Aftermath Covid-19: A Reminisce to Better Health Law

Introduction

The aftermath of the Covid-19, India exposed its worst side of the healthcare system to country people and the world. Critics flowed from all over the world probing the non-availability of basic equipment for healthcare which is one of the basic human rights. The enigma surrounds the poor healthcare system of India destructed immensely at the times of the Covid-19 when there was not enough prerequisite to tackle the pandemic.

The fundamental right to health is not explicitly recognised in the Indian Constitution. Article 21 of India’s Constitution, on the other hand, protect fundamental rights like the right to life and the right to live with personal liberty. In this article, the term “life” refers to a life of human dignity, not only survival or animal existence.

It has a far broader definition that includes the right to livelihood, a higher standard of living, and sanitary working and recreational environments. The right to health is fundamental to living a dignified life, and Article 21 should be read in conjunction with Articles 38, 42, 43, and 47 to grasp the nature of the state’s commitment to enabling the effective implementation of this right.

Constitution makers of India put health in part- IV of the statute, i.e., Directive Principle of State Policy (DPSP). The idea behind putting health under Part- IV was to oblige the government to make policies for the public good. However, it is probable that makers did not think that the government of the country will overlook public health gradually and fundamental rights would be given more priority over DPSP. However, since then the country was busy outdo the dilemma disregarding extensive investment in the healthcare sector. Data obtained from the Financial Year of 2018, the total expenditure on public health was 1.3 percent of its GDP in India.^[1]

Constitutional Expressions and Right to Health

We know that the Indian Constitution, nowhere, expressly guarantees the Right to Health. However, the Constitution is not exhaustive and invites all future amendments to it. Democratic socialism embodies the notion of providing better healthcare to the citizens of the country.  “Right to Health” is nowhere mentioned in the Constitution as a fundamental right but subsequently numerous provisions are made.

In a famous case, the Supreme Court cleared that right to live with human dignity is preserved under Article 21 of the constitution has direct relevance with Article 39 (e), 39 (f), 4,1 and 42 of Directive Principles of State Policy. However, article 21 should incorporate protection of health for workers, men, women, and children. Further, the court added that the protection of health cannot be struck down by any government.^[2]

Right to Health is a Duty of Government as Obliged under DPSP

There are scattered provisions under Part- IV of the constitution regarding healthcare. It is also important to look at how the government will manage to make the system work, therefore generating benefits for everyone overall. Not everyone in the country is vulnerable. In the United Kingdom, adults aged 60 or above or any vulnerable class gets free healthcare assistance.^[3]

In the 1940s when venereal disease (VD) became a problem in the USA, the government started captivating the infected ones and provided free healthcare assistance. Not only that, Newfoundland was at worst when World War- II began but with free health aid, the ratio of Tuberculosis reduced tremendously. Poverty from the last decades was alleviated with a good correlation. People started to become aware of the potential of their country’s potential. Fertility and mortality came into balance as people becoming more aware leading to a boost country’s economy.

Rural Population: Health should be treated as a Basic Human Right as so it is

As a federal country, India has bestowed Panchayats and Municipalities a hand to make democratic decentralization effectively. Schedule 11 and Schedule 12 of the Constitution of India provide proper abettance of clean drinking water, conventional infrastructure, adequate sanitization, promotion of prosperity of women and children implying overall welfare in a territory of few residents with other things.

Another aspect is that some people are aware of the fact that they can reach out to the medical healthcare team for help because they are not exposed to medical terminology. Even if people know, the bills and expenditure give rise to reluctance. Only 0.5 percent of rural people enjoy the basic facilities of proper sanitization.^[4] Many problems have not ever been spoken about yet.

Right to Health and Fundamental Rights

Speaking of healthcare to give a shape of a fundamental right, a person can live his life with ease of physical and mental wellness. However, “Right to Health” is directly associated with the Right to Life covered under article 21 of the Constitution. India is a part of international covenants and here Supreme Court also declared that Article 21 should be in conformity to these international covenants’ laws.^[5]

Everyone has the right to live peacefully, mental and physical, under the right to life covered by Article 21 as a fundamental right protected by the constitution and no one is excluded from this privilege. Since there is no room for the oblivion of discrimination, how non- prudent person can seek healthcare assistance on his own if he has no one to taken care of.

