Full Text
Date ofDecision: 06.12.2018 W.P.(C) 54|46/2014
DR. SANJAY KULSHRESTHA Petitioner
Through: Petitioner in person
Through: Mr. Jasmeet Singh, CGSC with Mr.Sriyats Kaushal, Adv. for UOI
Mr. Gauralr B^^^rj^^^Sr. Advocate with Mr.Gautam
Jha&Mr.Iy^^ Mr. Dipal^ R. l^ag &;Mr. Eansh Bansal, Advs.
JUDGMENT
1. Petitioner claiming to the medical practitioner, a Senior Consultant and Paediatric Surgeon, has invoked ^he extraordinary writ jurisdiction of this Court under Article 226 ofthe Constitution ofIndia and the prayer made in the writ petition reads as under: "(A) ISSUE a Writ of mandamus to Government to ensure universal health insurance policies for medical and surgical diseases for fetuses, newborns and children during pregnancy W.P.(C)5446/2014, Page 1 of[9] 2018:DHC:8384-DB.• • and after delivery. (B) ISSUEa Writ ofmandamus to the Union ofIndia to make a national program for the management of birth defects to ensure adequatefacilities available in all districts and medical colleges for routine fetal screening during pregnancy for congenital anomalies.
(C) PASS such other order or orders as this Hon'ble court may deem fit and proper in thefacts and circumstances ofthe present case." I
2. In fact, it is the contention of the petitioner that right to live is an % important facet ofthe Fundamental Rights available to every citizen and it is the constitutional responsibility of the Government to ensure and protect this right of every citizen. Based on various: statistics available, the petitioner tries to canvass before us that in cases of.newborn and foetus having common congenital anomalies or birth defects,vthe insurance companies and Government organisations are acting in-a jdiscriminatory manner. It is alleged that none of the insurance corripaiiies have provided any medical insurance facility or policy for•treatrheht^ new bom diseases including birth defects during or after pregnahcy. Based on statistics, it is tried to be indicated that about4% of new bom babieshave majorcongenital anomalies and this account for 8% to 15% ofprenatal death and 13%to 16%) of neonatal deaths in India. It is stated that the Government Health Scheme or medial health insurance schemes are not sufficient enough for protecting the lives of such new bom babies. I'his is discriminatory and seeking a mandamus to the Govemment to frame a scheme or insurance policy or insurance coverage, the present writ petition has been filed.
3. Today during the course of hearing the petitioner presented before us written submissions and argued in extentio based on the same. Various W.P.(C)5446/2014 Page 2 of[9] 2018:DHC:8384-DB statistics are indicated in the submissions made and it is stated that penetration of insurance into the general population is very low. Adequate number of health' policies or scheme to cater the large population is not available, a large number of people belonging to the under-privileged or economically backward have to depend upon Government hospital where facilities are minimum and in the absence of properhealth care scheme and proper health insurance in this respect the Fundamental Rights available under Article 14, 21 and 19 are deprived. Referring to the rules and % regulations of the Insurance Regulation and Development Act, 1999 the powers available: to the Central: Goverimierit under Section 18, which empowers the Central Government to, issue directions to the insurance companies, the Iprayer made, iSj that a mandamus be issued to the Government or to the insurance companies through the regulatory authority or the general insurance corporation to formulate and make available health insurance policies/schemes or any as may be permissible to caterto the need ofthis category of per^ns 4;
4. Reliance isplaced on certain:^|udgments is referred to say that it isthe constitutional responsibility of the Government to do so. That apart, referring to certain schemes formulMed by^the Government like the Rashtriya Bal Swasthya Karyakram (RBSK) under the National Rural Health Mission (NRHM), problems faced in the implementation of the scheme, the Pradhan Mantri Matru Vandana Yojana, the Pradhan Mantri Suraksha Bima available under Yojana, it was emphasised before us that the benefits all these schemes and provisions are not adequate or sufficient enough to take care of the problems highlighted by the petitioner and therefore it iis argued that the mandamus be issued as prayed for. W.P.(C)5446/2014 Page 3 of[9] T
5. • The respondents represented by the respective counsel vehemently opposed the prayer made. It is their contention that such a writ petition is not at all maintainable and no mandamus of the nature prayed for can be issued. Counter affidavits have been filed by respondent No.l - Ministry of Finance, Department of Financial Services to highlight the availability of various schemes like the Rashtriya Swasthya Bima Yojana (RSBY), the facilities available under the scheme, the Rashtriya Bal Swasthya Karyakram (RBSK) and various other schemes of the Government available % to cater to the health requirement ofchildren and various other categories of persons. It is stated that in a public interest litigation or in exercise of its extraordinary jurisdiction under Article 226, and 227 of the Constitution a mandamus or a wirit ofthenature prayed for cannot be granted.
