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Constitution, Euthanasia, Right to Health

PHYSICIAN-ASSISTED SUICIDE (PAS)

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Komal Agarwal

Capital Law College, Bhubaneswar

Introduction 

The word “Euthanasia” has derived from the Greek word “euthanatos” which means “easy death”. It can be classified into 5 categories such as: Passive Euthanasia, Active Euthanasia, Voluntary, Non- voluntary and Involuntary Euthanasia. 

“Physician-Assisted Suicide (PAS)” is known to be a prescription of toxic medicines which are willingly self-injected by the valetudinarian with the help of a physician (doctor). 

While throwing light on these practices, it has been always seen that a conflict between Right to Life and Right to Die clashes when it is impossible to improve the patient’s life as well as difficult to bid him goodbye by injecting such drugs. The views are that Life is God’s precious gift and only He has the power to take and no one else can thus restricting these practices and becoming a hinder to give the person “Mukti”.1 

One useful difference noted between Euthanasia and Physician-Assisted Suicide is that, in Euthanasia, a doctor is allowed to end a person’s life by the voluntarily consent in a painless way being legal in the eyes of law whereas in Physician-Assisted Suicide, a doctor aids a patient to commit suicide on request.2 

History 

Since 19th Century, Assisted Dying or Euthanasia has been in question. In the year1938, a society for Euthanasia was born to legalize Assisted Dying. ∙ Switzerland has legalized Physician-Assisted Suicide (PAS) during the1960’s movement held for “Right to Die” and “living wills” concept came into way of life where the patient can deliberately utter whether he/she wants health care or not in cases where they are not capable of crafting an alternative. 

In 1999, Passive Euthanasia was welcomed in the United States. Roughly in 2002, Physician-Assisted Suicide was legitimized in Netherland and Belgium. ∙ In 2008, Washington voted for the “Death with Dignity” Act which became Law in the year 2009.3 

Different types of Euthanasia 

  • Active Euthanasia – In this kind of Euthanasia, a person purposely arbitrates to end someone’s life. 
  • Passive Euthanasia – If a patient dies because his life saving treatment was suppressed or annulled is called Passive Euthanasia. 
  • Voluntary Euthanasia – Here, a person is allowed to make a mindful decision regarding his own death by asking a needy hand. 
  • Non-voluntary Euthanasia – In non- voluntary Euthanasia, a second person takes the decision for the patient who is not in a state to give their approval. 
  • Involuntary Euthanasia – Simply it means that a person is assassinated against their spoken desires. 4 

Hippocratic Oath

At First instance, ”First do no harm” strike in one’s mind. The Hippocratic Oath isn’t a law but a leading basis for the doctors which were written by the Greek Physician Hippocrates in 5th century B.C. Being one of the oldest binding documents in history, it has great emblematic prestige for the forthcoming doctors. The Hippocratic Oath is made by Physicians when they become eligible Doctors. The original oath, among other things, enlightens the following words: 

“I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect.” 5 

Although it has been rewritten multiple times but all medical schools use oath of different versions either the original Greek oath, the Declaration of Geneva or the Oath of Maimonides. 6 

Advantages and Disadvantages of Physician-Assisted Suicide 

Advantages: 

  • The ultimate sufferings of a patient come to an end: Incurable diseases give birth to a lot of physical pain bringing up fear as the patient knows that his life is coming to an end. Euthanasia can help cut short his torment and that of his family when they see him ill. 
  • Saves the decorum: As the Physician-Assisted Suicide (PAS) is officially recognized, patients are able to choose their own death holding on their self-esteem, picking up the favorite music at their final moments. 
  • Heartache maybe easily gripped: When the person’s family and friends informed of his wish in advance, the steps of misery can be easily accepted by all where they are given the chance of reuniting thus letting the patient’s farewell in harmony. 
  • It helps to reduce the Medical Care expenses: Assisted Suicide drugs are quite cheaper in comparison to medical care expenses which help the government, family of the patients to hoard the money. 

Disadvantages:

  • It brings about early death: Euthanasia doesn’t give a second chance to life. 
  • It infringes the Hippocratic Oath: The ban on killing shines as the first promise of self-discipline as per the Hippocratic Oath which considers human life a true blessing. Therefore, a say-so to end the patient’s life vocalized by him does not make the homicide justifiable. 
  • Impaired growth to the soothing care: As Euthanasia acts as the paramount key for seriously ill patients with no aim in living furthermore, on the other hand it becomes an obstruction whose who want to stand on their feet again and live a better life.7 

Euthanasia Drugs 

It is always to be remembered that medicines can save the lives as well as kill us i.e. “the dose makes the poison”. Basing on this concept, the whole regulation of Toxicology and Medicines is laid down. The very well-known symbol of the snake, wound around the bowl of Hygeia (the Greek Goddess of Health) representing medicine as seen in pharmacies and medical centre around the world. 

