This article is written by Shalini Mishra and Vartika Jain.

Introduction

The novel coronavirus (SARS-CoV-2) which caused COVID-19 has been rapidly spreading since its emergence in late 2019 from Wuhan province of China. But it was only on 30th January 2020. A few days after the first report of human to human transmission of the said virus were reported outside China, the World Health Organization declared the outbreak as a public health emergency of international concern. This declaration entails that all the countries are now required to prepare themselves for containing the virus, including early detection, isolation and quarantine facilities and contact tracing to name a few. 

Public health basically means the health of a community, and is usually concerned with the prevention of disease and its control at a population level, via means of organized efforts, etc. Since the outbreak of the virus, until now, the only suggestion medical professionals have to combat the epidemic is to avoid coming in contact with the virus and manage its symptoms. It is often said that healthy citizens are the biggest assets of any nation, and the States are combating Covid-19 just to protect the lives of its people. Additionally, apart from the general public health, as the reports show, the novel virus is also affecting the public mental health which can be deduced from significantly elevated rates of anxiety and stress.

The obligation of the Government to protect Right to life 

The primary duty of all the States to protect the lives of its citizens, maintain their standard of living and constantly working towards the advancement of its public health. The Supreme Court in Paschim Banga Khet Mazdoor Samity v. State of West Bengal held that the Constitution directs towards building of a welfare state at both federal and state level. Article 21 imposes an obligation on the state for the protection of life. The state discharges such duties by “running hospitals and health centres to provide to the person seeking to avail those facilities.” While interpreting Article 21 the Court decided that it is a duty upon the government hospitals and officers to extend medical services for preserving life. The failure to extend healthcare services by such institution amounts violation of article 21. The court further stated that the state cannot deny protection of life to citizens claiming that they lack financial resources. Therefore, the right to health is an integral part of the right to life imposes an obligation upon the state to provide medical assistance to individuals. 

The Constitution shall be interpreted in conformity with the International law, and India is a party to various international bodies which provide for similar safeguards as given under Article 21. For an instance, Article 6 ICCPR, 1976, Article 25(1) of Universal Declaration of Human Rights, 1948 and Article 7 of International Covenant on Economic, Social and Cultural Rights, 1976 imposes an obligation on the states to ensure an adequate standard of living to the subjects of the state. No other right has been infringed more comprehensively and systematically except the right to seek adequate living standard for health and wellbeing of a person.

Is India’s Public Healthcare System Prepared?

When there is a threat to public health, it becomes an issue of immediate concern, especially for those nations which lack basic medical facilities. One such country is India, which despite being the fastest growing economy, needs to seriously work upon its healthcare sector. India barely spends 1.15% of the total gross domestic product on healthcare sector, which is even lower than that of Sri Lanka, China, etc, and ranks 184th out of 191 countries in terms of GDP% expenditure. Years of neglect of the healthcare system, have only weakened India’s strength and capability to fight and eliminate any contagious disease, just like Covid-19.

As a response to the rising number of positive cases of Covid-19, Indian Prime Minister has imposed a lockdown in the entire country beginning from 25th March 2020. This lockdown has been extended and as of now have arrived at its third phase. Although the aim of this shutdown is to break the chain of the virus and control its spread, results show a totally opposite conclusion, i.e., ever since the lockdown happened, the number of such cases in India has only increased drastically. Considering the given population of the country (Area to population ratio) and the fact that the number of positive cases of Covid-19 has reached 50, 000 mark, lockdown cannot be the only remedy. We need to ensure tracing, community-based testing, testing at a larger scale, and most importantly we need to ensure the safety of our health care workers. 

Some other problems faced by the Indian healthcare system include:

• The doctor- population ratio is 1:1457, for 1.6 billion population, which is much lower than what is recommended by WHO i.e., 1:1000.
• Frequent reports revealing that people have been escaping quarantine homes or isolation centres. This is due to a lack of trust in healthcare mechanism and stigma attached to any public health emergency. People tend to discriminate towards the affected person.
• The rise of asymptomatic cases is scary. It has been revealed in a study that in India, out of the total number of people tested, 69% of them were found to be asymptomatic. There are chances that asymptomatic cases are being detected low and this will offer ample time for the virus to spread, which is problematic. 

Moreover, the fact that the virus did not even spare the countries like Italy, Spain, which are believed to have the best healthcare facilities, in itself is a warning that we as a country need to make efforts to keep the virus at bay and successfully combat with it. Moreover, if we rely on the data released by the 2019 Global Health Security Index, it has placed India (57) far below than China (51) and Italy (31), in terms of pandemic preparedness, where higher rank indicates higher vulnerability.

