This article is written by Divya Raisharma, an undergraduate law student at Government Law College, Mumbai. This is an exhaustive article on the right to health. It covers the history, jurisprudence, essentials, international standards pertaining to the right to health, the forums it is recognised on, the obligations cast on the nations by the ICESCR (International Convention on Economic, Social, and Cultural Rights), and India’s stand on the right to health.

It has been published by Rachit Garg.

Table of Contents

Introduction 

Health is an integral part of our life and directly linked to survival. ‘Survival of the fittest’ is a rule of nature. Coming into the modern human civilization, what people sought was quality of life. But even the quality of life depends on the condition of our health. Therefore, the right to health is a universally recognized principle. The right to health refers to every person’s right to achieve good health. Through this right, a person is entitled to access to healthcare, medical awareness, a better standard of living, clean and sanitary water, foodgrains, etc. 

What is the right to health 

As per the World Health Organisation (WHO), “health is a state where a person has achieved physical, mental, and social well-being”. They distinguish health from the common understanding of it being a mere absence of disease or infirmity. The World Health Organisation envisions the right to health to be “a basic right of every person where they achieve the highest attainable form of health”. It is vital that the right to health is available to people without distinction being made on their race, gender, political leanings, or social or economic conditions. 

The United Nations (UN) envisions the right to health on the same parameters as the World Health Organisation. The Universal Declaration of Human Rights (UDHR) recognises the right to health in Article 25. It states every person has a right to a living standard which is satisfactory to the health and well-being of the person and their family. This right includes access to foodgrains, clothing, shelter, health care, social service, and security of the right to health during a loss of work, sickness, widowhood, old age, or lack of livelihood in circumstances beyond their control. 

History and jurisprudence of the right to health 

The history of the right to health can be seen in the pages of the era of industrialisation. The Health and Morals of Apprentices Act, 1802 (also known as the Factory Act, 1802) and the Public Health Act, 1848 of the United Kingdom were one of the first steps to legislate public health and create some rights for health. Like the United Kingdom, many other countries domestically made laws regarding public health governance. Countries like Spain even included the preservation of public health as the state’s responsibility in their Constitution and the right to health. 

In the international sphere, the diplomatic discussions on the formation of the World Health Organisation were the foundation for the right to health. It was articulated in the Constitution, 1946 of the World Health Organisation, which defined health and stated that the attainment of the highest form of health is a fundamental right to all. The Universal Declaration of Human Rights recognised the right to health in Article 25 of the declaration. It was again recognised in Article 12 of the International Covenant on Economic, Social and Cultural Rights, 1966.

Essentials of right to health

A healthcare system is made up of public health and healthcare facilities, healthcare goods and services, as well as programmes. As per the General Comment no. 14 of the Committee on Economic, Social and Cultural Rights, the right to health contains the following essential elements, the application of which will depend on the prevailing conditions in the state party: 

Availability

The state must make provision for a functioning and adequate healthcare system for the public and individuals throughout its territories. The precise nature of the healthcare system may vary. Still, it must necessarily include safe water, sanitation facilities, medical infrastructure, trained medical professionals, and essential drugs. 

Accessibility

Accessibility is of four kinds: 

new legal draft
  • Non-discrimination 

There must be no discrimination in access to healthcare. It must be accessible to all, especially vulnerable and marginalised communities.

  • Physical accessibility

The area of access to healthcare must be in a safe and physically reachable place. The area must be safe and physically reachable even for women, children, vulnerable and marginalised communities, adolescents, older persons, persons with disabilities, persons with HIV/AIDS, and rural area residents. 

  • Affordability 

Healthcare should be affordable for all. It must follow the principle of equity. The principle of equity dictates that healthcare expenses must be somewhat proportionate to the income level of the person so as to not induce poverty due to medical debt. Poor households must not be disproportionately burdened with healthcare expenses compared to richer households. 

  • Information accessibility

A person has the right to: 

  1. Look for,
  2. Receive, and 
  3. Convey

information and ideas concerning health. Information about health must be accessible to all. 

Quality

Healthcare must be of good quality. It must be appropriate as per the scientific and medical standards. For example, trained medical professionals, safe and potable water, scientifically approved hospital equipment, etc.

Acceptability  

Healthcare must be respectful of medical ethics and culturally appropriate. It should have respect for the culture and be sensitive to gender and life-cycle requirements.

International standards with respect to the right to health 

International law, treaties, and conventions have set a specific work standard for the right to health.

