CONSTITUTIONAL PROVISIONS RELATING TO THE RIGHT TO HEALTH AND COVID-19 (By -Nishant Kumar)
CONSTITUTIONAL PROVISIONS RELATING TO THE RIGHT TO HEALTH AND COVID-19
Authored
By -Nishant Kumar
(LL.M Candidate at Chanakya National Law
University, Patna)
Introduction
The SARS CoV2 virus epidemic, also
known as the COVID19 pandemic, has had an influence on individuals' social,
economic, political, and cultural life all around the world. The pandemic's
unexpected emergence has revealed countries' legal preparation, or lack
thereof, to mitigate and contain the disease's devastating effects. In every
epidemic or pandemic emergency, strong legislative actions are critical. In
light of this, the Indian government has urged that all state governments use
the Epidemic Disease Act (EDA) of 1897 to deal with the COVID19 crisis. The
powers granted by the Disaster Management Act (DMA) of 2005 have also been
employed by the central government.
As the country faces its first
significant health emergency since independence, existing legal mechanisms to
cope with a COVID19-like situation are insufficient and will require
modifications in the future. This study seeks to uncover grey areas in the
statutory requirements by presenting India's existing constitutional and
legislative response to health emergencies. Based on the findings, this report
proposes many amendments to present legislation as well as the adoption of a comprehensive
public health law.
Health is a condition of
complete physical, mental, and social well-being, not just the absence of
sickness. The right to the best possible health is one of every human being's
fundamental rights around the world. As the world's leader in public health,
the World Health Organization is responsible for ensuring worldwide public
health. Every United Nations member state has established its own healthcare
infrastructure and medical services to ensure the health of its citizens. The
catastrophic health crisis sparked by the Covid-19 outbreak has demonstrated
that India's healthcare infrastructure and medical services are lacking.
The Covid-19 pandemic
confined half of the world's inhabitants to their homes. To control and prevent
the spread of Coronavirus, the Indian government implemented a countrywide
lockdown and confined citizens to their homes. People in India experienced a
number of socio-economic issues during the national lockdown. During the
lockdown, basic rights like as the freedom to learn, earn, and travel freely,
which are crucial to the right to life, are confiscated. Several medical
experts who were on the front lines of the fight against Coronavirus became
sick and died. The goal of this study was to show how the Covid-19 epidemic has
affected India's right to health and medical treatment.
The right to health and medical
treatment is one of the fundamental right. In Vincent Panikurlangara vs. Union
of India(1), the Supreme Court of India stated that maintaining and improving
public health must be prioritised because they are essential to the community's
physical survival, and their improvement is dependent on the creation of the
society that the constitution-makers envisioned. As a result, the court
believes that public health is a high priority—perhaps the highest of all (2).
All member nations have taken efforts to ensure public health under the
auspices of the United Nations. To fulfil the health demands of their
inhabitants, the countries have created their healthcare infrastructure.
The World Health Organization's
unprecedented declaration of a public health emergency of international
significance has raised various concerns about current healthcare
infrastructure and medical services throughout the world. Since December 2019,
when China reported the first case of Covid-19 to the WHO, nearly 15 million
instances of Corona positive have been documented globally, with a mortality
toll of 615,000 individuals (3). This number is rapidly increasing every day. After
the United States and Brazil, India is the world's third most afflicted
country. More than 11.5 million Covid-19 instances have been documented till
July 20, 2020, according to the Ministry of Health and Family Welfare.
The Covid-19 epidemic restricted half
of the world's inhabitants to their homes. To control and prevent the spread of
Coronavirus, the Indian government implemented a countrywide lockdown and
confined residents to their homes. People in India experienced a number of
socio-economic issues during the national lockdown. During the lockdown, basic
rights like as the freedom to learn, earn, and travel freely, which are crucial
to the right to life, are confiscated. Several medical experts who were on the
front lines of the fight against Coronavirus became sick and died. The goal of
this
study was to show how the Covid-19
epidemic has affected India's right to health and medical treatment.
Health Related Constitutional
Provisions
Right to Health as understood under Directive
Principles of State Policies-
Part IV of the Indian Constitution deals with the "Directive
Principles of State Policy," which are a set of principles that govern
government policy. Despite the fact that the Directive Principles are said to
be vital to the country's government, they are not legally enforceable. As
stated in the Preamble, they are rules for establishing a social order marked
by social, economic, and political justice, liberty, equality, and brotherhood.
