“Health is a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity.”
-World Health Organization
“The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”
Law plays an important role in shaping society, enabling us to articulate rights and realize societal associations. Public health focuses on the health, safety and well being of a population, striving to provide maximum benefit for the largest number of people through interdisciplinary engagements to evolve solutions. Public health considers a wide view of health, going beyond the traditional notion of physical health to include issues ranging from mental health and violence to health inequality and universal access to health coverage. Government proposals in the past have been inadequate in addressing the dynamic factors behind poor health. In the context of law’s role in improving access to healthcare, there has been a growing movement to see right to health as a fundamental right in the developing world ensuring that the government prioritises actualizing universal healthcare.
While the National Health Policy falls short of recognizing health as a “fundamental right”, it advocates a progressive, assurance-based approach to universal health coverage which is a positive step in realizing the constitutional goal of access to affordable healthcare. Although, the Constitution of India does not explicitly declares Right to Health as a Fundamental right but it contains certain ideals which have been used by the Indian Constitutional Courts to declare Right to Health as a Fundamental Right.
In this essay, we will endeavor to highlight those constitutional ideals which have been used by the Constitutional Courts to give a progressive construction to the notion that health is of a quintessential essence and must be the top most priority in public policy. We will also point out other numerous laws and policy interventions which have been employed to address health related issues in India and will delve upon the limitations which are plaguing the healthcare machinery.
Historical Background
The Nehru Report, published in 1928, was the first constitutional document to recognise public health as a constitutional right. The Nehru Report obliged parliament to ‘maintain the health and fitness for labour of all citizens’ under the ‘basic rights’ section. Three years later, the Karachi Resolution 1931 included a similar provision: industrial workers must be given with “healthy working conditions,” as well as maternity leave for women and the prohibition of children working in factories. Surprisingly, the articulation of public health in both of these historical constitutions is dominated by a concern for the health of (industrial) employees.
The right to health was included in M.N. Roy’s 1944 Constitution of Free India, which stated that “the promotion of public health and sanitation should constitute a charge on public income.”
Two essential rights linked to public health were included in the Gandhian Constitution of 1944. The first offered citizens the ‘right to rest’ and the right not to be ‘compelled to work for more than eight hours a day’; this was similar to the Nehru Report and Karachi resolution, in which public health concerns were largely considered as a problem related to ‘work’ and ‘workers.’ Second, every person would have a ‘right to medical freedom,’ as the Gandhian Constitution appeared to oppose mandatory vaccination and inoculation.
During the deliberations in the Constituent Assembly between 1946 and 1950, the Socialist Party of India developed a Draft Constitution of the Republic of India, 1948, which was greatly inspired by the debates. This document prohibited the employment of women and children in situations that were “harmful to their health.” It also had directive principles that were quite similar to Article 39(E) of the Indian Constitution of 1950.
The right to health has always been a primary issue for India. When the United Nations was debating the Universal Declaration of Human Rights, the Indian Constituent Assembly was debating the meaning and scope of constitutional or fundamental rights for Indian citizens. Using ideas comparable to 1st and 2nd generation rights, the Indian constitution established two sets of obligations. The first collection of obligations contains fundamental rights, where the state’s commitment is absolute, while the second set of obligations includes directive principles of state policy, where the obligation is transitional. The constitution has explicitly dealt with right to health through Article- 39, 42 and 47.
Indian Judiciary has played a very active role in interpreting Constitutional Provisions pertaining Right to Health and Duty of the State. As constitutional provisions have no scope for the realization of this right as fundamental right judiciary in time has played the key role in realizing this right as a fundamental right.
Our Judiciary has been very proactive when it comes to the matter of public welfare and importance. Judiciary has the scope to examine the socio economic and environmental conditions of the oppressed, poor and the downtrodden people along with ascertaining various needs and societal changes and this is mainly through the Public Interest Litigation (PIL) under Article 32 and 226 of the Constitution of India. Through entertaining PILs, the judiciary can direct the government to implement the fundamental right to life and liberty and executed protection measures in the public interest through legislations and policies.
Coming to Health as a fundamental right of an individual, Court in the absence of any direct provision has relied upon Article 21 to explain Quality Health as a basic aspect of life. Judiciary has interpreted- Right to life under Article 21 in the most liberal sense to mean and include something more than merely human existence and includes the right to live with dignity and decency. Through this it can be implied that all the citizens must be able to have a healthy life.
