Delhi Chief Minister Arvind Kejriwal fell in line with Lieutenant-Governor Anil Baijal’s rescinding the Cabinet decision to restrict Covid-19 treatment to bona fide citizens of Delhi only at state government and private hospitals as he did not want to “bicker over it.”

The Cabinet decision of 7 June to restrict treatment in Delhi’s private hospitals and those run by the government of the National Capital Territory was ill conceived and illegal.

Discriminating between resident and non-resident patients is violative of Article 15 of the Constitution that no citizen shall be discriminated against on the basis of place of birth.

It is a well settled principle of law that right to health and medical aid as well as medicare is a fundamental right envisaged under Article 21 of the Constitution read with Articles 39 (e) and 41.

It is interesting to note that in Bir Singh v Delhi Jal Board (2018), a Constitution Bench of the Supreme Court observed, “The capital city is not just a part of India. It is miniaturised India, a fact often forgotten by the administration in the field of culture and education, especially vis-àvis regional, minorities. It is megapolitan and people from all parts flock to this outsized city. Anyone who lives inside India can never be considered an outsider in Delhi.”

Had the Delhi government order not been rescinded by Governor Baijal, it would have led to denial of medical care to those living and working in Delhi but who were unable to produce identity proof of their residency. The NCT is contiguous to NOIDA in Uttar Pradesh and Gurugram in Haryana and thousands cross these borders to work or for other purposes in Delhi and contribute to its tax revenues.

NCT cannot shirk its responsibilities in the name of shortage of hospital beds. In October 2018, the Delhi High Court held in the case Social Jurist (a civil rights group) v government of NCT that classification of individuals as residents and non-residents for the purpose of providing medical facilities is unreasonable and violative of the fundamental right to health.

Setting aside a circular issued by the medical director of Guru Teg Bahadur Hospital in Delhi whereby patients who did not hold valid Voter ID card of Delhi were denied certain facilities for treatment, the High Court held, “We have no hesitation in holding that the impugned circular suffers from various vices which are not permissible under the Constitution. The circular classifies identically situated persons differently for the purpose of granting them medical facility without any rational basis and therefore we cannot uphold such a classification.”

Although Article 14 of the Constitution does not forbid class legislation, the Supreme Court ruled way back in 1952 in State of West Bengal v Anwar Ali Sarkar that such classification must be reasonable and decided on two well settled principles – “intelligible differentia” which distinguishes persons or things grouped together from others who are left out of the group and the differentia in question should have “reasonable nexus” for the purpose to be achieved.

The NCT government’s classification was based on no reasonable justification except decongestion of hospitals in Delhi.