This article has been written by Vridhi Sharma, from Centre for Legal Studies, Gitarattan International Business School, Affiliated to GGSIPU, Delhi.
Table of Contents
In essence, health and healthcare are central to primary human existence and well- being, and contribute extensively towards the State’s economy, as well as it’s evolution. Hence the States are, under ceaseless commitments, bound to safeguard and foster the health of its people at large by securing a reasonable standard of universal healthcare for all. Access to overarching and grade healthcare services is prime for the maintenance and promotion of health and thereby minimising unnecessary and daunting complications and hitches in this respect. Also, the recognition of the right to health, on international, as well as the national levels is extremely necessary, so as to feature primary healthcare with mass reachability and affordability by drafting a comprehensive and appropriate fundamental health rights paradigm.
Healthcare is a comprehensive term that inundates to a structure entailing maintenance, improvement and development of medical services and amenities in pursuance to catering the medical needs and demands of biological creatures.
Healthcare services refer to those services which assist in the diagnosis, prevention and treatment of illnesses or impairments.
The standards of healthcare apparatus and services in a society or a country is regarded as one of the most climacteric factors that expound the administration of that country.
According to the World Health Organisation (WHO), a well-functioning healthcare system requires a financing mechanism, a well trained and adequately paid workforce, reliable information on which to base decisions and policies and well maintained health facilities to deliver quality medicines and technologies.
A well organised and constructive healthcare system can contribute to a notable portion of a country’s overall economy, development and growth.
The Indian healthcare sector is a diversified one and has a dynamic pharmaceutical and biotechnology history and infrastructure and is home to various medicine practices like Ayurveda, Unani, Homeopathy, Naturopathy, Acupuncture and Allopathy, to name a few.
India has also become one of the leading destinations for high end medical and diagnostic services, though the ground reality is contrasting.
Healthcare in India & the right to health
There is no given explicit recognition of the right to health or healthcare under the Indian Constitution, however, the right to health can always be interpreted under Article 21 of the Constitution which guarantees the right to life.
Additionally, the Constitution of India lays down certain provisions for the healthcare infrastructure in India under Articles 39(e), 42 and 47 of Part IV (Directive Principles of State Policy) and bestows the responsibility of the same on the State. Article 39(e) provides that the State shall direct its policy towards securing that the health and strength of workers, both men and women, and that the children of tender age are not abused. Article 42 persuades the State to make provisions for securing just and humane conditions of work and for maternity relief, whereas, Article 47 puts a responsibility on the State to endeavour towards raising the level of nutrition and the standard of living of the people of the nation, and to improve the public health as its primary duty. Adding to this, the Constitution also casts a duty on the Panchayats and Municipalities to strengthen the public health under Article 243G read with 11th Schedule, Entry 23.
Since India is a founding member of the United Nations, it has ratified various international treaties and conventions, assuring to secure the healthcare rights of people in society. India’s allegiance to international treaties and conventions also mandates it as a State party to amplify and provide necessary and adequate public services and a minimum standard of universal healthcare.
The Apex court in the case of State of Punjab v. Mohinder Singh Chawla observed that the right to health is an integral and fundamental part of the right to life and the government has a constitutional obligation to provide healthcare facilities.
Likewise, in the case of State of Punjab v. Ram Lubhaya Bagga, the court further endorsed that it is the State’s obligation to maintain health services in the nation.
Some of the major setbacks amidst the current scenario and status quo in context to the healthcare sector operating in India is an inadequate reach of fundamental healthcare services, paucity of trained medical personnel, shortage of resources to avail primary medical facilities, substandard medical equipments and medicines and many more. In addition to this, poor allocation of funds in favour of the healthcare sector by the government plays a dominant role in this afflicted state of healthcare infrastructure of our nation.
National-level issues in the healthcare sector
Being the world’s second-most populous country and one of the fastest-growing economies, India faces unique and unprecedented challenges in the sphere of public health. The healthcare and the public health industry are faced with persistent and daunting medical and public healthcare challenges, particularly for the poor sector of the society.
Since the Part IV of the Indian Constitution i.e. the Directive Principles of State Policy is only persuasive in nature and imposes no compulsory obligations on the State, no person can claim against the non-fulfilment of these non-justifiable directions.
Also, the right to health is not an explicit fundamental right under Part III of the Constitution, it has to be interpreted under the right to life guaranteed by Article 21. The right to live is something more than mere animal existence and includes the right to live with human dignity and decency and this is where this right to health can be inferred from. Though the Supreme Court of the country has observed the right to health and access to medical services as fundamental rights, inherent under Article 21 of the Constitution, by numerous judgements, the boots on-ground reality is that neither these rights are catered to nor protected adequately by the State, nor the State pays much attention towards securing a decent standard of health and living for the individuals on its land, hence, leaving this right high and dry because it is not a direct and an explicit fundamental right under the Constitution.