Universal Declaration of Human Rights (UDHR), 1948 

As per Article 25(1), every person has a right to a standard of living satisfactory to the health and well-being of the person or their family. 

This right will include: 

  • Access to food and clothes,
  • A house,
  • Health care,
  • Necessary social services, and
  • The right to security.

If the person is facing – 

  1. Unemployment,
  2. Sickness,
  3. Disability,
  4. Widowhood,
  5. Old age,
  6. Or other lack of livelihood in circumstances beyond their control. 

International human rights treaties

International Covenant on Economic, Social and Cultural Rights, 1966

As per Article 12 of the International  Covenant on Economic, Social and Cultural Rights,1966-

  • The states recognise the right to health.
  • The states must take steps to achieve the right to health, and such steps must include those necessary for:
    • Reduction of the stillbirth rate;
    • Lowering of infant mortality;
    • Bettering environmental and industrial hygiene;
    • Preventing, treating, and controlling epidemics, endemics, and occupational and other diseases; and
    • Assurance of medical services and medical attention in the event of sickness.

International Convention on the Elimination of All Forms of Racial Discrimination, 1965

As per Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination,1965-

The states will guarantee the right to health to everyone without distinction as to their race, ethnicity, colour, or national origin. 

Convention on the Elimination of All Forms of Discrimination against Women, 1979

According to Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women, 1979-

  • The states shall make all efforts to remove discrimination against women in health care. 
  • The states should make all efforts to ensure equality between men and women in terms of treatment and access to health care. 
  • The states must also ensure appropriate care concerning pregnancy, confinement, and the postnatal period. Such care must include adequate nutrition and free services during pregnancy and lactation.

Convention on the Rights of Persons with Disabilities, 2006

According to Article 25 of the Convention on the Rights of Persons with Disabilities,2006-

  • The parties to the convention are to recognise the right to health of persons with disabilities.
  • The states shall ensure gender-sensitive health care services for persons with disabilities.
  • The states shall ensure that the health professionals are providing to persons with disabilities the quality of care as given to others.
  • The states shall raise awareness of human rights, respect, autonomy, and needs of persons with disabilities by way of ethics and training in public and private health care.
  • The states shall ban discrimination against persons with disabilities in health insurance and life insurance.
  • The states shall prevent discriminatory denial of health care, health services, or food and fluids by reason of disability.
  • The states shall:
    • Give persons with disabilities the same range, quality, and standard of free, affordable health care as given to others;
    • Provide health care needed by the persons with disabilities specifically because of their disabilities;
    • Provide services designed to minimise and prevent further disabilities; and
    • Establish health care services in close proximity to the communities.

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990

Under the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990-

  1. As per Article 43,

Migrant workers shall enjoy equal treatment in accessing social and health services.

  1. As per Article 45,

The family of migrant workers shall enjoy equality of treatment in access to social and health services.

  1. As per Article 28, 
  • Migrant workers, along with their families, have the right to health and urgent medical care to preserve their life or avoid irreparable health. 
  • They must not face any inequality in treatment.
  • They must not be refused emergency medical care due to irregularity of employment or stay.

Convention on the Rights of the Child, 1989 

As per Article 24 of the Convention on the Rights of the Child, 1989-

  • The states must recognise the right to the health of children.
  • The states must ensure no child is deprived of his right to health.
  • The states must take measures to abolish harmful traditional practices dangerous to the health of children.
  • States must promote and encourage international cooperation to realise the right to health.
  • The states must take appropriate measures to: 
    • Diminish child and infant mortality;
    • Ensure the availability of health care, especially primary health care, to all children;
    • Combat malnutrition and diseases;
    • Readily available technology for combating malnutrition and diseases;
    • Provision of nutritious food and safe, drinkable water;
    • Make certain of the availability of appropriate prenatal and postnatal healthcare for mothers;
    • Develop preventive health care;
    • Provide guidance for parents; 
    • Provide family planning education and services;
    • Secure information, support, and access to education; 
      1. Child health and nutrition
      2. The advantages of breastfeeding,
      3. Hygiene, 
      4. Environmental sanitation, and 
      5. The prevention of accidents. 

Other universal standards

The Constitution of the World Health Organisation

The right to health was first recognised in the Constitution of the World Health Organisation. The right to health is said to be the enjoyment of the highest attainable standard of health without distinction of race, religion, political belief, economic or social condition.

