Right To Health In India: Constitutional Perspective
“Everyone has the right to a standard of living adequate for the health and well-being of himself and his family,
including food, clothing, housing and medical care and necessary social services…”
Health is the essential prerequisite of human being and plays vital role in national development. Right to health is essential right without which one cannot exercise its basic human rights.
WHO has given the widely acceptable definition of “Health” in the preamble of its constitution, according to World Health Organization, “Health is a state of complete physical, mental and social wellbeing and not merely the absence of disease.”
Through this definition, WHO has helped to move health thinking beyond a limited, biomedical and pathology-based perspective to the more positive domain of “well being”. Also, by explicitly including the mental and social dimensions of wellbeing, WHO has fundamentally stretched the scope of health and by extension, the role and responsibility of health professionals and their relationship to the larger society.
The Constitution of India is the supreme law of India; it aims to secure social, economic and political justice. The Constitution of India does not categorically provide for the right to health as a fundamental right. The Constitution directs the state to take measures to improve the condition of health care of the people. The preamble has been amplified and elaborated in the Directive Principles of State policy. However, the basic law of the State safeguards individual rights and promotes national wellbeing.
It is the duty of the State to provide an effective mechanism for the welfare of the public at large.
Inspite of various health schemes and policies, the condition of healthcare is deteriorating beyond the control. The framers of Indian Constitution have rightly mentioned various provisions regarding health of public. Further the role of Indian Supreme Court is significant in protecting health of people at large with the help of various decisions. The effective implementation of Laws enacted based on Constitutional provisions will control the present problem.
Indian Constitution does not expressly recognize the fundamental right to health. However, Article 21 of the Constitution of India guarantees a fundamental right to life & personal liberty. The expression “life” in this article means a life with human dignity & not mere survival or animal existence. It has a much wider meaning which includes right to livelihood, better standard of life, hygienic condition in workplace & leisure.
There are various provisions under the Constitution of India which deal with the Health of the Public at large. The founding fathers of the Indian Constitution rightly inserted Directive principles of State Policy (DPSP) with a view to protect the health of the public at large.
The human right to health means that everyone has the right to the highest attainable standard of physical and mental health, which includes access to all medical services, sanitation, adequate food, decent housing, healthy working conditions, and a clean environment. Therefore, Health care must be accessible and provided without discrimination.
 Preamble to the Constitution of the World Health Organization as adopted by the International Health
Conference, New York, 19–22 June 1946; signed on 22 July 1947 by the representatives of 61 States (Official Records of the World Health Organization, no. 2, p. 100); and entered into force on 7 April 1948
Directive Principle of State Policy and Health
Part IV of the Indian Constitution which is DPSP (Directive Principles of State Policy) imposed duty on states. Articles 38 impose liability on state that state secure a social order for the promotion of welfare of the people but without public health we can’t achieve it. Article 39(e) related with workers to protect their health. Article calls the state to make sure that health and strength of workers, men and women, and the tender age of children are not abused. Article 41 imposed duty on state to public assistance basically for those who are of old age, sick & disable. Article 42 it’s a primary responsibility of the state to protect the health of infant & mother by maternity benefit. Article 47 makes the duty of the state to improve public health, securing of justice, human condition of works, extension of sickness, old age, disablement and maternity benefits and also contemplated. Further, State’s duty includes prohibition of consumption of intoxicating drinking and drugs are injurious to health. Article 48A ensures that State shall Endeavour to protect and impose the pollution free environment for good health. Some other provisions relating to health fall in DPSP.
Right to Health Under Fundamental Rights
Right to Health an integral part of right to life which is fundamental for all human beings under Article 21 of the Constitution. The Supreme Court has given identification to right to Health vide different techniques of interpretation. Right to Health is also one of the rights, which is implied under right to life and personal liberty as guaranteed by the Constitution of India.
Article 21-Protection of Life and Personal Liberty deals with “no person shall be deprived of his life or personal liberty except according to procedure established by law”. The right to live means something more, than mere animal existence & includes the right to life consistently with human dignity & decency. In numerous cases the Supreme Court held that right to health & medical care is a fundamental right covered by Article 21 since health is essential for making the life of workmen meaningful & purposeful & compatible with personal dignity.
Supreme Court, in its land mark judgment in Pramand Katara V Union of India & others ruled that every sector whether at a government hospital or otherwise has the professional obligation to extend his services with due expertise for protection life. No law or state action can intervene to avoid or delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute, and paramount, laws or procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained, and must, therefore give way.
In some cases the injured die for want for medical aid pending the completion of legal formalities. The Court stated that preservation of Health is of paramount importance. Once life is lost it cannot be restored. Hence, it is the duty of doctors to preserve life without any kind of discrimination.
Acts Involved: Constitution of India and Indian Medical Council Act, 1860.
