COVID-19 test and treatment: Court rulings and government's reluctance to implement them

Jivesh Jha

In a vibrant democracy, court's judgment is always accepted as true (Judicium semper pro veriate accipitur). However, Nepal is an exception to it. Here, the rulings of the court are implemented at the pleasure of the government of the day, meaning thereby, the orders of the court are subject to satisfaction of the government.

Recently, the communist government of Nepal has declared that the government would not bear expenses of the treatment of all COVID-19 infected people. But this decision of the government is in defiance of Supreme Court rulings. So, do we want an obedient judiciary which would seek prior confirmations from the government before passing orders?

Interestingly, the Supreme Court (SC) on May 31 in a writ petition filed by advocate Dr Punya Prasad Khatiwada held that the government is under an obligation to provide essential medicines as well as masks, sanitizers, and other required materials free of cost to the needy people by virtue of a mandatory legal arrangement provisioned under Public Health Service Act, 2075 BS (2018). This way, the SC had clarified that free PCR Test for COVID-19 at the cost of the state is fundamental right of a person kept in quarantine. After all, this requirement is implicit in the requirement of a due process (just, fair and reasonable) procedure prescribed by Article 16 of the constitution.

The apex court also directed the government to provide appropriate dress, protection kits, and other essential materials to police staffs as well as government employees or forefront warriors against Corona outbreak who face service-seekers on a daily basis. The topmost court directed the government to make necessary arrangements to provide a free of cost test for Coronavirus as well as food and water to all the persons kept in quarantine.

The government’s decision not to foot the cost of Coronavirus test and treatment is clear violation of the ruling of the apex court.

However, the government’s decision not to foot the cost of Coronavirus test and treatment is clear violation of the ruling of the apex court. At a time when the judiciary comes in motion to “guarantee” the rights of the citizens by exercising its inherent power of judicial review, the government, which is literally supposed to implement the orders of the court, rushes to nullify the decisions of the court by placing a new adverse governmental declaration before the people which is undesirable in a democratic set up. If one has reason to believe that a decision of the court is wrong, one has right to challenge it and the Constitution of Nepal provides that the remedy could be sought in the court of justice.

In fact, justice knows not father, nor mother; justice looks at truth alone (Justitia non novit patrem nec matrem; solam veritatem spectat justitia). A vibrant and independent judiciary deserves to upkeep justice at any cost. It can question the power or the government at the helm in order to protect and promote justice in the country. After all, an obedient judiciary can become a lapdog, not a watchdog. Neither a subservient judiciary can act as custodian of constitution, nor would it help the state foster justice and rule of law. A government or judiciary cannot depart from its responsibility to protect and promote the constitutional ethos.

After all, a constitutional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that a constitutional provision does not get fossilised but remains flexible enough to meet the newly emerging problems and challenges, held the Supreme Court of India in the case of M. Nagaraj v. Union of India (2006).

Provincial government reluctant in enforcing the rulings

Much like the central government, the provincial governments have also measurably failed to implement the rulings of the court. In this context, the Province-2 government has utterly failed to ensure the compliance of the orders of High Court and the Supreme Court.

On August 4, the Single Bench of Judge Bir Bahadur Dangi in response to a petition filed by Advocate Pramod Prasad held that the house belonging to a man tested COVID-19 positive should be sealed off. The COVID patients should be prevented to roam around unless recovered fully, held the court. The court was of the view that it would be an uphill task for the state to contain the spread of virus unless the COVID patients are isolated properly.

But, the order of the court was never implemented in letter and spirit.

Moreover, the High Court on August 6 in the case of Dipak Raj Bhandari v Narayani Hospital and Others held that Central government, Provincial government and local bodies are collectively responsible to enforce Article 35, which guarantees right to adequate healthcare to every citizen living under the constitution.

On August 7, the Birgunj High Court in the case of Advocate Birendra Prasad Yadav v Narayani Hospital and Others held that the government is duty bound to ensure free medical treatment to all COVID-19 patients during this outbreak which is much in the nature of health emergency. “Article 16 (Right to life) and Article 35 (Right to healthcare) of the constitution are mandatory provisions which can neither be abrogated nor be suspended even during health emergency. The tiers of the government shall adopt measures to implement Article 35,” held the Single Bench of Judge Bir Bahadur Dangi.

In the case of Harish Chandra Pandit and Others v Office of the Chief Minister and Council of Ministers, Province-2 and Ors, the Birgunj High Court on August 23 asked the authorities to expedite welfare works and to respect the fundamental rights of the people.

These rulings clearly demonstrate that the Birgunj High Court received the signals of community good from the community’s own expectations. The arguments of litigants before the court in the end are not about policy but about the legitimacy or reasonableness of their expectations. From non-deprivation of right to healthcare to its preservation and from negative to positive contents, the High Court sought to humanise and liberalise the administration of justice. This way, the court has succeeded to expand the horizon of Article 16 and Article 144 for quickening the pulse of rule of law and judicial credibility.

But, the non-compliance of the rulings of the court presents a depressing reality.

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What one should not forget?

To tell readers a truth, the members of the executive and legislature take the same solemn oath as those of the judiciary: “I will bear true faith and allegiance to the Constitution of Nepal as by law established.” So, the legislature and executive are as responsible as judiciary to protect the sanctity of the constitution. Neither government, nor judiciary can depart from its responsibility to protect and promote the constitutional ethos.

So, the government’s approach to bring a fresh decision to nullify the order of the court frustrates the doctrine of separation of power. This principle envisaged under the constitutions mandate that a judgment cannot be made inoperative by a legislature or executive. Still, the parliament, not executive, can change the basis or alter the foundations on which the judgment is based. Once this change takes place, the judgment itself becomes inoperative. The government’s decision to nullify the ruling of the Supreme Court and abrogate the fundamental rights relating to healthcare is within the ambit of contempt of court and against the constitution itself.

Above all this, “the will of people as expressed through the majority party prevails only if it is in accordance with the constitution,” held the Supreme Court of India in BR Kapoor v State of Tamilnadu (2001). So, the government's decision in not bearing the cost of test and treatment of COVID-19 patients goes against the Constitution.

With inputs from Mr Amrit Chapagai, who works at the Birgunj High Court.

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Published on 22 October 2020