The lockdown has imposed a state of financial emergency in the country with far-reaching socioeconomic ramifications. While one might argue how a reaction to impose a nationwide lockdown was critical in containing the spread of the virus (though we have no credible evidence provided to justify this extreme step), still, in times of a crisis, ensuring supply of essential endowments (food, healthcare, shelter) is critical for all.
A trade-off surfacing from such a lockdown has been: If supply-chains of essential goods and services remain broken (with police lathi-charging and ensuring a lockdown), more deaths are likely of those who fail to get these basic entitlements as part of their fundamental rights than those who die of the virus itself. A deficit in democratic process and an indifference to safeguarding basic constitutional rights even in times of a pandemic, may allow more authoritarian tendencies to get more entrenched in a governance structure.
The Constitution guarantees basic entitlements as part of socio-economic rights envisaged under Article 21 (Right to Life and Liberty) which time and again have been upheld by the Apex Court of the country (when the state has failed to guarantee these to vulnerable groups). Over the years, the judiciary has taken an expansive view on this, encompassing additional rights under Article 21-laid down in the landmark judgment of Maneka Gandhi vs Union of India.
This fundamental right to ensuring and Life and Liberty of all, as guaranteed by Article 21 cannot be abrogated at any cost, even in a situation of a National (Economic) Emergency. In a public-health emergency that calls for a war-like response, one of the most critical goals for the state at this point is to ensure healthcare services to all-in terms of testing, tracing and treating everyone concerned. India's public-health infrastructure is ill-equipped to tackle a pandemic of such size and there is a strong case to be made for using and empowering the private sector capacity to boost production and distribution of medical equipment (ventilators, personal protective equipment, respirators, masks etc.) and expanding access to healthcare for all.
State must act
It was observed how those requiring any treatment for symptoms related to COVID19 were informed to be treated free if they qualify as beneficiaries in the Ayushman-Bharat scheme. Such a measures, though important, raises two critical concerns that remain unanswered:
a) What happens to those who are covered under Ayushman Bharat Yojna but have entirely/partially exhausted the cover of Rs 5 lakh?
b) What happens to those who are economically weak but do not fall under the Ayushman Bharat scheme or don't have an insurance card to claim it?
The fact that it is the state's responsibility to ensure adequate compensation -and cover the cost of healthcare for treatment has been laid down in the case of Paschim Banga Khet Mazdoorsamity vs State Of West Bengal & Anr where the Supreme Court awarded compensation to the litigant-petitioner who could not avail the public health facility due to lack of infrastructure. The second area of concern is ensuring compliance to provide "Food for all". The Apex Court in its landmark judgment of PUCL v. Union of India & Ors. held that right to food is a Fundamental Right covered under the ambit of Article 21 of the Indian Constitution. The decision of the Apex Court also made right to food as justiciable, expandable and legally enforceable. Therefore, it is important that the State upholds the Right to food.
It was welcoming to see the Finance Minister announcing a first set of immediate relief measures to secure income and food security for eligible EWS sections. However, given the prolonged lockdown, this may be too little for most affected groups-including lower income daily-wage workers and migrant groups who didn't feature in the announcement. In India, the compensation policy for disaster affected victims revolves around National disaster response funds and is for those directly affected.
The current condition of a pandemic and the economic crisis needs an expansionary socio-legal response. There is no provision for unorganised segments, or lower income groups who have lost jobs. But if the state doesn't take responsibility, who ensures it does? Here, the role of civil society and media is critical. The Right to Food Act was brought as a result by civil rights groups, NGOs etc. leading to the petition where the Apex Court held that the Right to food needs to be read (and safeguarded) as a fundamental right.
This was a response to the inactive role by the State of Rajasthan where poorer sections hadn't received the required employment and food relief under the Rajasthan Famine Code of 1962. In times of a crisis, with the role of all three pillars, the fourth (civil society) and fifth (media) pillars, are just as critical, in protecting the constitutional rights of all while ensuring access to essential benefits to those who need it. A crisis is a litmus test of how a democratic-republic upholds its constitutional charter, while ensuring basic rights for the most vulnerable first.
(Courtesy of Mail Today)
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