These principles are vital to the country's governance, and the state has a
responsibility to apply them while enacting laws. The following guidelines are
important from the standpoint of the Right to Health.
1.
Article 39: Certain principles of policy to be followed by the
State: This article protects the employees' health and strength, including men
and women. It also requires that children be provided with the opportunity and
resources they need to develop in a healthy, free, and dignified way,
and that childhood and youth be safeguarded from exploitation and moral
and material abandonment. It is true that Article 39 (e) and (f) of the
Constitution shows that the framers were concerned about protecting and
safeguarding the interests and welfare of employees and children. It declares
that the working class is vital to the nation's development, and that the state
government must preserve their health. While delivering the court's opinion in
Lakshami Kant Pandey v. Union of India3, BHAGAWATI, J. stated, "It is
obvious that in a civilised society, the importance of child welfare cannot be
overemphasised because the welfare of the entire community, its growth and
development, is dependent on the health and well-being of its children."
Children are a vital national asset, and the nation's future well-being is dependent
on how its children grow and develop."
Furthermore, the Supreme
Court decided in Sheela Barse v. Union of India4 that "a kid is a national
asset, and it is the State's obligation to take for the child with a view to
guaranteeing complete development of its personality." The Constitution
42nd Amendment Act of 1976 changed clause (f) to emphasise the government's
positive role in the lives of children.
2.
Article 42: Provision for just and humane
conditions of work and maternity relief - This Article requires the state to
provide provisions for reasonable and humane working conditions as well as
maternity leave. 6 The Supreme Court concluded in U.P.S.C. Board v.
Harishankar7 that Article 42 is the foundation of India's greater framework of
labour legislation. The Supreme Court further emphasised that the Constitution
displays a significant concern for the welfare of employees, citing Articles 42
and 43. The Directive Principles may not be enforced as such, but the Court
must interpret the legislation in a way that advances rather than hinders the
Directive Principles' aim.
The
essence of Article 42 is that it serves as the foundation for the body of
labour legislation and worker welfare. The Court must interpret the law in
order to meet the DPSP's objectives.
3.
Article 47: Duty of the State to raise the
level of nutrition and the standard of living and to improve public health -
The State shall regard raising the level of nutrition and the standard of
living of its people, as well as improving public health, as one of its primary
duties, and in particular, the State shall endeavour to prohibit the
consumption of intoxicating drinks and drugs that are harmful to health, except
for medical purposes.10
When
reading Article 47, the Supreme Court correctly ruled that public health must
be preserved for the benefit of society. Furthermore, it has been argued that
in this welfare age, the state's major responsibilities are to enhance people's
nutrition and standard of living.
Right To Health in reference to
Fundamental Duties:
The Indian
Constitution's PART IV-A addresses citizens' basic responsibilities. Article 51
-A. Fundamental responsibilities: Every citizen of India shall have the
responsibility to (g) maintain and develop the natural environment, including
forests, lakes, rivers, and wild life, as well as to have compassion for all
living beings. It demonstrates that every person has a basic responsibility to
conserve and develop the natural environment, which is linked to public health.
Right
to Health under Fundamental Rights:
Fundamental rights are addressed in
Part III of the Indian Constitution. Fundamental rights are not unrestricted;
they are subject to reasonable limits. The Supreme Court's primary job is to
interpret the law. The Indian Constitution does not include a right to health,
i.e. under a particular clause, you have the right to the best bodily and
mental health you can get. However, under Article 21 of the Constitution, the
Indian court treats the right to health as an inherent aspect of the right to
life, which is guaranteed to all human beings.
Article 21: Protection of Life and
Personal Liberty:
The multi-dimensional interpretation
of Article 21 is a significant advance in Indian constitutional law. Under its
broad reading of Article 21, the Supreme Court has come to put affirmative
responsibilities on the state to take actions to ensure the individual's
greater enjoyment of life and dignity. The right to health, as defined by
Article 21, is concerned with the preservation and enhancement of public
health, as well as environmental betterment.
