- Harshit Chauhan, B.A L.L.B (Hons.), Gujarat National Law University
Introduction
Under the waves of the pandemic, lives drowned, but were we able to keep human rights afloat? This article explores the critical situation of the Right to Health as associated rights in the middle of an ongoing global health crisis. It is prudent to not only analyze the role of the government but also the rights of the citizens which are at stake.
From health ministers resigning to people dying due to a lack of oxygen and the accountability crumbling in face of the people, what more was at stake was the rights of the people. It’s not just the failure to vaccinate the citizens in a timely manner or to introduce lockdown when needed but also the colossal shortage of oxygen and the failure of the state to cope up with the collapse of the health infrastructure. For instance, during the last two waves India had as low as 1 isolation bed per 1000 persons as a result the hospitals failed to accommodate many patients in critical condition thereby, denying the Right to Health.
World Health Organization defines health as “a state of complete physical, mental, and social well-being and not merely the absence of disease and infirmity”. Moreover, it is the legal obligation of the state to ensure precise and updated information about Covid-19, access to healthcare services, distribution of services, and other measures of the response to the pandemic is readily available and accessible to all. However, the Indian government both at the center and state level has been lackadaisical in complying with the protocol and safeguards. States like Kerala continue to see over 28,000 fresh cases daily with positivity rate over 21% and is still reporting massive protocol violations.
Right to Health and the Constitution
While understanding the role of the government it is necessary to understand both the legal rights and duties of the citizens and the state. The Right to Health is a fundamental right which finds its root in Article 21 of the Indian Constitution as a subset of the Right to Life and as a duty of the state under Part IV of the Constitution. This was also upheld in the case of Bandhua Mukti Morcha v. Union of India & Ors,. where the court observed that “the right to live with human dignity enshrined in Article 21 derives its life and breath from the Directive Principles of State Policy. Therefore, it must include protection of the health.”
The Directive Principles of State Policy in the context of the Right to Adequate Healthcare was first recognised in the case of Rakesh Chandra Narayan v. State of Bihar, where the Supreme Court observed that states had a legal duty to felicitate the medical needs of every citizen under Article 47 of the Constitution, the following provisions are laid down under Part IV of the Constitution, which require the state:
1. to promote the welfare of the people by securing and protecting the social order. [Article 38 (1)]
2. to ensure that the health and strength of workers, men, and women, and the tender age of children are not abused. [Article 39(e)]
3. to provide public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. [Article 41]
4. to ensure humane work conditions. [Article 42]
5. to raise the level of nutrition and the standard of living and to improve public health] among other duties. [Article 47]
In another landmark judgment, Justice D.Y. Chandrachud in the case of Navtej Singh Johar v. UOI Ministry of Law observed that, “Article 21 does not impose upon the State only negative obligations not to act in such a way as to interfere with the right to health. This Court also has the power to impose positive obligations upon the State to take measures to provide adequate resources or access to treatment facilities to secure effective enjoyment of the right to health.”
In another case, of Consumer Education and Research Centre v. Union of India it was upheld that a worker has a Right to Health and medical aid both while in service and post-retirement under Article 21 of the Constitution and the state has a duty to grant medical aid and to protect the health and vigour of a worker.
Failure to protect the Right to Health
The Indian government has been facing criticism on an international front for not addressing the issues properly as well. Benefactors and philanthropists who are aiding India have demanded that the government end restrictions on the Right to speech and expression and to respect human rights in its pandemic response. Courts have also criticized the government for its inadequate response. The Chief Justice of the Madras High Court stated ,“You had all of last year to plan and take a decision…If it had been done, we would not be in this situation... We were lulled into a false sense of security only to be hit by this tsunami of infection now.” This reflects upon the inadequacy of the government to respond to the massive health crisis faced by the nation and inability to acknowledge the fundamental right of health of the citizens.
The government has not only been negligent of its duty of medical care but also irresponsible by taking decisions like conducting election rallies and organizing the Kumbh Mela during the pandemic which was followed by the worst COVID-19 surge in the world rendering the citizens helpless. Adding on to the problem was the lack of health infrastructure, shortage of oxygen cylinders, medical support, and assistance.
The Right to Health was violated at large but what was also breached was the Right to Dignity. Taking note of the rising number of dead bodies and the insufficiency of cremation grounds, it is relevant to discuss the observation of the Supreme Court in the case of Pt. Parmanand Katara, Advocate v. Union of India & Anr., where it was established that the Right to Dignity is available not only to a living man but also to his body after his death.
Conclusion
Hence, considering all the factors it is imperative to note that the Indian government has defaulted on several fronts - medical care and duty being the primary facet. The culmination of negligence and breach of duty has ultimately violated the fundamental Right to Dignity and the Right to Health of the citizens, thereby, being both legally and ethically wrong. In such a scenario it is necessary for the State to not only acknowledge these rights but also to work towards them. Steps like building adequate health infrastructure, provision for equal accesses to healthcare in the times of crisis, curtailing massive gatherings in the name of political and religious agendas and building flexible data systems for the states to add details, introduce checks and create modules. These tactics and provisions if well implemented, will collectively serve to the greater cause of protecting the rights of every citizen.
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