COVID-19 created havoc in human life. Fear and deception has brought us to a point where our primary motive is to survive. It posed an unprecedented challenge to the public health system. If we review the past 18 months, several legal issues have come to the limelight. One paradox that arises is regarding the rights provided to us and actions taken to uphold those rights. Every individual has a right to live a healthy life and the legislature along with the executive has a duty to provide proper care and support during unprecedented times as well.
Legal provisions of right to health during pandemic in India
The legislative framework of the epidemic control law in India is derived from mechanisms of the criminal law under Section 188, 269, 270 and 271 of Indian Penal Code, 1860, Section 6,10,38 and 72 of Disaster Management Act 2005, and the public health-oriented legislations of the Epidemic Diseases Act, 1897. Even though there are several laws it is evident that they are ineffective in the current pandemic scenario to control and uphold the right to health.
The Central Government and state governments have the power to regulate health related matters. The Epidemic Diseases Act is the main legislative framework at the central level for the prevention and spread of dangerous epidemic diseases. It provides power to the central government and state governments in their respective jurisdiction to take necessary steps to curb epidemic and pandemic disease spread. During a pandemic, the legislative body can delegate some of its key responsibilities to the executive body inorder to address the crisis in a much more effective manner. This can be possible under provisions of state health acts and municipal corporation acts.
Right to health has a wider ambit. It is not just about getting treated at hospitals, it covers right to social and medical assistance, the right to housing, the right to freedom from poverty and social exclusion, and the right to safe and healthy working conditions. State is responsible for providing all these rights and comes up with a plan of action regarding protection of vulnerable groups, preparedness, essential medical goods, testing and tracing, lockdowns, vaccines, the right to access other health services, international cooperation, and accountability.
Steps to be taken by government
India has ratified the International Covenant on Economic, Social and Cultural Rights, under which everyone has the right to the highest attainable standard of physical and mental health. Governemnt has to take steps to ensure that health services are avalibale to everyone without discrimination, and affordable for all, including marginalized groups. According to Section 72 of Disaster Management Act 2005, the provisions of this Act, shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. Primary motive should be to save human life and take steps in order to provide right to access to health services and required medical goods. In the current pandemic, the state has to take positive action and engage all its resources. There are certain obligations that the state has to fulfill irrespective of the scenario.
Taking steps to control pandemic does not imply that patients suffering from other health issues can be neglected. State has to provide its care and assistance to the most vulnerable group irrespective of their background and social status. It is the frontline workers who are supposed to fulfill their duty in these tough times. Government has to take several steps to provide them with a safe working environment. At the same time when professionals are not fulfilling their duties they have to be punished and it should be seen that proper care is provided to patients.
It is the duty of the government to impose lockdown and curfew inorder to curtail the spread of the disease. Even though it appears to suppress the fundamental rights provided under Article 19(1) of Indian Constitution, Section 2 and 2A of Epidemic Diseases Act gives power to the State and Central governments to take necessary steps in the situation of an epidemic to control its outbreak, even if the steps are not mentioned in any law practice or theory in the country.
How Government failed
In this current pandemic situation the government has blatantly failed to uphold these rights of individuals as the actions taken were contradictory to the law laid down. It has not provided required assistance and care to patients suffering from other diseases. Even though it was aware of the situation prevailing in various parts of the country and the world, it conducted voting for legislative bodies. Even though people have the right to vote and the right to practice their religion and conduct their customs, the right to health overpowers them. But the state has given least priority to health and now we all are facing drastic consequences.
Private hospitals are given a free hand and they are in an advantageous position to gain profit in this catastrophic situation which is distancing people from health care and supplies as they will be available only at exorbitant prices. Government has to take proper steps in order to ensure that facilities are accessible to everyone.
In the case of Hospitals’ Association, Nagpur vs Government of Maharashtra it was laid down that the private hospitals should not exploit the patients and their relatives on the pretext of giving them treatment and facilities available in such private hospitals at higher costs. Rate cards must be projected regarding the prices for different treatments and they should be under a prescribed limit decided by the government.
In the case of Paschim Banga Khet Mazdoor Samity vs State of West Bengal, the Supreme Court held that the government is obligated to provide adequate health facilities to the citizens of India. But the current status of medical facilities suggests that India needs something more than a Disaster Management Act or an Epidemic Diseases Act that only grants powers to the government to take steps they deem necessary. India requires a methodological and comprehensive framework to combat a pandemic of this nature.
Rights and Duties
Right to health is intertwined with duty to provide them, if the duty is not fulfilled the rights are violated. It is the duty of the state to provide basic amenities like oxygen supply , vaccines and education to the people regarding the adversities of the disease and equip them the correct knowledge. Misinformation and constantly bombarding people with statistics also leads to panic and unrest in the society. Right to health must be elaborated in order to clearly define all the rights that every individual has generally and especially in the time of such a pandemic situation. It must be considered as a fundamental right and these must be communicated to the public.
Rights and duties that needs to be highlighted in pandemic situation are :-
- A universal right to access urgent medical care on a non-discriminatory basis.
- The duty of states to act promptly and prepare for a disease outbreak as soon as scientific evidence indicates reasonable grounds for concern regarding potentially dangerous effects of a virus or other factors on human health
- The duty of states to adopt a national response plan based on scientific evidence available to the public
- The duty of states, using an intersectionality lens, to monitor risks of infection and access to health care among vulnerable groups
- The duty of states, in collaboration with WHO and social media platforms, to control the spread of misinformation, fake news, and rumors about viruses and the diseases they cause, including racial blame and victimization
- The duty of states to ensure the regular flow of food supplies everywhere in their territories, with particular attention to deprived households
- The training of health and social care professionals in infection prevention and control, in both the public and private sectors.
Current scenario appears to be horrific with increasing viruses and it is at this time every individual must be aware of the rights that they are having and whom to hold accountable when there is a failure in the system. Government can not drift away from its responsibilities with the excuse that it is an unprecedented situation. It is during such pandemic situations right to health must be given much more prominence. Current scenario is far from an ideal situation due to overlooking health rights and prioritising other inconsequential things. The law has to change and evolve in order to face such situations in future effectively. The World Health Organisation main motive is to prevent the international spread of disease and any such pandemic can be eradicated if all the policies are in tandem with the guidelines of WHO. Right to health is as important as right to life and it must be upheld especially in the times of a pandemic.
- Tanay Goyal, COVID-19: The Law of the Lockdown, JURIST – Student Commentary,April25,2020,https://www.jurist.org/commentary/2020/04/tanay-goyal-india-lockdown/
- HOSPITALS’ ASSOCIATION, NAGPUR AND ANOTHER VERSUS GOVERNMENT OF MAHARASHTRA AND ANOTHER LNIND 2020 NGP 126
- Nomani, M.Z.M. (1992). Right to health: a socio-legal perspective, New Delhi, India: Uppal Publications ;pp. 56-59.
Author: Lohith Konda from IIT, Kharagpur.