Unless you are someone who only travels in personal helicopters you cannot expect yourself to be safe from the vulnerability of the effect of COVID 19.
Death is unavoidable; everybody will die at some point; however, death due to a lack of oxygen and inadequate drugs is unjustifiable. Hundreds of children, adults, and women are dying every day as a result of government failure. The government was so focused on winning elections that it neglected to construct oxygen plants for its people. Number of sites is showing us that India is doing better than other countries. They are showing us the death rate is much more in other countries but these people did not deserved to die. They could have been saved with better implementation of policies. Their families and friends deserved to be holding their hands when they were taking their last breaths. They deserved to see their faces for the last time but they only got to see a body rapped in a plastic like a grocery.
Government statistics showing us the recovery rates, the less number of death rates but the social media posts are telling us different story. Social media is reminding us again and again to not to fall for the manipulated data. It is showing us the cry for help of mother, father, brother, sister, son, daughter, journalist, mentor, all loved, all cherished, and many now lost.
WHO explains that SARS-CoV-2 spreads primarily through respiratory droplets and aerosols produced when people cough, sneeze, speak, sing or breathe, are within one metre of each other and also in crowded, poorly ventilated settings. Contact with contaminated surfaces poses another risk. Insistence on wearing good masks, distancing and a prohibition on risky gatherings, such as in restaurants, malls, religious sites, auditoria and on public transport is, therefore, essential.
The outbreak of COVID 19 revealed the true face of healthcare of all the developed and developing countries of all around the world. Unavailability of oxygen, medicines, and vaccines has become a common thing in India after the outbreak of second phase of corona virus.
CONSTITUTIONAL RIGHT TO HEALTHCARE
The preamble of the Constitution of India, which strives to provide for welfare state with socialistic patterns of society under the Article 21 of the Constitution, guarantees the right to life & personal liberty. The concept of democratic socialism aims to improve the condition of health care of the people. The principle of socialism is also embodied in various provisions of part III & part IV of the Constitution. Socialist when the egalitarian principles are followed, rights are valued & the dignity of each individual is upheld.
The Constitution of India nowhere expressly provides healthcare as a fundamental right to the citizens but there are a number of references which states that it is the duty of the state to provide better healthcare to its citizens.
The Constitution has made a strong appeal to the state to have a fair standard of living through the Directive Principles of State Policy. Several legal precedents have established that the government is responsible for the healthcare of its people. Existing constitutional safeguards, legal precedents, and international agreements provide a firm foundation for India’s fundamental right to health. Access to health will become legally binding and accountable as a result of a legislatively assured right.
Article 39 (e) talks about the duty of the state towards the health of the men, women and children working as labourers. Article 42 talks about the health of newborn child and the maternity relief. Article 47 mentions the duty of the state to raise the level of nutrition and standard of living and to improve public health and state shall regard these as its primary duties. But Article 37 which defines the nature of DPSPs states that it is not enforceable in the courts. State uses this Article as a weapon and always gets away from its duties, obligations and liabilities.
The DPSP are only directive to the state. These are non justifiable. No person can claim for non- fulfilling these directions. Article 21 deals with “no person shall be deprived of his life or personal liberty except according to procedure established by law”. The right to live means something more, than more animal existence & includes the right to life consistently with human dignity & decency.
The Supreme Court has ruled in several cases that the right to health and medical treatment is a basic right protected by Article 21 since health is necessary for making workmen’s lives meaningful, purposeful, and consistent with personal dignity. The Indian courts took an active role by accepting public interest litigation (PIL) under Article 32 of the Constitution, which allows the courts to assess the socioeconomic and environmental situations of the oppressed, underprivileged, and disadvantaged people.
The Supreme Court of India in Bandhua Mukti Morcha v Union of India & Ors interpreted the right to health under Article 21, which guarantees the right to life, since there is no clear acknowledgment of the right to health or healthcare in the Constitution. The Supreme Court reaffirmed in State of Punjab & Ors v Mohinder Singh Chawla that the right to health is central to the right to life and that the government has a constitutional duty to provide health services. The court went on to support the state’s duty to establish health facilities in State of Punjab & Ors v Ram Lubhaya Bagga.
Supreme Court, in its land mark judgment in Pramand Katara V Union Of India & others ruled “that every sector whether at a government hospital or otherwise has the professional obligation to extend his services with due expertise for protection life. No law or state action can intervene to avoid or delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute, and paramount, laws or procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained, and must, therefore give way.”
