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This article is written by Samridhi Shukla who is a student at Hidayatullah National Law University, Raipur. 

Abstract

The COVID-19 pandemic has shifted the entire world’s focus onto healthcare. As leaders across the globe struggle to reach the ideal of universal healthcare for all, we are often compelled into thinking- can healthcare be defined by a fixed number of parameters? Does it only entail medical treatment, or does it also include more diverse implications? What role does law play in administering healthcare? 

And finally, are our legal frameworks prepared enough to recognize and work upon the issues of availability, accessibility and affordability when it comes to medical care? The author seeks to examine laws and policies in place in 21st century India by putting them into broader socio-economic contexts existing in the country and forwards a more nuanced approach to healthcare and policy frameworks surrounding it that identify and respond to the special needs of socially and economically vulnerable communities in order to make current legal systems more holistic and inclusive, in both letter and spirit.

Introduction

Over the past few decades, scientists across the globe have been raising red flags against the grave repercussions land exploitation and human expansionist strategies can lead to. As we invade and destroy natural habitats and erect scintillating new cities, towns and industrial complexes every day, we often tend to forget that this era of rapid globalization comes with its own costs- frequently occurring global health pandemics being one of them. 

Hence, apart from issues of environmental sustainability, another crucial question thrown at us centers itself around the level of preparedness of our healthcare systems, and whether the State guarantees its citizens an equal footing and access to these.

In December 2019, a novel zoonotic virus known as the ‘coronavirus’ began to spread aggressively in the Wuhan city of China. By March 2020, the case count had already crossed way beyond the 1 million marks. 

As the disease mushroomed in over 114 countries killing thousands of people in its wake, the World Health Organization hastily declared the outbreak as a global pandemic on the 11th of March 2020.  During the press briefing, the Director-General heavily pressed upon the significance of human rights in ensuring healthcare and the welfare of citizens. 

Now, this correlation may push several of us into thinking- what do human rights and law have to do with healthcare? Do public health systems require a deeper societal evaluation than just the availability of physical paraphernalia, facilities and equipment? 

The Constitution of the World Health Organization (WHO) envisages health as a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. This essentially means that the concept of health and the systems surrounding it do not function in isolation. They incorporate within them broader socio-economic implications that either facilitate or hinder an individual or community’s right to health and access to healthcare. 

In the 21st century India too, the concept of public health has grown to be extremely nuanced and multi-faceted in nature. There exist several structural and functional imbalances that make access to healthcare exclusive in our market-friendly democracy. It is thus important for the Indian State to identify these disparities and build socio-legal systems that are well-rounded and sensitive to the needs of vulnerable and marginalized communities. 

The healthcare systems have come to be dominated by private players after the rapid neo-liberal reforms dating back to the early 1990s. However, the booming medical tourism sector and almost lavish, 5-star hospitals have a rather dark underbelly. 

As the government continues to shift its citizens’ fundamental right to health onto corporations selling healthcare for profit, the common man is slapped with exuberantly high costs on one side and a perpetually overworked and understaffed public sector on the other. While the country’s case fatality rate (CFR) is at a mere 2% compared to that of the West, it would be naïve to assume that the disease’s spreading has been brought under control by the authorities. 

A closer look at the situation points to a different reality. According to statistics, while China’s count of deaths per million due to COVID-19 is just 9, India is at a worrying 2324. 

We shall now condense and fit issues stemming from diverse cross-sections of the Indian society in terms of the ‘four As’ that is, availability, accessibility, affordability and acceptability and further examine how inclusive Indian law and policy is at present to provide universal healthcare and whether it can be enhanced and enriched in holistic ways to ensure a more inclusive system that serves true justice to the people of this country. 

Bolstering Archaic Laws to conquer newer challenges

In the late 1890s, colonial India was plagued by a deadly bubonic illness that devastated both the social and economic capital of the country within weeks of its emergence. It was then that the government introduced the Epidemic Diseases Act of 1897.

Section 2A of the Act gives the Central Government sweeping powers to formulate and implement rules and regulations necessary to contain the spread of the epidemic, while Section 2 provides State governments with the discretion to adopt special directives to adequately respond to the outbreak. 

This includes restriction of movement of goods and people, social segregation of infected persons, prohibition of religious pilgrimages and the like. 

However, the Act proves to be redundant in 21st century India due to several pertinent reasons. Firstly, the colonial piece of legislation bequeaths a very monolithic, all-powerful status to the government. While this might have suited the economic and political conditions existing when the Act was first brought out, it fails as a law being exercised in today’s laissez-faire economy. 

