~ Navdeep Sindhu

Introduction

India anguished loads from covid-19 in 2020. After the primary wave of covid-19, everyone expected from the Government that it might set up new covid-19 devoted hospitals and oxygen generating plants so that there would be no lack of essentials elements when in an attack by the second wave of covid-19.

At the beginning of 2021, when the rest of the world was suffering from the second wave of covid-19, in India on the precise contrary, the Government allowed numerous activities like Gym, Political rallies, Elections, Marriages, Sports events etc. which consequently lead to the tremendous increase in Covid-19 cases. Kumbh Mela and Bengal Elections, where people gathered in millions gave this scenario a massive boost. People started thinking that the covid-19 has come to an end despite they were unaware of the imminent danger.

By late April, India passed 2.5 million active cases and was reporting an average of 300,000 new cases and 2,000 deaths per day. The medical system of Indiacrumbled all the way down to portions as there had been no sufficiency in Covid-19 dedicated hospitals, Ventilators, oxygen concentrators which lead to the Black marketing of life support elements.

Patient’s had to shop for their own oxygen cylinders and the doctors and medical staff was not willing to admit anymore covid-19 patients as there were no sufficient equipment’s for their treatment. Resulting in the demise of thousands of innocent people.

In these instances when both, the Government and Medical Structure became helpless, the judiciary system of India took the initiative to protect the public rights of the citizens by taking the Suo-Motu perception for their rising issues.

Authority of Judiciary to Defend the Citizen Rights

According to the constitution of India, The Judiciary system is entitled to defend the rights of every citizen and protect them from violation. Any citizen, whose fundamental rights are being left out can approach the High Court or Supreme Court of India and pursue legal mitigation. Judiciary is the backbone of the Government because whenever there is a dispute between the Centre and State, between State and the citizens or among the States, it is there to grant legal aid and frame new rules for the goodwill of citizens.

As stated in the Constitution, The Supreme Court of India and High Courts can immunize the fundamental rights of its citizens constrained by Article 32 and 226, accordingly. In such a scenario the courts are entitled to issue appropriate order, directions and writs in various natures.

Article 32(3) sustain that legislature by law can entitle any other court to defend these fundamental rights. In the reverence of it, The Parliament established the Protection of the Human Rights act. (1)

The Inception of Covid-19’s Second Wave in India

In late March 2021, India reported a total of 1,20,39,644 confirmed cases and 68,020 daily cases per day. There was a continued surge of cases. As April started there was a tremendous increase in covid-19 daily cases and death tolls. India crossed the USA and Brazil in total cases and death toll. These were two of the most suffered countries from covid-19 now. India started breaking its own cases and death toll records, every day. On 30th April, India reported 3,86,453 positive cases and 3,498 deaths in one day (2)

When this minacious second wave started showing its real consequences Government started taking witless preventive decisions like imposing night curfews and lockdowns in severe areas. Maharashtra was the first state to impose proper lockdown as it was the most affected state. People were dying in front of the hospitals and nobody was there for help.

Although, the Government knew that the second covid-19 wave will attack India in 2021 but they didn’t take it very seriously and no pre-actions were taken. No new hospitals and oxygen generating plants were constructed. People had to buy their own medical equipment’s, medicines and beds. Patients had to shift from one hospital to another as there were no facilities available in government hospitals and small hospitals. Many poor people, who cannot afford these necessary elements lost their life to this vicious infection. The Government hardly took any measures to prevent this nation from the second wave of covid-19.

However, the Government was busy organizing various political rallies and asking people to gather in thousands of numbers and vote for their party. These Legislative assembly elections acted as a boost in covid-19 cases. The religious events like Kumbh Mela at Haridwar and the gathering of people for prayers at Mosques in the week of Ramadan acted as a catalyst for the covid-19 virus.

Adding to these, The Legislative Assembly elections and the Rural Panchayat elections were also held in the state of Uttar Pradesh which leads the cases to extend in the remote areas also. Uttar Pradesh panchayat elections resulted in the death of over 1,600 teachers who took part in the polling process. (3) This event of deaths due to the negligence of value of an individual’s health on the part of the Government, is no less than a Genocide.

Though, the election process could have been delayed or neutralized by the Election Commission of India because, the election commission falling under section 153 of Representation of People Act,1951 is eligible to extend the election process in specific region if there are ample grounds. (4)

Farmers Protest also gave this scenario a bit of amplification because there was a constant amount of gathering from a long period of time. Farmers keep on joining the protest in large numbers day by day.

The movement of farmers from various states to the national capital and back, transmitted this virus to rural areas of various states. This resulted in the deaths of people in villages as there is a shortage of medical facilities, most of the time.

