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Right To Oxygen As A Fundamental Right Under Article 21

Today, the country is facing an unprecedented crisis. Seeing our people waiting in queues and dying while waiting for oxygen is very painful. The Supreme Court has termed this crisis as one of 'national emergency'. Whether an emergency be imposed in such crisis when people are dying consequential to the shortage of oxygen?

The Constitution of India, 1950 provides for three types of emergencies:

  1. National Emergency
  2. Constitutional Emergency/President�s Rule
  3. Financial Emergency

National Emergency

National emergency can be declared on the basis of war, external aggression or armed rebellion as per Article 352.
  • Constitutional Emergency/President's Rule

    Article 356 empowers the President to issue a proclamation if he is satisfied that a situation has arisen in which the government of a state cannot be carried on in accordance with the provisions of the constitution.
  • Financial Emergency

    Article 360 empowers the president to proclaim a Financial Emergency if he is satisfied that a situation has arisen due to which the financial stability or credit of India or any part of its territory is threatened.

Considering the present situation, be it Delhi�s AAP led Government or NDA led Central Government, the scarcity of oxygen and oxygen cylinders kept the citizens on their toes. The Delhi High Court rebuked the Aam Aadmi Party government on the distribution of medical oxygen supply and handling of the coronavirus pandemic in the national Capital. The Central Government was also criticized by the Constitutional Courts for failing to ensure sufficient oxygen supply across the country. Several hundreds of patients succumbed as several hospitals ran out of oxygen. This clearly shows how the coronavirus pandemic was mishandled.

As far as right to life as enshrined under Article 21 is concerned, it is the heart of all the Fundamental Rights. Any Fundamental Right can be brought into operation or is meaningful only when the lives are saved. It should be available to all and be exercisable by all at all the times everywhere. It is considered as an inalienable facet of the basic human life.

The Fundamental Rights are enforceable which implies that the State has the primary duty to uphold and safeguard them. It further clarifies the very purpose of bringing States into existence. State cannot evade from its duty of upholding �Right to Life� by simply blaming the system which otherwise is the State itself. No doubt it is true that the citizens too have Fundamental Duties but it�s the State which has the primary responsibility vis-�-vis Fundamental Rights.

It is also to be noted that not only the current Central Government but the previous Governments had spent a very small proportion of their GDP. How can the Government forget that protection of sanctity of �Right to life� is it�s foremost duty. Human life is impossible without �Right to Life�. Today, human beings are running from pillar to post in search of oxygen in order to save lives as its this oxygen without which this �Right to Life� will be meaningless as lack of oxygen even for few minutes will end human life.

Now, coming to the wide interpretations of this right as enshrined under Article 21 by the Supreme Court, it is crystal clear that human life doesn�t means a bare animal existence but a dignified human life. The Right to live with dignity includes adequate nutrition, clothing, shelter over the head with facilities of reading, writing and to express one-self as held in variety of cases such as Maneka Gandhi v. Union of India (AIR 1978 SC 597), Francis Coralie v. Union Territory of Delhi (AIR 1981 SC 746) and Bandhua Mukti Morcha v. Union of India (AIR 1984 SC 802). But, in present scenario, life itself is under danger, lest the dignity.

Given no explicit recognition of the right to health or healthcare under the Constitution, the Supreme Court of India in Bandhua Mukti Morcha v Union of India & Ors(supra) interpreted the right to health under Article 21 which guarantees the Right to Life. In State of Punjab & Ors v Mohinder Singh Chawla (AIR 1997 SC 1225), the Apex Court reaffirmed that the right to health is fundamental to the Right to Life and should be put on record that the government had a constitutional obligation to provide health services. In State of Punjab & Ors. v. Ram Lubhaya Bagga (1998) 1 SCR 1120, the Court went on to endorse the State�s responsibility to maintain health services.

In M.C. Mehta v. Union of India (1991 SCR (1) 866), the Supreme Court held that air pollution in Delhi caused by vehicular emissions violates the right to life under Art. 21 and directed all commercial vehicles operating in Delhi to switch to CNG fuel mode for safeguarding the health of the people. In the Church of God (Full Gospel) in India v. KKR Majestic Colony Welfare Association (AIR 2000 SC 2773), the Supreme Court observed that noise pollution amounts to a violation of Article 21 of the Constitution.

In the landmark case, Vellore Citizens Welfare Forum v. Union of India (AIR 1996 SC 2715), the Supreme Court allowed standing to a public-spirited social organization for protecting the health of residents of Vellore. In this case, the tanneries situated around the river Palar in Vellore (T.N.) were found discharging toxic chemicals in the river, thereby jeopardising the health of the citizens. The Court asked the tanneries to close their business.

Not restricting itself, the Supreme Court further held that right to sound sleep falls within the ambit of �Right to Life� in the case of Kharak Singh v. State of Uttar Pradesh (AIR 1963 SC 1295). Economy! Economy! Economy! What would be done with GDP when the life itself cannot be protected. A person is able to sleep only when there�s life, but this right to sound sleep is also meaningless when Right to Life is explicitly violated.

The Supreme court in the case of Mohini Jain v. State of Karnataka (AIR 1992 SC 1858) ruled that the right to education is a fundamental right that flows from the �Right to Life� in Article 21 of the Constitution. Even Right to Reputation was also held to be a part of Right to Life.

In the case of Sunil Batra v. Delhi Administration (AIR 1978 SC 1675), the Apex Court held that the fact that a person is legally in prison does not prevent the use of Habeas Corpus to protect his other inherent rights. Also, in Prem Shankar Shukla v. Delhi Administration (AIR 1980 SC 1535), it was held that no prisoner shall be hand-cuffed, fettered routinely for convince of the custodian�s escort.

When Right to speedy trial has also been declared as an inseparable facet of Article 21 in Hussainara Khatoon & Ors.v. Home Secretary, State of Bihar (1979 AIR SC 1369), then why can�t Right to speedy supply of oxygen.

To my understanding, when we have reached so far so as to declare �Right to electricity� and �Right to pollution-free water� as parts of Article 21, then �Right to oxygen� ought to top the list. The importance of �Right to Life� under Article 21 can be understood from this fact that even during emergency, even when India is at war, still this right can�t be taken away. Even when the security of India is threatened, still this right is a non-derogable right.

Why we couldn�t made preparations for making ventilators, make-shift hospitals and other medical equipment during the past year? No doubt, along with this �system�, we as citizens have also failed in upholding this right. At this sensitive point of time, by criticizing each other won�t solve such problems. It is the need of the hour for us to come together and fight this pandemic.

Award Winning Article Is Written By: Mr.Anurag Agarwal
Awarded certificate of Excellence
Authentication No: MA34191727312-29-0521

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