6. The respondent No.2 - Ministry of liealth has also submitted in identical terms. They submit that public health is a State subject placed at Entry No.6 of List - II of Schedule;? to thec.Constitution and therefore no indulgence can be made in the matter.;'They•also pointed out that the question of making health instiraiicd poiicies)aLre within the domain of the insurance company and the Insurance Regulatory and Development Authority of India(IRDAI) - a statutory body is toi' look into the said aspect. However, respondent No.2 also question the maintainability of such a writ petition.
7. Counsel appearing for respondent No.4 - the General Insurance Council of India submits that an insurance contract is essentially a commercial contract between the insurance company and the insured, based on specific terms and conditions of the agreement and no insurance company can be directed by a mandamus to issue a health policy for any W.P. (C)5446/2014 Page 4 of[9] m particular illness or ailment against its wishes and contrary to the product underwriting decision of the insurer company. It is argued that there is no legal or constitutional obligation on the part of the insurance companies to notify or bring into place such insurance policies. 8, Respondent No.5 - the Insurance Regulatory and Development Authority of India (IRDAI) also raises similar objection and in addition pointed out that various policies are already available in the market which also cover congenital anomalies. They argued that a mandamus ofthe nature cannot be issued. In sum and substance the objections of the respondents are two folded. They questioned the maintainability of the petition and the consequential jurisdiction ofthis Court indssuing a mandamus as prayed for, primarily on the ground that it would amount to legislating or directing the respondents by a mandamus to.lay down certain policies for health management which according to them;is not permissible in law and in support ofthe aforesaid they rel^ upon,the fqlfe
(i) Suresh Chand & Ors. (2016) 11 SCC lli;
(ii) State of Kerala & Ors, v. Kandath; Distilleries (2013) 6 SCC
(iv) Balco Employees Union (Regd.) v. UOI & Ors. (2002) 2 SCC
333.
9. The petitioner on the other hand has based his submissions on the W.P.(C)5446/201'4 Page 5 of[9] National Neonatal'Prenatal Database Report of2002-2003, mismanagement of birth defects in India, instances of congenital malformation and newspaper reports' to say that the problems highlighted by him is of great public importance and therefore the mandamus as prayed for should be granted.
10. During the course of hearing, learned counsel appearing for the General Insurance Council of India invited our attention to a judgment rendered by a Division Bench of the Kamataka High Court at Bangalore in W.P.(C) 32804/1996 Indian Epilepsy Association Bangalore Chapter v. UOI & Ors. to say that a writ petition somewhat similar in nature seeking insurance cover to patients suffering frpfn epilepsy was dismissed by the Division Bench ofthe Kamataka High.Court fey holding that a mandamus of the nature prayed for cannot be granted in tlie exercise ofjurisdiction under Article 226 ofthe Constitution. /;
11. Having heard the learned CQuhsel-fbr 1^ parties and on considering various aspects of the mattersas has been^ liighiighted before us and noted hereinabove, we are of the considered;^^^v^^^ that even though at the interlocutory stage we had issued directions to the authorities as to why the prayer made for; be not considered and granted buthaving heard the learned counsel for the parties, we find that the prayer of the petitioner is to direct the Government through a mandamus to formulate a universal health insurance policy for certain medical and surgical diseases, make a national programme for treatment of birth defects and ensure medical facilities in district and medical college hospitals and to pass such orders as may be deemed appropriate.
