JUDICIAL INTERPRETATION IN THE LIGHT OF ARTICLE 21 OF THE CONSTITUTION OF INDIA AND RIGHT TO HEALTH OF WOMEN BY - DHARITRI SHARMA
JUDICIAL INTERPRETATION IN THE
LIGHT OF ARTICLE 21 OF THE CONSTITUTION OF INDIA AND RIGHT TO HEALTH OF WOMEN
AUTHORED
BY - DHARITRI SHARMA
Assistant
professor, Tezpur Law College
Research Scholar, MSSV, Department Of
Juridical Studies, Prof.Dr. Bimal Kumar Baishya
Abstract:
Health is an essential
element to live a happy and healthy life. Like men, women’s health is an
important aspect which needs to be seriously concerned. As only women have the
most super power to produce a new life in this word, therefore they deserved
the best education along with best health care. In this respect, the humble
judiciary in the light of Article 21 of the Constitution of India placed an
important role. In this article, the researcher would like to analyze the
interpretation of the judiciary towards protecting the health of women in the
light of Article 21 of the Constitution of India.
Objective:
The objective of this
research paper is to analyses the role of Judiciary towards protecting health
of women in the light of Article 21 of the Constitution of India. The researcher
would like to discuss whether the judicial pronouncement towards protection of
right to health is sufficient or not.
Research methodology:
In this article, the researcher has applying
doctrinal method by applying secondary sources for data collection. Secondary
sources include previous articles related with the research topic, newspapers,
journals etc.
Introduction:
Health is one
of the essential elements to live a happy and healthy life. Like men, women’s
health is an importance factor which needs to be addressed seriously. As women
have the most super natural creativity of producing a new life towards the
world, therefore they deserved best education along with best health care.
Women
have the full right to have better education and best medical facility. Each
and every individual has a right to live a decent life and for such a life, one
has to take care of their body. It is our right to live and no one can deny it.
The right to
health and medical care has been declared as a fundamental right under Article
21 in conjunction with Articles 39(e), 41 and 43 of the Constitution of India[1].
Concept and Definition of Health
The concept of health and
right to health are complementary and supplementary to each other. Therefore to
understand the meaning of right to health; one must understand the meaning of
health.
The concept of health is a
complex matter and it means different thing to different people which is
depending upon the situations under which it has defined along with various
determinates of health[2].
Etymologically, the term health is derived from the word “hale” which literally
means wholeness, being whole, complete and sound.
The definition of health
has evolved over time. In keeping with the biomedical perspective, early
definitions of health focused on the theme of the body’s ability to function.
Health was seen as a state of normal function that could be disrupted from time
to time by disease[3].
The
Butterworth Medical Dictionary defines the term health as normal physical
state, i.e. the state of being whole and free from physical and mental disease
or pain, so that the parts of the body can carry on their proper function[4].
After the World War II,
with the development of human rights, there was a need to review the
definitions of health which were based on biomedical nature. After recognizing
various aspects of health which includes self perception of illness, various
social variables which affecting the concept of sickness and health in order to
describe healthcare rights, the World Health Organization has given the most
popular definition of health.[5]
In 1948, in a
radical departure from previous definitions, the world health organization
proposed the definition as “Health is the state of complete physical, mental
and social well-being and not merely an absence of disease or infirmity. The
enjoyment of the highest attainable standard of health is one of the fundamental
rights of every human being without distinction of race, religion, and
political belief, economic or social condition.”[6]
The definition
provided by WHO overcame the negative definition of health and in terms of
positive qualities it conceptualized health. This view of health expands the
ambit of traditional medical view. The above definition provided by WHO aimed
higher: linking health to well-being, in terms of physical, mental, and social
wellbeing and not merely the absence of disease and infirmity.”[7]
Article 12 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR) state
“Right to health means the rights of everyone to the enjoyment of the highest
attainable standard of physical and mental health”[8]
There is a close nexus
between health and human rights. WHO through its interpretation discuss the
nexus between health and human rights from three aspects, firstly, WHO held
that any kind of violation or lack of attention towards Human Rights can lead
to serious health hazards like slavery, harmful traditional practices, in human
treatment including violence against woman and children.[9]
The second aspect of WHO
where it gives interpretation regarding the close nexus between Health and
Human Rights is that numbers of Health policies and programmers can promote or
violate human rights in their design or implementation like freedom from
discrimination, privacy, individual autonomy and rights to participation.[10]
Third aspects is that
vulnerability to ill-health can be reduced by way of taking steps to protect,
respect and fulfill human rights like freedom from discrimination on account of
race, sex and gender roles, right to health, food and nutrition including
education and housing.[11]
The concept of health can
be understood from modern aspect also. There are two different disciplines.