Equality and Health

Equality in healthcare aid can make a major difference in lifting health barriers. Everyone should be treated equally and equals equally.^[6]

Equality Healthcare means giving the same access to health services to everyone. The notion does not discriminate between rich or poor. The main aim is to provide amiable treatment to all the people across a state. Another terminology is equity in healthcare which is different from equality in healthcare. It means providing assistance to everyone according to their vulnerability. The main aim is to bring everyone to the same margin where healthcare aid is equally provided.^[7]

No Profession Can Risk Public Health

Practicing any profession so extensively cannot do anything for anyone. However practicing any task, trade, occupation which can lead to damage to public health is prohibited.^[8] The Supreme Court directed that professionalism cannot be barred to which public peace, health, and safety can be risked.^[9]

The consequence of having factories foundations near our house could have created conditions to survive but maybe not so bad like World War- II bomb attacks on Hiroshima and Nagasaki or Chernobyl Nuclear Power Plant but strict liability and absolute liability did justice for public welfare. As when the constitution of our country was in making, the Constituent Assembly reproduced three lists and made health as state matter to look after.

The Fifteen Financial Commission chaired by N.K. Singh demanded that health should be shifted to concurrent list as the centre will do a better job in directing states and it will repeal the existing inequality between states’ resources for access to better healthcare. Not only this, the chairman devised the idea of Developmental Finance Institution (DFI) to provide funding healthcare.

Factors that Worsen India’s Health Condition

The health system in India is struggling to cope with a record number of Covid-19 incidents -The second wave of the Covid-19 was substantially more deadly than the first wave, not just in terms of infection rate but also in terms of the death rate. While it is true that cases were falling before March and no one predicted the second wave, it cannot be denied that the government’s decisions were not only flawed but also a major cause for the lockdown. There are several instances of government intervention that can be debated in terms of how they not only helped spread infection but also ruined our country’s Right to health.

Elections Hosted in West Bengal, Assam, Kerala, and Tamil Nadu, As Well as Local Council Elections in Some Parts of Uttar Pradesh And Telangana States.

Despite the increase in cases and efforts to limit election-related events, campaign rallies and voting have continued in some states. The BJP, India’s ruling party, has dismissed the possibility of a connection to the increase in infections.

“Rising cases have little to do with religious or political meetings,” says BJP’s Dr. Vijay Chauthaiwale. After dropping steadily since mid-September 2020, India’s daily case numbers started to rise at the end of February.

Meanwhile, political parties in India have been campaigning for state elections in West Bengal, Assam, Kerala, and Tamil Nadu, as well as local council elections in parts of Uttar Pradesh and Telangana. This has been going on since early March, with voting beginning in late March and continued to April.^[10]

Are Election Rallies to Blame for the Increase in Cases?

On April 22, limits were imposed on large public gatherings, restricting political meetings to 500 participants as long as they could be conducted in compliance with the Covid-19 safety rules; however, before, elections often included several demonstrations with large audiences – with little social distancing and very little mask-wearing.

A court in Tamil Nadu publicly chastised the commission for failing to intervene earlier to prevent large public rallies. The Madras high court said, “Your institution is singularly responsible for the second wave of the Covid-19.”

The number of regular Covid-19 cases in West Bengal has been steadily increasing since the second half of March, with very sharp increases after that.

Elections were held in West Bengal, Assam, Kerala, and Tamil Nadu, and it is up to you to determine if the elections were responsible for the spike or not. The number of regular Covid-19 cases in West Bengal has been steadily increasing since the second half of March, with very sharp increases after that.

Other election states, such as Assam, Kerala, and Tamil Nadu, saw similar large increases in late March or early April. Another problem was that these spikes only surfaced after the election results were released, implying that the public was being fooled.

Allowing India’s Kumbh Festival

Throughout Uttarakhand, the explosive 1.800 percent increase from 31 March to 24 April, coincident with the Mahakumbh Haridwar time, suggests a congregation that might have become a super spreading occurrence in the country. Before the incident, there were 1,863 active cases in the hill state (March 31). However, since the event began on April 1, the number of active cases has risen to a stunning 33,330. (April 24). According to government figures, over 35 lakh people congregated in Haridwar on April 12, with the amount rising to more than 13.51 lakh on April 14. Both days were thought to be fortunate for ceremonies.

