This article has been authored by Ajitesh Arya, 2nd year Student from NALSAR University of Law, Hyderabad
As we entered a new decade, we found many new challenges waiting for us. One major challenge was the deadly Novel Corona Virus which has claimed over 1.8 million lives and infected more than fifty-nine million individuals throughout the world and the numbers are still on a rise. Major countries of the world have tried to combat the disease and the resultant economic crisis. This virus has posed many challenges and questions to the legal fraternity as well. The future of e-contracts is one such example. Amid all these concerns, what goes unappreciated is the concern regarding human rights violations. As the saying in the pop-culture goes, “People are only as good as the world allows them to be.” We see those words coming to reality when we observe the inhumane instances of human rights violations in the pressing times of the pandemic. This paper intends to study how human rights are violated during a health crisis.
Censorship is one of the early instances of human rights violations during the pandemic, as we have seen in China, the doctors were silenced when they tried to raise the early concerns towards this virus. This is not the first time when the news is censored during a disease outbreak, similar things happened during the SARS outbreak of 2003 and many other instances can be located. The Major reason for such reluctance might easily be explained as a prisoner’s dilemma, especially in a developed nation where not-notifying the disease does not leave a country and its people in a worse off situation but notifying surely does in form of trade and transit barriers.
The International Covenant on Civil and political rights (ICCPR) in the Article 19 recognizes the right to speech and expression and freedom of the press as one of the inherent rights of an individual. China and a few others avoid such obligations by virtue of having not ratified the covenant. Alternatively, the exception under Article 4 which allows the parties to derogate from their obligations under ICCPR during the national emergency has also been claimed. Moreover, the International Health Regulations (IHR), the only internationally binding regulation to deal with pandemics focuses on trade more than it does on human rights and gives wide discretion to the countries on notifying the outbreak.
Another tool used by the state to curtail free speech without coming in direct contravention of the international obligations is retrospectively penalizing that speech. There have been many instances of the same in India and abroad as well. For example, the whistle-blower in China was arrested for spreading fake news. An Indian example is where a person was booked under sedition law for complaining about the PPEs and ventilators. Sedition has become the most common law used for legally censoring unfavourable speech in India.
Lacking Accountability of the State
The stories of police brutality and custodial deaths are not new in India. The concerns were further elevated during the lockdown where there have been instances of police using unnecessary force in form of Lathicharge to maintain the lockdown. There was an alleged death reported in West Bengal because of the baton charge.
To worsen the situation, Section 4 of the draconian and colonial Epidemic Diseases Act, 1897 grants immunity to the persons from prosecution acting under the authority of the legislation. The un-curtailed power provided to the state under the act without imposing any obligations has been abused in the past as well, where inhumane segregation and indecent searches had taken place under the authority of this act.
Privacy concerns have also been aggravated with the advent of the contact tracing app, like ArogyaSetu, whose genesis itself is shadowed, especially in countries like India where the privacy concerns are deliberately ignored, for example, the Karnataka government released the data of 19,000 suspected patients clearly violating their basic right to privacy and dignity. Both Privacy and dignity have been held to be important facets of the rights under Article 21 of The Constitution, and it is the duty of the state not to violate the same. The installation of ArogyaSetu has been mandated for many places, but still the government has shed its accountability under the clause 7 and 8 of Terms and Conditions of the app to a large extent.
Violation of Right to Health
The discussion on pandemics and health emergencies cannot be completed without a discussion around the individuals’ right to health and Article 21 of the Indian Constitution which provides that a person cannot be deprived of his right to life with dignity except by the procedure established by the law. The definition has been interpreted in the widest possible way to include many fundamental rights ensuring more than a mere animal existence of the individual. Consumer Education and Research Centre v. Union of India was the first case that explicitly held the right to health as an inseparable part of the right to life. There is a need to further realize that the right to health shouldn’t be considered to mean mere freedom from the illness but it is rather a package of other rights that must take the quality of health care into an account. This is also provided by Article 12 of the International Convention on Economic, Social and Cultural Rights (ICESCR) read with General comment 14. It clearly obligates the state parties to act in a manner to ensure the highest achievable health standards. Clearly, with a GDP expenditure of just over one percent (Rs. 3) on an individual, we are far from the highest possible standards. Owing to the income disparities of Indian society, such minimal expenditure on health also violates the right to equality in accessing the healthcare lying at the heart of both the international humanitarian laws and our Constitution.
As the cases of COVID-19 surged up, we came across numbers of violations of health rights and the lacunae in the health infrastructure of the country. Due to the lack of resources, the tests were initially denied to the symptomatic peoples other than those having the travel history thereby denying the right to equal accessibility to them enshrined in Article 12 of ICESCR The infected patients are kept in quarantine in the isolation centers, the conditions of these centers raise serious concerns, the accounts by different patients tell a story of human right violations altogether. For example, the quarantine facility in Delhi had stained bed sheets and toilets were flooded and large numbers of people were kept in a single bedroom as per the account of one family. Similar instances are reported in Bihar, UP, Maharashtra, and other states as well. Although WHO doesn’t provide for the conditions of quarantine centers but IHR requires them to be in a manner that would not provide for further transmission. Needless to say that such a crowded and unhygienic place is all that is needed for transmission, living in such conditions further violates the right to dignity all the patients have under the health regulations.
When talking about the right to health of the individuals what remains hidden are the rights of the doctors and the medical practitioners. In the case of State of Punjab v. Mohinder Singh Chawla, the petitioner had claimed the hospital expenses incurred in his treatment from the state. The Supreme Court analysed the provisions and held that the government has a constitutional duty to ensure the health of their workers to ensure their vigor. The understanding of the worker often skips the doctors and other health workers who in these hard times are fighting at the frontline. The concerns regarding the shortage of personnel protective equipment (PPEs) during the initial times cannot be forgotten. The extent of the problems can be assessed with the example of Kolkata and Maharashtra where the rainwater kits and HIV PPEs were initially given instead of COVID-19 PPE Kits. Other states had also reported similar concerns. These stats clearly show the lack on the part of the state to fulfill its duties to ensure the right to health of the doctors and other workers. As Indian legislation including the Epidemic diseases Act, 1897 fails to delineate the rights of the doctors it further leads to their suffering and ostracism and the health workers are left at the mercy of the directives by the state authorities.
This article has presented some instances of human rights violations taking place during this global pandemic. The breach happens because of many reasons such as the nature of the laws binding the parties, the archaic nature of legislations, improper allocation of resources, etc. The mismanagement at the global level indicates that we have not learned from our mistakes in the past. There is a need for change in the International Health Regulations’ notification framework; a shift towards the right perspective from the trade perspective shall be appreciated. At the national level, we need to build a better healthcare infrastructure and a greater part of the GDP needed to be invested over the public. A holistic legislation which not only protects the social nature of healthcare but also protects the rights of the patients and doctors should be enacted. The best practices further dictate the need for a regulation on the collection and utilization of the health data.