Declaration on the right to development, 1986

As per Article 8 of the Declaration on the right to development, 1986-

the states shall make all efforts for equal access to health services. 

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1989 

Under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1989- 

  1. Article 4: General obligations

Each state party of the convention shall take measures to

  • Ensure persons involved in the management of hazardous and other wastes take the necessary steps to prevent pollution; 
  • Ensure persons involved in the management of hazardous and other wastes minimise the effect of pollution on human health; and
  • Require that information as per Annex V A to state the consequence of the proposed movement on human health.  
  1. Article 13: Transmission of Information

When an accident occurs during the transboundary movement or disposal of hazardous wastes or other wastes, the state must ensure it informs the other states of the accident; if such an accident is likely to risk human health and the environment in such other states.

Declaration of Commitment on HIV/AIDS, 2001

Under the Declaration of Commitment on HIV/AIDS, 2001-

  • The states must ensure access to health care for HIV/AIDS patients.
  • The states must, through the provision of healthcare and education, increase the capabilities of women and young girls to protect themselves from HIV/AIDS.
  • The states must protect women’s rights to health by eliminating discrimination and violence faced by them.

Standards for specific demographic

United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990

Under the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990-

  • Juveniles have the right to facilities and services that meet all health and human dignity requirements.
  • Detention facilities must ensure that every juvenile receives food suitable to satisfy the standards of dietetics, hygiene, and health standards.
  • Clean drinking water should be available at any time.
  • Every juvenile shall receive adequate medical care. 
  • Personnel of detention facilities should make certain of the full security of the health of juveniles. They should take immediate action to secure medical attention whenever required.

ILO Convention No. 182: Worst Forms of Child Labour Convention, 1999

As per the ILO Convention No. 182: Worst Forms of Child Labour Convention, 1999- 

work which likely to harm the child’s health is labelled as the ‘worst kind of child labour’.

Declaration on the Elimination of Violence against Women, 1993

As per Article 3 of the Declaration on the Elimination of Violence against Women, 1993- 

women are entitled to the protection and enjoyment of their right to health. 

The United Nations Principles of Older Persons, 1991

As per the United Nations Principles of Older Persons, 1991-

  • Older persons should have access to adequate food, water, and health care.
  • Older persons should have access to health care so as to: 
    • Assist them in maintaining or regaining the best level of physical, mental, and emotional well-being; and 
    • Avert or hinder the onset of illness.

Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 1988

As per the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 1988-

No detained or imprisoned person should face any medical or scientific experimentation that may be detrimental to their health.

Basic Principles for the Treatment of Prisoners, 1990

As per the Basic Principles for the Treatment of Prisoners, 1990-

Prisoners should have access to the available health services without facing discrimination due to their prisoner status.

Declaration of the Rights of the Child, 1959

As per Principle 4 of the Declaration of the Rights of the Child, 1959-

  • Every child is entitled to grow and develop good health.
  • The States shall provide special care and protection to the child and the mother, including adequate prenatal and postnatal care. 
  • The child shall have the right to adequate nutrition, housing, recreation, and medical services.

International humanitarian law

Geneva Convention (III) Relative to the Treatment of Prisoners of War, 1949-

Under the Geneva Convention (III) Relative to the Treatment of Prisoners of War, 1949-

Article 13 – Humane treatment of prisoners of war

  • The detainer must not cause the death or gravely endanger the health of a prisoner of war in its custody by any unlawful act or omission. 
  • No prisoner of war should face physical mutilation or medical or scientific experiments not carried out in their interest.
  • Prisoners of war must be protected against acts of violence.

Article 15 –  Maintenance of prisoners of war

The power detaining prisoners of war has to provide free of charge medical attention required by their state of health.

Article 17 – Questioning of prisoners of war

Physical or mental torture must not be inflicted on prisoners of war to force information from them.

Prisoners of war who are unable to confirm their identity due to their physical or mental condition must be handed over to medical services.

Article 20 – Conditions of evacuation

During an evacuation, prisoners of war must be supplied with sufficient food, portable water, and necessary medical attention.

Article 22 – Places and conditions of internment

Prisoners of war should be confined in hygienic places. 

Article 25 – Quarters

Prisoners of war should not be placed in quarters which are prejudicial to their health.

Article 26 – Food and drinking water

  • The basic daily food rations must be such that to: 
    • Keep prisoners of war in good health and 
    • Prevent weight loss or nutritional deficiencies. 
  • Prisoners of war must be supplied with sufficient drinkable water.

