Challenge To Pre-Legislative Consultation Process Adopted For Draft Health Data Management Policy, Delhi HC Directs Centre To Consider Plea As Representation

The Division Bench of Chief Justice DN Patel and Justice Prateek Jalan has directed the Centre to deal with the grievances raised in the petition, in accordance with law, rules, and government policy applicable to the facts of the case.

However, the court has clarified that it has not gone into the constitutional challenge to the alleged inadequacy of the consultation process adopted by the government.

'We have reserved your right to raise the ground of inadequacy of pre-legislative consultation process and you can raise it as and when the policy is passed and the same is then challenged before the court', the Bench said.

Filed by Dr Satender Jain, the present petition was filed to challenge the 'unconstitutional', 'undemocratic', 'discriminatory', and 'inaccessible nature' of public consultation contemplated by the Notice for Consultation dated 26.08.2020 issued by the Union of India for comments on the 'National Digital Health Mission: Health Data Management Policy'.

The Petitioner argued that the consultation for the Draft Policy does not ensure any effective or meaningful public participation, as the time period for the consultation is only 15 days, in the middle of the COVID-19 pandemic, and renders the consultation process a mere procedural formality.

It was further submitted by the Petitioner that the consultation policy has effectively excluded a vast proportion of the country's population from the consultation process by providing the draft policy only in English and restricting the submission of comments only to online mode.

As per the Petitioner, the consultation process is also not inclusive of the visually impaied persons as the process doesn't allow submissions through emails and also asks for a CAPTCHA verification.

While arguing that the policy also raises concerns regarding Right to Health and Right to Privacy, the petition says:

'It is thus clear that the Draft Policy – that incidentally has no governing basis in law or any authorizing legal framework – involves several complex issues which require expertise in multiple disciplines of computer science, law, public health and medical ethics. Despite the expansive scope of the project and the complicated nature of issues involved, the Respondents have provided only 15 days to conduct an online consultation at the peak of the COVID-19 pandemic in India.'

The Petitioner in this case was represented by Mr Rajshekhar Rao and Ms Vrinda Bhandari