ADVOCATE JULHASUDDIN AHMED VS BANGLADESH 2010 BLD HCD 30

 

Analysis of Fact:          

The writ petitioner contended that the public services which were out of the ambit of Value Added Tax Act. Though medical and health services were kept outside the ambit of the tax Medical centers, Dental clinics and Pathological centers were not included in the list of the institutions which were out the ambit of the tax. Since getting treatment at cheaper rate is the Constitutional Right of the people, imposing tax on the sectors mentioned earlier was illegal. For this reason the writ petitioners issued a notice regarding the Demand of Justice to the Respondents requesting to remove the provisions of imposing tax upon those sectors which were not included in the second schedule such as medical centers, dental clinics and pathological laboratories. But getting no response the petitioners filed the writ petition. 

Rule Nisi issued by the High Court Division:

The court according to Article 102 issued a Rule Nisi towards the Respondents to show cause as to why the insertion of the words medical centers, dental clinics and pathological laboratories inside the bracket of para 2(a) of the 2^nd schedule of VAT Act,1991 should not be declared void and illegal as being obstruction to the improvement of public health as well as beyond the scope of Fundamental Principles of State Policy of the Constitution.

Issue:

Whether the imposition of tax upon the medical centre, dental clinic and pathological laboratory will be valid or not?

Argument from the Appellant:

It was argued that

The Fundamental Principles of State Policy are placed in Part II of our Constitution and under Article 18 it is one of the primary duties and responsibilities of the state to take steps for the improvement of public health. So, State cannot formulate any sort of law which is not beneficial for the poor and general people. Most of the people of Bangladesh are living below the poverty line. It is difficult for them to carry the excessive cost upon medical treatment.

Argument from the Respondent:

It was argued that 

Bangladesh is an under developed country. Value Added Tax had been imposed for its entire development. Tax had been imposed upon medical centers, dental clinics and pathological laboratories because these institutions had been receiving payments upon their services. Though it was not possible to make medical treatment free of tax general medical care was kept outside the ambit of VAT.

Decision:

Removing medical centers, dental clinics and pathological laboratories from the list of sectors keeping outside of VAT Act, 1991 in the second schedule was declared unconstitutional. In this condition , no tax can be imposed upon the patients on their medical costs.

Reasoning behind the decision:

The above decision was taken on the following grounds:

Ø  Medical and health services were exempted from VAT but Medical institutions, Dental clinics and Pathological laboratories and services provided by specialists were not kept outside the ambit of VAT. As a result, the spirit of the law regarding keeping medical and health services out of VAT was not maintained. Again comparing the beauty parlors, health clubs and fitness centers with medical centers, dental clinics and pathological laboratories is ill logical.

Ø  To protect right to life under Article 32 and improve public health under Article 18 are one of the primary duties of the state and these are the Constitutional provisions. Any law made which conflicts with these two provisions of the Fundamental Rights and Fundamental Principles of State Policy of the Constitution will be illegal.

Ø  Life under Article 32 means a healthy, normal and sound life. Regarding the definition of life it was stated in Mohiuddin Farooque Vs Bangladesh that life does not mean merely an elementary life of sub human life but connotes the life of the greatest creation of the Lord who has at least a right to a decent and healthy life.

Principle:

Fundamental Principles of State Policy are to some extent judicially enforceable in the light of Fundamental Rights. So, Fundamental Principles of State Policy and Fundamental Rights are to be considered united not separately.

Importance of this case;

In this case the court has enforced Article 18 which says about public health and Article 32 which says about protection of right to life and liberty.  In this case the court declared the imposition of VAT upon the private clinics and medical health centers ultra vires because they are violative of Article 18 and 32. Though Fundamental Principles of State Policy are not judicially enforceable, Court has declared the impugned VAT Act inconsistent with the Fundamental Principle of Article 18. In this way, Court has enforced Fundamental Principles of State policy along with Fundamental Rights which were judicially enforceable.