Article 29 – Hygiene

  • The detaining power has to take all necessary measures to keep camps sanitary and to prevent epidemics.
  • Prisoners of war must be provided with water and soap for personal use and laundry.

Article 30 – Medical attention

  • Every camp must have an adequate infirmary for the use of prisoners of war. 
  • Prisoners of war shall be provided with an appropriate diet.
  • Prisoners of war suffering from serious diseases or who need hospital care should be admitted to a military or civilian medical unit.
  • Blind and disabled prisoners of war must be given special facilities for care and rehabilitation.
  • The detaining power must bear the cost of treatment.

Article 31 – Medical inspections

Health checkups and inspections of prisoners of war shall be held at least once a month. 

Article 32 – Prisoners of war engaged in medical duties

When prisoners of war from the profession of physicians, surgeons, nurses, dentists, etc., are made to exercise medical duties by the detaining power, they must be treated the same as the medical personnel of the detaining power. They shall also be exempted from labour. 

Article 46 – Transfer of prisoners of war

The detaining power has to give sufficient food, drinking water, and necessary medical attention to the prisoners of war during transfer.

Article 49 – General observation

The detaining power may use prisoners of war as labourers who are physically fit while maintaining good physical and mental health.

Article 51 – Working conditions

Prisoners of war must be given suitable food and working conditions.

Article 52 – Dangerous labour

No prisoners of war must be employed for any labour or dangerous nature.

Article 54 – Occupational diseases

Prisoners of war who contract diseases due to or in the course of work shall receive all care they require. 

Article 55 – Medical supervision of labour of prisoners of war

  • The fitness of prisoners of war should be verified at least once a month by way of medical examination. 
  • Prisoners of war who aren’t capable of working should be allowed to appear before medical authorities. On medical recommendation, a prisoner of war may be exempted from work if unfit for work.

Article 130 – Grave breaches

Wilfully causing great suffering or serious injury to the body or health of prisoners of war is a grave breach.

Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, 1949

Under the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, 1949-

Article 3 – Conflict of a non-international character

Wounded and sick shall be treated with care.

Article 14 – Hospitals and safety zones

The parties may establish hospitals and safety zones in their own territory and, if needed, in occupied areas.

Article 16 – Wounded and sick

The wounded, sick, infirm, and expectant mothers shall be the object of particular protection and respect. 

Article 18 – Protection of hospitals

Hospitals should not be attacked. They shall at all times be respected and protected by the parties to the conflict.

Article 20 – Protection of hospital staff 

Persons engaged in the operation and administration of civilian hospitals shall be respected and protected.

Article 23 – Consignments of medical supplies, food, and clothing

Each Party shall allow the free passage of all consignments of medical and hospital supplies; and essential food, clothing, and tonics for children under fifteen.

Article 38 – Medical attention

Protected persons shall receive medical attention and hospital treatment to the same extent as the nationals of the state concerned.

Article 49 – Deportations, transfers, removals, etc

The occupying power undertaking shall ensure that the removals are effected in satisfactory hygiene, health, safety, and nutrition conditions.

Article 55 – Food and medical supplies

The occupying power has to ensure the food and medical supplies of the population.

Article 56 – Hygiene and public health

The occupying power is responsible for ensuring and maintaining the occupied territory’s medical establishments, medical services, public health, and sanitation. Medical personnel shall be allowed to do their duties.

Article 76 – Treatment of detainees

Protected persons accused of offences should enjoy food and hygiene sufficient to keep them in good health.

Article 81 – Medical attention

Protected persons should receive medical attention as required by their state of health.

Article 85 – Accommodation 

  • The detaining power is to take every measure to ensure that protected persons are accommodated in hygienic places.
  • In all cases where a protected person is accommodated in an unhealthy area, they shall be removed to a more suitable place as soon as possible.
  • It must be hygienic and clean. 

Article 91 – Treatment 

  • Every place of internment shall have an adequate infirmary under a qualified doctor. 
  • Maternity cases and internees suffering from serious diseases or who require hospital care must be admitted to an institution where adequate treatment can be given. 
  • Internees should not be prevented from getting medical examinations. 
  • Treatment shall be free of charge. 

Article 92 – Medical inspections

Medical inspections of internees shall be made at least once a month. 

Article 95 – Labour 

  • No internee should be made to perform tasks for which he is physically unsuited, in the opinion of a medical officer. 
  • The detaining power shall take entire responsibility for working conditions, medical attention, and ensuring that all employed internees receive compensation for occupational diseases.

