Right to Health as a Fundamental Right

Introduction:

Right to health was foremostly recognized by the World Health Organization (WHO) in 1946 to be a human right. The right to health does not merely constitute the access to prompt healthcare but also to a safe and healthy environment, water as well as access to information regarding healthcare. The state amongst its other duties is also endowed with the duty to promote the health of its citizens.

The inefficacy of the Indian healthcare system has been unveiled by the COVID- 19 pandemic. One of the reasons contributing to the same is the lack of any legislation granting the Right to Health as a fundamental right.

Role of State in enforcing the Right to Health

On an accurate examination of the Constitution of India, one will notice that the Right to Health has not explicitly been added under Fundamental Rights in Part III. However, the visionary architects of the Constitution incorporated it in the Directive Principles of State Policy (DPSP) in Part IV as a duty endowed on the State.

U/a 39(e) of the Constitution, it is the duty of the State to ensure that the health of workers (men and women) is safeguarded and that citizens are not compelled owing to their economic exigency to engage invocations which are unfitting for their age and vigour. U/a 41 of the Constitution, the State is duty-bound to administer its aid by providing the right to work in certain circumstances such as sickness and disablement.

U/a 42 it is the duty of the state to accord maternity leave as well as humane environment for work.  U/a 47, the standard of living and the level of nutrition must be advanced by the state. The aforementioned as well as advancement made in the health of the public are its principal duties. Specifically, it must forbid consumption of substances which could be harmful to the health of the citizens, save if consumed for medical reasons.

 U/a 243G read along with schedule 11 entry 23, the duty to bring about advancements in sanitation and public health has also been conferred upon the Panchayats and Municipalities as well.

 DPSPs are however non-justiciable, meaning they cannot be enforced in a court of law.

Role of the Judiciary in enforcing the Right to Health

The non-justiciable nature of the DPSPs was used as a shield by the State to avoid its duty to protect public health. Thus, the judiciary played a crucial role in enforcing the right to Health by bringing it under the ambit of Article 21.

Article 21 secures to every individual the right to life and personal liberty save in accordance with the procedure established by law. The right to health has been considered to be a part of article 21 owing to the broadening of the ambit of the article by construing that the right to life means more than just animal existence.  

Following are certain cases wherein the court has expanded the ambit of Article 21 and construed right to health to be a part of it –

Pt. Parmanand v. Union of India and Others[1]

The Supreme Court opined that medical professionals were bound to provide their services to the patient notwithstanding whether the patient was a criminal or an innocent in order to punish the guilty and to save the innocent.

Bandhua Mukti Morcha v. Union of India[2]

The Supreme Court included the right to health within the ambit of article 21. Here, the Supreme Court directed the State of Uttar Pradesh to secure to the children access to health facilities in order to eradicate child labour.

Consumer Education and Research Centre v. Union of India[3]

The Supreme Court opined that the right to health of the workers was an intrinsic part of article 21 by adducing precedents and several human rights conventions.

State of Punjab v. Ram Lubhaya Bagga[4]

The Supreme Court opined that while article 21 granted the right to life and personal liberty, the state is endowed with the duty to not only provide the citizen with the access to suitable healthcare facilities but also ensure that it is accessible to most people as u/a 47.

Paschim Banga Khet Mazdoor Samity and Others v. State of West Bengal and Another[5]

The Supreme Court opined that providing medical services for protecting the life of the individuals is the duty of government hospitals and its staff by stating that u/a 21 protecting the life of the individuals is of prime importance and linking it with the welfare function of the state.

T. Ramakrishna Rao v. Chairman, Hyderabad Development Authority, Hyderabad and Others[6]

The court opined that not only the citizens but also the state is endowed with the duty to protect the environment. Article 21 also encompasses the aforementioned as environmental pollution would be a threat to the health of the public.

State of Punjab and others v. Mohinder Singh Chawla[7]

The court reiterated that securing healthcare facilities to individuals is the state’s constitutional responsibility, and in the present case this responsibility was performed by paying the medical bills of the employees.

Ratlam Municipal Council v. Vardichand and Others[8]

The Supreme Court opined that u/a 47 the state has been endowed with the duty to promote the standard of living of people and notwithstanding the financial resources, it has the right to implement this duty against any defaulting governmental authority or body.

Thus, it is evident that owing to the absence of a legislation for healthcare, the judiciary has bridged the gap by including it within the scope of Article 21 and protected the rights of the citizens.

Recommendations

• In a conference that was set up by the National Human Rights Commission (NHRC) on ‘Healthcare as a Human Right’ in 2013 various recommendations were made which could aid in developing the healthcare system. The Chairperson of the NHRC, Shri K.G. Balakrishnan was of the view that in order to develop the healthcare system in India and make it accessible to all it is pertinent to make the right to health a fundamental right. He also stated that the state is duty-bound to secure healthcare to the public.
• In Sept. 2019, the 15^th Finance Commission developed on the Health care sector a High-Level Group. Its report suggested that the right to health should be made a fundamental right as well as be transposed to the concurrent list from the state list. The foremost suggestion would secure to all the right to health however, a constitutional enigma may arise by the latter as to whether in Indian federalism centralising health would be beneficial. Presently, the state government can make regulations on this regard.

However, ANiti Ayog report of 2019, brought to light that the uniformization of healthcare and its transposition from state to concurrent list would prove to be detrimental as it would result in institutional impediments and too much bureaucracy.

Conclusion

The WHO has recognised the right to health as an essential human right. Due to absence of any comprehensive legislation on the same, the healthcare system in India is not advance yet. The non-justiciable nature of DPSP has been used by the State to avoid its duty to make health care facilities available to all. The judiciary has tried to bridge this gap by including the right to health within the ambit of article 21. However, it is vital in the present times, to make the right to health a fundamental right. The COVID -19 pandemic has illustrated the importance of the right to health. Thus, cogent health legislation would prove to be extremely beneficial to the society in case of public health crisis and pandemics in the future.

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References:

[1]Pt. Parmanand v. Union of India and others, A.I.R 1989 SC 2039(India).                              

[2]Bandhua Mukti Morcha v. Union of India, A.I.R 1984 SC 802 (India).

[3]Consumer Education and Research Centre v. Union of India, A.I.R 1995 SC 922 (India).

[4]State of Punjab v. Ram Lubhaya Bagga, (1998) 1 S.C.R 1120 (India).

[5]Paschim Banga Khet Mazdoor Samity and Others. v. State of West Bengal and Another, (1996) 4 S.C.C 37 (India).

[6]T. Ramakrishna Rao v. Chairman, Hyderabad Development Authority, Hyderabad and others 2002 (2) A.L.T 193 (India). 

[7]State of Punjab and others v. Mohinder Singh Chawla, 17^th Dec., 1996 (India).

[8]Ratlam Municipal Council v. Vardichand and others, A.I.R 1980 SC 1622 (India).

Other Sources:

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