WHETHER THE GOVERNMENT FAILED TO PROTECT CONSTITUTIONAL RIGHT OF THE HEALTH AND SANITATION WORKERS ?
Updated: Mar 14
Since the inception of the COVID-19, there are two classes of work groups, relentlessly working and fulfilling their duties towards the nation all over the world. They are the Health and Sanitation workers who are serving their nation selflessly. Both of the work groups are essential for eradicating COVID-19 from the country and their work involves a lot of risk of infection as both of them come in contact with the COVID-19 infected people. Thus, a Major concern arises for the Doctors, Nurses, and other Health-Workers. In the case of C.E.S.C. Ltd. Etc vs Subhash Chandra Bose And Ors, the term Health has been defined as the state of mental, physical and social wellbeing and not merely the absence of disease. Article 21 of the Indian Constitution in addition to Right to Health also includes good working conditions and maintenance of workers. Hence, this Article is aimed at critically understanding the present conditions of the Health Workers w.r.t Article 21.
Vulnerability of the COVID Warriors
In the case of State of Punjab v. Mohinder Singh Chawla, Right to Health was included under the ambit of Right to life and Personal Liberty conferred upon to every person under Article 21 of the Constitution. Thus, it is the duty of the government to provide PPE required by the health and sanitation workers. According to WHO, both, the Health and Sanitation Workers, are considered as vulnerable to contracting COVID-19 due to nature of the work done by them, and for the same reason, the WHO issued a Technical Brief and an Interim guidance highlighting that both health and sanitation workers need to wear Personal Protective Equipment (PPE) as per the nature of their service.  The PPE must include Hand Gloves, Protective Gear, Boots and Face Shield and As the reports says, there is only one doctor for almost 1400 patients, making the ratio 01:1400, in the country. The risk taken by these people on themselves is concerning, even though their determination for fulfilling their duty tirelessly into the present situation is commendable. Thus, if the Government fails to provide adequate facilities and protection for these workers, it will have failed the Constitutional Right conferred upon them.
Faulty Policy Measures
When there was not a single new case recorded for a whole month, the government relaxed its export norms on February 8, by allowing export of gloves and surgical masks. The government on February 25 gave further relaxations by allowing export of 10 Protective Equipment. The export of all these items was banned by the government on March 19 when the number of COVID-19 cases rose to 150. The government had gone into aberrant direction for allowing the exports of the Personal Protective Equipment. It was reasonably foreseeable through the condition of countries like the United States and Italy that the requirement of such equipment will be increasing day by day.
A country like India, which has been a disease prone country since its very inception due to lack of proper sanitation and awareness, should not have taken a risk by exporting its Personal Protective Equipment when its own people were in need of the same. The country risked the lives of the so many workers and thereby the entire nation by exporting all the required items to different nations. Doctors in different parts of the country had to resort to wear Raincoats and Helmets in order to protect themselves from infection, moreover, a junior doctor serving COVID-19 Patients in a hospital in Kolkata, described how “for over a week, we came in close contact with suspected corona patients without proper protective gear … We all are left at the mercy of God” also, by 2nd April 2020 over 50 Doctors and medical staff have tested positive for COVID-19.  In the case of M Nagraj v. Union of India., a Constitution bench of the Hon’ble Supreme court in terms of Article 21 stated that, the rights, liberties, and freedoms of the individual are not only meant to be protected against the State, but they are ought to be facilitated by it... It is the duty of the State not only to guard the human dignity but also to facilitate it by taking positive steps in that direction. The Hon’ble Court Stressed on the point that no exact definition of human dignity exists' and it only refers to the intrinsic value of every human being, which is to be respected by everyone. It cannot be taken away and it cannot be given. It simply is. Every human being has dignity by virtue of his existence. Because, in this present situation the Health Workers have been compelled to provide their service in a dangerous environment, and it is the duty of the state to assure that nothing of such sort arises that strips them of their Dignity.
Misery of The COVID Warriors
Because of the lack of Protective Equipment’s, a number of sanitation workers have tested COVID positive. Out of them, a 54-year-old sanitation worker staying at Dharavi locality of Mumbai tested positive of COVID-19.  Dharavi is home to more than seven lakh people in an area of 2.1 sq. km. From this one can reasonably anticipate the population density of the region and by risking the life of health and sanitation workers the government is further risking the life of every single person in the country. Further, in order to stop the chain of transmission on 24th March, 2020 vide order no. 4O-312O20-DM- 1(A) the Indian government via the Ministry of Home affairs issued an order directing a Nation-wide 21-day lockdown under S.6 and S.10 of the Disaster Management Act, 2005.
In the case of MC Mehta v. Union of India, the Hon’ble Supreme Court said that, “The Directive Principles of State Policy under Article 39[e], Article 47 & Article 48 collectively cast a duty upon the State to protect and improve public health.” Because, the present system of making the Health and Sanitation Workers of treating the COVID-19 infected patients and clear household waste and clean areas which carry the risk of potential infections of the CoronaVirus, without or with insufficient COVID-19 Personal Protective Gear (PPE), is callous and amounts to violation of their fundamental right to life and personal liberty and right to health conferred upon them by Article 21 as it puts the life of the Health and sanitation workers and the lives of their families and neighbours at a great risk.
 C.E.S.C. Ltd. Etc vs Subhash Chandra Bose And Ors (1992) AIR 573, 1991 SCR Supl. (2) 267  State of Punjab v. Mohinder Singh Chawla, AIR 1225 (1997).  Water, sanitation, hygiene, and waste management for the COVID-19 virus: interim guidance, WORLD HEALTH ORGANIZATION (Apr. 23, 2020), https://www.who.int/publications-detail/water-sanitation-hygiene-and-waste-management-for-covid-19.  Id.  Hannah Ellis-Petersen, India coronavirus cases rise amid fears true figure much higher, THE GAURDIAN, Apr. 1, 2020. Abhishek Bhalla, Over 50 doctors, medical staff test positive for Covid-19; govt probing if they got infected from patients, INDIA TODAY, Apr. 3, 2020.  M Nagraj v. Union of India, 8. SCC 212 (2006).  Id.  Mustafa Shaikh, Coronavirus in India: Another Dharavi-related case, 54-year-old sanitation worker tests positive, INDIA TODAY, Apr. 2, 2020.  MINISTRY OF HOME AFFAIRS, ADDENDUM TO GUIDELINES ANNEXED TO THE MINISTRY OF HOME AFFAIRS ORDER NO. 40-3/2020-DM-I(A) (2020).  MC Mehta v. Union of India, (2005) 10 SCC 217.
Alay Ninad Raje
Student at Institute of Law, Nirma University.
Aman Rizwan Kadri
Student at Institute of Law, Nirma University.