Hypoxia & Right to Life

Image Credit: Zhen Hu

Historically speaking, the year 1918 remains a very important one for the Indians given the impact it had on their basic human rights. Among the other things, the year was marked by two peculiar events that had direct bearing on the human rights— one that led to initiation of the battle for the recognition of basic human rights of the Indians and the other that made humanity realise as to how imperative real and non-puffed preparedness is for preservation of human rights, especially the most fundamental one i.e. Right to life. The former event is related to a special session of the Indian National Congress held in Bombay in 1918. The session culminated into an extraordinary demand whereby the members stressed upon expressed declaration, in the Government of India Bill, of the Indians as British citizens. It was further demanded, among others, that the right to life and liberty of the Indians be expressly recognised and protected therein. With this began the National struggle to legally secure the basic humans rights. The actual protection of human rights, however, requires a lot more than mere paper-based recognition. The very same year was marked by yet another event that would wreak an absolute havoc on the human life across all borders— the Spanish flu. The pandemic, touted to be the most severe of all time, infected as many as 500 million people and took at least 50 million lives around the world in four different waves. The second one turned out to be the most deadly of them four waves, especially for India. An estimated 17-20 million people succumbed to the flu in India alone, a figure which was highest among all other countries. The said event reminded the humans– at the top of food chain– how actual protection of human rights, indeed, demanded a lot more than mere paper-based recognition. It demanded real and pragmatic preparedness to tackle exigencies that had extraordinary ability to put human life in adversary. The problem of Spanish flu vanished by the end of 1920 and so did the lingering danger on human life. The quest to secure the basic human rights for Indians, too, succeeded in 1949 after the Indians gave to themselves the Constitution of India (hereinafter- the Constitution). Fewer would have imagined or prognosticated that decades later India would, yet again, encounter a very similar situation as it did in 1918. With the advent of yet another catastrophe in Covid-19, the lingering danger over human life has resurfaced. As has resurfaced the need of preparedness for preservation of the human rights, especially right to life.

It cannot be emphasised enough how apocalyptic the second Covid wave has been for India. Despite the fact that the pandemic remains less virulent than the Spanish flu, it resembles a stark similarity, in its pattern, to the latter. The pair began with a mildly virulent first wave which affected the comorbid elderly and then later evolved into a chaotically virulent second which proved fatal for adults below 50 years. Common people, once again, were rendered without firewood to cremate their kith and kin. And once again were the rivers clogged up with dead bodies, similar to the picture narrated of the Spanish flu by Suryakant Tripathi Nirala. India, as of now, has witnessed a next to 29 million cases and an estimated 350k deaths in two Covid waves, second of which proved largely fatal. Major media groups have labelled, and so have the people in general, the death count an ‘underestimate’ as it is being suggested that the real figures could be appalling. The second wave, which is now sloping down, engulfed the entire country between March and May. Visuals, as captured and narrated, are suffocating— overcrowded crematoriums, floating dead bodies in Ganga, hospitals running out of beds and oxygen, patients drowning to their fluid-filled lungs inside ambulances and outside hospitals, people pleading for oxygen and drugs over social media and a never-ending queue waiting for a refill of oxygen. A great many parents lost their children and as many children were orphaned, the country has truly suffered an irreparable damage in past couple of months. Shortage of medical oxygen has, perhaps, been the most noticeable cause of the Covid deaths. The wrecked position of the healthcare system came into common cognizance as the hospitals, across most states, went through a massive shortfall in oxygen supply. Main reason of the said shortfall has been the myopic vision of the bureaucrats who were resting on their laurels instead of preparing for the second wave. It is learned by this author after sifting through numerous datasets that as many as 11 states, including Uttar Pradesh, Madhya Pradesh etc., were dependent for their oxygen supply upon Odisha alone. Odisha dispatched 9966 MT of medical oxygen to these 11 states between April 22 and May 9. Majority of the oxygen production plants are, indeed, concentrated in the eastern part of the country and thus transportation of oxygen to the northern and western part of the country consumes a lot of time. This became a major impediment in expeditious supply of medical oxygen to the western states. It is known that India has a capacity of producing 7000 tons oxygen a day, majority of which is for industrial purposes. The decision, by the Centre, to direct the entire capacity for medical use came only in late April when the condition aggravated. Had these directions been passed earlier, oxygen production been ramped up and scrutiny of healthcare system been conducted beforehand, the Indians would definitely not have paid such a heavy price. And needless to mention the improprietous act of hoarding oxygen cylinders, concentrators and life saving drugs which further worsened the situation.

The Madhya Pradesh High Court, recently, took the issue of non-availability of oxygen into cognizance suo motu. In an order dated April 19, the court observed that the miserable failure of the government to ensure availability of treatment to the poor and needy amounted to violation of right to life enshrined in Article 21 of the Constitution.

Article 21 under Part IV of the Constitution enunciates that:

No person shall be deprived of his life or personal liberty except according to procedure established by law.