The rapid privatization of the medical sector has led to the slow death of public health infrastructure with economically marginalized sections of society being at their receiving ends. As more and more corporations take over the government’s job of ensuring equitable healthcare, its primary purpose shifts from the welfare of the public to that of maximization of profit. 

This phenomenon has come to be known as the medical-industrial complex. By commodifying something as indispensable to human survival as healthcare and viewing patients not as a valuable asset to society but as potential consumers of a profitable good, these companies put individuals’ right to life and human dignity in a precarious position. 

Policies of liberalization have successively peddled the illusion that financial allocation to the public healthcare system is a waste of resources and the economic capital of the country. The brunt of this dangerous hypothesis is being borne by the common people of this country today.

According to a recent report by the World Health Organization, India extended a mere 1.1% of the GDP towards healthcare in the year 2019. The paucity of funds inevitably reflected in the absolute chaos public health dispensaries was thrown into when the pandemic first struck. 

Patients seeking treatment were simply turned away from government hospitals due to lack of space, beds and equipment. Instead of owning up to the major discrepancies in the administration of medical care, these hospitals chose to delay or completely evade diagnostic testing, leading to a sharp rise in deaths that could have been easily avoided if the patients were tested and given timely medical attention. The non-availability of public healthcare automatically affected people’s right to its accessibility. 

Helpless and desperate, several family members of critical patients turned to social media to appeal to hospitals to take them in. As the case count skyrocketed, people were made to wait for days on end to even enter hospital premises. In Pt. Parmanand Katara v. Union of India it was held that no person shall be denied medical attention when they are in urgent need of it. Further, the Court maintained that it was the state’s obligation to preserve human life. This judgement happens to fall in sharp contrast with the harrowing realities the current pandemic has created for millions of Indians. 

While certain privileged sections of the society were able to overcome this predicament by getting treated in private hospitals charging exorbitantly high fees, economically weak sections who weren’t covered under health insurance schemes were left to fend for themselves and their families.

As of May 2020, the total percentage of unemployment in the country stood at a whopping 24%. The insecurity induced by the pandemic led to mass job terminations in the private and unorganized sectors, pushing economically backward classes into an even deeper state of deprivation, limiting their access to healthcare almost completely. 

This tragedy was most visible during the migrant crisis this pandemic gave rise to. On losing their jobs in cities, labourers and daily wage earners were left with no other choice but to return to their native villages and towns. Due to a lack of transportation facilities, they began travelling by foot in huge groups. 

Far from ensuring their right to healthcare, they were treated worse than livestock. Dehumanized, they were sprayed with chemicals and stripped of their fundamental right to dignity. By the time the Central and State governments swung into action, hundreds had already succumbed to starvation and disease. 

Healthcare does not only include the treatment of an illness. It also entails other equally instrumental factors like the right to food, transport and employment. Universal healthcare can only be achieved when the means to access medical care such as financial and social capital are sufficiently met. 

 By sidelining public health and denying access to healthcare to the people of this country, the government has failed in performing its obligation of protecting the fundamental right to life as enshrined in Article 21 of the Indian Constitution. In the landmark judgment of Paschim Banga Khet Mazdoor Samity vs State of West Bengal (1996), the Supreme Court held-

“Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Government hospitals run by the State and the medical officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life as guaranteed under Article 21.”

The scope of the 1996 judgement was further widened with the State of Punjab vs Ram Lubhaya Bagga and Rakesh Chandra Narayan vs State of Bihar. Both called for the need to read Article 47 under Directive Principles of State Policy along with Article 21 to ensure improvement of public health and standard of living. Through all these cases, the judiciary has consistently underscored the pivotal role healthcare plays in protecting the citizens’ Right to Life. 

It thus falls upon the State to adequately compensate the families and dependents of individuals who lost their lives due to a blatant dereliction and negligence of its constitutional duty. Secondly, instead of releasing relief packages for the currently unemployed, the government should focus on nourishing already existing schemes such as the MNREGA that provide for the social and economic security of people. Proper implementation of their ‘right to work’ may also augment accessibility and affordability to healthcare.

A few days back, the top Court issued firm directions to the centre to regulate COVID testing charges. Remarking on the lack of uniformity among states, the bench observed, “In some states it is ₹ 2,200 and in some its ₹ 4,500”. It is imperative for the centre and states to coordinate and fix a mutually agreed upon price for private testing to ensure it remains accessible and within the limits of an already strained common man’s pocket. 