Article 100 – General discipline 

The disciplinary regime in places of internment shall not include regulations imposing any physical exertion dangerous to internees’ health.

Article 120 – Escape 

Special surveillance for internees who escape or attempt to escape should not affect the state of their health.

aArticle 125 – Essential safeguards 

  • Internees awarded disciplinary punishment shall be allowed to exercise and to stay in the open air for at least two hours daily. 
  • They shall be allowed to be present at the daily medical inspections. 
  • They shall receive the required medical attention and, if necessary, shall be moved to an infirmary or a hospital.
  1. Article 147 – Grave breach

Wilfully causing serious injury to the body or health of persons protected by the Convention is a grave breach. 

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, Protocol I, 1949

Under the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, Protocol I, the following are the important articles-

  1. Article 10 – Protection of wounded and sick

All wounded and sick people should be protected.

  1. Article 11 – Protection of persons
  • It is prohibited to subject the persons described in this Article to any medical procedure not indicated by the state of health of the person concerned and which is inconsistent with generally accepted medical standards that would apply to others.
  • Any willful act or omission that gravely endangers the physical or mental health of the persons described in this article is a grave breach of this Protocol. 
  • Any willful act or omission that violates any of the prohibitions in paragraphs or fails to comply with the requirements of paragraph shall be a grave breach of this Protocol.
  • It is prohibited to carry out on such persons:
    • Physical mutilations;
    • Medical or scientific experiments; or
    • Removal of tissue or organs for transplantation, except when it’s in conformity with the above paragraph.
  1. Article 55 – Protection of the environment

During the war, care shall be taken to protect the natural environment from widespread, long-term, and severe damage. Such care extends to warfare, which is likely to harm human health.

  1. Article 75 – Fundamental guarantees

Violence to the health of any person is prohibited at any time and in any place whatsoever:

  1. Article 85 – Breach of protocol

Acts causing death or serious injury to health will be considered a grave breach if done willfully and violates the convention.

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, Protocol II, 1949

Under the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, Protocol II

  1. Article 4 – Fundamental guarantees

Violence to the health of any person is prohibited at any time and in any place. 

  1. Article 5 – Persons whose liberty has been restricted
  • The persons whose liberty is restricted shall, to the same extent as the local civilian population, be provided with food and drinking water and be afforded safeguards as regards their health and sanitation.
  • Any unjustified act or omission shall not endanger their physical or mental health. 
  • It is prohibited to subject the persons described in this Article to any medical procedure that is not indicated by the state of health of the person concerned, and which is inconsistent with generally accepted medical standards that would apply to others.
  1. Article 9 – Protection of medical personnel

Medical personnel shall be protected and given all help they require.

  1. Article 11 – Medical units

Medical units shall be protected. They shall not be attacked.

  1. Article 17 – Prohibition on the forced movement of civilians

The civilian population’s displacement must be carried out under satisfactory conditions of shelter, hygiene, health, safety, and nutrition.

Right to health recognised in international forums

Obligations on states toward the right to health as per the International Covenant on Economic, Social and Cultural Rights

General obligation as per the Convention

The obligations of the state with respect to the right to health can be distinguished as follows: 

Immediate obligations

The States must execute obligations such as the guaranteeing exercise of the right to health without discrimination and taking steps towards the full realization of Article 12. These obligations must be given immediate effect. There must be deliberate, aimed, and serious steps taken for the fulfilment of these obligations. 

Progressive realisation of obligations

The other kind of obligation is subject to progressive realization. Not all rights can be realised immediately, but the States are expected to show every possible effort to protect and fulfil the right to health. It is also important that progressive measures are only to be taken unless the state can justify retrogressive measures. They need to prove that the retrogressive measure was introduced only after carefully considering all alternatives and that the state is within its rights with reference to the totality of rights provided by the Covenant in the context of the state’s maximum available resources. 

Core minimum obligations

The Committee on Economic, Social, and Cultural Rights has specified the following core minimum obligation on the states:

  • Providing access to health facilities, goods, and services on a non-discriminatory basis, especially to vulnerable or marginalized groups; 
  • Providing access to nutritional and essential food; 
  • Providing access to shelter, housing, and sanitation;
  • Providing an adequate supply of safe, drinkable water; 
  • The provision of essential drugs; 
  • Adoption of a national public health strategy and plan of action; and
  • All health facilities, goods, and services are distributed equally.