Dis-integrated System and Violation of Fundamental Rights

When the number of covid-19 cases raised to unmanageable numbers, more and more patients started showing at the hospitals, but conditions were even worse there. India was in the throes of the world’s worst covid-19 crisis with average daily cases marking up to 3,50,000 per day, breaking the world record daily for straight eight days. More than 3500 people died every day and the experts are concerned that the actual death count could be five times higher. Photos of Dead bodies burning on mass funerals pyres and the bodies showering up on the banks of the river Ganges became viral.

 “What an irony – There was a lack of oxygen for the living and a lack of wood for the dead.”

There was shortage of life support elements everywhere. People started over flooding social media platforms asking for help, medicines, oxygen cylinders and ventilators etc.

Uttar Pradesh Authorities filed criminal charges against a man named Shashank Yadav, who appealed on Twitter to find an oxygen cylinder for his dying Grandfather. (5) Charges were filled on him under sections 188, 269 and 505(1)(b) of the Indian Penal Code, adding to it, Section 3 of the Epidemic Act and Section 54 of the Disaster’s Act.

The real face of the Medical Infrastructure came to light. The medical system was found insufficient and broken down into pieces. With 8.5 hospital beds per ten thousand of the population and 8 doctors per ten thousand, it is clearly shown that the medical structure was not prepared for this crisis. (6)

Every essential item was selling at a grey market price which then leads some people to do illegitimate business of important items like oxygen cylinders and concentrator. Navneet Kalra, a Delhi based businessman was arrested because of the allegations on him for doing black marketing of oxygen concentrators and selling them for high prices to the one in need. (7) The case against him consisted of Section 420, 120-B, and 34 of the Indian Penal Code, Essential items Act and Epidemic Act.

Many renowned hospitals had to shut down their operations because there was a lack of equipment’s and facilities. Whole of the world was watching India failing against covid-19 as people were constantly dying and on the other hand, the Government allowed the commencement of sports activities like IPL. This gave an indication to the whole world that our Government is more conscious about such insignificant things than its populations health.

Like other big countries, India’s states are individually responsible for their medical infrastructure which lead to an overall variation nationwide, in facilitation and capacity on the real grounds.

Involvement of Judicature in this Scenario

When the towers of the strength of democracy failed to dispense their duties, the judiciary system came forward to defend the public rights of the citizens.

The judiciary took a stand for the citizens and questioned various state Governments in the context of the ongoing crisis and directed them with new effective orders. Various High courts criticized their state governments as they disheartened the citizens with their response.

In one of the first occurrences of court interventions, The Gujarat High Court, on April 11, took note of the ”Torment tales, unfortunate and inconceivable difficulties, unmanageable conditions of medical infrastructure, laconism and the deficit not only testing, availability of beds, ICU and the supply of oxygen cylinders and basic drugs like Remdesiver etc.“ Earlier it has advised the State Government to inflict a lockdown to break the transmission of covid-19.

After continuing to address the response of government against the emerging crisis, on April 27, Justice Karia asserted, “States affidavit is not aware of the real ground situations. We cannot just sit here and see this happen, the state must take adequate steps to stop the transmission.” (8)

In Maharashtra, The Aurangabad bench of Bombay High court splurged the centre by stating that doctors and paramedics were not of proper expertise in terms of handling the ventilators. The bench said that the Union Health minister was more eager to defend the manufacturer of the faulty ventilators and not the health of the patients.

A bench comprising of Justices RV Ghuge and BU Debadwar repel to the centre’s defence that the ventilators were in perfect condition and the professionals are not properly trained.

The court additionally remarked that the government ought to abstain to play a “BLAME GAME”.

“The ministry instead should have shown more responsiveness towards the patients, it being the paramount object of the welfare state to take care of the health of its people.” -the bench added. (9)

On May 1, the Delhi High Court directed the centre to anticipate 490 metric tonnes of oxygen, the quota allocated to the city “by whatever means”.

The Delhi High Court bench comprising of Justice Vipin Sanghi and Rekha Palli noted that the centre had also not accumulated 700 metric tonnes of oxygen supplies to the national capital.

The Additional Solicitor General Chetan Sharma contended that the Supreme Court had not demanded the centre to supply the mentioned amount of oxygen to the capital. The High Court contended that it had the authority to review the oxygen supplies to the national capital and that there was “no was you that you won’t supply 700 metric tonnes right away”. (10)

The Madhya Pradesh High Court also objected to the ongoing crisis. The Bench comprising of Justice Mohammed Rafeeq and Atul Sreedharan linked to various Supreme Court judgements which have interpreted section 21 of the Constitution of India in terms to enlarge the meaning of Right to Life to also incorporate the Right to Health.