“It would be incorrect to suggest that the event is to blame for all of the cases, but the increase has coincided with the festival”

This critical analysis of government faults during the times of the Covid-19 pandemic. Besides this, the suggestion has been put forward with enough facts to make the Right to Health a part of Part- III of the Constitution of India.

Infrastructure

Infrastructure is the physical presence of equipment for providing physical associated services. With less than six beds for 10,000 people, the country’s infrastructure has proven to worsen the strengthened healthcare infrastructure.

The country ranked 155^th out of 167 countries in bed availability as said by the report of Heath Development Report 2020. Smaller countries like Bangladesh are above India.^[11] The target of promoting more investment for infrastructure is not by comparing one to another instead allocating more resources into infrastructure development.

Not all the countries were ready to face mortality, the pandemic delineated the lack of non-availability. The important factor, here, is to broaden the qualification level to employ more doctors and nurses for well-built infrastructure for battling another lockdown and pandemic. The African Economic Outlook of 2018 of the African Development Bank pointed at another side of the coin as lack of infrastructure slowed human development and child high mortality as Health insurance coverage.^[12]

Expensive Treatment

Private hospitals are the stem foundation of the country’s healthcare. These hospitals bolster the country to curb the ailment at the times of pandemic of the deadly virus.

The lack of infrastructure and surged the Covid-19 cases gave to averted to the private hospitals to cut expensive bills. From time to time, the headlines were filled with the hypocrisy of private organizations and it failed to prove the humanitarian existence during the tough times.

There were many hospitals in Uttar Pradesh that turn downed patients because there was a lack of types of equipment. In the five-judge bench, the Supreme Court of India has clearly stated that the right to live with dignity is simply a process of dying. However, everyone has the right to die with dignity.^[13]

No Compulsion of Health Insurance

As of 2018, over 54 percent of the population has no coverage of medical insurance in India. The main reason for this huge gap is because people are not aware of possible future medical care and also medical insurance is optional in India. There is no government-based organization to target to provide health insurance to everyone.^[14]

In India, private health insurance is expensive that people do not show interest in investing in insurance. However, poverty is linked to the above-mentioned factor.

In countries like Japan, Germany, it is necessary to be covered under health insurance as these insurance policies made access to health facilities easier.

Covid-19 Vaccination: India Vs. The Rest of the Globe

India is the world’s largest vaccine manufacturer. We manufacture roughly 60% of the world’s vaccines. UNICEF relies significantly on vaccinations manufactured in India for its global health programmes. The reason India has emerged as the world’s largest manufacturing base for vaccines is not only due to the low cost of production and clinical trials; this low-cost advantage is shared by other developing countries as well. However, India has the capacity to provide them on a large scale. The second major factor is that India has a big pool of talent accessible to meet a variety of pharmaceutical industry needs. It all stemed from investments made more than 70 years ago. The Hindustan Antibiotics Limited is a public sector corporation, and already producing penicillin in 1955.^[15]

Absence Of Public Health Emergency Law in our Country (PHE)

There is no unified, integrated PHE preparedness and response code in India. Legal provisions on PHEs cover several central and national legislations including legislation dealing with epidemics and infectious illnesses, legislation on disaster management, the law on public health, and criminal law.

The legislative architecture of PHEs is dominated by two main legislations-

1. A) The Epidemic Diseases Act solely provides the authority with no government obligations, duties, or constraints (these issues are mainly duplicated in State laws during the Covid-19 pandemic) and;
2. B) The Disaster Management Act gives the government powers and responsibilities for disaster management, but it is not a PHE-focused law, thus it doesn’t provide PHE preparedness and response.^[16]

As a result, in order to address its various shortcomings and include the components needed in modern PHE legislation which is acceptable to the Indian environment, an existing Indian PHE legal framework has to be revised. The following are some of the issues to think about at the national level-

• Ability to manage PHE readiness and reaction activities of administrative infrastructure;
• Scope of PHE law – if restricted to global responsibilities or national administrative tasks.
• The structure, functions, and purview of monitoring and accountability mechanisms.
• Applicability of State laws and the norms for assigning duties to different levels of government.
• The structure and phrasing of right under a PHE legislation, along with the level of information needed, the rationale for defining related duties, as well as the kind and availability of violation remedies

This will necessitate the participation of experts and consultation with relevant stakeholders from the government, various public health policy sectors, society, and disadvantaged people who have suffered unfairly as a result of the tragedy.