Comparable priority obligations

The Committee also confirms that the following are obligations of comparable priority:

  • Ensuring reproductive, maternal, and child health care;
  • Providing immunisation against major infectious diseases;
  • Taking measures to prevent, treat, and control epidemic and endemic diseases;
  • Providing education and access to information concerning the main health problems in the community; and
  • Providing necessary training for health personnel, which includes education on health and human rights.

Specific obligations 

As per general comment no. 14 of the Committee on Economic, Social and Cultural Rights, there are three specific obligations of the States towards the right to health:

The obligation to respect

The obligation to respect requires the states to refrain from interfering directly or indirectly with the right to health. 

That includes and is not limited to refraining from: 

  • Denying or limiting equal access to all; 
  • Putting unreasonable restrictions on the distribution of safe drugs;
  • Enforcing discriminatory medical care policies;
  • Marketing of unsafe drugs;
  • Limiting access to contraceptives;
  • Supporting scientifically and medically unsound practices;
  • Misrepresenting health-related information; and
  • Unlawfully polluting air, water, or soil.

The obligation to protect

The obligation to protect requires the states to prevent third-party interference in the right to health.

The obligation includes and is not limited to:

  • Ensuring equal access to healthcare provided by third parties by means of legislation or other such government measures;
  • Cracking down on illegal and unsafe medical practices done by third parties;
  • Preventing third parties from coercing women to undergo harmful cultural practices, such as female genital mutilation;
  • Protecting the interest of vulnerable or marginalised groups of society;
  • Ensure that health professionals provide care to persons with disabilities with their free and informed consent;
  • Ensure that privatisation does not threaten the availability, accessibility, acceptability, and quality of healthcare facilities, goods and services; and
  • Ensure no artificial shortage of medicine is due to third-party interference in the supply chain.

The obligation to fulfil

The obligation requires the states to adopt appropriate legislative, administrative, budgetary, judicial, and promotional measures to realize the right to health.

This obligation includes and is not limited to:

  • Domestic and legal recognition of the right to health;
  • Integration of the right to health in the national political system;
  • Adopting a national health policy;
  • Immunisation programmes against infectious diseases;
  • Public healthcare infrastructure;
  • Proper training programmes for medical personnel;
  • Adequate allocation of funds for public health;
  • Awareness campaigns on diseases;
  • Provision of affordable health insurance; and
  • Counselling on issues such as HIV/AIDS, alcoholism, etc.

International obligations

The States have an obligation to-

  • Take steps towards the full realisation of the right to health;
  • Respect for the enjoyment of the right to health in other countries;
  • Prevent third parties from violating the right to health in other countries; 
  • Facilitate access to essential health facilities, goods, and services in other countries;
  • Make sure that the right to health is given due attention in international agreements;
  • Make sure that their actions as members of international organisations take due account of the right to health;
  • Protect the right to health by influencing the lending policies, credit agreements, and international measures of these institutions;
  • Provide international medical aid, 
  • Provide for the distribution and management of  safe water, food, medical resources, financial aid, and other such resources to marginalised groups; and
  • Not impose embargoes or similar measures that restrict the supply of adequate medicines and medical equipment to another state.

India and the right to health

The right to health receives a warm welcome in India. India has taken many steps to ensure the right to health is available to its citizens. To support the right to health by statute, the courts have given it legal recognition through fundamental rights. The government, in its endeavour to integrate the right to health into the system of the nation, has made policies supporting the right, allocated a percentage of the budget for the required support framework, and has ministries dedicated to public health.

Right to health and the Constitution of India

The right is promoted and protected by the Constitution of India in various manners. Its glimpses can be seen in the Directive Principles of State Policies, the fundamental duty of protecting and improving the environment, the Union List, the State List, the Concurrent List, the XI Schedule, the XII Schedule, and the fundamental right to life and personal liberty. 

Directive Principles of State Policy

Under Chapter IV of the Constitution, the Directive Principles of State Policy (DPSP) have the ideals of the right to health under:

  • Article 38: Promotion of the welfare of its people and elimination of inequalities in facilities;
  • Article 39(e): Protecting the health and strength of people from abuse;
  • Article 39(f): Giving children facilities and opportunities to develop in a healthy manner;
  • Article 41: Providing public assistance in cases of sickness and disability;
  • Article 42: Ensuring just and humane conditions of work; 
  • Article 47: Raising the nutrition levels, improving the standard of living, and considering the improvement of public health as the state’s primary duty; and
  • Article 48A: Protecting and improving the environment.