They are medicine and public health from which the concept of modern health can
be understood. Generally medicine always gives importance and focuses on
individual’s health whereas public health focuses on health of the population.
Medical and other health
care services always give importance towards individual’s physical health,
mental illness and disabilities. On the other hand public health is always
concern with society for assuring collective health provisions for health of
the people at large.
Thus it can be understood
that public health having a distinct goal for promoting health and concern with
the prevention of various diseases, disabilities and premature death. Health is
a human right and it is the duty of each state to protect and promote the
health of the people across the globe. “Health for all” is the call given by
declaration of Alma- Ata, 1978[12]
which is the Magnta – Carta of people which declares health as a human right.
Concept of Right to Health and Women
Both women and men have a
significant relation with health. Though health is equally important for both
women and men but there are biological and gender related differences between
them. Due to the particular biological and social differences between them, the
health of women deserves particular attention.[13]
Primarily, the
notion of health right of women is originated from international endeavors.
Regarding reproductive rights for the first time in the International legal
area, the Convention on the Elimination of Discrimination against Women, 1979
expressly addressed. In the area of health, it requires states to eliminate all
the discrimination between women and men.[14]
In the year
2015, The Sustainable Development Goals (SDGs) which are a set of goals, set
out in order to achieve a new sustainable development agenda for the world by
the year 2030. The third goal out of the 17 development goal is directly linked
to health. Within W H O, the WHA, the highest decision-making organ accepted a
resolution related to women’s, children’s and adolescents’ health[15].
The above
resolution strives to ensure that every woman, child and adolescent worldwide
able to survive and thrive by the year of 2030, which is directly aligned with
the SDGs and goal number.[16]
Judicial interpretation in the light of article 21 of
the Constitution of India and right to health of women:
For promoting justice, the
Constitution of India has the provisions of Judicial Activism and Independence
of Judiciary. As Judiciary is the guardian of Indian Constitution and the
concept of Separation of power is existed. Therefore, Executive, Legislature
and the Judiciary have to do their function within the sphere allotted to them
without interfering each other.
Under the Constitution of
India, Article 13 deals with the concept of Law which includes any ordinance,
order, bye-law, rules, regulation, notification, custom and usages having the
force of law in India. According to Article 13(1) of the Constitution of India,
any law which infringes any of the provisions of Fundamental rights shall be
void. Again Article 13(2) of the Constitution of India says that the state
shall not make any provisions which takes away or infringes any of the rights
conferred in Part III of the Constitution of India.
In Keshava Nanda Bharti v. State
of Kerela[17],
the Supreme Court of India held that the Parliament under Article 368 of the
Constitution of India has power to amend any provisions of the constitution of
India but the basic structure of the Constitution cannot be amended. The
legislatures of the Country are also under limitation that while making any
laws they cannot infringe any of the provisions of Part III of the Constitution
of India.
To fulfill the above task
the Judiciary has given the power of judicial review through which judiciary
has power to control the government authority. As constitution of India having
its impartial and Independent judicial body so it is the judiciary who
guarantee that there is no misuse of power by any branches of government. The Supreme Court and High Court are the
guarantor and Protector of the Rights of Citizen. So to protect the rights of
the citizen, with the help of Article 32 of the Constitution of India, any
citizen can seek justice by applying the writ petition for violation of their
Fundamental Rights. At the same time under article 226, The High Courts are
given exclusive power for entertaining any writ petition from Indian citizen if
their fundamental rights and any other rights are violated.
Besides that under Article
131-136 of the Constitution of India, the Supreme Court is under the authority
to adjudicate any disputes which are held between individuals, between
different states and union. Under Article 137 of the Constitution of India, the
Supreme Court is entrusted with the power of Judicial Review through which
Supreme Court is under the authority to review any judgments pronounced or
order made by it.
The supreme court of India
has also rights to revoked if any records contain errors. Under Article 142 of
the Constitution of India, the Supreme Court is given exclusive power to
exercise its jurisdiction to pass such decree and order which are necessary for
providing complete justice.
Regarding the concept of
“Right to Health” the Court has played an important role by trying to change
the Jurisprudential aspect of Right to
Health by including access to medical care, doctor’s duty and imposing a
positive duty on the State to take some positive step for the better health
facilities to the people.
