Confederation of Ex-Servicemen Associations v. Union of India and Others

The Confederation of Ex-Servicemen Associations (the Petitioner) filed this public interest litigation in the Supreme Court under Article 32 of the Constitution (right to move the Supreme Court for a violation of fundamental right). Ex-servicemen, their families, and their dependents did not have access to full and free medical services as provided to serving defence personnel. Further, military hospitals which provided them with medical services were not able equipped to deal with all serious and terminal diseases. Nevertheless, ex-servicemen and their dependents were able to seek medical treatment from military hospitals. Several other medical services were also made available, and the Indian Government also provided an allowance of Rs. 100 per month to assist those who were too far from military hospitals.

The Petitioner asked the Court to direct the Union of India (the Respondent) to recognize the right of full and free medicare of ex- servicemen, their families and dependents. This right according to the Petitioner should be treated as one of the fundamental rights guaranteed under the Constitution of India. During the pendency of the petition, Government of India introduced a scheme known as “Ex-Servicemen Contributory Health Scheme” (ECHS) which partly took care of grievances raised by the Petitioner. The scheme extended certain benefits to ex-servicemen on payment of contribution. The Petitioner primarily claimed that by discriminating between servicemen and retired servicemen the Government was violating the retirees right to equality under Article 14 of the Constitution.

On the issue of maintainability of the petition, the Court held that the petition was maintainable as the Petitioner including its component association were a legally registered under the Societies’ Registration Act, 1860 and had standing to file the petition.

On the question of violation of Article 14 (right to equality), the Court reiterated the twin test of Article 14, originally propounded in State of West Bengal v. Anwar Ali Sarkar & Another ((1952) SCR 284). The Court also held that Article 14 did not prohibit classification as long as the classification was based on “intelligible differentia” and such classification had a “rational nexus to the object sought to be achieved by the statute or legislation in question.” The Court further held the classification between in-service employees and retirees to be “legal, valid and reasonable classification.” Extending benefits to the former class but not to the latter, did not amount to discrimination and was not touched upon by Article 14 of the Constitution.

The Court rejected the Petitioner’s claim that they had a legitimate expectation to be treated in a certain manner by the government. The Court held that the Petitioner’s claim was not that services previously provided to them were revoked. Instead, they were asking for services which were never provided to them either in law or in practice and therefore the doctrine of legitimate expectation had no application in this case.

With regard to a fundamental right to health, the Court held that though “right to medical aid” was a fundamental right, framing of a contributory scheme neither violated fundamental rights under Chapter III nor directive principles under Chapter IV of the Constitution.

“[T]he State has to cater to the needs of its employees past and present. It has also to undertake several other activities as a ‘welfare’ State. In the light of financial constraints and limited means available, if a policy decision is taken to extend medical facilities…by  requiring them to make ‘one-time payment’ which is a ‘reasonable amount’, it cannot be said that such action would violate fundamental rights guaranteed by Part III of the Constitution.” Page 3.

“In our considered opinion, though the right to medical aid is a fundamental right of all citizens including ex-servicemen guaranteed by Article 21 of the Constitution, framing of scheme for ex-servicemen and asking them to pay ‘one time contribution’ neither violates Part III nor it is inconsistent with Part IV of the Constitution.” Page 31.

“We…hold that getting free and full medical facilities is not a part of fundamental right of ex-servicemen.” Page 31.