The onslaught of the Novel Corona Virus (COVID-19) pandemic has awakened the
individuals and governments globally from the delusion of possessing an
efficient public health care system to the worst of the nightmares. The
nightmare of people from most advanced countries dying on the streets due to
non-availability of beds in hospitals is turning into reality during this
Although the intellectuals worldwide are busy painting the post-COVID-19
scenario, it is difficult for anyone to paint a conclusive picture of pandemic
aftermath. Nonetheless, this pandemic has white-washed the farce created by the
States in providing efficient healthcare to its citizens.
The situation in India is much grave. Developed countries worldwide became
helpless at the peak of the pandemic as the number of patients exceeded the
public health care infrastructure. However, in India, the helplessness in
providing adequate medical care is imposed on the citizens due to
non-cooperation from private hospitals.
During the pandemic, the private Hospitals, on the one hand, refused to treat
non- COVID 19 patients by mandating a COVID 19 negative certificate and on the
other hand did not open up their infrastructure for the COVID-19 patients by
citing health concerns of its negative patients. This non-cooperation of private
hospitals was precipitated by inaction of the government in enforcing their writ
on these hospitals.
These dire circumstances compel everyone to ponder upon a pertinent question
related to emergency medical care in India.
Whether as an Indian citizen, do we have any right to emergency medical care and
whether the authorities are doing enough to ensure such right is not violated
due to whims of management of private hospitals?
The question is as tricky as any question related to rights of Indian citizens
enshrined in Constitution of India as it provides a dream of utopian State for
its citizens, like the delusion of the efficient public health care system as
stated above. However, Indians most often wake to the reality of their rights
trampled upon without any redress by institutions created under the
Emergency Medical Aid In India:
Out of its population of 135 Crores, around 50% of Indian population is below 25
years of age. This makes India the second highest populated country in the
world. If we compare the growth of the Indian population with the most populated
country in the world.
The growth rate of India is pegged at 1.13%, which will make it highest
populated country in the world very soon.
The massive population growth has created scarcity in essentials required by a
citizen to live with dignity and respect as mandated under Article 21 of the
Constitution of India. However, Emergency Medical Aid facility also being a
requirement under the right to life cannot be denied, and a citizen deprived of
other necessities should be at least guaranteed that.
The significance of emergency medical aid cannot be dismissed in a densely
populated country like India, where everyone is living a stressful life and
competing amongst the basic necessities of life. As per the report, there are
0.7 beds available per 1000 people in India.
The Supreme Court of India has held that the right to life guaranteed under
Article 21 includes within its ambit the right to health and medical care.
The right to life consists of the right to live a healthy life to enjoy all
facilities of the human body.
The Supreme Court has repeatedly emphasised to the government and other
authorities for focusing and giving priority to the health of its citizens as it
makes one's life meaningful, improves one's efficiency, and also provides an
optimum output. To secure protection of one's life has been declared to be one
of the foremost obligations of the State. It is not merely a right enshrined
under Article 21 but an obligation cast on the State to provide this, both under
Article 21 and under Article 47.
In India, there is no specific law laid down by the government to provide
emergency medical care and is often interpreted as a right guaranteed under
Article 21 of Constitution of India by Supreme Court of India and respective
High Courts. A plethora of medical literature on the subject affirms that the
‘GOLDEN HOUR' is the first hour in which ‘emergency medical care' is necessary
and most victims die if no such care is made available or is not provided soon.
The purpose of emergency medical care is to ‘stabilise' the patient, and this,
unfortunately, is never followed.
Initiatives By Supreme Court Of India In Case Of Medical Emergencies:
The first time when medico-legal case ever discussed by the Supreme Court of
India was in the case of Pt. Parmandand Katara vs. Union of India and Ors
this case, a public-spirited person has filed a Public Interest Litigation under
Article 32 of the Constitution of India, 1950.
The said petition was filed in response to a news report of a scooterist who was
knocked down by a car and died due to lack of medical treatment. Following the
accident, the scooterist was taken to the nearest hospital but was turned away
and sent to another hospital 20 km away, which was authorised to handle
The scooterist died while he was being transported to the other hospital. In
this case, the Supreme Court of India for the very first time has held that
Article 21 of the Constitution of India includes right to emergency medical care
and articulated importance of golden hour..
The Hon'ble Apex court has held that it is the Right of the Citizen and also the
obligation on the State to preserve life and doctors at government hospitals are
therefore required to provide medical assistance to preserve life. This
judgement was the first initiative taken by the Supreme Court of India to
protect the right of the citizens of this country as per Article 21.
In the case of Consumer Education And Research Centre Vs Union Of India
Supreme Court held that timely medical aid is an integral part of the right to
life as per Article 21. “Social justice which is a device to ensure life to be
meaningful and liveable with human dignity required the State to provide to
workmen facilities and opportunities to reach a minimum standard of health,
economic security and civilised living. The health and strength of the worker,
the Court said, was an integral facet of right to life. Denial thereof denudes
the workmen the finer facets of life violating Article 21”.