Barbiturates it is a group of drugs used to end life which slow down the activities of the Brain and Nervous system which are taken in small doses for short-term to treat insomnia or seizures. An overdose of Barbiturates is deadly as it will make the brain slow down to such a point that it will stop telling the body to keep the respiratory system working which leads to stoppage of breathing. 

Also, Secobarbital capsules and Pentobarbital (Nembutal) liquid have been used either alone or in combination for Physician-Assisted Suicide (PAS) or Euthanasia. Their safety and effectiveness in bringing a peaceful, swift and uneventful death has been proven which are in the list of ideal drugs in the Netherlands, Belgium, Switzerland and some USA states where Euthanasia is legally practiced. Both, Nembutal and Secobarbital can be used on animals, but human use is banned as seen in Australia. Due to this, it is difficult to apply the Euthanasia Law in Victoria State. Some have suggested the mixture of Nembutal and Secobarbital will be in powdered form made with pain killers to develop coma which in turn causes respiratory arrest. What is ultimately needed is a drug or a mixture of drugs generating a painless, swift and peaceful death. Humans do not crave to see further any more hardships in the form of seizures, prolonged distress and pain.8 

Countries where PAS or/and Euthanasia is Legal 

Switzerland: Switzerland has permitted Physician-Assisted Suicide (PAS) without any minimum age fulfillment, diagnosis or symptom, becoming the first ever country to legalize PAS. It is to be noted that Euthanasia is not authorized. It has been estimated that about 1.5% of Swiss deaths are cases of assisted suicide. 

Netherlands: Both Euthanasia and PAS are lawful in Netherlands if the patient is undergoing unbearable pain with no hope of recovery. Children below 12 years of age can appeal assisted dying but children less than 16 years need parental approval. 

Belgium: This country permits Euthanasia and Physician-Assisted Suicide for the persons carrying unbearable pain with 0% percentage of development. There is a 1month waiting period for the persons who are not having incurable illness before Euthanasia can be done. 

Luxembourg: Assisted suicide and euthanasia are allowed for adults but subject to condition that the concerned person must have an incurable condition with invariable, intolerable pain having no way of progress. 

Canada: Euthanasia and Assisted Suicide are for the adults going through “dreadful and irreversible conditions” whose death is reasonably probable. 

Australia: The state of Victoria passed Voluntary Euthanasia laws in November 2017 where the patient must raise the proposal of Assisted Dying first and not the concerned Doctor. 

USA: It has been seen in the USA that many states like Oregon, Washington, Vermont, California, Colorado, Washington DC, Hawaii, New Jersey, Maine and Montana permit Physician-Assisted Suicide for fatally ill persons.9 

Death with Dignity Laws 

This law lets terminally-ill adults to request and receive a medical prescription to accelerate their death willingly. Reports of April 2021 say that California, Colorado, District of Columbia, Hawaii, Maine, New Jersey, New Mexico, Oregon, Vermont, and Washington helped in dying laws. Death with Dignity Laws states the process where qualified individuals may obtain life-ending medications. For obtaining a prescription under Physician-Assisted Dying Laws, he/ she must be an inhabitant of the state accepting the law, 18 years or older, be competent enough of making and responding of one’s own health care decision and must be detected with a lethal illness that will lead to probable death within 6 months.10 

International Code of Medical Ethics 

The International Code of Medical Ethics was adopted by the General Assembly of the World Medical Association in the year 1949 which was based on the Declaration of Geneva to bring about the Ethical principles of the Physicians regarding his general duties towards his patients and his equals.11 

Physician-Assisted Suicide in Indian Context 

The legal position of PAS and Euthanasia in the Indian context is stated in the Indian Penal Code (IPC) 1860, which deals with the issues of Euthanasia and PAS. According to IPC, Active Euthanasia is an offence read under Section 302 (punishment for murder) or under Section 304 (punishment for culpable homicide not amounting to murder). PAS in the eyes of Indian law would be abetment of suicide as per IPC’s Section 306 (abetment of suicide). The issue under Section 309 (Attempt to commit suicide) is a punishable offence with simple imprisonment for a term which may extend to 1 year or with a fine or both. 