There are numbers of
instances where health rights are violated in many sphere. Regarding this the
judiciary has uphold numbers of pronouncement where it tries to uphold various
health rights which are violated in many cases. Although health rights
including reproductive rights which has been recognized as a human right but
still it is not recognized as a fundamental rights under the Constitution of
India.
Under series of judicial
pronouncement through the light of right to life, judiciary has given the
status of right to health as an important essence and aspect of right to life
under Article 21 of the constitution of India. Besides that under the
provisions of Directive Principle of the State Policy under Article 47 it is the
duty of the State to protect the public health. These directives Principle of
the State Policies are not enforceable by law and these are required to follow
by the state as a direction. Judiciary
being an Independent Body always plays an important role regarding
Interpretation of Law and work as a watchdog of the Constitution of India.
A dignified life would
include adequate health facilities and also a healthy environment. The Maneka Gandhi v. Union of India [18]
was the first case where the Judiciary liberally interpreted the term right to
health. The judiciary for the first time held that the phrase “procedure
established by law” within the meaning of Article 21 must be “right, just and
fair and not arbitrary, fanciful or oppressive”.
Regarding judicial
interpretation on right to health, the Supreme Court in Common Cause v. Union of
India[19],
held that the right of bodily integrity and self- determination are the rights
which belong to every human being. When an adult person having mental capacity
to take a decision can exercise his right not to take treatment or withdraw
from treatment, the above right could not be negated for a person who is not
able to take an informed decision due to terminal illness.
In Kirloskar Brothers Ltd v. Employees State Insurance Corporation,[20]the
Supreme Court observed that facilities of health and medical care generate
devotion and dedication to give the worker’s best, physically as well as
mentally, in productivity. Thus health is recognized as a state of complete
physical, mental and social wellbeing and thus right to health is a fundamental
and human right to the workmen.
Another important judgment
is in the case of Ramar v. Director of
Medical and Rural Health Services[21]the
Madras High Court held that failure on the part of a Government hospital to
provide timely medical treatment to a patient in need of such treatment amounts
to a violation of the right to life.
Another important judicial
interpretation was held in Sri Pratam
Kumar Nayak v. State of Orissa, [22]the
Orissa High Court held that right to health and medical care is a fundamental
right and right to life includes protection of health. Further in the case of Chaobi Devi v. State of Manipur, [23]the
petitioner sought for compensation from respondent State on the ground of
failure on part of state in giving proper medical care and treatment to
petitioner’s husband resulting in violation of his fundamental right guaranteed
under Article 21 of the Constitution.
In Martin F. D’Souza v. Mohd.
Ishfaq[24],
the Supreme Court held that it is the duty of the doctor in an emergency to
begin treatment of the patient and he should not wait till the completion of
legal formalities or arrival of the police. The preservation of the life of a
person is far more important than following the legal formalities.
The Supreme Court of India in Rajasthan Pradesh Vaidya
Samiti, Sardarshahar v. Union of
India, [25]held
that the citizens of India have a right under Article 21 of the Constitution to
get protection and safeguard with regards to health and life from mal-medical
treatment. Therefore, every citizen has the right to get treatment by qualified
medical practitioners. This right has been protected under the Indian Medical
Council Act, 1956.
Under the provisions of
Constitution of India, though there is not any specific provisions regarding
right to health of women including their reproductive rights but there are
numbers of article where women’s right to health including their reproductive
rights are dealt with. Articles 14 of the Constitution of India which deals
with Equality before law and Article 15 of the Constitution of India which says
that state shall not make any discrimination on the grounds of religion, caste,
sex, race or place of birth.
The judiciary has given
its interpretation regarding Article 51(c) of the Constitution of India and
gave its interpretation by recognizing that government has a constitutional
obligation to respect the International Law and treaty obligation.[26]
Under Article 15(3) of the Constitution of India, the states are given right to
make special provisions for both women and children and they cannot be
prohibited from doing so.
There are numbers of cases
where judiciary gave pronouncement on women’s health right. There are some
cases where Indian court has adopted a firm definition of reproductive right
which reflects human rights standards.[27]
In Suchitra Srivastava v Chandigarh Administration,[28]
the Honorable Supreme Court held that Article 21 which deals with right to life
and personal liberty includes right to make a reproductive choice. Women’s
right to privacy, dignity and bodily integrity should always be respected in
every society. If the health condition of women does not allow her to carry a
baby, it should be supported.
