Point of Law
Liberty is confined and controlled by law, whether common law or statute. It is in the words of Burke a regulated freedom. It is not an abstract or absolute freedom. The safeguard of liberty is in the good sense of the people and in the system of representative and responsible Government which has been evolved. If extraordinary powers are given, they are given because the emergency is extraordinary, and are limited to the period of the emergency.

ORDER :

M.S. Ramachandra Rao, J.

This Writ Petition is filed as a Public Interest Litigation by petitioner, an Indian citizen who is a resident of Hyderabad, to declare the action of the State of Telangana and other respondents in not permitting the “private hospitals” and “diagnostic centers” which are equipped with necessary equipment and personnel and willing to conduct diagnostic tests for COVID-19 virus and to admit patients for isolation and treatment of COVID-19 virus as arbitrary, illegal and without power, if necessary by setting aside order in RC.No.Spl/COVID-19/DMHO/Hyderabad/2020 dt.11.4.2020 of the District Medical and Health Officer, Hyderabad (4th respondent) canceling permission granted earlier; and consequently direct the respondents to permit private hospitals and diagnostic centers which are equipped with necessary equipment and personnel and willing to conduct diagnostic tests for COVID-19 virus and to admit patients for isolation and treatment of COVID-19 virus.

2. Therefore the petitioner is challenging the prohibition by the respondent Nos. 1-4 both in respect of “private hospitals” as well as “private diagnostic centers/laboratories.”

3. The petitioner has arrayed the State of Telangana rep. by it’s Chief Secretary as 1st respondent; the said State’s Principal Secretary of Medical, health and Family Welfare Department as 2nd respondent; the said State’s Director of Public Health and Family Welfare as 3rd respondent; and the District Medical and Health Officer, Hyderabad as 4th respondent.

4. We deem it appropriate to implead suomotu the Indian Council of Medical Research rep. by it’s Director General, (COVID-19), Health Research Department, Ansari Nagar, New Delhi-110029 (for short ‘ICMR’) as a party respondent No.5 in this Writ Petition. The initial order of the 1st respondent Government dt.21.3.2020 permitting all hospitals, Government and Private, to treat with Covid-19 cases.

5. Initially, the 1st respondent had issued on 21.3.2020, G.O.Ms.No.13, invoking the provisions of the Epidemic Diseases Act,1897 containing in Clause 5,6,11 and 13 provisions enabling all hospitals, Government and Private, to provide COVID-19 corners for screening of suspected cases of COVID-19, as and when so required by any of the authorities specified in regulation 4 (Clause 5); that the said hospitals are to record the history of travel of the person to any country or area where COVID-19 has been reported as well as the history of contacts of the suspected or confirmed case of COVID-19 (Clause 6); that the private health care institutions intending to test COVID-19 must notify the State IDSP unit (Clause 11); and that the authorities empowered under Regulation 4 were empowered to isolate and/or admit into an identified hospital, any person who develops symptoms simulating that of COVID-19 infection as per the case definition criteria published by the World Health Organization (WHO).

Consequent order dt.11.4.2020 of the District Medical and Health Officer, Hyderabad (respondent no.4) permitting all private hospitals to treat COVID-19 cases and not to perform any other elective procedures or surgeries

6. This order was intended by the District Medical and Health Officer, Hyderabad to se that even private hospitals would concentrate on only COVId-19 cases and would not spend their time and facilities for other ordinary elective procedures and surgeries.

7. In the light of the G.O.Ms.No.13 dt.21.3.2020 of the 1st respondent Government, proceedings Rc.No.Spl/COVID-19/DMHO/HYD/2020 dt.11.4.2020 were issued by the District Medical and Health Officer, Hyderabad in respect of testing and treatment in all private hospitals of COVID-19 patients (hereinafter referred to as the ‘initial order dt.11.4.2020’) which states:

“All private Hospitals in Hyderabad District are hereby ordered not to perform any elective procedures/ Surgeries in view of Co