Other Human Right Concerns and COVID- 19

Covid-19 is a public health emergency which has been declared as pandemic and can infect and kill all classes of people, people of all ages irrespective of their race, sex, colour, language, religion or gender identity, political or another opinion, national, ethnic or social origin, property, disability, birth or any other status. The virus does not discriminate however its impacts do. 

Article 14 reads that the State shall not deny equal protection of the law and prohibits unreasonable discrimination. It embodies that similarly situated people should be treated equally and treating people differently if the circumstances justify such differentiation. The discriminatory practices nullify the inclusive approach and efforts of the government for containing the spread of virus. This right recognizes the role of State to provide for differences and specific needs of individuals that end up facing health challenges due to discriminatory practices by State or private actors.

Alakh Shrivastava v. Union of India highlights the plight of migrant workers who on the move to get to their home. The migrant workers who are equally vulnerable to virus are being denied the basic amenities during such trying times and they are forced to live in government shelters which are uneven, overcrowded and unhygienic with limited healthcare services. Moreover, the origin of Covid-19 has been associated with China which has resulted in rise of violence against Asians. The discrimination has also been directed towards the frontline workers, emergency responders and persons diagnosed with the virus.

The UN Economic and Social Council and UNHRC in its interpretation of Siracusa Principles justify restrictions and measures taken to protect the population to limit freedom of movement if a situation threatens the life of the populace. The Government is obliged to take actions which are lawful, necessary, and proportionate to prevent, treat, and control the epidemic, endemic, occupational and other diseases.

The right to freedom of movement in international human rights law, allows people to move to and from a country and the right of each person to move freely in their own country. The World Health Organization emphasizes that the government should take radical measures while being mindful of the fundamental rights of an individual in accordance with Article 3 of the International Health Regulation (2005).

Article 19(1) (d) of the Constitution of India permits its citizen “to move freely throughout the territory of India”. Moreover, Article 21 which guarantees right to life and liberty includes in itself the right to freedom of movement as restrictions on the same would curtail the liberty of an individual. However, the government has the authority under 19(2) of the Constitution to reasonably restrict the exercise of this right for the interest of the general public. The novel coronavirus or Covid-19 rises to the level that concerns the interest of the public health which justifies the restrictions and limitations imposed in accordance with law by the government in the form of travel bans, ensuring mandatory quarantine and lockdowns. 

The World Health Organization emphasizes that any measures could be taken for the protection of public health. Such measures should not be differential to the dignity, rights and freedom of an individual in accordance with Article 3 of the International Health Regulations (2005). In order to control the virus, a chain of infection is to be broken and the most common method resorted for such protection is self-isolation, quarantine and lockdowns. These measures are practical and essential for containing the transmission of virus which would consequently save lives and prevent the healthcare system from being overburdened. However, the imposition of nationwide lockdown can affect the economy severely but given the public healthcare system of India, such measures are necessary.

Right to health is related to the actualization of other human rights which includes access to integral information in order to take precautionary measures. The freedom of speech and expression enshrined under Article 19(1) (a) of the Constitution allows individual to express their opinions and ideas freely with certain restrictions provided in Article 19(2). The current situation asks for cooperation for people at extraordinary levels and to gather support from the public, the government needs to be open and transparent in the dissemination of information about the pandemic and the national response. 

Nevertheless, many countries have curtailed the right to freedom of expression by censoring and limiting distribution of information on governmental actions to contain the virus. Li Wenliang, a doctor in China who warned about the new virus was summoned by the police for spreading misinformation who later died after contracting the virus. Iran and Thailand used a pandemic as a pretext to limit the political opponents from spreading inactions on the part of the government.

However, states should prioritize the dissemination of credible information on a regular basis while eliminating the spread of misinformation which could create the situation of panic in the minds of the general public and aggravate the problem of the spread of infection. Additionally, states should take steps to provide internet services to those at risk to bring awareness of the novel coronavirus.

Conclusion

Coronavirus has posed unprecedented risks to the human rights of individuals whilst also protecting the lives of people from this health hazard. The right to life embodies in itself several other aforementioned rights along with the right to privacy, right to education and etc. The government is the representative of people should ensure the protection of all such rights proportionately in the light of current circumstances. Online methods should be used to alleviate the immediate impact on the right to education of children. However, the circulation of information through online methods should not impinge upon the right to privacy of any person. 

The states have an obligation to ensure that this public health crisis doe not turn into a human rights crisis as even the most developed countries are unable to provide access to basic healthcare facilities such as nationwide testing and treatment options. The measures taken by the government should provide for healthcare facilities accessible to all without any discrimination. The efforts made to curb the virus will only exacerbate the current crisis if human rights are curtailed due to a slump in the economy. It is essential for the states to respond reasonably by taking into account the human rights and adopting the democratic governance structure for protection of rights and reduction of inequality in the country.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: