This article is written by Kalhan Safaya, student of Hidayatullah National Law University.
“He who has health, has hope; and he who has hope, has everything” – Thomas Carlyle
The world is clutched by the menacing contamination. The infirmary beds are flooded and the medical cadre is running short. Desperate hands beseech for a passage out of their anguish, and cadavers burn like incense. Economies falter and States collapse as the malady plagues every man, woman and child. Havoc wreaks everyday as hell starts to rage fire from underneath. No man on the streets and no Jehovah in heaven. The plight of the mortals is here and we are the living witnesses of it.
The aforementioned lines aren’t prose from a John Milton classic but a comprehensive encapsulation of the times in which we are currently inhabited. The pandemic has undoubtedly caused a lot of trouble to us in this day and age; it is for this pandemic that we tend to understand the very necessity of healthcare and the access to the right to health. Healthcare in its entirety is paramount for every person living on the globe irrespective of his/her gender, caste, class, race, creed and sex. Healthcare sector is an essential requisite for every State and its maintenance is one of the most important responsibilities bestowed on the State.
In the Indian legal framework, the Right to Health is not included in the Part III of the Indian constitution, that is, it is not an explicit fundamental right which is enjoyed by the citizens of India but the same is considered to be of extreme importance under the Part IV of the suprema lex of India, that is, it is a Directive Principle of State Policy. The inclusion of the same under the ambit of DPSP does make the Right to Health amenability disposed to the State.
There are several similarities between the healthcare aspects as jotted down and prescribed in the Directive Principles of State Policy and in that of Fundamental Rights. The study thus aims to quill out all the points of correlation there are in these two entities.
The article will further critically assess the role of the Indian Judiciary in considering the right to health under the purview of Part III of the Indian Constitution i.e. the Fundamental Rights.
Table of Contents
Right to Health as a sanction in India
The concepts of health, advancement and progress fit in an equation where one thing leads to another hence, creating a domino effect. If the populace of a country is healthy then it would ensure the advancement of the citizens and if the same is ensured then this would surely pave way for the economic and social progress in a country. To simplify the same herein lies a pictorial representation that settle things more vividly:
India ever since gaining political and social autonomy has acknowledged the very need of the right to health and healthcare facilities. India has always kept the populace as the deserving keeper of this right and whereas it places the State to be the duty-bound guarantor of the same. Being a benefactor representative of the United Nations, India has endorsed several conventions regarding the right to achieve healthcare on an International platform. The Indian Constitution does not have any explicit mention of any Fundamental Right of Health whatsoever but nevertheless, contains the Right to Life under Article 21.
This article recognizes the very basic and incessant need to live a dignified life and ensures the same to every citizen of India equally. The term life under Article nowhere means mere survival but insinuates on the human needs of living a life with dignity and respect. The Article 21 along with other statutes namely: Article 38, 41, 42 and 47 paints a much clearer picture as to how the State is obligated to fulfill the responsibilities, bestowed upon them by the Constitution, of ensuring the right to health to the Indian populace.
Indian Constitution’s preamble endeavors to install a socialistic environment in India and pace the country towards being a welfare state in its true nature and form. The postulate of democratic socialism that reigns over India ensures a dignified living for everyone in the country. Various provisions in the Part III and IV of the Constitution are interlaced with the postulates of socialism and that aims to uphold the principles of egalitarianism wherein dignity and decency in life is ensured for every citizen.
The part 4 of the Indian Constitution deals with the Directive Principles of State Policy which direct the state to perform and undertake duties which ensure the health facilities for the people of India. On further reading one can get hold of the articles which are directly and indirectly related to the sphere of public health and healthcare. Those articles are as follows:
- 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 41 imposed duty on state to public assistance basically for those who are sick & disable.
- Article 42 it’s a primary responsibility of the state to protect the health of infant & mother by maternity benefit.
- Article 47 spell out the duty of the state to raise the level of nutrition & the standard of living of its people as primary responsibility.
It’s not just the State but the authority to function towards maintaining good health care of the citizens also rests in the hands of panchayats and municipalities. The municipalities and Panchayats are directed to work towards maintaining certain aspects of public health care which are prescribed under the Eleventh Schedule of the Indian Constitution. The purview of the eleventh schedule undertakes a wide range of aspects which are to be taken care of by the municipalities and village Panchayats and the ones relating to the maintenance of public health are as under:
Scope of Right to Health under PART III
In light of the preceding arguments, it is clear that the right to health is a paramount part of the DPSP and the State is liable to ensure the fair healthcare to everyone in the country but this postulate is not as benevolent as it sounds. The DPSPs however are non-justifiable in nature and no challenges can be made against them by anyone for that matter. In order to make these duties justifiable, it is essential that posits of right to health come under the ambit of fundamental rights. It is now established that there’s no explicit mention of any right of this genus under the Part III of the Indian Constitution but however there are certain statutes in the same part which may indirectly have callbacks to the same.
For instance, Article 21 of the Indian Constitution ensures the right to a dignified life given to everyone equally and the expression of life under this article nowhere means mere animal survival. A full-fledged and maintained healthcare ensures a dignified living thus, this article also ensures the same in the straight jacketed form of the Right to life. Furthermore, Article 23(1) of the Indian Constitution renders the traffic of humans as illegal. It is well-known for a fact that trafficking leads to prostitution and due to these heinous activities there is a huge risk of the transmission of several STDs like AIDS. From this very perspective, it can be observed that this article also deals with the maintenance of public health amidst the people of India. Affixing to these statutes, Article 24 also puts an injunction on the employment of children, under 14 years of age, any and everywhere. The reason for this injunction is also primarily associated with ensuring good health to the children in India and thus also indirectly contains the theory of right to health.