Fundamental duty

Just as international conventions have put the supply of safe water and the prevention of pollution as obligations of the States towards the right to health, the Constitution of India has also put a similar fundamental duty on its citizens. As per Article 51A, protecting and improving the environment is a fundamental duty. Safe water, a sanitary environment, and a non-polluted climate are essential to the right to health. Protecting and improving the environment is an essential action plan. 

The achievement of the right to health depends on the progress of its various components, such as working conditions, quality of healthcare, quality of medical personnel, and vulnerable section’s access to healthcare resources. Such subject matters are divided by the Constitution among the Central Government, state governments, panchayats, and municipalities in the form of lists in Schedules VII, XI and XII.

Union list

The Union List contains subject matters under the control of the Centre government. Among these subject matters, the ones having an impact on the right to health are:

  • Participation in international conferences, associations, and other bodies;
  • Implementation of decisions made at international conferences, associations and other bodies;
  • Treaties and agreements with foreign countries;
  • The implementation of treaties, agreements, and conventions with foreign countries;
  • Port quarantine;
  • Seamen’s and marine hospitals;
  • Quality standards of goods which are to be 
    • exported out of India, or 
    • transported from one State to another;
  • Labour and safety regulations for mines and oilfields;
  • Regulation and development of inter-State rivers and river valleys to the extent to which they are under the control of the Union by law;
  • Scientific or technical education institutions financed by the government of India are declared to be institutions of national importance;
  • Union agencies and institutions for –  
    • (a) professional, vocational or technical training, or 
    • (b) special studies or research;
  • Determination of standards for research, scientific, or technical institutions;
  • Duties of excise on tobacco and other goods manufactured or produced in India, including medicinal preparations containing alcohol or opium, Indian hemp and other narcotic drugs and narcotics;
  • Taxes on services;
  • Taxes on the sale or purchase of goods (excluding newspapers) during inter-state trade or commerce; and
  • Taxes on the consignments of goods in inter-state trade or commerce.

State list

The State list contains subject matters under the control of the state governments. Among these subject matters, the ones having an impact on the right to health are:

  • Public health and sanitation; 
  • hospitals and dispensaries;
  • The production, manufacture, possession, transport, purchase and sale of intoxicating liquors;
  • The welfare of the disabled and unemployable;
  • Water supply; 
  • Irrigation, canals, drainage, embankments, water storage, and water power;
  • Taxes on the entry of goods into a local area for consumption, use, or sale therein;
  • Taxes on goods and passengers carried by road or on inland waterways; and
  • Taxes on professions, trades, callings, and employment.

Concurrent list

The Concurrent list contains subject matters under the control of the state and centre governments. Among these subject matters, the ones having an impact on the right to health are:

  • Adulteration of foodstuffs and other goods; 
  • The welfare of labour, including conditions of work, provident funds, employers’ liability, workmen’s compensation, invalidity and old-age pensions, and maternity benefits;
  • Education, including technical education, medical education, and universities; and
  • Medical profession.

11th Schedule

The 11th Schedule contains subject matters under the control of the panchayats. Among these subject matters, the ones having an impact on the right to health are:

  • Minor irrigation, water management and watershed development;
  • Drinking water;
  • Poverty alleviation programme;
  • Health and sanitation, including hospitals, primary health centres, and dispensaries; 
  • Family welfare;
  • Women and child development; 
  • Social welfare; 
  • The welfare of the weaker and vulnerable sections, and in particular, of the Scheduled Castes and the Scheduled Tribes; and
  • Public distribution system.

12th Schedule

The 12th Schedule contains subject matters under the control of the Municipalities. Among these subject matters, the ones having an impact on the right to health are:

  • Economic and social development planning;
  • Urban poverty alleviation;
  • Water supply for domestic, industrial and commercial purposes;
  • Public health sanitation, conservancy and solid waste management;
  • Slum improvement and up-gradation;
  • Safeguarding the interests of the weaker sections of society; and
  • Urban forestry, protection of the environment, and promotion of ecological aspects.

Fundamental right

The Constitution of India does not officially recognise the right to health as a fundamental right. But the judiciary, by its interpretation, has recognised the right to health as a fundamental right under Article 21. Article 21 is the fundamental right to personal life and liberty. 