International Instruments on Right to Health

The right to health is an essential component of our human rights and our concept of what it means to live a dignified life. To give it its proper name, the right to enjoy the best attainable degree of physical and mental health is not new. For the first time, the term “health” was defined by World Health Organization (WHO) Constitution in 1946 that “a state of complete bodily, mental, and social well-being, not only the absence of sickness or infirmity.”

The right to an adequate standard of life was also addressed in the 1948 Universal Declaration of Human Rights (art. 25). In 1966, the right to health was given recognition as a human right in an international treaty- International Covenant on Economic, Social and Cultural Rights.^[17]

International Covenant on Economic, Social and Cultural Rights, art. 12

The States Parties to the present Covenant recognise that everyone has the right to the best physical and mental health that is possible.

The efforts that States Parties to the current Covenant must take to fully realise this right include those that are required for:

(a) The provision for the reduction of stillbirths and infant mortality, as well as for the child’s healthy growth.;

(b) All areas of environmental and industrial hygiene must be improved.;

(c) Epidemic, endemic, occupational, and other diseases prevention, treatment, and control;

(d) The establishment of conditions that would ensure that all medical services and attention would be available in the case of an emergency sickness.

Beginning with the Universal Declaration of Human Rights, international standards on the right to bodily and mental health have been established. Following that, instruments are classified into the following categories:

• Core International Human Rights Treaties
• International Human Rights Treaty Bodies
• Other Universal Standards
• Standards for specific groups
• International Humanitarian Law
• Regional standards

Pandemic Unprecedented and Fragmented Global Response

The Covid-19 pandemic has produced difficult legal concerns that will require rigorous investigation once the current crisis is brought under control, amid enormous uncertainties engulfing practically every sector of the global community. The lack of worldwide norms and detailed instructions for responding to a pandemic is particularly concerning. The World Health Organization (WHO) performs an important role, although its responsibilities are mostly limited to gathering statistics, disseminating information, and issuing recommendations, rather than acting as a global coordinator coordinating between international organisations and countries. As a result, practically everything is left to the discretion of the individual. ^[18]

COVID-19 Demonstrates the Importance of Concerted Efforts For A More Strong Worldwide Health Infrastructure.

“The outbreak of COVID-19 has served as a clear and terrible reminder that no one is secure unless everyone is secure.”

As part of substantial reforms envisioned by member states, the president of the World Health Organization has called for a rapid start to global negotiations to agree on an international convention on pandemic preparation.

WHO Director-General Tedros Adhanom Ghebreyesus told the UN health agency’s annual ministerial assembly that maintaining the present level of the Covid-19 response was a “severe challenge” that required long-term and flexible support.^[19]

On 30 March 2021, in an extraordinary joint call, 25 heads of government and international agencies gather to establish a more powerful global health architecture that would protect future generations; the international community should work together “towards a new international convention for pandemic preparedness and response.”

A worldwide pandemic treaty supports and concentrates on:

• Early pandemic detection and prevention.
• A new treaty would highlight the necessity for high-level political action to safeguard the world against future health disasters.
• Responding to any future pandemics by providing widespread and equitable access to medical remedies, including vaccines, medications, and diagnostic products.
• A stronger global health framework with the WHO as global health coordination authority.
• The ‘One Health’ strategy links human, animal, and planetary health.

Especially in several important areas such as monitoring, alerting, reaction, and general trust in the international health system a Treaty might strengthen international collaboration.

Conclusion

The latest measures taken by the UN and other significant UN bodies show us the need for a specific code not only focusing on issues linked to the Covid-19 but also decisive for future health problems. Therefore, like all other nations, our country India should be included in these treaties which are critical in combating the problems, and that it is a winning position for the government and also the general public of our country that we should consider implementing a robust health law.