Religious concept of suicide in India 

Below are discussed some of the Religions and their view on suicide in the Indian context – 

  • Hinduism:In Hinduism, it has been believed that if a person commits suicide, he/ she does not step in hell or heaven but remains on the Earth as a bad spirit and knock out until he attains his allotted lifespan after that only he enters hell to arrive back on Earth to complete the Karma. 
  • Islam: Euthanasia is illegal as per Islamic religion because there is an important part of the physician to end the life of the patient by speeding up his death either by lethal injection, electric shock, a sharp weapon etc. This is an act of killing which constitutes a major transgression and outlawed in Islam. 
  • Christianity: The Catholic Church says that the death by means of suicide is a grave sin and that the human life is God’s blessing as well as a gift to this world and nobody has the right to wipe out it excepting the God himself. 
  • Judaism: Supporting and appealing for suicide assistance are forbidden amongst Jews.12 

Indian Judiciary on Euthanasia and PAS 

Aruna Ramchandra Shanbaug vs. Union of India & Ors. (2011) 

Aruna Ramachandra Shanbaug, a staff nurse working in King Edward Memorial Hospital, Mumbai. On 27th November 1973, she was raped by a sweeper by a canine chain around her neck and jerked her back with it. It was declared that the strangulation of the chain stopped the oxygen supply to the brain and her cerebrum got damaged.13 For 36 years she has been suffering PVS (permanent or persistent vegetative state) where a person is practically dead. The appeal for mercy killing was rejected but the “living will” concept was recognised by the court. 

On 18th May 2015, she died because of pneumonia being in PVS for almost 42 years. Later, the Supreme Court framed certain guidelines for Passive Euthanasia. It was legalized and was of the opinion that it would apply to “rarest of the rare” cases only. The court also said that the “Right to Die” comes under the subject matter of the Fundamental Rights and the court also mentioned that the request for Passive Euthanasia should be approved by the High Court ensuring that no wrong motive of relatives or friends is brought about. This judgement tiled a concentrated path for the claim of Passive Euthanasia by giving the Indians their ‘living will’ concept. 

Gian Kaur vs. State of Punjab (1996) 

In this case, the constitutionality of Section 309 (Attempt to commit suicide) under IPC was upheld. This case pointed out noteworthy differences between Physical Assisted Suicide and Passive euthanasia (withdrawal of life-support of the patient). The court stated that Euthanasia and Physician-Assisted Suicide (PAS) is illegal in India and the acts are punishable under criminal law. However, the Supreme Court agreed with their concept, introduced a special right for patients who are terminally ill, i.e. right to die with dignity, patients in PVS or brain-dead choose death over a dejected life. 

Common Cause (A Regd. Society) vs. Union of India (2018) 

A writ petition was filed requesting a strong system for Passive Euthanasia and recognition of the ‘living will’ concept of a person. In this case, the constitutionality of Section 306 of the Indian Penal Code (IPC), 1860 was challenged. The Supreme Court of India recognised the concept of living will. The court also recognised the ‘Right to Die with Dignity’, Right to Self-determination and Right to Autonomy as fundamental rights. 

International perspectives on Euthanasia and PAS

Vacco vs. Quill (1997)

The New York state banned Physician-Assisted Suicide (PAS). The case was filed to challenge the constitutionality of such ban. Mr T. Quill filed a case along with 2 physicians and some severely ill patients. It was argued that the prohibition is violating the 14th Amendment, which provides equal protection. The law legalized Passive Euthanasia whereas Physician-Assisted Suicide (PAS) was regarded as illegal. The ruling of the District Court was against such a challenge. Still, when the case went to the second circuit, the judgement was reversed and was in favour of Mr. T. Quill and later the Supreme Court held that the State’s ban on Physician-Assisted Ban is not unconstitutional. 

Gonzales vs. Oregon (1994) 

In this case, the State of Oregon in the United States passed the Death with Dignity Act dealing with laws that permitted Physical Assisted Suicide with a lethal dose of medicine for terminally ill patients. Later, the act was opposed by the Attorney General of the US. Mr J. Ashcroft stated that the “Death with Dignity Act” violated the Controlled Substances Act, 1970 and also threatened that if any Physician practices Physician-Assisted Suicide (PAS), his/her medical license would be cancelled. Oregon State challenged this in the federal district court, the court and the circuit held that his declaration was illegal. The case went to the Supreme Court, it was held that the use of the controlled substance for Physician 

Assisted Suicide (PAS) does not violate the Controlled Substances Act and in addition to that, the act did not allow the Attorney General to ban the use of such substances for Physician-Assisted Suicide.14 

Conclusion 

It was seen that Aruna Ramchandra Shanbaug Case better explained the issues revolving around Euthanasia and laid down guidelines for Passive Euthanasia for Indians. As being a landmark judgement, it recommended that the method to be continued in a space that has not been administered upon i.e., where the Legislation has not yet been made by the Parliament. In India, Active Euthanasia is not allowed whereas Passive Euthanasia can be administered as per the prerequisites laid down by the Court.15 

In the present time, all jurisdictions of the US have decriminalized the “aid-in-dying” and only Physician Assistance in Suicide (PAS) is legal and Euthanasia is not. The US is exceptional in this regard. For Example, Canada, The Netherlands, Belgium, Luxemburg and Colombia, both PAS and Euthanasia have been legally recognized.16 

Supporters of Active Euthanasia argue that killing the patients is not worse than letting them die themselves whereas supporters of Voluntary Euthanasia say that the person should have the Right to do what they want to do in respect of their own lives. The advocates of Mercy Killing argue that the patients in vegetative states without any scene of recovery, by letting them die, stops the future needless and pointless treatment efforts. If they are suffering then by their homicide, prevents further more suffering. Advocates of Physician-Assisted Suicide (PAS) say that a physician aiding a terminally ill person is just simply helping that patient to “die with dignity” at his desire. 

