By Rahul Gupta, Founder at Rahul Gupta and Associates
The article discusses on the tragic failure of the medical infrastructure in the country which resulted in a large number of casualties and sufferings caused to the citizens all over the country. The author believes that the government at Centre, State and Union Territory level shall be held responsible for compensating the loss available under Constitution of India and other laws both civil and criminal as applicable.
Present Situation in India
Currently, with India recording the highest single-day total of COVID-19 cases globally, cases recorded on 1st May 2021 being 3.92 lakhs, there is a complete and absolute tragic failure of the medical infrastructure in the country resulting in a large number of casualties and other serious problems and sufferings caused to the citizens all over the country. For this loss caused to people of all ages in the country, all the governments at the Centre level, State level and of the Union Territories must be held accountable and liable for compensation and all other reliefs. Reliefs are available to the victims under our Constitution of India and under both the civil and criminal laws of the country as applicable.
Our hearts are heavy and full of grief and pain and with huge sympathy for all the fellow citizens who have lost the lives of their near and dear ones in the recent days on account of COVID-19. This has been on account of the non-availability of proper medical facilities, primarily not getting beds in the hospitals all over the country, and if the victims got the bed, they could not be given ICU beds with ventilator facility and if the above two options were made available then there was no oxygen supply in the hospitals, both government and private. People who were suffering have even lost their precious lives on the streets while waiting to be given the adequate and requisite medical healthcare that they, as citizens of this country, have the absolute and fundamental right to access and avail.
Remedies available for the citizens of the country
At this crucial time, we as the custodians of rule of law in the country, it is our duty towards all the citizens who have suffered this hardship and are fully entitled within their legal rights as mentioned under Article 226.According to Article 226, the citizens can approach respective High Courts in the country for filing suitable monetary compensation and all other reliefs including reprimand against the respective government authorities at Central Govt, State Govt or the Govt. of the Union Territories. Claiming for compensation in violation of fundamental rights is settled law in this country. Under the writ petition filed before the respective High courts of the country, citizens may seek appropriate compensation for family members lost due to shortage of oxygen, framing of policies by the Ld. Courts for the financial help to be directed to the citizens and appointment of a committee for overlooking and supervising the entire process.
Where has the Government Failed
It has been a clear and admitted case, with no plausible defence available, where it has been a total failure on the part of respective governments in the country in protecting the most valuable fundamental rights of health and right of life of its citizens during this pandemic. None of the authorities has any answer today why the oxygen supply was not available in the hospitals for the patients in a time of dire need to protect the most valuable human lives. The citizens of the country are fully within their fundamental rights to sue the government authorities not only for monetary compensation but at the same time for holding them accountable and guilty being responsible for this utter failure and chaos resulting in deaths and suffering of the citizens of this country.
Stand taken by the Judiciary on this issue
In several cases, the Hon’ble Supreme Court of India has held the right to health to be covered under Article 21 of the Constitution of India. Further, Hon’ble Supreme Court in the matter of Occupational Health and Safety Association v. Union of Indiaheld that “it is the duty of the Government Hospital to provide timely medical treatment to a patient in a need of such treatment.”
The Division Bench of the High Court of Bombay very recently in a PIL filed by a citizen titled Pratibha Shinde v. Principal Secretaryhas observed on 27 January 2021 that “In a welfare state, it is the primary duty of the government to secure welfare of the people. Providing adequate medical facilities for the people is an essential part of obligation undertaken by the government in a welfare state… The preservation of human life is of paramount importance. The government is duty bound to provide timely care of patients in serious conditions. Medical facilities and treatment cannot circumvent at any cost.”
The Hon’ble Supreme Court in the matter of Pt. Permanand Katara v. Union of Indiaheld that, “failure on the part of the government hospital to provide timely medical treatment to patient in need of such treatment would amount to violation of right to life.”
Most recently, the Allahabad High Court on 04th May 2021, in the Public Interest Litigation, held “We are at pain in observing that death of Covid patients just for non supplying of oxygen to the hospitals is a criminal act and not less than a genocide by those who have been entrusted the task to ensure continuous procurement and supply chain of the liquid medical oxygen.”
Furthermore, the High Court of Delhi has ordered strict directions to the Centre to provide the required oxygen to the Union Territory of Delhi in the case of Rakesh Malhotra v. Govt. of National Capital Territory of Indiaand as recent as 4 May 2021, the Ld. Court observed that “We are facing the grim reality every day of people not being able to secure oxygen beds or ICU beds. The situation has come to this that hospitals and nursing homes have had to reduce the number of beds offered by them because they are not able to service their existing capacities, due to shortage of medical oxygen. On the one hand, there is a need to augment the capacities to meet with the rising numbers of COVID-19 positive cases; while on the other hand, the existing infrastructure is crumbling and the bed capacity, even though available, cannot be put to its full use.”
Cases where government is sued for Compensation in other countries
In one of the ongoing cases, citizens of the United States of America seek compensation from the US fund for failed Covid-19 treatments. Steve Cicala is now the first person known to be pursuing a Covid-19 claim with a decade-old US government fund that has up to $30 billion that can be used to compensate for serious injuries or deaths caused by treatments or vaccines in the fight against the pandemic.
Similarly, in Italy, approx 500 people who are relatives of people who have succumbed to COVID-19 had sued the government (i.e., against Prime Minister Giuseppe Conte, Health Minister Roberto Speranza and the governor of the northerly Lombardy region, Attilio Fontana) for negligence in handling the outbreak before the Rome Court. Under the suit filed, the people are claiming damages for €100 million euros ($122 million/ 900 Crores). In this civil suit, the families claim that major mistakes early on, such as not quarantining the cities of Alzano and Nembro despite raging infection numbers, as well as a general lack of a plan to tackle the problem were key to the disease’s further spread. The suit specifically points to the Lombardy state government’s decision to reopen a hospital in Alzano after an outbreak occurred there on 23rd February 2020 as a crucial health security lapse.
In these times we as custodians and protectors of law have to take it upon ourselves to make the current situation better for all the citizens of this country and to make sure that the rights of all citizens are protected. Though no amount of monetary relief may ever be sufficient to pair the emotional loss, pain and agony suffered by the families, but it is imperative in the present tragic time to balance one’s mind and recover from the tragedy. Besides the remedy available to the citizens under our Constitution against the government authorities, there may also be circumstances where they may be advised to exercise their civil rights for compensation and other reliefs against private hospitals in the civil courts under original civil jurisdiction and also exercise the rights to prosecute and punish all the authorities and individual persons at all levels who were responsible and under a duty to protect the life of the citizens under the criminal law machinery.
 Constitution of India.
 Constitution of India.
 AIR 2014 SC 1469.
 AIR1989 SC 2039.
 (PIL) Case No. – 574 of 2020.
 W.P.(C) No. 4970/2021.