The Supreme Court and High Courts lately have been dealing with numerous petitions on issues relating to COVID 19 Pandemic. The most significant of all the petitions dealt by Courts affecting Right to Life under Article 21 of the India Constitution are the Suo Motu cognizance of Mishandling of COVID 19 Affected Dead Bodies and the order of the Delhi Government restricting hospital beds for residents of Delhi.
The Supreme Court on June 12 lashed out at State Governments and hospitals for the manner in which the Covid dead bodies are dealt with and said the situation in some cases was worse than what animals have to suffer.
The bench comprising Justice Ashok Bhushan, Justice Sanjay Kishan Kaul and Justice MR Shah took Suo Motu cognisance on the treatment being meted out to the COVID-19 patients and the handling of bodies. The Court took cognizance of the matter on a letter addressed to it by Former Union Law Minister and Senior Advocate Dr. Ashwani Kumar highlighting the grave infraction of the Citizen’s Right to die with dignity amid the COVID-19 pandemic. Right to die with dignity embracing right to decent burial or cremation, is a fundamental right under Article 21 of the Constitution.
The bench has issued notices to the Delhi Government, State of West Bengal, Tamil Nadu and Maharashtra & has sought detailed status report from the respective state governments and has listed the matter for next hearing on June 17.
The letter referred to various incidents where patients were being ill treated and the dead bodies being mishandled. One such case was the tragic incident in Madhya Pradesh where an elderly man suffering from COVID-19 was tied to a bed, after he allegedly failed to make payment of fees for his treatment.
Similarly, in the Union Territory of Puducherry, Government workers could be seen throwing the body of a COVID-19 positive man into a pit.
The Supreme Court in ParmanandKatara, Advocate v. Union of India &Ors 1989 SCC (4) 286 JT 1989 (3) 496 , while reminding the state of its duty to treat its citizen’s body with respect after his death held that “We agree with the petitioner that right to dignity and fair treatment under Article 21 of the Constitution of India is not only available to a living man but also to his body after his death. We thus find that the word and expression ‘person’ in Article 21, would include a dead person in a limited sense and that his rights to his life which includes his right to live with human dignity, to have an extended meaning to treat his dead body with respect, which he would have deserved, had he been alive subject to his tradition, culture and the religion, which he professed. The State must respect a dead person by allowing the body of that dead person to be treated with dignity and unless it is required for the purposes of establishing a crime, to ascertain the cause of death and be subjected to post-mortem or for any scientific investigation, medical education or to save the life of another person in accordance with law, the preservation of the preservation of the dead body and its disposal in accordance with human dignity.”
Another case which showed the Delhi Government in poor light ignoring its responsibility to preserve the life of its citizens was the June 7 order of the Delhi Government which stated that both government and private hospitals in Delhi will only treat patients from national capital except for those hospitals which provide treatment that is not available anywhere in the country.
However, the Lt Governor Anil Baijal overruled the Delhi governments order and directed authorities to ensure that medical treatment is not denied to any patient on the grounds of not being a resident of Delhi.
Against Delhi Government June 7 Order too, there were two petitions had been filed in the Delhi High Court.
One of the petitions, filed by advocates Abhay Gupta and Prashant Arora, who had claimed that the impugned order is in strict and direct violation of the basic fundamental right to health of the public at large including but not limited to Article 14 and 21. The second petition had been filed by advocate Gautam Kumar and law student Gaurav Sarkar.
Article 21 of the Constitution guarantees protection of life and personal liberty to every citizen. The Supreme Court has held that the right to live with human dignity, enshrined in Article 21, derives from the directive principles of state policy and therefore includes protection of health. Thus, Failure of a government hospital to provide a patient timely medical treatment results in violation of the patient’s right to life.
Pointing out the state’s duty to preserve right to life the Supreme Court in Parmanand Katara v. Union of India (1989 SCC (4) 286) observed that “there can be no second opinion that preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man. The patient, whether he be an innocent person or be a criminal liable to punishment under the laws of the society, it is the obligation of those who are in-charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished.”
The Author is Advocate-On-Record, Supreme Court of India & Vice President of Supreme Court Advocates-On-Record Association.