “….The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. ….”
Article 13(3) of the Constitution tells us that :
“(3) In this article, unless the context otherwise requires.—
(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law…..”
Article 14 of the Constitution of India mandates as follows :
“14. Equality before law.– The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
Article 21 of the Constitution of India guarantees the protection of life and personal liberty. It tells us as follows :
“21. Protection of life and personal liberty. – No person shall be deprived of his life or personal liberty except according to procedure established by law.”
The Courts in India have held that access to healthcare facilities provided by Government is included in the right to life with dignity.
On examination, it appears that in the light of a combined reading of Articles 13, 14 and 21 of the Constitution, read with the relevant provisions of the Disaster Management Act, 2005 [specially Sections 2(q), 14, 18 and 72 of the Act], the Chief Minister of Delhi or his Cabinet did not have any powers to take the decision in question. If anybody was authorised to take such a decision, in the case emergency, it was the Lieutenant Governor of Delhi.
In my humble opinion, in view of the provisions as contained in Articles 13, 14 and 21 of the Constitution of India, even the Lieutenant Governor of Delhi may not stop people from other parts of India from accessing the healthcare facilities available in Delhi. In view of the above provisions no State/ Union Territory of India can make the healthcare facilities available within its territorial jurisdiction to citizens of India, to whichever State/ Union Territory they may belong.
The only purpose of writing this piece is to go to the legal and constitutional provisions, forgetting any politics around or behind any such decision. After all, we have RULE OF LAW in India!