April 25, 2020
(Ejil Talk)
Written by Sarthak Roy and Niriksha Sanghvi
The coronavirus disease (or covid-19) pandemic has created an unprecedented situation across the world with States struggling to treat infected persons and contain the spread of the virus, which has no known cure as yet. The impact of this virus is predicted to be even more devastating for the developing economies such as in South Asia with most Asian governments spending little on health per capita and the cases of covid-19 increasing in the region and more steeply in India than its Asian peers. And as is the case with every crisis, the already marginalised, excluded, discriminated and vulnerable individuals, groups, and communities will suffer greater hardships – both in terms of their risk and their inability to cope with preventive measures such as lockdowns.
On 24 March 2020, India went into a nationwide lockdown, which is stated to be the largest and most stringent lockdown in the world, as ranked by the Oxford Covid-19 Government Response Tracker. In contrast, financial experts estimate India’s fiscal relief package to be “smallest in proportion to its GDP” and inadequate or insufficient to sustain its massive labour workforce and its poor and vulnerable population. The pandemic has fuelled racial and religious prejudices in many parts of the country and exacerbated the already dire circumstances in remote regions such as Jammu and Kashmir which has been under a security lockdown since August 2019 and is practically cut off from the rest of the world with its internet ban. On 14 April 2020, the lockdown was extended further for period of 3 weeks.
Disproportionate Impact of the Lockdown
While the dominant narrative has been about social distancing, hand washing and lockdown, the pandemic has led to an increase in communal distancing, xenophobia and stigmatisation as seen after the mass religious congregation of the Islamic missionary group – Tablighi Jamaat in Delhi, resulting in the Muslim community being stigmatised and blamed for the spread of the virus. Similarly, the people from North-Eastern region have been at the receiving end of racial attacks including verbal abuse and physical assault “because of their similarities with the Chinese phenotype“.
It is also disproportionately affecting the poor and vulnerable population in rural areas with relatively weaker healthcare system and those in remote regions such as Jammu and Kashmir which has historically been a politically sensitive region and frequently faces restrictions on its public life and civic freedoms. The situation of Jammu and Kashmir is an important one to highlight where the hardships are due to a combination of the pandemic, weaker healthcare system and the on-going internet ban.
In August 2019, special autonomy of the former state of Jammu and Kashmir was revoked through the passage of Jammu and Kashmir Reorganisation Act, splitting it into two union territories of Jammu and Kashmir and Ladakh under direct control of the Central Government. Fearing unrest within the valley, a security lockdown was imposed in the entire region along with deployment of military troops and imposition of the longest internet blackout. After more than five months, internet services were partially restored earlier in January 2020, but high-speed internet is still not allowed.
The movement restrictions, internet shutdown and loss of income since August 2019 has made it difficult for people in Jammu and Kashmir to adequately access healthcare and other essential services. This is in addition to the shortage of medical professionals and equipment in the region which has one of the lowest doctor-population ratio in the country. According to the March 2018 Manpower Audit Report of the Health and Medical Education Department of Jammu and Kashmir, the doctor to patient ratio in Jammu and Kashmir is 1:3,866, almost half the average ratio of India and a quarter of the WHO standard of one doctor per 1,000 people. The spread of covid-19 has now compounded the challenges for health care workers as Jammu and Kashmir registers 450 cases of covid-19 (as on 25 April 2020).
Since the lockdown, the Doctors Association of Kashmir have highlighted the difficulties of providing telemedicine since remote virtual consultations are practically impossible due to slow and sporadic internet services. Doctors are not being able to download or access important covid-19 related guidelines for intensive care management and medical information from the Ministry of Health’s website. Neither are they being able to take advantage of several government initiatives such as MyGovIndia’s WhatsApp chatbot which responds to queries with text, infographics and videos or the Aarogya Setu App which connects people to health services and enables location based contact tracing. Lastly, due to restrictions on media services, regular updates and information being provided by the World Health Organisation (WHO) to medical professionals and the general public is also being hampered.
In order to tackle the public health crisis that is unevenly increasing hardships of certain regions and communities, it is important to highlight India’s need to adhere to cross-cutting human rights obligations of minimum core content of equal access to healthcare for everyone and access to internet for accessibility of crucial information.