Critics of Euthanasia dispute that killing is always wrong, whether it be Non- voluntary or Involuntary Euthanasia ultimately breaching the Patient Rights or that Physician-Assisted Suicide (PAS) contravenes a commitment to do no harm. “Right to Life” and “Right to Health” is meant for all the people and true investment in the Health care Systems is needed at the earliest.17

CITATIONS

1 Dr. Shaikh Shahanawaz Islam, Right to Life and Personal Liberty and Euthanasia: A critical Analysis, Volume 03, IJMSS, 121, 121-123, (2015)↩
2 Medical News Today, https://www.medicalnewstoday.com/articles/182951#euthanasia-and-assisted-suicide, (last visited on 23rd July, 2021)↩
3 Diganth Raj Sehgal, Legal aspects related to assisted suicide, iPleaders, (07 Jan, 2021)↩
4 Types of Euthanasia, https://computerscience.johncabot.edu/courses/F2014CS130/ddimaggio/Pages/Types.html (last visited 21st July, 2021)↩
5 Medical News Today, https://www.medicalnewstoday.com/articles/182951#history (last visited on 22nd July, 2021)↩
6 Study.com | Take Online Courses. Earn College Credit. Research Schools, Degrees & Careers, https://study.com/academy/lesson/what-is-the-hippocratic-oath-definition-parts.html#:~:text=Lesson%20Summary- ,The%20Hippocratic%20Oath%20is%20a%20sworn%20agreement%20made%20by%20physicians,help%20anothe r%20to%20use%20one. (last visited on 22nd July, 2021)↩
7 NYLN.org, https://nyln.org/doctor-assisted-suicide-pros-and-cons-list, (last visited on 22nd July, 2021)↩
8 ABC News, Dying a good death: What’s needed from voluntary euthanasia drugs, ABC News, (20th Oct, 2017), https://www.abc.net.au/news/2017-10-20/assisted-dying-what-is-need-from-drugs-for-voluntary euthanasia/9069896↩
9James Ashford, Countries where euthanasia is legal, The Week UK, (28th August, 2019), https://www.theweek.co.uk/102978/countries-where-euthanasia-is-legal↩
10 Death With Dignity, https://deathwithdignity.org/learn/access/#Going_Through_the_Process_of_Obtaining_Medications, (last visited on 22nd July, 2021)↩
11 Wikipedia, https://en.wikipedia.org/wiki/International_Code_of_Medical_Ethics (last visited on 22nd July, 2021)↩
12 Farooq Khan, Physician-assisted Suicide and Euthanasia in Indian Context: Sooner or Later the Need to Ponder!, Indian journal of psychological medicine, (January 2013), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3701348/ ↩
13 Aruna Ramachandra Shanbaug vs.Union of India and Ors. (2011) SC 4 SCC 454.↩
14 Diganth Raj Sehgal, Legal aspects related to assisted suicide, iPleaders, (7th Jan, 2021), https://blog.ipleaders.in/legal-aspects-related-assisted-suicide/#Indian_Perspective↩
15 Rajeswari Rajesh, Case Analysis: Aruna Ramchandra Shanbaug v. Union of India (2011), Legal Bites – Law And Beyond, (6thJune, 2021), https://www.legalbites.in/case-analysis-aruna-ramchandra-shanbaug/↩
16 Jozef V. Welie J, When Given a Choice, Patients Prefer Euthanasia Over PAS, Graduate School | Creighton University, (9th May, 2019), https://gradschool.creighton.edu/blogs/when-given-choice-patients-prefer-euthanasia over-pas↩
17 Euthanasia – MU School of Medicine, https://medicine.missouri.edu/centers-institutes-labs/health ethics/faq/euthanasia (last visited 23rd July, 2021)↩

Note: This work is published as a part of the Article Writing Competition organized by The Legal Boffin in 2021.