Another rather perturbing issue that surfaced during the pandemic was the violation of citizens’ right to a dignified death and burial. Several videos of bodies of deceased patients being ruthlessly dumped into pits and reports of bodies ‘piling up’ in hospital mortuaries. One the most shocking ones was that of an octogenarian patient ailing from Covid being tied to the bed with chains over alleged non-payment of bills. 

While the contagious nature of the virus is such that it necessitates a higher degree of patient isolation, the state should respect people’s right to dignified death under Article 21 of the Constitution. Moreover, certain traditional practices are integral to individuals’ religion, and violation of these beliefs lead to a direct violation of Article 25 that entitles a person to inter alia freely practise religion barring the exception of public order, morality and health.

Apart from availability, accessibility and affordability, the factor of ‘acceptability’ is equally important. The World Health Organisation defines acceptability in administrating healthcare as ‘health workforce characteristics and ability (like sex, language, culture, age, etc.) to treat all patients with dignity, create trust and promote demand for services.’

The Calcutta and Karnataka High Courts took due cognisance of this. Respecting the citizens’ emotional and religious sentiments, the Calcutta High Court held, “The traditional belief in our country is that unless the last rites are performed before the burial/cremation, the soul of the deceased shall not rest in peace. 

This belief is deep-rooted in our country. It also has an emotional and sentimental aspect.” The Karnataka High court, while directing the state government to come out with strict guidelines held- “the dignity of the dead must be respected.”

The gaping question of accessibility for the marginalized 

Another major lacuna in the legislation currently in place to tackle the pandemic is that they fail to take cognizance of specific needs of marginalized groups of the society such as women, Dalits, Adivasis, Muslims, the LGBT+ community and people from the Northeast- several of them finding themselves at the treacherous intersection of two or more of these vulnerable identities.

Section 3 of the Protection of Women from Domestic Violence Act, 2005 opens up a wide ambit for protecting victims of abuse’s physical and mental health and wellbeing. It defines abuse as any act or omission as one that ‘harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse.

With the spread of COVID-19, victims of domestic abuse, the majority of them being women are faced with an unprecedented spike in violence, putting their health in a treacherous pool of inaccessibility and vulnerability. 

As per a United Nations report, cases of domestic violence rose by 20% worldwide during the lockdown period. While the Delhi High Court issued directions to the AAP government to implement the Protection of Women from Domestic Violence Act, 2005 in April this year, these directives lack uniformity. What we must understand is that most of these victims live in close proximity to their abusers. 

The government must give heed to their circumstantial limitations and adequately frame guidelines. These could include funding Non-Governmental Organizations already working to prevent violence against women, who in turn can use these grants to form rescue teams, set up local emergency booths, print pamphlets to spread awareness and educate women of their rights, distribute mobile phones to women, et cetera. 

A committee can be created to monitor and prevent the misappropriation of these funds. Another crisis they are facing right now is a threat to their reproductive rights and access to maternity healthcare. Several reports have emerged of women giving birth on Shramik trains. This causes a manifold increase in the possibility of infection and death. 

Women in rural and tribal areas are unable to access essentials like sanitary napkins and contraceptives due to lack of availability of these goods and delivery services. Hospital visits and maternity check-ups have come to a halt due to lack of transportation and fear of contracting corona. 

In India, Nurses and midwives constitute 83.4% of the total workforce of the medical sector. This essentially means that women not only face vulnerability as patients, they also face a high risk of infection as healthcare providers. Throughout the pandemic, reports of hospitals lacking Personal Protective Equipment (PPE) kits, sanitisers and disinfectants kept coming in. 

When the government refused to release data on the number of healthcare officials that had succumbed to the virus, often due to poor equipment, the Indian Medical Association came out with a list of total 382 frontline workers who had died of coronavirus as an act of protest against insufficient funds and unaccountability from the executive’s side. 

Very recently, around 5000 nurses went on an indefinite strike against certain new policies the AIIMS administration came out with, outsourcing of nurses being one of them. The process of contractualization has almost always led to the worsening of the conditions of the working class. 

Since women bear a disproportionate risk of infection, a gendered perspective must be adopted to protect their fundamental right to life and access to healthcare.

There was a huge spike in the number of cases of racial discrimination and violence against people from the Northeast during the pre-lockdown period. The fear of being hounded in public places including hospitals made healthcare virtually inaccessible for them. 