Judiciary in various instances has held Right to health is one of the indispensable human rights and cannot be compromised with on any ground. Right to Health comes under one of the socio-economic rights but it can’t be put into the basket of secondary rights. In order to enjoy the first category of rights- Human Rights and Fundamental rights, ensuring right to health is imperative. And the above view has been rightly observed by the Apex Court in the matter of Vincent Panikurlangara case, ‘Healthy body is the very foundation of all human activity’. Therefore, this right should not be restricted in any situation. In the same line, in Consumer Education and Resource Centre Vs Union of India it was held that the Right to Health is essential for human existence and is, therefore an integral part of the Right to Life.
The Supreme Court has also emphasized on the importance of accessibility to Health care services and medicines. Proper accessibility can only result in achieving a healthy life. In Paschim Bangal Khet Mazdoor Samity & Others v. State of West Bengal & Others ,The Supreme Court has held that in a the concept of welfare state puts obligation on a government to secure welfare of the citizen and it is the primary duty of the government in a welfare state. Coming to health care, there is an inherent obligation on the government to provide adequate medical facilities for its people. And any failure on the part of a government hospital to fulfill this obligation would result in violation of his Right to Life guaranteed under Article 21. The government have to discharge this obligation by providing medical care to the persons seeking to avail those facilities. An obligation is being put by Article 21 on the state to safeguard the life of every person. It states that preservation of human life is of paramount importance on the part of the state. Court was also of the opine that the government hospitals under the control and supervision of state are duty bound to extend medical assistance for preserving human life. Hence any failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment, results in violation of his right to life guaranteed under art 21.
In the judgement the Court came up directions in respect of delivery of medical services:
In a developing nation like, there is a scarcity of resources. The present medical infrastructure in the Public sector is not that pretty. Therefore in State of Punjab V Ram Lubhaya Bagga, the court held any employee can also get his medical services done in the private hospitals and the amount will be reimbursed by the state. However this judgement is only applicable to the employees working under state and union government. But at the same time this judgement reflects that the stress that the judiciary has put on right to health by extending this right to other than public sectors.
Judiciary has also highlighted the dynamic nature of this right. Justice Aziz Mushabber Ahmadi gave his minority opinion in Consumer Education and Research Centre v. Union of India –
“Right to Health It is not restricted to the pragmatic concept of right to health and emergency medical treatment only but has a broader meaning. In fact, right to health also includes other related rights like health includes more than an absence of sickness. Medical care and health facilities not only protect against sickness but also ensure stable manpower for economic development.”
In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi the Supreme Court was of the view State’s obligation doesn’t end in providing emergency medical services. State at the same has the obligation in ensuring the creation of necessary conditions required to achieve good health, including provisions for basic curative and preventive health services and the assurance of healthy living and working conditions.
The socialist ideals of the constitution of India have given shape to the legislations and policies. Right to health is one of such kind of right which every socialist state places it on the core state objective. If right to health is realized by the state then the attainment of other sets of rights will be an easy task. The legislative to right to health involves certain models which a state is required to choose.
After attaining independence, our nation was crippled with enormous problems ranging from lack of availability of basic public infrastructure to shortages of food. Partition was a death blow for this new India. Under the able leadership of Pt. Jawaharlal Nehru, the first Prime Minister and also the architecture of modern India placed health in the same line of priority with Basic public infrastructure. His socialist vision recognized access to health care as a public right. The Nehruvian ideals got also reflected in our health care policies as in 1954 the first health care policy – Central Government Health Scheme was launched by the Congress government with the objective of achieving universal health coverage in mainly for the workers and employees serving in the Public sectors
However Most of the health policies were formulated keeping in mind to reach out to some specific groups only. Even though most of the primary healthcare in public health facilities is available free of charge, the use of maternal and child health services are still relatively low with considerable socioeconomic inequity within and across the Indian states and most importantly most policies were had limited accessibility. To decimate all such obstacles, Congress led UPA government launched National Rural Health Mission in 2005.