In September 2019, a High-Level Group on the health sector constituted under the 15th Finance Commission had recommended that the right to health be declared a fundamental right. It also put forward a recommendation to shift the subject of health from the State List to the Concurrent List. The recommendation to declare the right to health a fundamental right, if implemented, will strengthen people’s access. However, the latter recommendation to shift health to the Concurrent List will lead to a constitutional conundrum on whether the centralisation of public health will be helpful in the context of Indian cooperative federalism. At present, the subject of “public health and sanitation; hospitals and dispensaries” falls under the State List of the 7th Schedule of the Constitution of India – which means that state governments enjoy constitutional directives to adopt, enact and enforce public health regulations.
Despite the fact that the Supreme Court of India has recognized the right to health care to be a basic right in a series of judgments, the state has not given it adequate respect. What’s more regrettable is that in a country where the poor and disadvantaged make up a larger percentage of the population and cannot afford to pay for treatment in government or private hospitals, the government should design unique health insurance policies at a low cost.
CURRENT SITUATION OF HEALTHCARE AMID COVID 19
For an exhausted medical community, staggering under the weight of over 37 lakh active COVID-19 cases and a severe shortage of medical oxygen and drugs, the pause in activity comes as a life saver.
At this time, the Indian government, along with other nations, has imposed far-reaching steps such as movement restrictions, mandatory institutional quarantine, and criminalization of those who do not follow the rules. Government has imposed fines on the people who are on the streets without wearing masks. Irony of these restrictions are that those who don’t follow them are being fined or beaten by the police officers but there is no one to keep check on the government policies for production of oxygen and proper medicines. Even though the government of India is claiming that large amount of oxygen, ventilators and medicines are being produced but still people are dying in thousands everyday because of unavailability of necessary requirements in this pandemic.
Recent attempts to use big data analytics to monitor patients and trace connections through apps like Aarogya Setu must adhere to the concept of personal data security, with any use or distribution requiring the citizens’ prior permission in a clear manner. In India, there have been several reports of data falsification in COVID19 cases, which has harmed people’s trust.
The Allahabad High Court observed that “death of COVID patients just for non-supplying of oxygen to the hospitals is a criminal act and not less than genocide”. The judges made observations while hearing the PIL and directed the government to take immediate remedial measures.
Since the beginning of this pandemic we heard the news of unavailability of necessary items to the frontline workers like PPE kits, masks, hand sanitizers etc. despite the claims by the government that they are providing all the necessary requirements to the frontline workers the reports and personal interviews are telling us something else. A worker of Accredited Social Health Activist (ASHA), Lakshmi’s story tells us something else.
Lakshmi Kuril, a community health worker in Maharashtra, India’s western state, had a pre-existing heart problems that was exacerbated by the additional work and burden of battling the COVID-19 outbreak that is ravaging the country.
She felt bad after attending a meeting of fellow health professionals, so she went home to do housework and cooked dinner for her husband, daughter, and son. As she stood to clear the dishes she collapsed. Her husband took her to the hospital, but she did not get adequate care, and she died as a result. She was tested positive following her death. According to the government, 18 ASHAs had died battling COVID-19 as of September last year. ASHA nurses want the government to provide them with the same masks and safety gear as all emergency personnel who deal with COVID-19 patients. According to an Oxfam India survey published in the Indian media in September, only 75% of ASHA employees were given masks and only 62% were given gloves.
There is also a lack of slots in crematoriums in various States leading COVID-19 victims’ relatives to take dire measures to bury or cremate their dead. In Himachal Pradesh, there were claims that the body of a COVID-19 victim was carried to the crematorium in a garbage lifting vehicle in Solan district. While Delhi’s first funeral venue for pet animals will be utilized for the last rites of COVID-19 patients and a park has been converted into a cremation ground in south-east Delhi. COVID-related bodies Family members of 19 victims have been observed keeping them in lengthy lines outside cremation sites for hours, waiting for their turn. Ambulances queued at many crematoriums have been turned away, with the request that they attempt to find a place elsewhere. Delhi also saw a parking lot being turned into a makeshift crematorium for COVID-19 patients.
RECENT JUDGEMENTS AND ORDERS OF COURTS ON COVID SITUATION
- The Karnataka High Court ruled that failing to administer a second dose of COVID-19 vaccine would be a breach of Article 21 of the Constitution’s universal right to life. The Court in its order said “Once dose is due it is the obligation of the state government to provide the second dose. If a second dose is not provided, it will be a violation of fundamental rights of citizen under Article 21.” The observation was made after the court noted that the State government has a total stock of 12,32,960 doses of vaccines remaining (inclusive of both Government of India quota and state procured) as of today. While in its order of May 11, it had recorded that 26 lakh beneficiaries need second doses and with addition of around 5 lakh frontline and health workers today, a total of 31 lakh beneficiaries require second dose of vaccine.