A woman from Meghalaya was forced to give birth in an ambulance after being prohibited from entering any hospital in the city of Shillong on grounds of belonging to a marginalized tribal community. 

The Indian society has a unique intersection of class and caste oppression. Despite government reservations, deep-rooted systematic hindrances in access to education and employment have ensured that a huge portion of their populations remains engaged with menial physical labour. 

Most casual labourers working in cities belong to lower caste backgrounds. Social and political apathy towards them has led to a gross violation of their right to life, livelihood and access to healthcare during the pandemic. 

A majority of sanitation workers including those working in hospital wards belong to Dalit and Adivasi communities. Despite the pandemic, their socio-economic conditions compel these people to carry out their jobs with no protective gear and minimal awareness in order to survive. 

Reports of Dalit migrants not being allowed to enter their villages or use main streets and roads bare the cruel face of the caste system thriving in modern India. In May this year, the Chief Minister of Uttar Pradesh, commenting on the migrant crisis said that 75% of the migrant workers were carriers of the disease, adding that a bulk of them were Dalits. Not only is this statement blatantly antipathetic and fallacious, it also strikes at the heart of Article 14, 15 and 21 of the Constitution. 

The queer and transgender communities also stand to be doubly disadvantaged due to the pandemic. Most transgender people in the country earn their living through begging or Commercial Sex Work (CSW). As the lockdown prevented them from carrying out either of the activities, their access to basic needs like food, shelter and healthcare have been severely affected. 

A case study carried out in 2014 showed how most people belonging to the queer community are unemployed and thus are likely to live in impoverished conditions in India. The stigma around their gender and sexual identity costs them their fundamental right to life, human dignity and livelihood, invariably affecting their right to healthcare as well. The pandemic has left them even more socially vulnerable and at a greater risk of contracting the disease due to improper living conditions and lack of access to medical care.

Another socially and politically marginalized community that bore the brunt of this pandemic is the Indian Muslim community. The country had witnessed a string of communally tinged legislations months before the coronavirus shook up the nation. However, far from acting as a conflict dispeller, the pandemic has only acted as a catalyst in entrenching the stigma around Muslims. 

The community has been demonized and used as a scapegoat on several occasions. This sub-humanization has hindered their access to healthcare. Instead of being given proper medical attention, Muslims involved in minor wrongdoings and breaches of civil law before and during the lockdown have been parroted as terrorists, disease-spreaders and ‘anti-nationals’. 

This hyper nationalist rhetoric has deliberately led to the ostracization of the community and prevented them from exercising their right to healthcare and human dignity. 

Social stigma and exclusion result in the individual’s mental health plummeting. While the government has started helpline numbers for students facing mental health issues due to the pandemic, it must also recognize and cater to the mental healthcare of socially marginalized communities in order to ensure their welfare. 

The way forward 

In Vincent Parikurlangara v. Union of India, Justice Mishra rightfully observed that a healthy body is the very foundation of all human activities, and in a welfare state it is the obligation of the state to enforce the creation and sustenance of conditions of good health. In Ram Lubhaya Bagga, the Court followed a similar trajectory and held-

“..The right of one is an obligation of another. Hence the right of a citizen to live under Article 21 casts obligation on the State.” Further bolstering this stance the bench highlighted the importance of Article 47 in striving to protect and preserve life-

 “(This obligation) is further reinforced under Article 47, it is for the State to secure health to its citizen as its primary duty. No doubt government is rendering this obligation by opening Government hospitals and health centres, but in order to make it meaningful, it has to be within the reach of its people, as far as possible, to reduce the queue of waiting lists, and to provide all facilities for which an employee looks for at another hospital. 

Its up-keep; maintenance and cleanliness have to be beyond aspersion. To employ best of talents and tone up its administration to give effective contribution. Also bring in awareness in welfare of hospital staff for their dedicated service, give them periodical, medico-ethical and service oriented training, not only at then try point but also during the whole tenure of their service. 

Since it is one of the most sacrosanct and a valuable rights of a citizen and equally sacrosanct sacred obligation of the State, every citizen of this welfare State looks towards the State for it to perform its this obligation with top priority including by way allocation of sufficient funds. This in turn will not only secure the right of its citizen to the best of their satisfaction but in turn will benefit the State in achieving its social, political and economic goal.”

Healthcare is not just strategizing disease prevention drives. It inter alia carries the right to human dignity, right to food, shelter and employment and right against discrimination within its ambit. Hence, we must adopt a multi-layered perspective to assessing healthcare policies and build on them by drawing in various socio-cultural standpoints. 