The scheme was introduced as a flagship scheme of Government in 2005-06 to cater the Healthcare needs of the rural population of India. Policy makers and experts have seen NRHM as a scheme of holistic and mission mode intervention in the field of health care by the government. The scheme aims to provide accessible, affordable and quality health care to rural population of the country through improving the household health status in micro level. Accessibility and Affordability forms the core of this mission. Also the scheme focuses on community participation by involving Panchayati Raj Institutions (PRI).Looking at the success delivered by the scheme in a decade, the government in 2017 extended NRHM till 2020. There is still a need to improve general health conditions specifically IMR (Infant mortality rate) and MMR (Maternal Mortality Rate) so NRHM must be in operation till the situation gets better. NRHM was implemented looking to address quite a number of deficiencies mainly systematic and infrastructural in the health system of the country. These deficiencies primarily includes shortage of infrastructure and human resources, lack of holistic approach, lack of community ownership and accountability, non-integration of vertical disease control programs, non-responsiveness and lack of financial resources. CAG reports pertaining to NRHM from 2009-2015 suggest that the Mission has been successful in most of the areas, however some problems still persist.
Coming to the second most important health care reform by the state which is the Pradhan Mantri Jan Arogya Yojana (PMJAY) or Ayushman Bharat Yojana. PMJAY was launched in the year 2018 as a major national health reform which was meant to extend access to hospital care for 500 million poor and vulnerable people. This new national health protection scheme aims to take care the costs of their inpatient care. In this scheme the eligible families gets an insurance coverage for inpatient expenses of up to INR 5 lakh per year. The PMJAY scheme will be in operation in conjunction with existing health insurances scheme. The coverage for inpatient care includes both public or private hospitals, using a fixed price schedule. The biggest beneficiaries both PMJAY are the economically marginalized groups of the society. PMJAY has increased the accessibility and affordability of potentially life-saving hospital care.
Together, the NRHM and PMJAY are expected to advance India’s pursuit of universal health coverage (UHC). These two reform is an ambition and a dream to ensure all people can access quality health services when and where they need them, without suffering financial hardship, which is also one of the WHO South-East Asia Region’s Flagship Priorities. These reforms can be seen in the form of intensified action in public health programmes such as eradication of Polio, TB and immunization. Many of the set objectives are met some targets yet to be accomplished-for example, India has seen a remarkable decline in maternal and child mortality through progressively increased health service coverage in recent years. Inequalities still there in the society and of pocket spending take a toll on the pockets of the poorest section which is at least 4% of the population. That is precisely why the Ayushman Bharat and NRHM reforms are so timely. Both the schemes are being rolled out fast to address the problems. The National Health Policy comes with a commitment to raise the percentage of GDP allocated to health from 1.2% today to 2.5% by 2022.
The Right to Health, today, is a Fundamental Right of every Indian citizen. It casts a duty upon the state to provide quality healthcare to its citizens and ensure schemes to improve the existing healthcare infrastructure of the country. However, the Right to Health still remains recognised only through Article 21 and is not explicit in the Constitution. Furthermore, the legislature has made no attempts to recognise it as a fundamental right because of the fear that it cannot be enforced effectively. In theory, the right to health is a recognised fundamental right, but what of its implementation? Even the most revolutionary legislation or, for that matter, a landmark judgment often fail to reach their desired conclusion due to poor execution.
The growth and reforms taken place over the years in terms of services, availability of human power, facilities etc. is not adequate and most of the changes are not enough to make any substantive impact on the health of the people. Most of the public investment in the health care goes for medical education and production of doctors for the private sector, support to the pharmaceutical industry through States’ own participation in production of bulk drugs at subsidized rates, curative care for urban population and family planning services. The poor state of health care draws a link with such pattern of investment:
On accessibility related issue on economic accessibility- The standard of living is not comparable to the developed nations and there is a predominance of private sector in healthcare sector. This reflects a sense of contradiction and failure on the part of the state to fulfill the objectives of the constitution. It has widened the inequality in access to quality healthcare resulting in downward fall in health indicators. Various data shows that public’s expenditure in the health care sector accounts for more than 4% of the GDP where state’s expenditure on health sector only accounts for 1.2% of the GDP. Further the economically marginalized community are contributing a disproportionately higher amount of their incomes for accessing healthcare services both in the private sector and public sector.
This violates the principle of non-discrimination and equity and hence is a major ethical concern to be addressed
State obligation in Right to Health
In Right to Health, Public is the first right holder and primary obligation is the state to promote human rights. International customary law defines and guarantees human rights. Along with it the international human rights treaties creates binding obligations on the States which have ratified them to give effect to these rights.
