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As we all are well aware about the situation of covid 19 in India, and due to this India has been red listed by many countries. India is Second most affected country in the world after US. Death rate is increasing everyday and whole health care system has been collapsed. There is shortage of oxygen and hospital beds. According to reports there are 8.5 hospital bed per 10,000 population and 8 physicians per 10,000, 86% of population does not have essential medicine. And this situation clearly shows inability and negligence of Indian government. According to reports, in the year between 2009 and 2019 , India invested less than 2% of its GDP in Public Health. This Percentage has continued to drop, with barely 1.1% of GDP going towards Public health. With increasing death rate and inability of government to provide there citizens basic health care is a violation of there human right.

According to WHO proper health care is a fundamental right of people. It says “ The enjoyment of the highest attainable standard of health is one of the fundamental right of every human being without distinction of race, religion, political belief, economic or social condition”. These words are enshrined in WHO's Constitution for more than 70 years and right to health has been central to WHO’s identity. India is signatory to Universal Declaration of Human Rights, which recognizes the right to a standard of living adequately for the health and well being to human including food , clothing, housing and medical care and necessary social services. Article 12.1 of International Covenant on Economic, Social and Cultural Rights, of which India is a state party “recognises the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. These convention clearly states that everyone should have access to the health services they need, when and where they require them, without suffering financial difficulties. The concept of Human right in Health care refers to the conceptual and Practical application of general human right Principles to the patient care condition, particularly the relationship between Patients and Providers. According to Dorland's Medical Dictionary defines Health care a service Provided for the purposes of promoting, maintaining and monitoring or restoring health. There are six common type of human right violation in regard of health care:-

  1. Using Medical skills on behalf of the state to inflict pain or physical or psychological harm that is not a legitimate part of medical treatment;

  2. Subordinating independent judgment, whether in therapeutic or evaluative settings, to support conclusions favouring the state or other third party;

  3. Limiting or denying medical treatment or information related to treatment of an individual to effectuate the policy or practice of the state or other third party;

  4. Disclosing confidential patient information to state authorities or other third parties in circumstances that violate human rights;

  5. Performing evaluations for state or private purposes in a manner that facilitates violations of human rights;

  6. Remaining silent in the face of human rights abuses committed against individuals and groups in the care of health professionals.

Article 12 of International Covenant on Economic, Social and Cultural Right , member State of this Convention grant the right to enjoyment of the highest attainable standard of Public health. Steps have been taken by state Parties to achieve full realization of this rights which includes:-

  1. The planning should be made for the reduction of still birth-rate and of infant morality rate for the healthy development of the child.

  2. Enhancement of all particulars of environment and industrial hygiene.

  3. The avoidance, treatment and control of Pandemic, endemic, occupation and other diseases.

  4. The creation of conditions which would assure all medical aid and attention in the event of illness.

Article 5 of International convention on the elimination of All forms of Racial Discrimination (1996), Article 2 of this convention compliance with the fundamental obligation which states that state parties should undertake to prohibit racial discrimination in all its form and guarantees the right of everyone without discrimination on the basis of caste, race , colour or national or ethnic origin.

Article 28 of International convention on the Protection of the Right of All Migrant worker’s and Members of their Families (ICMW) 1990, talk about that Every Migrant worker’s and their family members have right to receive proper health care that is required for the protection of their life to avoid unrepairable harm to their Health on the ground of equality of treatment with native of the state concerned. Such emergency medical aid shall not be refused to them by any ground.

Article 25 of Convention on the Right of Person with Disabilities (2006) , states parties should recognize that person with disabilities have right to the enjoyment of the highest attainable standard of health without any discrimination on the basis of their disability.

Declaration of Aima Ata on Primary Health care (1970), as essential health care based on Practical, Scientifically sound and socially acceptable methods and technology methods Universally acceptable to individuals and families in the community through their full participation and at a cost that the community and country could afford to maintain at every stage of their development in the spirit of self reliance and self determination.

They are some of the few conventions which talk about Health care as fundamental right of citizen. However, question arises do India really follows the guidelines of WHO, ICESCR and other conventions to which it is part of, and if it does then why India does not improves its health care system and provide proper health care to its citizen. The constitution of India does not explicitly guarantees a fundamental right to health. However, there are multiple references in the Indian constitution to public health and on the role of the state in the provision of Healthcare to its citizens. Like Article 39(E), directs the state to secure health of workers. Article 42, directs the state to Just and Humane conditions to work and maternity reliefs. Article 47, talk about a duty of state to raise nutrition levels and standard of Living of People to improve Public health. Directive Principle of state policy in Part 4 of the Indian constitution provides a basic right of health. Moreover Supreme Court in many cases like Bandhua Mukti Morcha v. Union of India & Ors, interpreted the right to health Under Article 21 which guarantees the right to life.