The Preamble of the Constitution assures dignity of the individual and Article 21 is nothing but an expressed realisation of the said assurance. Going by the idea of Ronald Dworkin, assurance of dignity of the individual signifies that an individual shall have the liberty to decide, for himself/herself, the notion of a good life and thus live his/her life accordingly. A guarantee of right to life basically ensures favourable conditions which make one’s life livable. Right to life, hence, remains the most fundamental one of all the rights enshrined in Part IV of the Constitution for absence or impairment of the same would render every other right futile. It is, indeed, the most fundamental basic human right which is the reason why it has been stressed upon by Universal Declaration of Human Rights under Article 3. Justice Krishna Iyer suggested that life is not mere animal existence but the enjoyment of basic minima of creature comforts which makes life livable. Right to good health, thus, becomes a natural concomitant of right to life as a good health is one such favourable condition or basic minima that makes life livable. Guarantee of good health is not dependent upon a good healthcare system only but a number of other social, economic and scientific factors like nutrition, lifestyle, education, livelihood etc. Good health of the society would be ensured only upon overall advancement of such factors. The Madhya Pradesh High Court in the aforementioned suo motu case took an elaborate note of the alliance between right to life and right to health. The court observed:

14. Article 38, Article 39(e), Article 41 and Article 47 in Part-IV of the Constitution of India as well as the fundamental right guaranteed vide Article 21 of the Constitution of India deal with potent and substantive contents of the right to life which in its broad sweep also includes right to good health…

The court, further, reiterated plethora of judgements wherein the Article 21 was so interpreted to include right to health within its ambit. This author believes a succinct account of some of those judgements alongside some other observations would provide a lucid description of the right to health.

In Parmananda Katara v. Union of India, a scooter accident victim succumbed to his injuries for want of treatment as the hospitals denied him the same. The Summit Court held that Article 21 casts an absolute and paramount obligation on the State to preserve life. In Paschim Banga Khet Mazdoor Samiti case (1996), a member of the petitioner samiti, who had sustained brain injury in a train accident, pleaded for compensation as he was forced to opt for private hospital after being denied a bed in several government hospitals. The Apex Court reiterated the paramount importance of preservation of life as it held that providing medical assistance is an essential governmental obligation in a welfare State. The government hospitals are, thus, duty bound to provide timely medical assistance for preservation of life, failure of which would amount to violation of Article 21. It was further held that the said duty cannot be done away with even on the ground of financial constraints. Bhagwati J., in the Francis Corlie case (1978), interpreted the right to live with human dignity as an integral part of right to life and that it includes the basic necessities of life such as nutrition, shelter and clothing. It is added that a dignified life cannot be lived in isolation of good health and all these necessities are one of the many factors that advance good health. In Devika Vishwas case (2016), the Supreme Court, after reiterating a slew of observations, laid down that the right to health remains an integral part of Article 21. The Constitution Bench of the Summit Court in Navtej Singh Johar v. Union of India, which is as recent as it gets, once again labelled the right to health and healthcare system as necessary concomitants to right to life.

In this author’s humble submission, these judicial pronouncements are recognition mere of the inseparable relationship between right to life and right to health. These rights, to quote the winged words of Justice H.R. Khanna as observed in ADM Jabalpur case, represent a facet of higher value which mankind began to cherish in its evolution from the state of tooth and claw to a civilised existence. Back in May, an anguished bench of Allahabad High Court passed a scathing remark as it labelled the death of patients due non-availability of oxygen a ‘criminal act’ and nothing short of a ‘genocide’. Per Justice Krishna Iyer, to divest a person of his right to life is nothing else but a murder and if the State deprives someone of his right to life, it also commits a murder. By this analogy, the reasoning behind High Court’s scathing remark could very well be understood.

The mankind has, once again, been forced into introspection as to how imperative real preparedness is for preservation of human existence and their rights thereby. But it remains dubious whether this introspection would translate into an appropriate action or not. As the second Covid wave is tailing off, the experts are foretelling the advent of a probable third one. And a reconciliation with the Spanish flu suggests that it might still be a virulent one, though its intensity would depend upon a number of factors like the national vaccination status, readiness of the healthcare institutions and human behaviour. Inoculation of largest possible proportion of the population and a precautionary human response in public places would perhaps be the best possible aegis against an impending third wave. It is being suggested that the third wave might be fatal for the children, though there are no substantive evidences to back the same as the AIIMS sero survey, conducted recently, also indicates the opposite. Be that a false alarm if it may, the suggestion still calls for a well prepared healthcare system to tackle the danger that might be on the horizon. The United Nations Convention on the Rights of the Child, 1989, which has been ratified by India as well, recognises child rights into four distinct groups of which two relevant ones are right to survival and right to protection. Both these rights, too, are nothing but amplification of right to life. Now, only time will tell how far would the State uphold and preserve all these rights.

2 thoughts on “Hypoxia & Right to Life

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  1. 10/10 – This is fantastic. And it is perfect in every aspect. You condensed this topic so well that it does not feel like one. The quality is, unnaturally, not compromised for the length. This is probably your best effort till date.

    Liked by 2 people

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