During the COVID19 pandemic, the government has for the most part failed to acknowledge and adequately respond to systemic biases that exist in the socio-economic scenario of modern-day India. It has failed in identifying underlying inequalities, hierarchies and vulnerabilities that shape individuals’ and communities’ capacity to endure a health crisis. 

It is however not too late. As we gather lessons from this pandemic to ready ourselves for the possible occurrence of the next one, it is imperative for the lawmakers of this country to reorient policies and legal frameworks towards specific needs of those who exist on the periphery of our country’s social and political landscape. 

As Kenneth Roth, Executive Director of the Human Rights Watch very eloquently puts it and I quote, “As governments scale up their public health response, the threat posed by COVID-19 is reason to affirm, not abandon, everyone’s rights.” We hence must work in solidarity with the marginalized towards a healthcare system that is holistic and all-inclusive in nature. One that protects all and discriminates against none.

References:

WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19 (World Health Organisation, 11 March 2020)  https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19—11-march-2020.

Arnold S. Relman, ‘The New Medical Industrial Complex’ (New England Journal of Medicine, 23 October 1980) https://www.nejm.org/doi/full/10.1056/NEJM198010233031703.

World Health Organisation, Global Spending on Health: A World in Transition (2019) https://www.who.int/health_financing/documents/health-expenditure-report-2019.pdf?ua=1

Centre for Monitoring Indian Economy, Unemployment Rate in India (2020)

https://unemploymentinindia.cmie.com.

Coivd-19 Victims Have a Right To Decent Burial As Per Religion under Articles 21 and 25: Calcutta HC Issues Guidelines (LiveLaw, 17 Sept 2020)

https://www.livelaw.in/news-updates/covid-19-victims-have-a-right-to-decent-burial-as-per-religion-is-part-of-articles-21-and-25-calcutta-hc-issues-guidelines-163074.

Karnataka HC Asks State to Frame Guidelines to Ensure Dignity of the Dead, Wages for Sanitation Workers (Bar&Bench, 28 Jul, 2020)

https://www.barandbench.com/news/litigation/karnataka-high-court-state-government-guidelines-dignity-dead-bodies-wages-sanitation-workers.

Phumzile Mlambo-Ngcuka, ‘Violence Against Women and Girls: The Shadow Pandemic’(April 6, 2020),

https://www.unwomen.org/en/news/stories/2020/4/statement-ed-phumzile-violence-against-women-during-pandemic.

World Health Organisation, Sudhir Anand and Victoria Fan, The Health of Workforce in India (Human Resources for Health Observer Series No. 16, 2016)

https://www.who.int/hrh/resources/16058health_workforce_India.pdf.

Harshit Agarwal, IMA Publishes list of 382 Doctors Who Had Died Due to Covid-19, Demands they be Treated as Martyrs’ (Hindustan Times, 17 September 2020)

https://www.hindustantimes.com/india-news/ima-publishes-list-of-382-doctors-who-died-due-to-covid-19-demands-they-be-treated-as-martyrs/story-hX0ELsr0LXk8UnBFQ0kIvJ.html.

‘Meghalaya Woman Denied Entry Into Hospital Gives Birth in Ambulance’ (The Sentinel, 10 July 2020)

https://www.sentinelassam.com/north-east-india-news/meghalaya-news/meghalaya-woman-denied-entry-into-hospital-gives-birth-in-ambulance-487926?infinitescroll=1.

‘Adityanath Remark on Migrant Leaders misleading, Anti Dalit’ (The Hindu, 26 May, 2020)

https://www.thehindu.com/news/national/other-states/adityanath-remark-on-migrant-workers-misleading-anti-dalit-congress/article31677986.ece.

M.V. Lee Badg

Bolstering Archaic Laws to conquer newer challenges

ett, The Economic Cost of Stigma and Exclusion of LGBT people: A Case Study in India (World Bank, 2014) https://openknowledge.worldbank.org/handle/10986/21515.

Joanna Slater and Niha Masih, ‘As the World Looks for Coronavirus Scapegoats, Muslims are Blamed in India’ (The Washington Post, 23 April 2020)

https://www.washingtonpost.com/world/asia_pacific/as-world-looks-for-coronavirus-scapegoats-india-pins-blame-on-muslims/2020/04/22/3cb43430-7f3f-11ea-84c2-0792d8591911_story.html.


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