Kerala High Court
Arif vs The State Of Kerala on 23 July, 2021
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
WP(C) No.7984/2021 1/7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
Friday, the 23rd day of July 2021 / 1st Sravana, 1943
WP(C) NO. 7984 OF 2021
PETITIONER:
ARIF, S/O MOHAMMED ASHRAF, KULANGARA PARAMBIL, ERANTHODE, VALAMBOOR
P.O.MALAPPURAM DISTRICT-679 325.
RESPONDENTS:
1. THE STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT
OF KERALA, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2. THE DIRECTOR OF HEALTH SERVICES, DIRECTORATE OF HEALTH SERVICES,
GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM-695 035.
3. THE DISTRICT MEDICAL OFFICER OF HEALTH, CIVIL STATION, CALICUT-673
001.
4. GOVERNMENT MEDICAL COLLEGE CAMPUS, KOZHIKODE-673 008, REPRESENTED BY
ITS SUPERINTENDENT
5. ADDL. R5. UNION OF INDIA REPRESENTED BY ITS SECRETARY TO MINISTRY OF
CORPORATE AFFAIRS, 5TH FLOOR, A-WING, SHASTRI BHAWAN, NEW DELHI -
110 001. [ADDL.R5 IS IMPLEADED AS PER ORDER DATED 09.07.2021 IN
I.A.NO.3/2021 IN WP(C)7984/2021.]
6. ADDL.R6. THE DRUGS CONTROLLER GENERAL OF INDIA NEW DELHI.
7. ADDL.R7. THE INDIAN COUNCIL OF MEDICAL RESEARCH, NEW DELHI.
8. ADDL.R8. THE DRUGS CONTROLLER, OFFICE OF THE DRUGS CONTROLLER, RED
CROSS ROAD, PUBLIC LABORATORY COMPOUND, VANCHIYOOR P.O.,
THIRUVANANTHAPURAM.
9. ADDL.R9.THE DIRECTOR OF MEDICAL EDUCATION, GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM.
10. ADDL.R10. THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT,
GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.
11. ADDL.R11. THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT
OF KERALA, THIRUVANANTHAPURAM.
12. ADDL.R12. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM.
13. ADDL.R13. THE KERALA STATE LEGAL SERVICES AUTHORITY, REPRESENTED BY
ITS MEMBER SECRETARY, ERNAKULAM. [ADDITIONAL RESPONDENTS NO.6 TO 13
ARE SUO MOTU IMPLEADED AS PER ORDER DATED 09.07.2021 IN
WP(C)7984/2021.]
14. ADDL.R14. SRI.MANJALAMKUZHI ALI, MEMBER OF LEGISLATIVE ASSEMBLY,
MANKADA CONSTITUENCY, MALAPPURAM.
15. ADDL.R15. SRI.M.VIJIN, MEMBER OF LEGISLATIVE ASSEMBLY, KALLIASERY
CONSTITUENCY, KANNUR. [ADDITIONAL RESPONDENTS NO.14 & 15 ARE SUO
MOTU IMPLEADED AS PER ORDER DATED 23.07.2021 IN WP(C)7984/2021.]
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to direct the Respondents to import the life saving drug
WP(C) No.7984/2021 2/7
"Onasemnogene" known in the brand name of "Zolgensma" immediately and
provide adequate and necessary medical treatment to the petitioner's son,
Imran Mohammed who is presently undergoing medical treatment in Government
Medical College Hospital, Kozhikode, pending disposal of the Writ Petition
(Civil).
This petition again coming on for orders upon perusing the petition
and the affidavit filed in support of WP(C) and this court's order dated
09.07.2021 and upon hearing the arguments of M/S.P.CHANDRASEKHAR,
K.K.MOHAMED RAVUF, SATHEESH V.T., RANI MADHU & MANJARI G.B. Advocates for
the petitioner, GOVERNMENT PLEADER for R1 to R4, Addl.R8 to Addl.R12 and
of ASSISTANT SOLICITOR GENERAL OF INDIA for Addl.R5 to Addl.R7, the court
passed the following:
WP(C) No.7984/2021 3/7
P.B.SURESH KUMAR, J.
