India was collectively horrified when the news of hundreds of dead bodies floating on a river in Uttar Pradesh broke. The Coronavirus Pandemic has made us reconsider our societal structure, and the impacts of the pandemic have made us question the boundaries of our morality. Funerals where family members are not allowed, last rites that are rushed by agencies that are overworked, and even dead bodies that are sent floating in rivers over fears of transmission are some of the instances that have made us doubt the dignity of the dead. Hundreds of people in hospitals, many more who have rejected beds because hospitals do not have enough beds, overcharging patients, and a desperate lack of resources like oxygen for not only COVID patients but also those who need access to hospital services for other conditions. All of this has made us live the plight of the dying.
Finally, the living has not been spared by the pandemic either. Their family members and friends have been suffering, restrictions have been placed on their lives, and they are witness to the horrors of the pandemic. The plight of the living too is dire.
All of these instances raise questions whether the circumstances we find our solves in today are appropriate with respect to Indian Constitutional law.
Dignity of the Dead
As outlined in the previous section, the treatments meted out to the dead are disconcerting and revolting. Traditionally, the dead have been treated with respect and care, and elaborate ceremonies have historically existed to treat the dead with honor. However, all of this is challenged by the global pandemic.
The dead have rights under Constitutional law. This idea has widespread acceptance, though its contours are admittedly not defined. The first event is that of mass graves. Various news reports have shown mass dumping of bodies into large pits, without proper ceremony. The NHRC has taken cognizance of mass graves as well and has stated that it is a violation of the rights of the dead.
What are the rights of the dead under constitutional law? Under Article 21, the Right to Dignity and the Right to Fair Treatment does not extend only to those who are alive, but also to the dead. It further noted that hospitals holding back the bodies of the dead for want of payment was against the law.
This is tied to the law as well. The Allahabad High Court ruled that the word person also extends to dead people to a limited extent, but definitively includes the right to receive the respect that they would have received had they been alive.
One of the most important controversies is whether there is a Right to Decent Funeral for the dead. In Ashray Adhikar Adhyan vs. Union of India, the Supreme Court refused to issue a direction but held that the Government should take all steps in order to ensure a decent burial. In S. Sethu Raja vs. The Chief Secretary, the Madras High Court ruled that the dead had the right to a decent burial. The Madras High Court filed a suo motu case on the same grounds during the pandemic.
While there is a deep historical tradition respecting the dignity of the dead, little was heard of these rights before the pandemic hit. We were collectively ignorant of our dead before the horrors of the global pandemic. The pandemic has shown us that our priorities have been misplaced, and we need to devote more resources to ensure the sanctity of the dead.
Dignity of the Dying
The pandemic has completely demolished the medical system in the country. Beds are unavailable, ventilators are in short supply, and oxygen is markedly absent. Those that are on the edge of death are ever so closer because of the lack of material resources.
There are several people who have either needed hospitalization or regularly visited the hospital, not only because of corona but also because of other medical requirements like dialysis. The experience of such people has been harrowing. Such patients are some of the most vulnerable people and are at a heightened risk of contracting COVID. The conditions in which they need to visit hospitals in unsavory.
First, hospital staff usually deals with COVID cases and patients, and there is a possibility that patients and their family members may contract the disease. Second, hospitals are usually premises where there is a large number of people with diseases, and there is some possibility that the disease is present on the premises. Third, patients that need to be hospitalized are often kept in common rooms with a number of other patients. Not only is there a risk of the disease transmission from the other patients, but this risk is also massive since there are visitors that may pass COVID unsuspectingly.
The rights of the dying are encompassed under Article 21 of the Indian Constitution. The Right to Life includes the right to die, as the Supreme Court stated in the case of Aruna Shanbaug. According to this case, Article 21 extends to an individual taking a decision to end their life (i.e. euthanasia). While the decision has been controversial, the right to die via passive euthanasia is now a fundamental right. The treatment meted out to patients has been heartbreaking. Patients have to undergo a large amount of suffering inside hospitals and have to pay large amounts of money for ambulances. While legal provisions to ameliorate these exist, the political will to implement it has been lacking.
Dignity of the Living
The living has been gravely impacted by the coronavirus pandemic. Mental health issues have skyrocketed as people have been forced to lock themselves up in their houses and severely reduce human contact. There is always the mental anxiety associated with the possibility of being infected, and also the general downturn associated with physical confinement.
However, while the privileged have the luxury of staying in clean dwellings, the same is not true for all. The migrant workers, who live in cramped and dirty quarters, were severely hit by the first wave of the virus. Not only did most of them lost their jobs, but they were also demonized by the privileged portions of society for being ‘carriers’ and to top it all off, did not have any form of transportation or food.
They were provided food by charities, and many of them wanted to return to their homes, often in remote villages. The Government refused to arrange for such facilities, and thus began one of the greatest human tragedies of this era, where migrants of all ages walked hundreds of kilometers to their homes as they had no other option. Many of them died on the way. Shockingly, their plight was initially given little attention, and the judiciary was reluctant to act for their benefit. Today, the great tragedy has been largely forgotten, which speaks volumes about our constitutional values.
Did the migrant workers not have a right to life and other associated rights under Article 21? Surely, they did, but the people and the State collectively failed to implement them and have cognizance of them. The issue with India’s constitutional law is not that it is normatively lacking, but that it is extremely difficult to implement in practice. This is the key problem with Indian Constitutional Law.
Conclusion
India’s Constitutional Law has been extensive and detailed and has been progressively interpreted. However, the pandemic showed us the limitations of the position and demonstrated how limited the ambit of the law was. For instance, the law relating to the dignity of the dead, while it exists, is abysmal and not detailed. Before the pandemic, it did not receive a large amount of attention nor is it developed enough. Considering the exalted standing of the dead within culture, this is an anomaly that should be plugged at the earliest.
The dying and the living also have a catena of rights under the Constitution, especially under Article 21. While these are reasonably developed and detailed, the central problem is the lack of political will to implement them. Though this has always been the case, reporting during the pandemic highlighted the issue. No other example has been as stark as that of the journeys of the migrant workers, whose rights were collectively denied to them by the rest of the country.
Politicians do not pressure hospitals because private hospitals play a very important role and the lobby is quite powerful. Unfortunately, this has led to hospitals getting away with outrageous actions like extreme overcharging, ill-treatment of patients, etc. Such actions are clearly prohibited by the Constitution, but for as long as political will does not exist, the words of the Constitution will remain mere words and the aspirations of the Indian people will never be met.
Editor’s Note
The Article capture the right to die with dignity as an intrinsic facet of the right to life under Article 21. The author refers to several significant judgments which are still fraught with several issues that need to be addressed with respect to the ambit of Article 21. The author also addresses the continued lack of medical funding to build healthcare infrastructure which proves to be an endemic during the Pandemic.