The most widely affected country by Covid- 19 when compared to the whole world is India as per the recent data. The country has witnessed sudden spike in cases and this time the situation was totally different from the last year. Last year the only solution which was the necessity to adopt was the national lockdown which was imposed in the country. This pandemic affected many people financially, emotionally and physically.
In the month of February 2021, India appeared to have beaten back the virus as the cases were almost started falling. Our Prime Minister Mr. Narendra Modi declared that India had defeated this deadly virus and declared to return back to the business. This resulted that now no one is wearing mask, no social distancing, election rallies are being conducting and in a huge crowd assembled at Holy Ganges for some religious festival. Each and every restriction was being unfollowed by the crowd and with all this carelessness again India came into trap of covid-19. It was just a starting of the second wave of coronavirus, nobody had thought that it would be so drastic which can affect the lives of the many people. In the second wave one of the main reasons for this tremendous catastrophe which lead to too many deaths of mainly the young generation is the lack of healthcare Infrastructure of our country. Though everyone knew that the second wave will come but there was no preparedness regarding the healthcare and medical facilities. The lack of oxygen, availability of beds reached to the lowest, people are dying due to the lack of medical professionals and unavailability of medicines in the hospitals. The crisis that India suffered of healthcare Infrastructure failure and out of control public health situation can result into high mortality rate and convert a country’s land into a burial ground. This time the situation is too difficult for a person who is infected by this virus to survive, his life has become unpredictable as no one knows the chances of the recovery.
The government’s failure in providing proper healthcare facilities to its citizens in need of such facilities results in a violation of right to health under Article 21. The Patna High Court recently in its judgment observed that lack of medical assistance and adequate healthcare violates citizens’ right to life under Article 21 of the Indian Constitution. Failure on their part would lead to infringement of right to health of an individual. This judgment has been delivered as the death rate due oxygen shortage has exponentially risen up in the state.
Government’s negligence on healthcare Infrastructure
The situation that the citizens have witnessed recently was a negligent act on the part of the government that no one can deny as it is a fact which has no defence available. The main agenda of an Indian government was not to control the pandemic but they have their own priorities. Contesting a biggest rally for the west Bengal elections was much need of an hour at that time for the government and the cases at that time were at its peak but none noticed. Even the madras high court remarked the Election Commission as “the most irresponsible institution” for the alleged spread of the second wave of Covid-19 in the country and also observed that they may booked under murder charges too.
Both the governments at central and state level have neglected their constitutional obligation in providing public health and also they get away with the responsibility of the poor healthcare infrastructure of the country. There is an acute shortage of beds, oxygen cylinders and medical equipment in the hospitals; many people have suffered due to these failed medical facilities. On social media platforms people are begging for information on the availability of oxygen cylinders, beds, Remdesivir, and testing facilities. Also one more thing the cremation grounds have witnessed more dead bodies than the actual data which government had showed us, it means that they have tampered with the actual data of the deaths in the country. The situation was so drastic that just because of weakness in healthcare facilities people are dying, though they are suffering from covid- 19 they are getting recovered but just because the non-availability of healthcare and poor medical infrastructure the country suffered a huge loss. Eventhogh everyone was prepared for the second wave but the government did not focus on the medical infrastructure rather their focus was somewhere else. It shows that how the government’s act in handling the situation was careless in the proper upgrading of the healthcare infrastructure. The government authorities can be sued for their negligent act and citizens of the country are fully within their fundamental rights to sue them not only for monetary compensation but at the same time making them accountable and guilty for causing this utter failure & chaos resulting in deaths and suffering of the citizens of this country.
Violation of Right to Health under Article 21
The pandemic leads to the violation of Right to Health of citizens. India is a signatory to Universal Declaration of Human Rights (UDHR) which recognizes the right to a standard of living adequate for the health and well-being to humans including food, clothing, housing and medical care and necessary social services. The right to health including access to basic medical infrastructure is a facet of Article 21. It is a part and parcel of Right to Life and therefore right to health is a fundamental right guaranteed to every citizen of India under Article 21 of the Constitution of India.