Regarding denials of
maternal health services to two ladies who were living below the poverty line
the Delhi judiciary gave a judgment through a joint decision in the instance of
Jatiun v. Maternity Home, MCD, Jangpura
and Ors[29]
and Laxmi Mandal v. Deen Dayal
Harinagar Hospital & Ors.[30]
In Indian Medical Associations v.
V.P. Shantha[31]a
significant decision regarding Right to heath of Women has been given where it
was held that providing medical services, whether therapeutic or diagnostic,
for monetary consideration amounted to service within the meaning of service as
per the Consumer Protection Act 1986.
Therefore any medical
practitioner or hospital found guilty of negligence or deficiency in services
shall be held liable as per the Consumer Protection Act. One another important
judicial interpretation has found in the case of Devika Biswas v. Union of
India & Ors,[32]where
the Humble Supreme Court held through a judgment that reproductive health
framework has to recognize women’s autonomy and gender equality as core elements
of women’s constitutionality that means protected reproductive rights.
In a number of cases
judiciary has recognized that reproductive rights are part of right to health
and it is an important essential of personal liberty of every individual. So
Right to health as well as right to health of women are recognized as one of
the indispensible rights under Article 21 of the Constitution of India.
An important decision has
took place in the case of Own Motion v.
State of Maharashtra, the Bombay,[33] the High Court ruled to progress women
prisoner’s health status, which included access to abortion. The Court has held
that women’s right to abortion is an essential component of their Fundamental
Rights because according to Article 21 of the Constitution of India life means
living with human dignity.
The constitution of India
has been regarded as the Supreme law of the land. It has made three organs of
the government namely Executive, Legislature and Judiciary. Judiciary is the
guardian of the Constitution and it is the watch dog of fundamental right in
various times. The judiciary has explained that health right is the basic
fundamental right for every human being as implied in Article 21 of the
Constitution of India.
[1] M.P.Jain, Indian Constitutional Law 112(Kamal Law House, Calcutt,14th
edition,2014)
[2] A Vanish Kumar, Human Right to Health 1(Satyam Books
Pvt.Ltd., New Delhi, 2007)
[3] Supra Note 3 at 2.
[4] M. Critchley(ed.), Butterworths Medical Dictionary 784(
Butterworths, London, 1978)
[5] Preamble to the
Constitution of WHO
[6] Ibid.
[7] Ibid.
[8] International
Convention on Economic, Social and Cultural rights, 1966, Article 12
[9] WHO, ‘’The Right to Health’’, WHO Fact Sheet No.233, reviewed in
November 2013, available at http://www.who.int/mediacentre/factsheets/fs323/en/
(last accessed on 1 august, 23 at 4 p.m.)
[10] Ibid.
[11] Ibid.
[12] Alma Ata Declaration,
1978
[13] Neelem Singh,” Issues
of Women’s Health,”1(1 and 2) Nyaya Deep
4(2014)
[14] Convention on the
elimination of discrimination against women 1979, Article 12
[15] World Health Organization, Maternal and
Newborn Health.
http://www.euro.who.int/en/health-topics/Life-stages/maternal-and-newborn-health/maternaland-
newborn-health, (retrieved on 8.7.2023 at 3 p.m.)
[16] Ibid.
[17] AIR 1973 SC 1467.
[18] AIR 1978 SC 597.
[19] AIR 2018 SC 1665( 2018)
5 SCC 1.
[20] AIR 1996 SC 3261: 1996
SCALE (2)1.
[21] (2010) 1 MLJ 1409.
[22] AIR 2012 Ori 53: 2013
ACJ 1464.
[23] 2018(2)GLT 393:
II(2018)ACC 303.
[24] AIR 2009 SC 2049.
[25] AIR 2010 SC 2221.
[26] Apparel Export Promotion Council v Chopra (1999) 1 SCR 117, Para.
27.
[27] Devika Biswas v Union of India, W.P. ( C ) 81/2012.
[28](2009) 9 SCC 1.
[29] Ibid.
[30] Laxmi Mandal v. Deen Dayal Harinagar Hospital & Others, W.P. ( C )
No. 8853/2008
[31] Air 1996 SC 550.
[32] WW.P. ( C ) 81/2012
[33] W.P. (CRL) No.1/2016,
Maharashtra H.C. On its own Motion Lajja Devi v. State, W.P. ( CRL) No. 338(
2008)( High Court of Delhi)