The right to personal life and liberty includes:

  • The right to a livelihood; 
  • The right to a life of human dignity; 
  • The right to better standards of living; and 
  • The right to medical aid. 

Ministry of Health and Family Welfare

The Ministry of Health and Family Welfare was established under the Government of India. The ministry is responsible for health policy and all health-related government programmes. It has organised successful immunisation programmes against diseases, such as the polio vaccine campaign, the COVID-19 vaccination drive, etc. 

It has various medical bodies under its control, some of them being: 

It also has National Health Programs under it, some of which are:

There are also health departments under various of the state government’s ministries. 

Budget 

The government of India allocates a budget to be spent on various sectors in India. The government allocates a specific budget to the health sector every year. In the budget for 2022, the allocation on ‘medical and public health’ saw a hike of 16% compared to the budget for 2021. The government is focusing on building a resilient, sustainable, and inclusive healthcare ecosystem. The National Telemental Health Programme, the Ayushman Bharat Digital Mission (ABDM), and the creation of aspirational districts were major announcements for progress in the health sector.

National Health Policy

The National Health Policy was made to guide the approach toward the health sector. Its primary aim is to inform, clarify, strengthen, and prioritise the role of the government in shaping health systems. It takes into account India’s commitment and responsibilities toward the right to health. 

India’s stand on the right to health: does the right to health fall within the ambit of Article 21

The Supreme Court of India interpreted the right to health as a fundamental right under Article 21 in the case of Bandhua Mukti Morcha v. Union of India (1984). In this case, referring to the directive principles of state policy and health, the Court observed that the non-binding effect of the directive principles should not be used as a shield. The government ought to make efforts to implement these principles. Hence, taking this into account, the Court interpreted that the right to health comes under Article 21. 

In the State Of Punjab & Ors v. Mohinder Singh Chawla (1996), the Court reaffirmed the right to health as integral to the right to life. The court also stated that the government has a constitutional obligation to provide health facilities. 

In the State Of Punjab & Ors vs Ram Lubhaya Bagga (1998), the matter for consideration was the entitlement to reimbursement of medical expenses of government employees and pensioners. The Court decided that the government’s refusal to pay an amount spent to save one’s life (for example, medical expenses) curtails the right to life. The Court also said that the government is obligated to improve public health. 

There have been even more subsequent judgments from various high courts and the Supreme Court, which have upheld the right to health in India. These judgments have established a strong jurisprudence. 

Conclusion 

Health is wealth. As easy as it is to spend it away, it is much harder to store it well. It must be the unsaid duty of society and the government to support and help people flourish in this commodity of theirs. But in a society of inequality, inequality in health is not much of a surprise. And in the event of the COVID-19 pandemic, it is much more true than it has ever been. The right to health does not have much grass root presence in many parts of the world, especially in politically sensitive regions. It is naive to say that people around the world are not tortured, or that every person sleeps with a full belly. The inclusive nature of the right makes it more than ever an urban myth. Though the international and legal backing received by it is a step taken towards a healthy society, a lot of work needs to be done to make it omnipresent. 

Frequently Asked Questions (FAQs)

What is the right to health?

It is the right to the highest attainable standard of health for all.

Do humans have the right to health?

As per many international conventions and some country-specific statutes, humans have a right to health. International conventions, such as the International Covenant on Economic, Social and Cultural Rights, and international human rights treaties have recognised or referred to the right to health and its elements, such as the right to medical care.

What type of right is the right to health?

The right to health is an inclusive right. It includes: 

  • The right to control one’s body and health, 
  • The right to not be subjected to torture, 
  • The right to a healthy environment, 
  • The right to information, etc. 

It is also dependent on the realisation of other human rights, such as: 

  • the  right to equality, 
  • the right to access safe drinking water, 
  • the right to food, 
  • the right to healthcare, etc.

Does medical insurance come under the right to health?

Medical insurance makes healthcare accessible to people by covering their medical expenses. It is an integral tool for people to access their right to health; hence, it comes under the right to health.

Are nations required to work towards the right to health?

Yes, the nations are required to work towards the right to health and fulfil their obligations as per international conventions and their domestic laws, if any.

Which countries have universal healthcare?

The United Kingdom, Australia, Canada, France, Switzerland, and 28 other countries have a universal healthcare system.

Do people have the right to health against private hospitals?

In India, citizens have the fundamental right to health. Fundamental rights are not directly available against private parties, but the government can make rules and regulations against private parties to satisfy the fundamental rights citizens have.

References 


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