Constitution, Health, Human Rights, pandemic, Right to Health

LEGAL ISSUES IN A PANDEMIC

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Abhiremya Raj R B

CSI Institute of Legal Studies, Parassala

INTRODUCTION 

“Health is wealth but wealth stands with the people if people are healthy then public will be wealthy enough” 

 By late 2019,there was an unfamiliar outbreak known by the name “CORONA VIRUS” short named as COVID 19 and abbreviated to ‘CO’ stands for Corona, ‘VI’ stands for virus and as it was occurred in 2019 it is shown 19 . It is a respiratory disease which can even affect the whole body vulnerably and it has the ability to spread from one person to another by physical contact or any way of other contacts so that on January 2020 , World Health Organization had called a Public Health Emergency to control and prevent it’s spread . It was first found in Wuhan, China and said to be a manmade virus better known by the name bioweapon. Weapon is one which can exploit a person or a locality and give pain and fear simultaneously the same effect was carried out by this virus. Then on March 11 2020 World Health Organization called it as ‘Pandemic’. The spread of the virus is controlled by Integrated Disease Surveillance Programme (IDSP) through internationally. Now it came into a huge and most lengthiest predicament of every person in the world. When we think about our past lifestyle, it is now a dream to wake up1. By late February our country was also faced by this crisis and further led to nationwide lockdown and many other strict regulations. As a result of that, upto an extend we can control it’s spread and prevent it’s huge outbreak. 

SCOPE OF THE STUDY 

 The scope and object of this project is to study the challenges faced by the Judiciary during pandemic and also to detail to privacy issues with regard to contact tracing application like Jagrithi ,disha ,arogya setu etc .To examine the effectiveness of biomedical waste management system and to determine curtailment of rights guaranteed under Article 19 and 21 with reference to right to health under Article 21 of the Constitution also to look into the adequacy of Epidemic Disease Act 1897 and Disaster Management Act 2005 and other laws in favor of pandemic control, prevention and regulations. Impacts on various sectors of economy due to the Covid 19 outbreak have to be noted. Role of judiciary and changes in Judicial system over the past year have to be studied in this article. 

OBJECTIVES OF THE STUDY 

  • To go in detail to the present issues on pandemic . 
  • To give an awareness to the public about the available legislations on Pandemic.
  • To know about the impacts and effects of Pandemic on common people. 
  • To maintain the precautions on prevention of spread of virus.

MAJOR ISSUES AROSE 

  • Contact tracing application like Arogya Setu affects right of privacy of individuals.
  • The Epidemic Disease Act and other laws are not sufficient to solve the problems faced by the people during Pandemic. 
  • Article 19 is curtailed event though there is reasonable restriction under article 19(2).
  • Right to life and privacy guaranteed under Article 21 is not at all protected and leads to be misused in certain ways.

FUNDAMENTAL RIGHTS AND THE PANDEMIC 

Constitution being a fundamental Law of land and it is dealt with some of the provisions which can be used at the time of pandemic and provides with one fundamental right also. The lockdown ordered during the covid-19 pandemic-imposed restrictions upon the fundamental rights of individuals. Freedom of movement, freedom to carry out one’s profession, trade or occupation of choice and freedom to reside anywhere in India under Article 19 of Indian constitution was curtailed during the pandemic.2 

Right to Speedy Trial

 Speedy trial confers under Article 21 of part III of the Constitution and Article 39A of part IV of the Constitution is violated by the declaration of lockdown and pandemic. Many lost their justice as ‘justice delayed is justice denied’. 

Right to Education

 Right to education under Article 21A of part III was being violation upto an extend and then switched to online education style which laundered many students of different states in India by the reason of illiteracy and economic backwardness. 

Right to Assembly

 Article 19(1) (b) guaranteed right to assembly and to form association, which was curtailed at the time of lockdown the number of persons assembled reduced to 20 to 50 in public occasions, marriage ceremonies and funeral services etc. 

Right to Religion

 Religious rights of every individual was curtailed which was conferred by Article 25 to 28 of part III of the Constitution, the temples, churches, mosque, mutt etc. was closed as a result of this pandemic. 

Freedom of Movement

 Article 19(1) (d) provides for freedom of movement but the lockdown and it’s regulations curtailed the right of movement and Prime Minister ordered to stay in the home at the period of lockdown. 

Freedom of Speech and Expression

Part III of the Constitution guarantees six freedoms includes freedom of speech and expression, but this was curtailed upto a great extend in the case of media, social medias and government. In Shreya Singhal v. Union of India3, the Hon’ble Supreme Court held that Article 19(1) (a) would remain the same and it was unaffected by any other provisions other than reasonable restrictions under Article 19(2). 

Right to Equality

 Article 14 guarantees right to equality and equal protection of law, but it was violated and many among us was faced inequalities in different forms, actually it was for the welfare of the nation but it led to various other issues of inequality. 

Freedom of Press

 Article 19 (1) (a) ensures freedom of press but it was curtailed of the reason of privacy and surveillance and more cases were emerged as a result of this. In the case Ramesh Thoppar v. State of Madras4, it was held that right to press includes right to privacy in all means . The same judgement was brought also in the case Brij Bhushan and Virendra v.State of Punjab5. 

Right to Livelihood

 Article 21 confers right to livelihood also and in pandemic times many people were faced poverty and unemployment, the migrant workers were trapped due to the regulations imposed. 

Right to Health

 Article 21 ensures right to health also, it was curtailed due to the lack of hospital services and lack of sufficient health services, which was formulated in different cases by Supreme Court. 