However, through a series of judicial precedents the recognition of this right to the fact that the Supreme Court of India, established in many cases which gives their views and included right to health under the ambit of right to life. The Supreme Court in Consumer Education & Research Centre (1995) held a point and observed that the right to health and medical care is a fundamental right under Article 21. The Directive Principles of State Policy in Part IV of the Indian Constitution also provide a basis for the right to health. As Article 47 states: “The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties” The problem with Directive Principles of state policy is that they are unenforceable. But in the case of Akhil Bharatiya Soshit Karmachari Sangh v. Union of India and Ors , the Honorable Supreme Court held that even though Directive Principles are non-enforceable, that does not mean that they are less important than Fundamental Rights or that they are not binding on the various organs of the State. Therefore, it is the duty of the State to care for the health of the public at large and the Central Government and the State governments have, rightfully and proactively, have taken various measures to contain the entry and spread of the COVID-19 pandemic.
In the second wave of covid-19 the right to health of citizens has been violated massively due to the negligent act on the part of government. Being the most populous country, the public healthcare infrastructure has been lacked at this situation as they were not according to the ratio of population; the healthcare infrastructure has suffered from neglect and proper funding. The delay in action, the lack of adequate capacity and the lack of investment in this pandemic as well as previously have been a gross violation of the fundamental rights of the citizens of India. The acute shortage of hospitals, non-availability of beds, shortage of oxygen lead to the huge cry over the country and due to all this people have suffered a lot as they didn’t get proper healthcare facilities and medical treatment which lead to the violation of their right to health. In the rural areas if we see there the situation is way worst due to the hospital which are operating in that area as first of all in the villages the hospitals are in an adequate functions, the doctors are not medically equipped there and they are treating the corona patients with the medication of curing normal viral infection.
Judicial Stake on the Issue
There are various judicial precedents in which it was held that proper medical care and treatment has to be given in the hospitals if a patient in need has approached. In the Constitution of India Right to health is not expressly mentioned as the Fundamental rights however by the judicial Interpretation it can be read under Right to life & Personal liberty (Article 21) which is Fundamental right of citizens. In the case of Occupational Health and Safety Association Vs. Union of India (AIR 2014 SC 1469) held that it is the duty of the Government Hospital to provide timely medical treatment to a patient in need of such treatment.
In the case of Paschim Banga Khet Mazoor Samity v. State of West Bengal 1996 4 SCC 37, the scope of Article 21 was further stretched, as the court held that it is the responsibility of the Government to provide adequate medical aid to every person and to strive for the welfare of the public at large. One more instance where recently, the Allahabad High Court on 04 May 2021, in the Public Interest Litigation (PIL) Case No. – 574 of 2020 held “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 genocide by those who have been entrusted the task to ensure continuous procurement and supply chain of the liquid medical oxygen.” Furthermore, the High Court of Delhi has ordered strict directions to the Centre to provide the requisite oxygen to the Union Territory of Delhi in the case of Rakesh Malhotra v. Govt. of National Capital Territory of India and in fact as recent as 4 May 2021, the Ld. Court observed that “We are facing the grim reality every day of people not being able to secure Oxygen beds or ICU beds. The situation has come to this that hospitals and nursing homes have had to reduce the number of beds offered by them because they are not able to service their existing capacities, due to a shortage of medical oxygen. On the one hand, there is a need to augment the capacities to meet with the rising numbers of COVID-19 positive cases; while on the other hand, the existing infrastructure is crumbling and the bed capacity, even though available, cannot be put to its full use.”
The various observations by the courts we can conclude that up to level of difficulty the citizens of our country are in need of medical facilities which have almost deteriorated in the country. The judiciary has become the helper to the people and the last resort that one can ask for. Many PILs, cases have been filled in Supreme Court and various high courts for the improper facility and lack of facility in the hospitals.
The covid-19 pandemic made us realize the importance and need of the holistic healthcare system all over the country and this would only possible if the central and state government should make an approach to deal with it. The only solution to make this problem solved is the efforts of the government which has to be put in order to raise the level of healthcare infrastructure better than ever before. The constitution had also provided that no person right to health should be infringed and also put an obligation on the central and state government to raise the level of nutrition and proper medical treatment. So it is the duty of the government in the times of difficulty they have to act accordingly so that the citizens must not suffer and start working on the approaches and be expediently in addressing this issue.
Name – Manvi garg
(Intern of may batch 2021)