- A petition has been filed before the Supreme Court, requesting that it intervene in the case of about 100 bodies found floating in the Ganga in Bihar and Uttar Pradesh, all of whom are suspected of having died of COVID. The petition requested that a special investigating agency be established to oversee the investigation into the deaths of 100 people whose bodies were discovered floating in the Ganga in Buxar, Bihar, and Ghazipur, Uttar Pradesh, and Unnao, Uttar Pradesh. The petition asks the Supreme Court to establish a Special Investigating Agency, which would be led by a sitting or retired judge of this Hon’ble Court, to oversee the investigation.
According to the PIL, 71 bodies were discovered in Mahadev Ghat, Chausa, District Buxar, Bihar, and more than 30 bodies were discovered in District Ghazipur, Uttar Pradesh, according to the petitioner’s information.
According to the plea filed by Advocate Sanjeev Malhotra and drawn by Adv Ashutosh Yadav, each dead body should be removed and a proper post-mortem conducted to determine the cause of death.
“It is clear and apparent that the person whose dead bodies floated has not died their natural death. The Administration in order to hide /save their face from the responsibility of such inhuman act has prepared false verbatim Post mortem without actually doing the Post Mortem of dead bodies. The petitioner makes this statement very responsibly and on personal information received to the petitioner from the reliable sources” the plea reads.
- The Madras High Court ordered the State Government to issue an advisory to local bodies instructing them to sanitise and spray disinfectant areas within their jurisdiction to the extent possible, as well as to equip the ESI Hospitals with the necessary facilities to treat COVID patients.
“Since this is also a preventive measure which is suggested by the petitioner, the State should ensure to sanitize and spray disinfectants, to the extent possible and within the existing constraints, to ensure that the airborne virus is kept at somewhat of a check. An advisory in such regard may be issued to all local bodies so that villages and small towns may yet be saved from the large scale attacks as seen in the urban areas.”
- “We are at pain in observing that death of Covid patients just for non supplying of oxygen to the hospitals is a criminal act and not less than a genocide by those who have been entrusted the task to ensure continuous procurement and supply chain of the liquid medical oxygen,” a Division bench comprising of Justices Siddhartha Varma and Ajit Kumar observed. “How can we let our people die in this way when science is so advanced that even heart transplantation and brain surgery are taking place these days,” the Bench went on to say that these news stories paint a very different picture than the one painted by the government about adequate oxygen supply. The Allahabad High Court has therefore directed the District Magistrate of Lucknow and the District Magistrate of Meerut to conduct investigations into such news items within 48 hours and submit their reports on the next scheduled date. They are also directed to appear before the Court online on the next date fixed.
The order stated,
“Normally, we would have not directed the State and district administration to enquire into such news that have been viralled on social media but since the Advocates who were appearing in this PIL supported such news and even submitted that more or less situations in other districts of State are the same, we find it necessary to direct for immediate remedial measures to be taken by the Government.“
There are many more judgments and orders being issued by courts, and fresh decisions are being issued every day instructing state governments and the central government to take action in response to the COVID situation. In a number of states, the state administration has been ordered by High Courts to impose lockdown, or else they would take action. There are number of PILs that are being filed for the uniform rate of vaccines in all states. Public interest litigation (PIL) has grown so frequent that media now covers some aspect of a new PIL filed or pending PIL on a daily basis. The judiciary is the weakest of the governmental departments because it is reliant on the executive to carry out its directives and lacks the capacity to control the purse. However, it is the sentinel on quive who is charged with defending the rule of law and civil freedoms. PIL is regarded as a solution for all problems. Regulation of blood banks, adoption of children, street cleaning, unapproved hoardings, wasting of public funds in advertisements to acquire political mileage, laying down roads, pollution, voter rights, terrorist attacks, and a lengthy list of other issues are among those addressed under PIL jurisdiction and the decisions depend on the judgments of the court.
Strong health policies will lead to the development of social resilience in the face of possible pandemics and public health issues. Human rights obligations cannot be overlooked in the wake of an emergency. The concept of accountability is essential for good governance and maintaining public confidence in government. Knowledge should be available, accessible, and widely disseminated among the population to allow effective oversight of decisions taken by the government and its established institutions. The right to health must also be applied in accordance with the ideals of openness, proportionality, and solidarity. As a state body, India is obligated to improve and offer quality public facilities and a minimum standard of universal health care as part of its commitment to international legal treaties and conventions. Existing constitutional safeguards, legal precedents, and international treaties provide a firm foundation for India’s fundamental right to health.
Author: Shubhashish Roy.
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