COVID Deaths: Are Governments Criminally Liable for Mass Misery?

·6 min read

Naveen, a 30-year-old man in Delhi, was gasping with a dwindling oxygen level (60 percent SpO2) when he was allegedly denied a bed at the government-run Rao Tula Ram Memorial Hospital. Despite such a low SpO2 level, the examining doctor refused Naveen’s admission to the hospital.

While Naveen’s family frantically begged for help, the hospital did not even arrange for an ambulance to transfer him to another hospital. Just hours later, Naveen succumbed to depleting oxygen and lost his battle to COVID-19.

Naveen’s family believes that he was a “victim of infraction of fundamental rights by the State”. They moved the Delhi High Court seeking accountability from the government through compensation.

Naveen is among thousands of people across the country who lost their lives not just due to the degeneration caused by the virus but also owing to the absence of timely medical intervention.

On 24 April, 25 people died in Delhi’s Jaipur Golden Hospital due to oxygen shortage. Just six days later, seven people succumbed to inadequate medical facilities at a Gurugram hospital.

Dr DK Baluja, Medical Director at Jaipur Golden Hospital, told NDTV that they had been allotted 3.5 metric tonnes of oxygen by the government, which was to reach by 5 pm, but arrived only around midnight.

The State has a constitutional duty to protect the fundamental right to life of its people. The deaths caused due to the absence or inadequacy of the most basic elements of medical infrastructure exposes the failure of the State to fulfil its duty. Since the failure is evident, and supported by data, can we hold governments accountable? Are governments criminally liable for this mass misery?

Have the Authorities Been Negligent?

High courts across the country have rapped the central government, state governments, and constitutional authorities, such as the Election Commission, for failure to discharge their duties.

On Friday, 7 May, the Delhi High Court orally observed that the medical infrastructure in Delhi is in shambles, and the state government can’t act like an “ostrich with its head in sand”. Just a month ago, the court had observed that the Delhi government had failed to set up oxygen plants despite getting the funds for them in December 2020.

Government authorities are also being called out for their sheer negligence. While the Madras High Court and the Allahabad High Court came down heavily on the Election Commission for poorly managing the elections, the Jharkhand High Court issued a show-cause notice to the Drug Controller for failure to curb the black marketing of essential medicines and oxygen.

Courts across jurisdictions have settled that the governments have failed to protect the fundamental right to life of people in India under Article 21 of the Constitution. The abdication of responsibility has been established and criticised, but the situation on ground is still grim. People are still struggling to access the most basic medical needs to survive COVID-19.

Making a Case for Criminal Negligence

Under the Indian Penal Code, Section 304A defines the offence of criminal negligence. A person convicted under this section is punishable with two years of imprisonment, or fine, or both.

For an offence of criminal negligence to be made out, the following grounds must be ascertained:

  • there should be a duty of care on the part of the Defendant towards the aggrieved person

  • this duty must have been breached by the Defendant;

  • failure to perform duty expected of the Defendant, or performing a duty not expected

  • there should be tangible harm/damage caused to the aggrieved person because of the Defendant’s negligence.

While “right to health” is not an explicitly stated fundamental right in the Constitution, the Supreme Court, through various judgments, has interpreted it to be part of the right to life under Article 21.

Amala Dasarathi, an advocate practising in Delhi, has been actively involved in assisting people in navigating the medical system during this crisis. She believes that a clear link can be drawn between the government’s refusal to foresee the current situation and its ability to act on it, and the deaths that we see spanning the country, clearly caused by lack of timely access, or any access, to life-saving medical facilities.

"“Given that the COVID-19 crisis was clearly recognised as a global health emergency and a nationwide lockdown spanning almost two months was imposed a full year ago, and India’s known low amount of healthcare investment, it is reasonable to expect that the government should have spent the last year investing in building up healthcare capacity, to deal with the COVID-19 crisis. It is also reasonable to expect that the government would act expediently to address the present crisis, and ensure that systems are in place enabling citizens to access life-saving healthcare.”" - Amala Dasarathi

Therefore, the government’s lack of foresight in predicting the second wave despite the clear warnings prima facie point towards neglect in the duty of protecting citizens’ right to health and right to life.

What aggravates this lack of foresight to meet the threshold of criminal negligence is the complacency and callousness of the governments even when the cases and deaths continued to rise. The election rallies continued in full swing and religious congregations were given green signals. These events ended up becoming the super-spreaders of the virus.

Naveen's Case Is the Litmus Test

Kumbh Mela, election rallies, and panchayat polls – these events constitute major evidence to lead a case of criminal negligence against the central government and state governments.

It’s criminal negligence because the authorities not only lacked foresight, but they continued to perform actions that were antithetical to public health by all standards. As the second wave raged on, the Prime Minister and Home Minister held rallies in West Bengal. For such an explicit disregard for protection of people’s lives from the spread of the virus, criminal negligence is probably the least punitive criminal sanction.

On 4 May, the Delhi High Court issued a notice to the Delhi government in a plea filed by Naveen's family seeking compensation for his death. How the court handles this case, the observations and the actual order might become an important breakthrough in holding governments and authorities across the country accountable for, what I believe, is criminal negligence.

Considering the government’s power and perils associated with criminal justice, it will be a mammoth task for the bereaved families to successfully argue that governments are criminally liable for negligence. However, their plea to seek compensation might be more receptive to the judiciary.

The Supreme Court during its suo motu proceedings on the COVID crisis had suggested the central government to prepare a nationwide policy for compensating those who died due to the lack of access to medical intervention. The court said the government is empowered to do so under the National Disaster Management Act.

This compensation stems more from the state’s failure to protect the fundamental right to life than from holding it liable for criminal negligence.

We are yet to see a comprehensive nationwide policy on compensating such “victims of the system”. Therefore, the individual families, like Naveen’s, have been forced to move the courts. Whether these bereaved families ever get the compensation they deserve, or any closure, only time will tell. However, the acknowledgment of failure from those who failed to perform their duties in time might be the first step towards that closure.

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