Thereafter a serious issue was put before the Supreme Court of India, in Paschim
Banga Khet Mazdoor Samiti vs State of West Bengal  where the victim, an
agricultural labour, who fell from a train and was denied emergency medical aid
in 5 public hospitals and ultimately was admitted in a private hospital where he
had to pay an exorbitant amount.
The victim then approached the Supreme Court claiming damages as he was denied
medical aid by the public hospitals, which amounts to a breach of Article 21 of
the Constitution of India. The issue before the Supreme Court was in the context
of availability of facilities in Government hospitals for treatment of persons
sustaining severe injuries. During the pendency of this writ petition before the
Supreme Court, the State Government, by appointing an Enquiry Committee decided
to investigate the matter meticulously.
The said Committee filed its report majorly pointing that the government
hospitals are not sufficiently equipped to deal with serious cases and further
made certain recommendation to stop the recurrence of such incidents. In this
case, the Hon'ble Supreme Court has held that preservation of human life is
utmost important because if timely medical care is not provided to the victim it
may cause his death or leave him permanently paralysed, in such cases obtaining
status-quo ante is impossible.
Thus, when such unfortunate incidents occur, it is beyond the capacity of the
human being to repair. The Supreme Court has held that denial of emergency
medical care is in violation of Article 21 of the Constitution of India. Hence
it is the fundamental right of the citizens to be provided with emergency
medical care without any condition.
The Supreme Court further held that it is no doubt that financial resources are
needed for providing these facilities. Nonetheless, 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 background of this, the Supreme Court also recommended to the State that
they should form a Central Bed Bureau to ensure availability of a bed in an
emergency. This facility should be maintained at State level hospitals, where a
centralised communication system will be formed. This system will ensure that
patient can be referred immediately to the hospital equipped with bed related to
the treatment. If this is done most of the death which occur in India can be
avoided since many of the victims die because of non-availability of beds or
denial of emergency medical care.
As per the census report, the highest cause of death in India is because of
cardiovascular diseases which are around 23.3%. Now during this pandemic,
there are several reports that many patients are denied emergency medical care
when he has suffered a stroke or is in crucial need of dialysis, chemotherapy or
any other emergency medical care. This results in grave consequences such as
death or permanent injury to the human body. This pandemic has surely got
everyone on their knees globally, but the medical situation in India is hit the
most because it is not legislated till date.
In this backdrop, the Consumer Protection Act, 1986 included even doctors. This
was vehemently opposed by the Indian Medical Association stating doctors should
not be included within the purview of Consumer Protection Act, 1986. Though it
is the right of the doctor to give treatment to the patients whom he wants to,
but it is his moral duty to provide emergency medical care to the person who is
in urgent need of it.
In the case of Indian Medical Association vs V. P. Shanta
Supreme Court of India finally decided this issue and held that the patients who
avail medical care are included under the definition of the “Consumer” and
healthcare is defined as “Service” as per the Consumer Protection Act. Though
incorporating healthcare services under the scope of the Consumer Protection Act
does not serve the purpose because there are times when the patient has no
guardian to look after and requires emergency medical care. This results in a
denial of emergency medical care.
Emergency Medical Care In The USA:
In the United States of America, the private hospitals were refusing to provide
emergency medical care to accident victims or those who were in urgent need of
medical care or women under labour. The reason being either the patients were
not covered by insurance or were not in a position to pay the medical expenses.
Hence, they were dumped into public hospitals which lead to denial of emergency
medical care, and in many of the cases, it leads to serious consequences. This
situation leads to passing of EMTALA STATUTE (42 USC 1395 DD) (Emergency Medical
Treatment and Labour Act) by amending the Consolidated Omnibus Budget
Reconciliation Act of 1985 (COBRA) also known as anti-dumping law. This Act made
it a mandatory duty on the part of hospitals to attend on such persons.
The Act contains an entire scheme of screening, stabilizing and rendering
emergency treatment. It also deals with situations where the hospital is not
sufficiently equipped to provide stabilisation or emergency treatment, and in
that event, the hospital has to transfer the person to another hospital. In some
instances, it cannot transfer unless the patient is stabilised. Many safeguards
are provided in EMTALA as to what should be done for transfer of a person to
another hospital. The EMTALA also creates offences against those who violate the
duties envisaged by it.
Initiatives By The Indian Government:
After several Supreme Court and High Court's decisions, in the year 2006 the
201st Law Commission Report on Emergency Medical Care To Victims Of Accidents
And During Emergency Medical Condition And Women Under Labour discussed the
above-mentioned issues and draft model of the Rule is formulated by the Law
Commission under the chairmanship of Mr. Justice M. Jagannadha Rao. This is the
only healthcare report which talks about providing emergency medical aid.
One of the critical aspects of the law report is that, the victim most of the
time is in critical condition where he cannot make any choices and further many
a times people are not covered by insurance.
Therefore the Law Commission has made the draft bill based on the principles of
the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). This report
emphasised that the Emergency Medical Service (EMS) has to be legislated so that
the patients can enforce their rights. This report recommended that the
Parliament should legislate this issue and make it an absolute duty of the
healthcare institution, whether it is Public or Private to provide emergency
Thereafter, nothing was done by the Central Government or any of the State
Government to formulate a proper law based on the draft model as provided by the
201st Law Commission Report. It is only the State of Gujarat which established
Gujarat Emergency Medical Services Authority (GEMSA) in the year 2007. This
regulation fundamentally makes provision for establishing a statewide system for
emergency medical care and further brings NGOs and other private agencies to
work together for providing emergency medical services.
