Ever since the second wave outbreak of pandemic Covid 19 in India the human life seems terrifying. The health care system and its infrastructure, technological facilities have been shaken from its ground with the exponential surge in coronavirus cases. The countrywide shortage of medical oxygen has put the life of common people in great peril. The entire State is gasping for breath because of insufficient oxygen availability. Some are queued to refill oxygen, some are dying in hospitals, ambulances, parking lots while others are grappling for survival; crematoriums are overburdened with the dead bodies & mass funeral. In the prevalent condition, the State is duty bound to ensure security & protection of the individuals’ lives in accordance with article 21 of the constitution of India which guarantees right to life to all. Article 21 explicitly declares that every human has the right against deprivation of life & personal liberty which exhaustively, includes all of the rights associated with the life & limb of a person. Amid thunderous circumstances of pandemic the oxygen shortage has become a substantial issue before the country.
Struggle for breath
Stricken with coronavirus infection, people are dying while waiting for oxygen. Medical teams & families of patients are struggling to accommodate oxygen to the breathless in order to keep them alive by all possible means. Agitated appeals for oxygen cylinders flooding Social media & whatsapp groups. The situation in the country is worsening after the outbreak of the second wave of covid 19 which vehemently damaged the psyche of the people to live. Over the past months there can be seen a sudden spike in demand for oxygen to treat the shortness of breath in patients. The oxygen requirement has increased multifold & the mechanism of supply to distribution of oxygen has been botched up, the human heart is losing hope while hospitals are at the edge of oxygen insufficiency. Many of the hospitals in the country have neither installed medical oxygen plants nor have proper facilities for oxygen procurements. There are pleadings before the State to provide adequate oxygen after experiencing the urgent need to save the life of common people. Lung fibrosis is more frequent in even those who have recovered & they need to be put on oxygen support.
Logistical issues such as lack of cryogenic containers for transportation and procurement, unequal distribution & other mismanagement leading to the delayed supply of the oxygen to meet the want. Hoarding & black marketing is aiding oxygen shortage while double-dealers are making money on the desperation of common people without any remorse or concern towards those naive people. In usual days the medical oxygen which costs less than the cost of one meal at a first-class restaurant has now left people in misery and dejection. With the steep rise in number of oxygen dependent patients, the country is going through oxygen scarcity. State’s inability to anticipate & keep pace with demand has led to oxygen shortage in the country. As per WHO oxygen shortage impacting half a million individuals in middle & low-income countries with the surge in demand (who.int). Human race is in constant fear of losing the battle for breath. During the upheavals of the pandemic, the common person has nothing but his rights enshrined in the constitution which provides that every individual in the country has the right to life & shall be protected, secured & honoured by the state.
Connotations under Constitution of India regarding Right to Life
Right to health means and includes almost all practicable degrees of health which every human qualifies to exist in the society & world to sustain life. International human rights law and Constitution of India regards the right to health as a basic fundamental right. When the country is plunging into an acute shortage of medical oxygen and the masses are deprived of even the basic life sustaining medical aid, the State is bound to take cognizance of its constitutional obligations & rights of mankind. Every fundamental right enshrined in the constitution confers certain duty on the State & in lack of collateral component of duty, rights cannot exist in its entirety. The assertion of principles of human existence and basic right to life has led to the important recognition of the right to health. Provisions to safeguard the right to life of a person are incorporated in the supreme law of the land that is the Constitution of India, is available for protection of people’s right to live during the present turmoil. Under the Constitution of India –
- Article 38 imposes a duty on State to secure a social order in order to promote public welfare under directive principles of state policy; additionally, Articles 39 (e),41,42, 47, 48 of Part IV incorporate an obligation on state to prioritize public health ; &
- Article 21 of Part III bearing the wider application than any other fundamental rights, states about the protection of right to life and individuals’ liberty;
Since promotion of public welfare and protection of the right to life is not attainable without public health.
Although the Indian constitution doesn’t guarantee right to health explicitly, it is pertinent to note that Article 21 envisaged in the constitution encompasses right to health & medical aid as an important constituent of right to life. Rights instilled in Article 21 creates responsibility on the State to secure, respect and protect the right to life by any means. The State must ensure adequate protection & equal health facilities to its people and it has the obligation to maintain such appreciative conditions which abide by the principles of right to life. People are struggling to breathe in the wake of deadly coronavirus because the State has failed to provide them adequate and basic medical aid. Due to lack of centralised execution the whole nation is slipping into great anguish. Shortage of medical oxygen has claimed numerous lives, many are still compelled to purchase it at exorbitant prices. Coronavirus Pandemic may vanish someday but irreparable losses occurred to humankind can never be retrieved.
Judicial Interpretations of Right to Life
The hon’ble Supreme Court has consistently interpreted that right to life clause includes the right to health as a fundamental right and everyone is allowed to approach the court to safeguard their fundamental human rights.
On May 13, 2021 Bombay High Court while hearing a plea on the issues related to covid 19 management, observed (quote-unquote) that right to life will be violated if people die due to shortage of medical oxygen, the State shall endeavour to protect the right to life of its people. The judiciary has consistently interpreted the right to health as an inseparable part of the right to life & it shall be secured by the State in all circumstances. (https://www.lawyersclubindia.com/news/top-news-headlines-13th-may-2021.)
Earlier, in the case of Bandhua Mukti Morcha[1]Supreme Court pronounced that Directive Principles of State Policies are non-justiciable in the court of law yet the State is obliged to implement them in public welfare; and the hon’ble Court interpreted the right to health & dignity within the ambit of right to life & personal liberty under Article 21 of Constitution. In another case of Consumer and Research Centre[2] it was opined by the Court that to lead a meaningful life health is an integral part of the right to life and for the fulfilment of basic living standards health incorporates the access to medical aid also. The Supreme court always comes forward whenever there is any ambiguity or conflict with fundamental rights.
One’s right corresponds with the duty of another’s; rights and duties go parallelly. If people have the right against exploitation of their life then the State must fulfill its duty & the right to health is sacrosanct, sacred & valuable right. Same was interpreted in the Ram Lubhaya case[3]. In connection with it, while hearing the matter of Paschim Banga Khet[4], the Court expressed that it is State’s responsibility to ascertain the adequate medical aid to every person and state shall strive to work in the welfare of the general public.
Conclusion
Taking everything into account it is appropriate to brief that not even a single human shall be starved of his life owing to the oxygen shortage. When the whole country is yearning for liquid medical oxygen to breathe & the distraught human race is struggling for survival, the right to life enshrined in constitution shall take effect. Right to life delineates the right to get proper health care & medical aid, hence, if people are dying due to oxygen shortage, it is a grave violation of right to life. Assertively, the state shall stand by its constitutional obligation in providing adequate medical care to the masses without supplicating the account of logistical constraints before the innocent lives.
[1] ]Bandhua Mukti Morcha vs Union of India & others, 1984 AIR 802,1984 SCR(2)67
[2] Consumer Education & Research Society vs Union of India & Ors, 1995 AIR 922,1995 SCC(3)42
[3] State of Punjab & Others vs Ram Lubhaya Bagga etc. (1998) 4 SCC 117
[4]Paschim Banga Khet Mazdoor Samity & Others vs State of West Bengal & Ors (1996) AIR SC2426/1996 4 SCC
Author: Archana Maurya from Calcutta University.
Juris Centre 