The bench said that-

The right to Health may be secured to the citizens only if the state offers appropriate measures for their treatment, healthcare and takes their care by protecting them from calamities like Covid-19. Articles 38, Article 39(e), Article 41 and 47 of part-IV of the Constitution of India in addition to the essential assured vide Article of the constitution of India to cop with strong and noticeable contents of the Right to Life which in its vast sweep additionally consists of the Right to Good Health. (10)

In the case of Pratibha Shinde and v/s State of Maharashtra (2021) SCC online Bom 87, The Bombay High court while stating on the unfortunate death of an old female covid-19 patient because of the negligence of the hospital staff in providing the adequate medical facility. In this context, the court asked the state Government to provide Rs.5 lakh to the legal agent of the patient as compensation for the violation of her fundamental acts.

In the case of Shivani Kaushik v/s Union of India (CWJC NO. 353/2021), the Patna High Court felt that the malfunctioning by the state in providing ample healthcare facilities to the people, especially in these tough times of the pandemic is a direct violation of the Right to life under Article 21.

Supreme Courts, Perspective

Latterly, The Supreme Court of India pulled up the central government over the difference between the covid-19 vaccine prices. The Court expressed that the vaccination facility which is provided to the people contains a valuable public good.

The Supreme Court of India mentioned that the contemporary vaccination policy could a detriment to the right of public health because it positioned the vital authorities withinside the dock over differential pricing of the vaccines among the Center and States.

A bench headed by Justice Dhananjay Y Chandrachud maintained that “there are numerous factors of the vaccination pricing coverage followed by the Central authorities which require that coverage to be re-visited”, especially the reason behind in letting the producers decide the vaccine price for the states and personal entities.

The bench also mentioned that “all vaccines whether or not in the amount of 50% bought by the central authorities or the ultimate 50% are in use for vaccinating the citizens. The last use is the identical”, including that compel the states to barter with the producers at the floor of selling opposition and making it appealing for brand new vaccine manufacturers will bring about a critical detriment to the ones withinside the age of 18 to 44 year, who may be vaccinated by the Nations Governments.

The Bench which covered Justice L N Nageswara Rao and S Ravindran Bhat, in addition, underscored that the social strata of this institution comprised of people who’re Bahujan’s or belonging to different underprivileged and marginalized groups.

The Bench also stated that “While we aren’t passing conclusive willpower at the constitutionality of the contemporary coverage, the way wherein the contemporary coverage has been framed could Prima Facie result in a detriment of the Right to Public Health that’s an essential detail of Article 21 (Right of Life) of the Constitution, therefore we agree with that the Central authorities must bear in mind revisiting its contemporary vaccine coverage to make sure that it withstands with the Scrutiny of Articles 14 (Equality) and Article 21 of the Constitution”.

In its order, The Supreme Court has additionally directed the centre and states to make sure that at once cease any direct or oblique threats of prosecution and arrest the citizens who have grievances or the ones who are trying to help their fellow obtain clinical aid, failing which the Court shall lodge to contempt proceedings. Preventing clampdowns on sharing of facts on online platforms. It also stated that it is not just in the interest of the individuals sharing the facts, however the large Democratic systems of our Nation. (11)

The Constitution of India under Article 142, authorized the Supreme Court to apply any order, decree in the context of providing full justice in every case. One of the main pillars of the Constitution, Article 32 empowers the Supreme court to create orders, writs, etc. to apply fundamental rights. High courts of the various states are allowed to direct, create orders and issue writs under Article 226 in respect to the same.

Conclusion-

This is not the first time when the court had barged in to fill the Legislative Void. The right to health has been a topic of Jurisprudence since 1988. The above-referred scenario inculcated that the Supreme court and High Court each guarantees the protection of Human Rights from any type of violation. Whether there may be a contravention of the Right of Life or health etc. the judiciary system will come ahead and take a stand towards it.

By recognizing the committee, the authority to issue directives, the Court has entrenched a brand-new management system intending to fill gaps withinside the current system. In the approaching days, the Judiciary can be called upon to decide whether the State’s pointers are powerful or half-hearted. This will permit the court to deal correctly with the rampant violation of covid-19 patients Right to Health, promising the Right to Health, which has formerly existed on paper however failed in practice.

Testimonials-

  • Section 2 (d) of Protection of Human Rights Act,1993.
  • Representation of People Act,1951. Act No-43 of 1951.

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