Freedom of Trade and Occupation

 Article 19(1) (g) confers freedom of trade and occupation and it was violated by the full closure of shops and outlets except of necessary grocery and food outlets. 

Right to Privacy

 Article 21 , right to life and personal liberty includes right to privacy, privacy being a foremost element in every individual’s life as it acts as the pillar of liberty. Everyone have their own private space in their life, to break that privacy means his rights are curtailed in a vague manner. During the period of lockdown and pandemic especially the patients affected with Covid 19 and the persons in their contact list suffered the breach of privacy in the areas of their daily life route map and also by the contact tracing applications such as Arogyasetu and disha, these surveillance issues resulted in the growth of legislations on surveillance and in Puttaswamy v. Union of India6, Hon’ble Supreme Court held that right to privacy is included in the fundamental rights under article 21 and data protection by authorities shall follow certain three fold conditions such as : the need of data must be pursuant to law, the data should be kept confidential, the need of data is adequate to the problem.  Later in 2020 Kerala Sprinkler case7, Kerala High Court stressed the term data protection and privacy and ensures the right under Article 21 and enumerated that the data collected from the citizens should be with their consent and confirmation, if the person is not willing to give consent it should not be obtained as it curtailed his personal liberty. This judgement faced a lot of criticisms so that the Government back up from the deal of Sprinkler. Like these in earlier day many cases were found as in A k Gopalan v. Union of India8, Rajagopal and another’s v. State of Tamilnadu9. These cases sought as landmark cases and decisions were quite effective in present era also. 

By this Puttaswamy case in 2017 , there had been a lot f discussions based on the topic data protection but it is most talked at n the time of Pandemic. For that General Data Protection Regulations (GDPR) and Personal Data Protection Bill 2019 (PDP Bill 2019) were passed. There is some difference in these two in GDPR it does not include 

  • Non personal and anomalous information. 
  • Financial data 
  • Critical personal data, ( critical personal data means those data declared as critical by Central Government. 

But in case of PDP Bill 2019 it includes sensitive personal data (sensitive personal data includes financial data, sexually oriented data, sexual life, common livelihood etc.), should be collected only with the consent of the concerned individual. Like that we can avoid many unfair situations today. Data protection includes data privacy also if a person is affected with Covid 19 then by using contact tracing applications we can find the route map of his past weeks, but it will also broke the mental health of that person, so it accelerates the hormones thereby induce many other heath issues to him. This makes corona virus vulnerable. The isolation, panic disorders and all make the person more sensitive to diseases . So data protection needs to be held a vital role during the Pandemic. 

PANDEMIC LAWS IN COMPARISON WITH OTHER LAWS 

As we know there were various Legislations existing in India, and least are pointing to Pandemic Legislations. Some of them relating to pandemic laws are ; 

The Epidemic Diseases Act, 1897(EDA, 1897) 

 This was enacted by the Central Government at the time of spread of ‘bubonic plague’ in erstwhile Bombay, but this Act did not provide much more provisions on epidemic spread and did not mention the definition of ‘dangerous epidemic diseases. So that it came to a bit failure from the part of Legislature. Section of this EDA 1897 deals with the authority to inspect and segregate the patients affected with the disease. There comes the shortcomings of the Act in present situation on ‘isolation’ or ‘quarantine ‘(section 3 of EDA 1897), these terms were not included in the Act, but the punishment for disobedience on regulations and others and is included under section 188 of Indian Penal Code 1908. So, Central Government passed The Epidemic Diseases Amendment Bill 2020 , which is temporarily applicable to the health workers as they have to face an imminent danger in the future. It is also not a suitable remedy to the Pandemic problems in India. The Public Health (Prevention and Management of Epidemic, Bioterrorism and . Disasters) Bill 2017 replaced EDA and some of its discrepancies. 

Disaster Management Act, 2005(DM Act 2005) 

 Central Government by notification in the Official Gazette enacted Disaster Management Act 2005( DMA, 2005), in order to cope with the disasters occurred in India at that time. Now as per section 6(2) (i) of the Act, The National Disaster Management Authority (NDMA) instructed national lockdown and was ordered on 24/03/2020, which ensures social distancing to prevent the spread of Covid 19 and the Tele Medicine Practice Guidelines also prefer to social distancing due to the spread of corona virus. This Act provides the regulations on quarantine and isolation and punishment for disobedience is given under section 269,270 and 271 of Indian Penal Code. This Act have a limited applicability on present issues of Pandemic 

but states certain reliefs and remedies to prevent the spread. Guidelines on Management of Biological Disasters, 2008 confers power to Central Government on making rules on biological disasters. 

Criminal Procedure Code, 1973(Cr.PC 1973) 

During the mid of lockdown section 144 had its essence on people and it avoids overcrowdings and assembling of 3 or 4 persons together, the power was conferred to public by District Collector also. 