12. Apart from the fact that already as indicated by the Union of India - W.P.(C)5446/20i[4] Page 6of[9] 2018:DHC:8384-DB. Vf> respondents No.l and 2 various schemes and programmes are available for dealing with various issues as canvassed by the petitioner, the question is can mandamus be issued to formulate a policy or legislate or bring into place statutory rule or regulation as prayed for or can a mandamus be issued to the I •. insurance companies through the statutory authorities like the General I Insurance Corporation or the Insurance Regulatory Development Authority of India (IRDAI) to bring into place a suitable insurance contract or insurance policy to deal with the issue in question.
13. In our considered view, these are beyond the scope ofjudicial review or the jurisdictiopi available to this Court in exercise of its extraordinary jurisdiction under Article 226 of the Coristitutipn. In the matter of laying down policies ofipublic importance, management of health problems, laying down policies and formulation of;schenie,,a writ court cannot issue any direction. These are matters of executive/policy within the administrative ' •.. ' • V' and executive domain of the Government or the legislating authorities and a mandamus as prayed for in this,regardJfpr)tii,es cannot be granted. In the case ofSuresh Chand been held by the Supreme Court that the courts do not formulate any policy. They should refrain from' taking anything that would amount to,making;lianything or issuing any direction which;would amount to legislation making a rule or regulation of a policy which is either the function of the Government or a legislative I authority. In tlie case of Kandath Distilleries {supra) it has been held that when discretion is available to the authorities with regard to formulation of policies and schemes for governance a mandamus cannotbe issued to make I a particular legislature scheme or enactment.
14. Judicial interference by way of a public interest litigation is available W.P.(C)5446/2014 Page 7of[9] only when th^ere is dereliction of constitutional or statutory obligation by the Government. Courts will interfere only when statutory provisions of rules are violated. Courts are not expected to and should not enter into policy I making legislation or laying down schemes or policy for public at large. These are within the executive exclusive domain left to the field of governance by the elected majority and the court is not required to go into these aspects of the matter. These in sum and substance are the law laid down by the Supreme Court in the two cases as referred to hereinabove so also in the case of Suresh Seth {supra), Balco Employees Union {supra) and catena of other judgments identical in nature.
15. That apart, the Karnataka High, Court;;in the case of Indian Epilepsy Association {supra) has held that in exercise of jurisdiction under Article 226 of the Constitution of India a mandamus can be issued to the State or instrumentality of the State to perform a; legal duty as the law enjoins upon them to perform; However, the; condition for issuances of such a writ is existence of a legal right: or^perfprm^ of a legal duty against whom it is sought. A mandamus caniiotibe iss^ to formulate a scheme, a policy or a law,,create a legal duty and thereafter get it implemented. These are beyond the jurisdiction of a court, and; therefore the petition was dismissed. In that case also the prayer made was to direct the insurance companies to make the mediclaim insurance policy coverage to persons suffering from,a particular disease. It was held that such a mandamus to give coverage, through an insurance policy for a particular category of diseases cannot be granted. In fact, in this case also somewhat similar prayers are being made which in our considered view is beyond the jurisdiction ofthis Court. Accordingly, leaving itto the petitioner to take up W.P. (C)5446/2014 Page 8of[9] the issue with the JGovernment or pubHc authorities through appropriate forum, we refrain ourselves for making any indulgence into the matter.
16. The writ petition is accordingly dismissed.
DECEMBER 06,2018/m. W.P.(C)5446/2014 ust: CHIEF JUSTICE
V. KAMESWAR RAO, J