Application Of Emergency Medical Care In Covid-19 Pandemic:
In India, a National Lockdown under Disaster Management Act, 2005 was announced
on 24th March 2020 and was extended from time to time till partial opening on
8th June 2020. The citizens were directed to stay at home by the government by
ensuring them every possible help for maintaining their health and wellbeing.
Governments' efficacy in standing up to its promise is a subject matter of many
debates and arguments. Therefore, it would be futile to rake up the issues which
are being repeated 24/7.
Nonetheless, one issue which lacked focus in every argument is the suffering of
the patients who were ailing from diseases other than COVID 19. Hospitals, who
owe solemn duty to treat the patients started turning down such patients by
refusing to provide emergency medical treatment in the wake of COVID 19.
Incidents reported by reliable mainstream media outlets concerning the denial of
emergency medical care to patients facing life-threatening disease unsettled the
conscious of even a layman. The non-availability of emergency medical aid forced
them to think about themselves facing similar situation resulting in mass
Instead of saving the lives of patients suffering from medical emergencies other
than COVID-19, hospitals turned them down due to which the golden hour is lost.
The flimsy reason attributed by these hospitals in denying the treatment varied
from protecting other patients from COVID-19 to reasons like they are operating
only for patients suffering from COVID-19.
The authorities failed to act upon such negligence by the hospitals in time.
Even the Supreme Court, which has passed so many directions in cases related to
emergency medical care did not take timely decisions to redress such issues and
rejected petitions filed on the subject on the grounds of non-interference in
The emergency medical services issue is fragmented in India. There is no
specific law which governs this aspect of the Constitutional Rights. This is a
serious concern during COVID-19 pandemic. There is a report where 14 years old
child died because dialysis was not provided awaiting Covid19 negative
In today's time, there is no proper formulation offered by the government, which
makes the life of its citizens more valuable. Even the budget which is
sanctioned for healthcare is in fractions. Indian Government never recognised
the fact that leaving everything in the hands of the Hospitals can be
The Bombay High Court and the Karnataka High Court has taken cognizance of this
issue. This issue is rampant in the entire nation; therefore, it requires the
attention of the Apex Court as the government has miserably failed to safeguard
the Constitutional Rights of the Citizens and failed to discharge its duty as
bestowed upon them by the Constitution. As these issues are being faced by
everyone throughout the country, the Hon'ble Apex Court should take cognizance
of the same as the citizens are helpless in such a situation.
As addressed by Justice K.G. Balakrishnan, Chief Justice of India “Right to
health is an issue of fundamental importance in Indian society. The
responsibility to protect, respect and fulfil the right to health lies not only
with the medical profession but also with public functionaries such as
administrators and judges.”
Though the life and liberty of a person are very much protected under Part III
of the Constitution (under Art. 21), and though there are appropriate directions
passed by the Hon'ble Supreme Court that in all accident and emergency cases
irrespective of any reasons, it is the fundamental duty of the hospitals to
attend the patients and ensure their safety and well- being, unfortunately, the
said directions are not complied and are being brazenly brushed off.
As a result, many people requiring urgent medical attention are dying in the
manner stated in the aforesaid news- reports. As per the census report in India
majorly people die because of cardiovascular diseases which are anyway higher
than the total death caused by Covid19 globally. Therefore there should be an
effective solution to this issue and complying with the 201st Law Commission
Report and forming a Central Bed Bureau can be a welcoming step to safeguard the
rights of the citizens.
- https://data.worldbank.org/indicator/SH.MED.BEDS.ZS?locations=IN&most_recent_value_desc=false reports
latest till 2011 which includes inpatient beds available in public, private,
general, and specialized hospitals and rehabilitation centers. In most
cases beds for both acute and chronic care are included.
- State of Pubjab v. M.S. Chawla AIR 1997 SC 1225
- Mr. X vs. Hospital Z, AIR 1997 SC 1225.
- Constitutional Law of India by Prof. Narendra Kumar page no. 321, Eighth
Edison, published by ALA
- State of Punjab v. Ram Lubhaya Bagga, AIR 1997 SC 1225
- 1989 SCR (3) 997.
- AIR 1995 SC 922
- Constitutional Law of India by Prof. Narendra Kumar page no. 322, Eighth
Edison, published by ALA
- (1996) 4 SCC 37
- https://censusindia.gov.in/vital_statistics/causesofdeath.html- Causes
of Death in India 2010-2013 published by Registrar General, India
- 1996 AIR 550
- Address by Justice K.G. Balakrishnan, Chief Justice of India, at
“National Seminar on the Human Right to Health”, (Organized by the Madhya
Pradesh State Human Rights Commission at Bhopal), September 14, 2008, p.1
available at https://scitechuman.files.wordpress.com/2015/10/right_to_health_-_bhopal_14-9-081.pdf