Indian Penal Code, 1860

 Code provides the punishment for disobedience of quarantine rules or isolation rules under section 188 . Violation of section 188 shall lead to an imprisonment for a term which may extends to 1 month and a fine of ₹200 or with both. If this violation leads to any danger to the human life, health and safety , then the term of imprisonment may extend to 6 months and a fine of ₹1000 or with both. 

Bankig Regulation Act, 1949 

 During the mid of September 2020,Central Finance Minister had declared certain amendments on the Act on section 3 and section 56,as it includes the improvements of co- operative banks by including them in the category of commercial banks due to their grave increase in Non performing assets from 7.92 to 10 percent. Another amendment included in Banking Regulation (Amendment Bill) 2020,includes moratorium facility given to the banks of all public sectors. 

Biomedical Waste Mangement Rules, 2016 

 The rules regarding the dumbing of biomedical wastes and impacts on environment is clearly stated in the rules. Various amendments were held during the years of 2017,2018,2019 and recently on 2020 , based on the Covid 19 disease. The sanitation, hygiene, medical and pharmaceutical products and their disposal during quarantine and isolation periods of corona patients. The procedures and methods of disposal are clearly stated in the rules. It has a great relevancy during these times10. 

These are the main rules and regulations regarding the pandemic laws and it’s amendment.

IMPACTS ON ECONOMY AND VARIOUS SECTORS 

This pandemic created various impacts on different sectors of economy. Some of the impacts are:

Impact on judiciary 

Judicial system had changed to some extend and the number of pending cases arose. In order to avoid such increasing numbers, Judiciary heard the cases by online platforms, and it relieved the

parties and judicial officers to get down their overburden. Some landmark decisions had pointed out during these times and those decisions paved way to the concept of equality and secularism in the Nation itself. 

Impact on economic growth 

Economic growth during the past 2020 financial year was a decline. As it is due to the lockdown, many were faced unemployed, the share market tends to a lower graph, money supply had reduced, foreign exchange and investments get surrendered, money market were faced great decline, interest rates in banks both public and private sector had reduced due to Banking Amendment Bill 2020.The consequence of all these was the decline of Gross Domestic Product, GDP decreased in a low magnitude during the past year.

Impact on taxing sector 

Taxing sector had faced discrepancies due to the delay dates of filing returns. The tax is one of the important source of income for Government and a retardation of such income created more problems in money circulation. ITCR had temporarily stopped their proceedings from February 2021 and passed the pending cases to interim commissions due to the decline in growth due to pandemic. 

Impact on workers on public and private sectors, agriculture and labors. 

Unemployment and reduction in wages and salaries created poverty in many families. Central Government and State Governments had implemented various programs on poverty eradication by offering free food kits to all families and all, but still unemployment is a major problem. Government employees were somewhat safe by getting their half proportion of salary during the period of pandemic, but labors and private employees were suffering al lot. In the case of agriculture itself as there was not much imports and exports their income and livelihood also ceased. 

Impact on foreign trade and investment 

Foreign trade had retarded it’s growth due to the unavailability of flights and lockdown which restricts the international trade and commerce which was guaranteed under article 301 of the Constitution. Due to such restrictions there caused a decline in foreign investment also. 

CONCLUSION 

 From the above stated words and incidents it is clear that this pandemic had taught each and every individual some lessons, even in the case food, shelter, occupation, trade and mainly on health itself. Many lost their lives due to pandemic and more were affected by it in whole of world. The impacts on economy and other sectors indicates the crucial effects of Pandemic period. Various rules and regulations were passed by Parliament and State Legislatures for the welfare of the Nation and States. Pandemic created many problems and hardships and in the midst of that the truth is that ‘we shall overcome, this will also pass’. Let’s pray for the whole world as it sparks light on the world soon. 

CITATIONS

1 THE RIFE OF VIRUS 2020,YASH TIWARI, notion publishers, 30th May 2020 ,page number 5 to 8.↩
2 Law of Disaster and Pandemic Management in India , SUBBANARASIMHAIAH(SR), Thomson Reuters publishers, 1st January 2021,page number 27 to 46.↩
3( 2013), 12 SCC 73.↩
4 1950 AIR 123.↩
5 1950 SCR 594.↩
6 2017 10 SCC 1.↩
7 2020 April.↩
8 AIR 1950,SC 27.↩
9 1994 SCC (6) 632.↩
10 BIOMEDICAL WASTE MANAGEMENT RULES, SIMPLIFIED, TANMAY MEHTHA, August 2019.↩

Note: This work is published as a part of the Article Writing Competition organized by The Legal Boffin in 2021.