Adding to this, the substandard healthcare infrastructure and related services is a consequence of poor budgeting of funds allocated for the healthcare sector and even if sufficient funds are issued in favour of public health framework, they are very often misappropriated by the corrupt politicians.
In addition to this, the governmental public hospitals in India lack various basic and advanced amenities like adequately trained personnel and equipment, for instance, the shortage of ventilator systems for coronavirus infected patients, due to which, people are forced to look for treatments in the private sector and it is no secret that how expensive treatments and medical services from private hospitals could cost, thus, leading to non-accessibility of basic and necessary medical healthcare facilities for the pauper strata of the society. This refrains them to claim their right to health, a right which is a very primary human right.
Additionally, the current COVID-19 infected scenario, where the cases are on a souring high, uncovers the inability of the State government for having a prepared reception in response to a pandemic or an outbreak of severe disease.
Where the government hospitals fail to provide timely necessary medical services to a patient, it amounts to the violation of the right to health and the looming violation of the patient’s right to life, as observed by the court in Paschim Banga Khet Mazdoor Samity v. State of West Bengal.
International-level issues in the healthcare sector
The conception of the right to health under international law can be traced to the Universal Declaration of Human Rights (hereafter referred to as UDHR) in the year 1948. The UDHR under Article 25 sets forth a decent standard of living adequate for the health and well being of a person and his family, which includes medical care, right to security in the event of sickness and disability and other lack of livelihood in circumstances beyond a person’s control. The International Covenant on Economic, Social and Cultural Rights, also, under Article 12 explicitly sets forth a right to health.
Nonetheless, global healthcare is faced with an incessant number of impediments. The reference to a “highest attainable standard of health” under the Constitution of the World Health Organization, 1946 requires a State to set up a reasonable standard with respect to health, however, it doesn’t take into account that the evolution process is time-consuming, and also the demographic, epidemiological & economic factors of each country differ with the other, rendering it as a stumbling block in the observance of a worldwide equitable standard of healthcare.
Various epitomising challenges confronting organisations like WHO are pandemics like the latest COVID-19, economic disparities inter- States, as well as intra- State, punctuality of environmental factors and natural resources in the States, political factors and lack of innovation in the healthcare industry, to name a few.
WHO is responding to the current contagious situation with the help of it’s Strategic Preparedness and Response Plan and Global Humanitarian Response Plan but maybe this doesn’t suffice. Despite existing aeons on this planet, no single country or international organisation has been able to formulate a foolproof vaccine which is effective against coronavirus. WHO should coordinate with individual States through a prior drafted strategic paradigm to combat this pandemic promptly and effectively.
Suggestions on metamorphosing right to health into a Fundamental Right
On a climacteric concern like healthcare and related subjects, there is a need for absolute harmonisation and collaboration between the Centre and the State governments, reiterating cooperative federalism towards securing universal and a minimum standard of healthcare for all.
The State government should strive to provide comprehensive health coverage for everyone and should take initiatives on adopting, promoting and implementing government-financed health insurance programs and policies.
An appropriate constitutional amendment, inspired by the 93rd Amendment to the Constitution which casts a constitutional sanction to the right to education, may be espoused for providing adequate healthcare services and infrastructure in India.
Also, the standing fundamental constitutional guarantees, legal precedents and international commitments underpin a firm rationale for the establishment of the right to health as an individual fundamental right.
In India, the State is the duty-bound primary provider of health services, as entrusted with this responsibility by the Constitution itself. The Constitution, not strictly, but forcefully persuades the State to work towards strengthening the health of its people, improving the overall public health and maintaining a minimum standard of universal healthcare.
Till date, no uncompromising or effective measures have been taken to operationalise or implement the constitutional obligation upon the State to secure the right to health or minimum standards of health for all. Moreover, the State prefers remaining unreceptive towards the healthcare and medical needs of the people at large.
A well organised, constructive and practical healthcare framework can contribute to a noteworthy portion of India’s overall economy, development and growth.
Among the other things, national recognition of the right to health is necessary and the State needs to work on evolving the right to health as a comprehensive fundamental right by making efforts in social epidemiological research, framing a health rights paradigm which explicitly establishes a nexus between health with State laws and policies, and adopting a profound ‘responsibility plus accountability approach’ for the same whilst securing international assistance and cooperation with regards to healthcare.
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