The British government drafted the Epidemic Act of 1897 to limit the spread of bubonic plague. The bubonic plague made its initial appearance in Bombay, and the disease quickly spread to other sections of the city, with an estimated death toll of 1900 persons each week for the remainder of the year thus that archaic law cannot be utilized to battle and assist the people of the world’s second-most populous country in emergencies such as the Covid-19.

To enable individuals to exercise their right to health, the government must take the lead and take significant measures toward new robust laws for our future. Public health is referred to as public health services as part of population based services. Individuals and businesses might be forced to protect the community by health officials.

It addresses the link between both the community and the government, because the state does not only have the authority but also the obligation to preserve the health of the people. India should consider updating its public health legislation not just by consolidating the “Social Model” of Montgomery as well as by promulgating a public health legislation that includes pandemic preparedness as one of its components.^[20]

End Notes

^[1] Public health expenditure as a share of India’s GDP from financial year 2010 to 2018, Statista Research Department , https://www.statista.com/statistics/953163/india-public-expenditure-on-health-as-a-share-of-gdp/ (last visited Jul. 21 , 2021).

^[2] Bandhua Mokti Morcha v. Union of India, (1997) 10 SCC 549.

^[3]Roosa Tikkanen, International Health Care System Profiles England , The Commonwealth Fund, https://www.commonwealthfund.org/international-health-policy-center/countries/england/ (last visited Jul. 25 ,2021).

^[4] Sharma RK, Dhawan S. Health problems of rural women. Health Popul Perspect Issues. 1986;9:18–25.

^[5] People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301.

^[6] INDIA CONST.art.14.

^[7] Andria Bianchi, Equality vs. equity in a publicly funded healthcare system, Hospital News, https://hospitalnews.com/equality-vs-equity-in-a-publicly-funded-healthcare-system/ (last visited Jul. 22, 2021).

^[8] INDIA CONST. art 19 ,cl.1(g).

^[9] Burrabazar Fire Works Dealers Association and Others v. Commissioner of Police, Calcutta, AIR 1998 Cal.121.

^[10]BBC NEWS, https://www.bbc.com/news/56858980/ (last visited Jul. 5,2021).

^[11] Human Development Report 2020 , United Nations Development Programmeunited Nations Development Programme, (Dec.15, 2020), http://hdr.undp.org/sites/default/files/hdr2020.pdf/.

^[12] Zinhle Mncube, Infrastructure in times of crisis, University Of Stellenbosch Business School (Jun. 19, 2020), https://www.usb.ac.za/alumni_news/infrastructure-in-times-of-crisis/.

^[13] Common Cause v. Union of India 2018 SSC OnLine SC 208.

^[14]Livemint , https://www.livemint.com/Money/YopMGGZH7w65WTTxgPLoSK/56-Indians-still-dont-have-a-health-cover.html/ (last visited Jul. 6,2021).

^[15] Times of India, https://timesofindia.indiatimes.com/india/india-is-the-worlds-largest-producer-of-vaccines-so-why-a-shortage-today/articleshow/82018420.cms (last visited Jul. 8,2021)

^[16] Vidhi Center For Legal Policy, http://vidhilegalpolicy.in/research/what-should-a-public-health-emergency-law-for-india-look-like / (last visited Jul. 10,2021).

^[17]The Right to Health, Office Of United Nations High Commisioner For Human Rights, https://www.ohchr.org/documents/publications/factsheet31.pdf/ (last visited Jul. 7, 2021).

^[18] Jaemin Lee, IHR 2005 in the Coronavirus Pandemic, American Society Of International Law https://www.asil.org/insights/volume/24/issue/16/ihr-2005-coronavirus-pandemic-need-new-instrument-overcome-fragmentation/ (last visited Jul. 7, 2021).

^[19] UN NEWS, https://news.un.org/en/story/2021/05/1093072 (last visited Jul. 5, 2021).

^[20] Chiradeep Basak, India Is in Need of an Inclusive Public Healthcare Law to Combat Pandemic, Jurist (Apr. 14, 2020),  https://www.jurist.org/commentary/2020/04/chiradeep-basak-public-health-law-india/.

This article has been contributed by Aishwarya Gautam and Peeyush Gautam, who are students at Dr. Ram Manohar Lohiya National Law University.