Constitution, pandemic, Right to Health

Right to Health v. Right to Religion during COVID-19 Pandemic

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Lekshmi Shibu

Research Scholar
Department of Law, Central University of Kerala

Introduction

The concept of the right to religion was carefully taken into consideration by the constitution-makers due to India’s pluralistic nature. They found that it is better for the State to not interfere in the matters of religion and it is essential to draw the limits of religious freedom. Thus, Article 25 of the Indian Constitution provides that subject to public health, morality and other provisions of Part III all persons are entitled to profess, practice and propagate religion. During the recent COVID-19 pandemic it can be observed that the concept of right to religion often comes in conflict with the right to public health and safety.

Religious Gatherings During Corona Outbreak

According to World Health Organisation, as of May 1st, India has accounted for nearly 50 percent of fresh COVID-19 cases and 25 percent of deaths reported across the world.1 Religious practices, festivals, and gathering are the major reasons for the spread of COVID-19 in India. From the events of Rath Yatra in the year 2020 to the CSI Munnar retreat in the year 2021, religious practices have been materialistic for the super spread of COVID-19. While it is evident that religion contributed to the massive spread of COVID-19, it can be seen that certain religious communities are alleged to be the carriers of corona virus and are been targeted over others.

According to the report of Ministry of Health, as of April 18, 2020, nearly 4300 confirmed cases of COVID-19 across the country was linked with religious events of Tablighi Jamaat which occurred in Delhi, due to this there was stigmatization and harassment of Muslims all over the nation.2 When the country was experiencing the first wave of COVID-19, the Supreme Court lifted the ban on the Rath Yatra, stating that the parties involved that the procession of chariots, the Rath Yatra itself, could be allowed to proceed without the general congregation of devotees by following the directives issued by the constitutional bench.3 By lifting its stay on the Rath Yatra, the Supreme Court appeared to test its commitment to secularism and Article 25 of the constitution. Following the logic of the apex court there exist no convincing reasons as to why similar religious festivals cannot be allowed, if the organizers and the state governments concerned agree to follow the conditions and the norms imposed by the court. 

The mayhem created by Maha Kumbh Mela in the middle of the second wave of COVID-19, where millions of devotees participated added to the super spread of infection with devotees returning to their home cities. This situation was avoidable if there was proper adherence and fulfillment of the Standing Operational Procedure (SOP) and guidelines issued by the Union Health Ministry and Uttarakhand High Court.4 When it comes to Thrissur Pooram, unlike the previous years, the pooram was conducted as a ritual following COVID-19 protocol and guidelines issued by the High Court and the State Government.

In the holy month of Ramzan, people approached the Bombay and Delhi High Courts seeking permission to carry out their religious practices within the mosques,5 but both the courts took a different approach to address this issue. The Bombay high court rejected the petition, stating that the demands “cannot be considered in view of the ongoing critical COVID situation which is serious in nature.” On the other hand, in the Nizamuddin Markaz case,6 the Delhi High Court permitted a limited number of people to offer prayers during Ramzan, as there was no direction from the part of the Disaster Management Authority to close down the place of worship.

Conclusion

When the constitution itself makes it clear that public health should be preferred over the right to religion, it is seen some of the Courts face a dilemma to resolve this issue. Therefore, it is high time for the Supreme Court to issue necessary directions to the High Courts to avoid such confusions. The right to life and health of people cannot be sacrificed at the altar of the right to celebrate festivals. When the country is going through the havoc caused by the second wave of COVID-19 which have been more dreadful and lethal compared to the first wave, it is important to strictly adhere to the reasonable restrictions provided by Article 25 of the Indian constitution. Thus the political executive and judiciary must make all efforts to curb religious propaganda that is found inconsistent with the public order, health and morality. 

End Notes

1. WHO Says India Accounts for Nearly 50% of World’s New Covid-19 Cases, 25 % of Deaths, INDIA TODAY, https://www.indiatoday.in/coronavirus-outbreak/story/who-india-accounts-for-nearly-50-percent-world-s-new-covid19-cases-1799163-2021-05-05. (May 5,2021, 4:41 PM)↩
2. ARJUN PHILIP GEORGE & NABEELA SIDDIQUI, LIBERTY; NEW FACETS& CHANGING DIMENSIONS 358 (Dr. Anil R Nair, Centre for Parliamentary Studies and Law Reforms, NUALS 2020).↩
3. Odisha Vikas Parisad v. UOI & Ors. W.P.(C)No.571/2020.↩
4. Sachidanand Darbal v. UOI W.P.(PIL) No 58 of 2021. ↩
5. Juma Masjid of Bombay Trust v. State of Maharashtra and Ors. W.P.(L) No 10152 of 2021, Delhi Waqf Board v. Government of NCT Delhi and Anr. W.P. (CRL)42/2021.↩
6. Delhi Waqf Board v. Government of NCT Delhi and Anr. W.P. (CRL)42/2021.↩
7. Juma Masjid of Bombay Trust v. State of Maharashtra and Ors. W.P.(L) No 10152 of 2021, MANU/MH/1066/2021.↩