Rights Based Approach towards Healthcare and Access to Internet
At the outset, the core principles applicable to the human rights framework are equality and non-discrimination. (Also see International Covenant of Economic, Social and Cultural Rights (ICESCR) Art. 2(2) and International Covenant of Civil and Political Rights (ICCPR), Art. 2) The right to healthcare which is a basic human right under Article 12 of the ICESCR and has been recognised as a fundamental right under Article 21 (right to life) of the Indian Constitution includes equality of opportunity for people to enjoy the highest attainable level of health. Social stigmas and prejudices on racial and religious grounds often become reasons for evading treatment and its removal is necessary for ensuring equal access to medical treatments and healthcare services and ultimately combating this outbreak as reminded by the UN High Commissioner for Human Rights Michelle Bachelet. The Indian Government’s advisory strictly prohibits labelling any community or area for spread of covid-19 to reduce discrimination, however, its actual adherence remains questionable.
Further, the right to health can be fulfilled by providing sufficient number of hospitals and other health-related facilities with due regard to “equitable distribution” throughout the country. (Committee on Economic Social Cultural Rights (CESCR), General Comment No. 14, para. 36) Another measure towards facilitation of proper health is provision of correct and accurate information on health-related issues and available health services. (CESCR General Comment No. 14, para. 12) The right to seek, receive and impart proper information has special importance in relation to health and is also guaranteed under Article 19 of the ICCPR. The information needs to be disseminated in a way accessible to everyone and in a language and manner they understand.
Marko Milanovic highlights that States should refrain from censoring or withholding health-related information and in order to treat and control epidemics, must “provide education and access to information concerning the main health problems in the community”. Today, information is accessed through the internet as much as other offline sources and access to internet has been recognised as a human right by the UN Human Rights Council in a 2016 resolution which calls on all States to refrain from “intentionally preventing or disrupting access to or dissemination of information online”. It is in this light that people in Jammu and Kashmir should be given access to high-speed internet for them to obtain important health-related information during the lockdown.
Moreover, the Indian Supreme Court has recognised the right to internet as a fundamental right “enjoying constitutional protection” and stated that an indefinite restriction on internet would be impermissible. (para. 152) The essential nature of internet services during a lockdown has also been accepted in the Home Ministry guidelines published at the start of the lockdown.
Unimpeded access to high-speed internet is a necessary tool of human health and development during the ongoing pandemic. Any limitation placed on issues of public health (which includes restriction on access to information) must be “proportional” and “primarily intended to protect the rights of individuals rather than to permit the imposition of limitations by States”. (CESCR, General Comment 14, para. 28). As such the minimum core obligations pertaining to ICESCR right to highest attainable standard of physical and mental health are “non-derogable.” The Siracusa Principles on limitations and derogations of the ICCPR make it clear that any limitations placed on right to information should be only to the extent “necessary” and in response to a “pressing public or social need”.
When a pandemic has gripped the entire country, all its residents, including in Jammu and Kashmir, can benefit from healthcare services and related information and any restriction on this right on grounds of national security or restoration of public order would need to be carefully balanced with any public health risks it can pose. The current internet ban on 4G services is till 27 April 2020 at the end of which it will be reviewed again by the Home Ministry. A plea has also been filed before the Indian Supreme Court to restore high-speed internet services in Jammu and Kashmir and is pending reply from the Central government.
Conclusion
The lockdown represents a massive logistical and implementation challenge for India given its geographical terrain, income inequality and population density. It is nonetheless important to ensure that measures in response to the covid-19 are neither applied in a discriminatory manner by continuing the internet ban in the newly formed union territory of Jammu and Kashmir nor used to exacerbate the existing inequalities and vulnerabilities within diverse communities of India. In a country as vast and diverse as India, emergency responses will have to be tailored to each of the specific states, unlike a one size fits all approach. Active measures for disseminating proper information which includes allowing access to internet and preventing social stigmatisation should be undertaken to reduce public health risks. To do this, it becomes necessary for the central government to work in synergy with the local governments to identify the specific issues faced in different regions and communities and take measures to mitigate them in line with India’s human rights obligations and the Indian Constitution. As the second lockdown is underway in India, this becomes even more imperative – as the needs and difficulties for people in Kashmir will not be the same as the people in Delhi or those in Assam. Read More