This Pandemics have exposed the deep vulnerability of India’s Healthcare system. In year 2020 , migrant works are most effected people . We all are well aware about the news where 16 workers were run over by the trains. And many died due to hunger. And even after a year the situation of these worker become worst. People do not have basic facilities like food, shelter and proper health care. Government has suspended labour laws for 2-3 years. It is a clear violation of human rights, in which Government has taken all the rights or workers and even not providing basic facilities to workers.

Covid 19 new variant has broken the Global record with 21 million cases and more than 230,000 death cases. The death tolls is believed to be uncounted, and Crematoriums and burial grounds are overrun. People have to wait for 3-4 days to conduct a last rites of their love ones. There are storages of beds in hospital, oxygen stocks fell shorts, important medicine are disappear from the markets. Black marketing of Essential medicine are as at its peaks . People are asking for help on social media platforms, Doctors are helpless and in all this Government is more concerned about their reputation. Indian Government has ordered to let down nearly 100 of social media posts which is criticizing Government for inability to deal with Pandemic, by saying that they are spreading fake news . Uttar Pradesh chief Minister has denied shortages of oxygen and warned that charges would be brought under National Security Act, against anyone including health workers , who are spreading rumours on social media to spoil the atmosphere. Meenakshi Ganguly, South Asia Director of Human Right watch, said “ The Indian Government Should be only focusing only in its efforts on respondent to people desperately in need of help and dying for lack of medical facilities”. Instead what we find is Pickly reaction to legitimate criticism of its handling of the crises ,including by trying to censor social media.

Supreme Court also has held that No action shall be taken against anyone who seeks help on social media or criticises Government. It further says it will be considered contempt of Court if any citizen is harassed for making appeal regarding beds and oxygen cylinders, beds etc. There should be free flow of information. Hospitals in Lucknow continue with the major shortage of oxygen. The Mayo Health Centre in Lucknow, have written a letter to CMO and said , “This is to bring to your notice that Mayo Centre, Gomti Nagar, Lucknow is facing acute shortage of oxygen supply which is severely hampering the treatment of critical COVID patient. Despite our best efforts, we are able to maintain a backup of 15 minutes only as oxygen is not available anywhere in Lucknow. With the violations of fundamental right of proper health care Government is also violating the basic right of “ freedom to speech and expression “by passing such orders. And this type of situation is in whole country.

Election rallies in County is also responsible for second wave, covid protocols were not followed by any one. Madras High Court, said that Election commission is responsible for second wave of Covid 19 , Court further said that officers should be further booked for murder. Chief Justice Sanjib Banerjee observed that Election commission has failed to enforce Covid 19 protocols regarding using marks, hand sanitizers, maintaining social distancing during rallies Despite Court orders.

Supreme Court has intervened and directed Centre to formulate National Policy for admissions to hospitals in the wake of the second wave of covid 19 , and said “ No patient shall be dined hospitalization or Essential medicine in any state due to lack of local residential proof”. Court Further said that, Centre with collaboration with state create a buffer stock of oxygen for emergency purposes. Court also directed the centre to re-examine its action and protocols, including the availability of oxygen , pricing and availability of vaccine and availability of important drugs at affordable prices.

Supreme Court has also asked Centre to rethink its handling of the National Health Emergency, and pleading government to rebuild the vaccination programs and increase oxygen supply .“Intervention of the Supreme Court must make a difference in people’s lives. It must save some lives," remarked a bench headed by justice Dhananjaya Y. Chandrachud, as it listed out the areas of concerns where, it said, the government must “do some serious thinking on their policy decisions and revisit them".

Human rights not only includes right to life and liberty ,right to education, right to work , freedom of speech and expression but right to proper health care is also come within the scope of Human right . It is basic right of every individual to have proper mental and physical health. And violation of such right is violation of Human right. India should start making strong Health laws which will be helpful in future Pandemics and National Health Emergences. Emergency responses can’t happen at the cost of neglect of Human right liability . It is captious then that the right to health be enforced , using the principles of transparency, proportionality and harmony. The COVID19 experience has also manifest the importance of a decentralized/polycentric response – India’s co-operative federalism, therefore, must be strengthened. Indian Government Should start making policy’s to deal with Pandemic without effecting basic rights of people. And Government should start spending more on health care sectors to provide proper health care to it’s citizens during national health emergency.

Shalini Yadav

BALLB 5 year

Lloyd Law college

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