Judicial actions on right to health
Apart from these articles there are several judicial pronouncements and landmark judgments which vividly are verbose about the fact that the right to health is undoubtedly contained under the ambit of the Fundamental rights (essentially Article 21) as enshrined in the Indian Constitution.
The dilapidated sections of the Indian populace very vividly, at certain points of time, reached the Indian Judiciary in order to seek assistance regarding the issues of public health and maintenance of healthcare facilities. They, as a community, are most vulnerable to ailments and illnesses and as a country the State must be on their toes to help and provide fully functional and effective public healthcare facilities to the ones who hail from such downtrodden sections of the Indian society. The Indian Judiciary has, very adequately, entertained their complaints in forms of Public Interest Litigations lodged under Article 32 of the Indian Constitution. These petitions have then taken the form of lodestar judgments and have become clear indicators of the fact that the courts have acknowledged the right to health to fall under the purview of the IIIrd part of the Indian Constitution (essentially Article 21).
In the case of Paschim Bangal Khet Mazdoor Samiti and Ors. Vs. State of West Bengal and ors. The court held that the State is duty bound to ensure good medical healthcare facilities to the people of India. As Article 21 ensures a dignified life to the people of India, thus, if the State falters anywhere to provide proper medical assistance to the people then it can be adjudged that the State is liable under the infringement of Article 21 of the Indian Constitution. As Article 21 of the Indian Constitution holds the State liable to ensure the availability of proper medical facilities to the people of India, the government hospitals become the primary actors in ensuring the proper medical assistance to all the people of India in cases of any and every medical emergencies. Failure on part of the government, as discussed above, can be straightaway termed as a violation of the Article 21 (Right to Life) of the Indian Constitution.
Alongside these postulates the court also shed light on some other factors which can assure people with proper medical facilities and they are as follows:
- Adequate facilities are provided at the public health centers where the patient can be given basic treatment and his condition stabilized.
- Hospitals at the district and subdivision level should be upgraded so that serious cases can be treated there.
- Facilities for given specialist treatment should be increased and having regard to the growing needs, it must be made available at the district and sub divisional level hospitals.
- In order to ensure availability of bed in any emergency at state level hospitals, there should be a centralized communication system so that the patient can be sent immediately to the hospital where bed is available in respect of the treatment, which is required.
- Proper arrangement of ambulances should be made for transport of patients from the public health center to the state hospitals.
- Ambulance should be adequately provided with necessary equipment and medical personnel.
It is an established fact that no State can garner boundless assets to invest in a wide array of projects. Similarly it can be acknowledged that the State might face a dead end while issuing medical assistants to all the people in a country. The very same point had cropped up in the case of State of Punjab Vs. Ram Lubhaya Bagga wherein an issue of medical compensation had come up. In this case, there was a pool of public policies in question; those policies obligated the State to provide remunerations to people who were unable to bear the exorbitant prices of the private hospitals. Now, the problem at hand emerged that the scale and rates of remunerations and hospital bills were supposed to be fixed. In the absence of this fixation, the private hospitals had the onus to increase their bills with no caps and the State was obligated to pay the respective remunerations. Given the transient and volatile nature of the government assets, it was a huge deal of loss for the State. So, in order to do away from such problematic situations, the rates and prices were supposed to be fixed and the fixation of the prices didn’t happen at the free will of the directors but rather a whole committee of technical experts was set up to do the same.
It was held, in this case, that the fixation of prices and remunerations cannot be a violation of Article 21 but simultaneously the State cannot deny or do away from its duties to pay the medical restitution to the people who cannot afford to fulfill the medical bills put forth by the private medical players.
In another landmark judgment namely: Parmanand Katara vs. Union of India, the apex court held that all the hospitals, infirmaries and clinics are necessarily obligated to provide fair medical facilities to everyone in the country equally and no exclusion is to be given to the private players. The court further ensured that no intrusion of any sort of law or order, applicable on the State level, can be entertained in the purview of the Right to Health. The Right to Health is to be ensured irrespective of all the laws installed on the state level.
In another landmark judgment the apex court, namely; State of Karnataka vs. Manjanna, disparaged the trend of withdrawing from performing a medical examination of rape victims by certain medical institutions. Those hospitals explicitly refuse to conduct the procedural modus operandi of the rape victim just because the victim has faltered to obtain a police request. The court held that an immediate medical examination is paramount otherwise the deposition crucial for the case may get washed away due to the delay. This refusal was held as a violation of the Article 21 and the court ordered the hospitals to consider the victim for an immediate medical examination and the incessant need for a police request was subject to injunction. Hence, the right to health of the victim was upheld.
All the above judgments are clear indicators of the fact that the Indian judiciary has very well taken the Right to Health in consideration and over these years has made the state liable, in cases of failure to ensure proper medical healthcare for the people, under the Article 21 of the Indian Constitution. So, the DPSP of healthcare is now important and also is justifiable in the court of law.
After meticulous research it is settled vividly that the Hypothesis stands corrected that Right to Health is a crucial fundamental right.
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