General obligation on the states come from International instruments as soon as any state ratifies it. General obligation originates from the essence discussed below:
Progressive realization
When a state party ratifies any human right treaties, the state party has to give effect to these right in its jurisdiction. Article 2(1) of the International Covenant on Economic, Social and Cultural Rights highlights the state obligation to progressively achieve the full realization of the rights under the Covenant. This can be said to be an indirect recognition that there is limitation in the resources of the state which definitely will take time to implement the treaty provisions. Along with some other rights, the right to health under the covenant re deemed subject to progressive realization. All the rights of the covenant may not be realized immediately but states are expected to make at least a minimum effort with their available resources to protect and promote all rights under the Covenant. Available resources refer to those existing within a State as well as those available from the international community through international cooperation and assistance, as outlined in article 2 (1).
Other instruments have reflected the role of international assistance and cooperation, like the Charter of the United Nations, the Universal Declaration of Human Rights and the Convention on the Rights of the Child. These instruments don’t act a substitution for domestic obligations but only come into play when any state fails to give effect to economic, social and cultural rights on its own, and calls for assistance from other States to do so.
International cooperation is meant for those particular states who in a position to assist others in this regard. These states are expected to have an active programme of international assistance and cooperation to provide financial and technical aid to the needy states so that they can meet their obligations in relation to the right to health.
Progressive realization is applicable to all rights of the Covenant. Some obligations requires immediate effect in the domestic legislation such as the all the rights will be exercised without causing any discrimination and obligation to take steps towards the realization of the rights, including the right to health, which should be concrete, deliberate and targeted.57 Application of this obligation will not include retrogressive measures, only if a State can demonstrate that it has made every effort to use all resources at its disposal to meet its obligations.
A variety of measures are required to be taken for the realization of right to health. The measures will vary from state depending on its economic capability as international treaties do not offer set prescriptions. The article 2 (1) of ICESCR simply states that the full realization of the rights under treaty must be achieved through “all appropriate means, including particularly the adoption of legislative measures.”
The Committee on Economic, Social and Cultural Rights put emphasis on the states to adopt a minimum national strategy to ensure to all the enjoyment of the right to health, based on human rights principles which define the objectives of that strategy. For effective formulation and implementation of such strategy, indicators and benchmarks must be set for it. Expectation from a state will vary over time but the right to health being subject to progressive realization. For the same, states are required to adopt device to monitor and measure these variable dimensions of the right to health. When the indicators are disaggregated realises useful information on how the right to health can be realized in a particular state. As such kind of indicators has been developed by OHCHR in a conceptual and methodological framework.59
Right to Health remains an inalienable human right. It cannot be compromised on any grounds whatsoever. As has been seen in the forgoing discussion that the Right to health is regarded as one of the Socio- Economic rights by the International community yet it doesn’t put this right into the basket of secondary rights. The conception that in order to fully enjoy the first generation rights and other basic human rights, ensuring right to health is imperative. The Hon’ble Supreme court has rightly observed as under:
“A healthy body is the very foundation for all human activities. That is why the adage “Sariramadyam Khaludharma Sadhanara”. In a welfare State, therefore, it is the obliga- tion of the State to ensure the creation and the sustaining of conditions congenial to good health.”
As a result, this right should not be hampered in any way.
The judiciary has advocated the principle of ‘Obligation to Fulfill’ under state policy- “The law will relentlessly be enforced and plea of poor finance will not be alibi when people in the misery cry for justice”. State can’t make the excuse of scarcity of resource in implementation of this right, with the available resources states have to facilitate the Right to Health. This implies that Right to Health in India and its protection is much stronger than most of the democratic states. Judicial verdicts and India’s commitment to right to health in the International arena had led to development of right to health jurisprudence in India through a recent legislative measure National Health Policy, 2017.This was formulated by the Union Ministry of Health and Family Welfare. The health policy emphasized on making health a fundamental right, similar to education, and the key proposal suggests making denial of health an offence.
The hypothesis set for the paper has been proved negative for the fact that although there is no express provision in the constitution, the judiciary has constructed this right as a fundamental right, and the state has been able to set up health and medical facilities to some extent while also attempting to ensure that these facilities reach the general public through various enactments and policies. Though there has been certain negligence on the part of the government in facilitating this right to the public.
Lastly, we must recognise that achieving the right to health necessitates a lengthy process on the side of the state, which cannot be accomplished in a single day or fortnight. There are obstacles to overcome, such as a shortage resources, but with the combined efforts of the government, judiciary, and public, this right will become a reality in the long term. These obstacles, however, should not prevent us from asking the right questions to the state and shall always strive for with full zeal to achieve this constitutional goal of Right to Health.
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