This article has been written by Rahul Gupta.

Introduction

The tragic failure of complete medical infrastructure in the country resulting in large number of casualties and sufferings caused to the citizens all over the country and for this loss, all the governments at Centre, State & Union Territory level shall be held responsible and liable for compensation as well as for all other reliefs as available to them under our Constitution of India and other laws, both civil and criminal as applicable. 

Present situation

Currently, with India recording the highest single day total of COVID-19 cases globally, cases recorded on 2 May, 2021 being 3.68 lakhs, there is a complete and absolute tragic failure of the medical infrastructure in the country resulting in a large number of casualties and other serious problems and sufferings caused to the citizens all over the country. For this loss caused to people of all ages in the country, all the governments at the Centre level, State level and of the Union Territories must be held accountable & liable for compensation and for all other reliefs as available to the victims under our Constitution of India and under both the civil and criminal laws of the country as applicable. 

Our hearts are heavy and full of grief and pain and with huge sympathy for all the fellow citizens who have lost the lives of their near and dear ones in the recent days on account of  COVID-19. This has been on account of the non-availability of proper medical facilities, primarily not getting beds in the hospitals all over the country, and if the victims got the bed, they could not be given ICU beds with ventilator facility and if the above two options were made available then there was no oxygen supply in the hospital (government or private). 

People who were suffering have even lost their precious lives on the streets while waiting to be given the adequate and requisite medical healthcare that they, as citizens of this country, have the absolute & fundamental right to access and avail. 

Remedy

At this crucial time, we also as the custodians of rule of law in the country, feel it our duty towards all the citizens who have suffered this hardship and are fully entitled and within their legal rights as enshrined in the Constitution of India to approach the Constitutional courts in the country invoking the Article 226 before respective High Courts for filing for suitable monetary compensation and for all other reliefs including for reprimand against the respective government authorities be it the Central Govt, State Govt or the Govt. of the Union Territories.  

Claiming compensation for violation of fundamental rights is settled law in this country.  Under the writ petition which may be filed before the respective High courts of the country,  citizens may seek appropriate compensation for family members lost due to shortage of oxygen, framing of policies by the Ld. Courts for the financial help to be directed to the citizens and appointment of a committee for overlooking and supervising the entire process. 

Government’s failure

It has been a clear & admitted case, with no plausible defence available, where it has been a  total failure on the part of respective governments in the country in protecting the most valuable fundamental rights of health and right of life of its citizens during this pandemic. None of the authorities has any answer today why the oxygen supply was not available in the hospitals for the patients in a time of dire need to protect the most valuable human lives. The citizens of the country are fully within their fundamental rights to sue the government authorities not only for monetary compensation but at the same time for holding them accountable and guilty being responsible for causing this utter failure & chaos resulting in deaths and suffering of the citizens of this country. 

Judiciary on the issue

In a number of cases, the Hon’ble Supreme Court of India has held the right to health to be covered under Article 21 of the Constitution of India. Further, Hon’ble Supreme Court in the matter of ‘Occupational Health and Safety Association Vs. Union of India (AIR 2014  SC 1469)’ held that “it is the duty of the Government Hospital to provide timely medical  treatment to a patient in need of such treatment.” 

The Division Bench of the High Court of Bombay very recently in a PIL filed by a citizen titled  ‘Pratibha Shinde vs Principal Secretary’ has clearly observed on 27 January 2021 that: “In a  welfare state, it is the primary duty of the government to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligation undertaken by the government in a welfare state… The preservation of human life is of paramount importance. The government is duty-bound to provide timely care of patients in serious conditions. Medical facilities and treatment cannot circumvent at any cost.” 

The Hon’ble Supreme Court in the matter of ‘Pt. Permanand Katara vs Union of India (AIR  1989 SC 2039)’ held that, “failure on the part of the government hospital to provide timely  medical treatment to patients in need of such treatment would amount to violation of right to  life.”

Most recently, the Allahabad High Court on 04 May 2021, in the Public Interest Litigation  (PIL) Case No. – 574 of 2020, held “We are at pain in observing that death of Covid patients  just for non supplying of oxygen to the hospitals is a criminal act and not less than a genocide  by those who have been entrusted the task to ensure continuous procurement and supply chain  of the liquid medical oxygen.” 

Furthermore, the High Court of Delhi has ordered strict directions to the Centre to provide the requisite oxygen to the Union Territory of Delhi in the case of ‘Rakesh Malhotra v. Govt. of  National Capital Territory of India’ and in fact as recent as 4 May 2021, the Ld. Court observed that “We are facing the grim reality every day of people not being able to secure exygen beds or ICU beds. The situation has come to this that hospitals and nursing homes have had to reduce the number of beds offered by them because they are not able to service their existing capacities, due to a shortage of medical oxygen. On the one hand, there is a need to  augment the capacities to meet with the rising numbers of COVID-19 positive cases; while on  the other hand, the existing infrastructure is crumbling and the bed capacity, even though  available, cannot be put to its full use.” 

Conclusion

In these times we as custodians and protectors of law have to take it upon ourselves to make the current situation better for all the citizens of this country and to make sure that the rights of all citizens are protected. Though no amount of monetary relief may ever be sufficient to pair the emotional loss, pain and agony suffered by the families, it is imperative in the present tragic time to balance one’s own mind & recover from the tragedy. Besides the remedy available to the citizens under our Constitution against the government authorities, there may also be circumstances where they may be advised to exercise their civil rights for compensation and other reliefs against private hospitals in the civil courts under original civil jurisdiction and also exercise the rights to prosecute & punish all the authorities & individual persons at all levels who were responsible and under the duty to protect the life of the citizens under the criminal law machinery.

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