Similarly again the Supreme Court in State of Karnataka V Manjanna deprecated the tendency of refusal to conduct medical examination of rape victims by doctors in rural government hospitals unless referred by the police. The court observed ‘ we wish to put on record our disapproval of the refusal of some government doctors, particularly in rural areas, where hospitals are few and far between to conduct any medical examination of a rape victim unless the case of rape is referred to them by the police’. The court added that such a refusal to conduct the medical examination necessary results in a delay in the ultimate examination of the victim by which the evidence of rape may have been washed away by the complainant herself or be otherwise lost, the court, therefore, directed that the state must ensure that such a situation does not recur in future.
A three judge’s bench of the Supreme Court in Consumer Education & Research Centre & others V Union of India ruled that right to health and medical care, to protect health and vigour while in service or post retirement, is a fundamental right of a worker under article 21, read with articles 39(e), 41, 43, 48A. All related article and fundamental rights are intended to make the life of the workman meaningful and purposeful.
The health of the worker is an integral facet of the right to life. In that case, health insurance while in service or after retirement was held to be a fundamental right and even private industries are enjoined to provide health in insurance to the workman.
Article 23 is indirectly related to health. Article 23(1) prohibits traffic in human beings. It is well known that traffic in women leads to prostitution, which is turn is to major factor in spread of AIDS. Article 24 is relating to child labour it deal with “no child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Thus this article directs the relevance to child health. In addition to Constitutional remedies sensitizing of the relevant ordering law towards late health for all adds to the content of right to health. Legal prohibition of commercialized transplantation of human organ and effective application of consumer protection Act to deal with deficient medical services has animated right to health.
Article 25 and Article 26: Freedom to Profess or Practice Religion and Freedom to manage Religious Affairs: Article 25 guarantees to every person and not citizen of India the right to profess and practice religion and Article 26 gives special protection to religious denominations. Both can be enjoyed by any person subject to public order, morality and Health and other provisions of the respective part of the Constitution.
Article 51- A: Fundamental Duties It shall be the duty of every citizen of India -To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. It shows that every citizen is under the fundamental duty to protect and improve natural environment since it is closely related to public Health.
Article 243-W of the Constitution provides that the legislature of the State may by law, endow the municipalities with such powers and authorities as may be necessary to enable them to function as institutions of local self-government. This power is connected with matters included in the Twelfth Schedule, item 6 i.e. Public Health, sanitation conservancy and solid waste management.
It is the primary duty of the state to provide for secured health to its citizen. No doubt the government is rendering this obligation by opening government hospitals and health centre’s, but to be meaningful they must be within the reach of its people and of sufficient liquid quality.
Right to Health in International human Rights Law
The right to the highest attainable standard of health is a human right recognized in international human rights law. The International Covenant on Economic, Social and Cultural Rights, widely considered as the central instrument of protection for the right to health, recognizes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” It is important to note that the Covenant gives both mental health, which has often been neglected, and physical health equal consideration.
Subsequent international and regional human rights instruments address the right to health in various ways. Some are of general application while others address the human rights of specific groups, such as women or children.
International human rights treaties recognizing the right to health:
The right to health is also recognized in several regional instruments, such as the African Charter on Human and Peoples’ Rights (1981), the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, known as the Protocol of San Salvador (1988), and the European Social Charter (1961, revised in 1996). The American Convention on Human Rights (1969) and the European Convention for the Promotion of Human Rights and Fundamental Freedoms (1950) contain provisions related to health, such as the right to life, the prohibition on torture and other cruel, inhuman and degrading treatment, and the right to family and private life.
Finally, the right to health or the right to health care is recognized in at least 115 constitutions. At least six other constitutions set out duties in relation to health, such as the duty on the State to develop health services or to allocate a specific budget to them.
CONCLUSION: The pandemic has exposed the deep vulnerabilities of India’s healthcare system. Another critical reason for the weak public health in India is the absence of a statutory framework that guarantees a fundamental right to health. Thus, there is a need to make the right to health a fundamental right – and implement it within the framework of legal devices and human rights principles of solidarity, proportionality, and transparency which will help India address the challenges. It is critical then that the right to health be implemented, using the principles of transparency, proportionality and solidarity.
It is need of the hour that the govt. should now focus on amendment on the current legislations and laws of India. The present health care services should be reviewed and accordingly the new should be made with the involvement of the people demands.
Therefore, the validity of the right to health should be maintained. Right to health is not specifically enshrined in the Constitution. Heath has been regarded as fundamental human right by the World Health Organisation. It is therefore considered that the enjoyment of highest and most attainable standard of health is the basic and fundamental right of every human being, irrespective of religion, race, caste, sex, creed, and political belief, social or economic condition. Thus, everyone must have access to the required services as and when the need arises. Though the Supreme court of India in a series of judgments has declared the right to health care to be fundamental right, it had not been given due recognition by the state. In its wider interpretation of Article 21 it was held by the Supreme Court that, the rights to Health is a part and parcel of right to life & therefore are of fundamental right provided under Indian Constitution.