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W.P.(C) No.7984 of 2021
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Dated this the 23rd day of July, 2021.
ORDER
When this matter was taken up today, the learned counsel for the petitioner submitted that the son of the petitioner for whose treatment the writ petition was instituted, has expired a few days ago and the writ petition has, therefore, become infructuous.
2. While this court regretfully acknowledges the death of the son of the petitioner, it is felt that lack of facilities in the State for treatment of similarly placed who are suffering from rare diseases and who are unable to afford the prohibitively expensive treatment of such diseases, is a matter of concern, warranting interference of this court in exercise of WP(C) No.7984/2021 4/7 W.P.(C) No.7984 of 2021 2 the power under Article 226 of the Constitution for issuing general directions to avert death of such persons in future.
3. It is seen that the Central Government has evolved a national policy for treatment of rare diseases, the cost of which cannot be afforded by the patients. The said policy, among others, provides for a digital platform for voluntary individuals and corporate donors to contribute for the treatment of such persons. The materials do not indicate as to whether the State Government has evolved any such policy. Similarly, the materials do not also indicate as to whether any steps have been taken by the State Government for treatment of such diseases, except the action taken pursuant to the directions issued by this court in a pending matter.
4. As the materials on record are inadequate to justify any general directions in this regard, the competent authority of the State Government is directed to file a statement indicating the views and suggestions of the State WP(C) No.7984/2021 5/7 W.P.(C) No.7984 of 2021 3 Government on the subject matter. The statement should also disclose the manner in which other States in the country are taking care of the situation in the wake of the policy of the Central Government. The Kerala State Legal Services Authority is also directed to file a statement indicating its suggestions on the subject matter and also whether the Kerala State Legal Services Authority, having regard to the infrastructure available to it, would be in a position to play any role in redressing the grievance of those who are unable to afford the treatment for rare diseases. Similarly, the Central Government should also file a statement in this matter indicating the steps to be taken by the State Government, in the absence of any policy for the State Government for implementation of the policy of the Central Government.
5. The report of enquiry submitted by the District Police Chief pursuant to the interim order passed by this court on 9th July, 2021 indicates that a committee has been formed WP(C) No.7984/2021 6/7 W.P.(C) No.7984 of 2021 4 for raising funds for the treatment of the son of the petitioner under the patronage of Sri.M.P.Abdussamad Samadani, a Member of Parliament representing Malappuram Constituency and under the Chairmanship of Sri.Manjalamkuzhi Ali, a Member of the State Legislative Assembly, representing Mankada Constituency, and the said committee has collected approximately Rs.16.5 crores for the treatment. The report of enquiry is silent as to how the said committee is proposing to utilise the amounts collected for the treatment, in the wake of the death of the son of the petitioner. Similarly, it has come to the notice of this court from the media that a sum of Rs.46,78,72,125.48 has been collected by a committee under the coordinator-ship of another member of State Legislative Assembly, namely, Sri.M.Vijin, representing Kalliasery Constituency. As it is felt that the views of the said committees would be helpful in the matter of issuing general directions for treatment of persons suffering from rare diseases, WP(C) No.7984/2021 7/7 W.P.(C) No.7984 of 2021 5 Sri.Manjalamkuzhi Ali, Member of Legislative Assembly, Mankada Constituency, Malappuram and Sri.M.Vijin, Member of Legislative Assembly, Kalliasery Constituency, Kannur are impleaded suo motu as additional respondent Nos.14 and 15 in the writ petition. Registry to issue notice to the additional respondent Nos.14 and 15.
List this matter after three weeks.
Sd/-
P.B.SURESH KUMAR, JUDGE.
tgs 23-07-2021 /True Copy/ Assistant Registrar