The Supreme Court of India in Bandhua
Mukti Morcha v Union of India & Ors construed the right to health under
Article 21, which ensures the right to life, because there is no specific
mention of the right to health or healthcare in the Constitution and the
Supreme Court also ruled that, while the DPSP are not legally obligatory and
simply have persuasive value but they should be honored by the state
in public policies . Furthermore, the Court determined that under Article
21, dignity and health are included in the definition of life and liberty.
The Supreme Court stated in State of
Punjab & Ors v Mohinder Singh Chawla held that the right to health is
basic to the right to life and that the government has a constitutional
responsibility to provide health care. The court went on to support the state's
obligation to sustain health services in State of Punjab &Ors v Ram
LubhayaBagga.
The right to health and medical help
to safeguard a worker's health and vigour, both while in service and after
retirement, was ruled to be a basic right under Article 21 in the following
case of Consumer Education and Research Centre V. Union of India AIR 1995 SC
922.
Because the right to health is
inextricably linked to the right to life, it is a basic right guaranteed to
every Indian citizen under Article 21 of the Indian Constitution. We owe the
acknowledgment of
this right to the Supreme Court of
India, which logically expanded its understanding of the right to life to encompass
the right to health through a series of legal decisions.
In September 2019, the 15th Finance
Commission's High-Level Group on the Health Sector urged that the right to
health be deemed a basic right. It also proposed that the issue of health be moved
from the State List to the Concurrent List. If enacted, the suggestion to make
the right to health a basic right will improve people's access to healthcare.
The later suggestion to move health to the Concurrent List, on the other hand,
will raise a constitutional question about whether centralising public health
will be beneficial in the context of Indian cooperative federalism.
As a result, it is the State's
responsibility to protect the public's health, and the Central Government and
several State governments have taken appropriate and proactive steps to prevent
the introduction and spread of the COVID-19 pandemic.
Impact
Due to a lack of or limited access to
healthcare and other basic requirements, India's marginalised populations have
been disproportionately affected by the current pandemic, further exacerbated
glaring inequities. The statement of solidarity necessitates that the
government and institutions treat everyone equally and preserve their rights
without regard to sex, caste, class, religion, or language. Domestic solidarity
at the national level would compel state governments and institutions to seek
standard answers to common difficulties in the benefit of all citizens.
COVID-19's territorial implications:
The COVID-19 problem has a strong
geographical dimension, as not all regions have been equally affected, and the
medium- and long-term consequences will differ.
The health crisis:In terms of stated cases and
accompanying deaths, the health crisis has had drastically diverse consequences
among areas and municipalities within nations. Regional differences in
mortality rates are considerable in certain countries, reflecting variations in
health-care access, illness susceptibility (e.g., demographic factors,
comorbidity rates, etc.) and socio-economic situations. In the early stages of
the pandemic, heavily populated metropolitan areas were the worst impacted,
although COVID-19 expanded to less densely inhabited areas in certain nations
in the second half of 2020 and 2021.
In many nations, there is mounting evidence that locations at the bottom of the
economic scale and impoverished neighbourhoods have higher death rates.
The economic crisis:The COVID-19 dilemma has a different
economic impact in different parts of the world. The effect of the crisis has
been magnified by regional economic specialisation in industries directly or
indirectly affected by the crisis, as well as involvement in global value
chains, particularly in regions with a significant proportion of SMEs (OECD, 2021[2]).
Regions are also affected differently based on their capacity to
"telework," which is exacerbated by digital divides. Even when these
digital inequalities are ignored, cities have a 13-percentage point greater
share of occupations that can be done from home than rural places. Unemployment
rose sharply in numerous OECD countries in the second half of 2020 compared to
the same time in 2019, with significant regional variances in Chile, the Czech
Republic, Greece, Mexico, and Spain, for example.
Subnational Finance: The health and economic crises have
had a detrimental influence on subnational government expenditure and revenue,
according to data for 2020. However, in certain countries, such as Finland,
France, Germany, Japan, and Spain, the influence is smaller than what earlier
polls suggested. This can be ascribed, at least in part, to considerable
central/federal government steps to help local financing, as well as
expenditure cuts and investment project deferrals or cancellations. However,
there is still a lot of uncertainty in the long run. A multitude of elements
are at play here.
Firstly, there are concerns about the
health situation and vaccination implementation. Secondly, many important
expenses that were postponed in 2020 are no longer possible to postpone
forever. Thirdly, tax income in 2020 in many nations reflected actions in 2019,
not 2020 and fourth, the impact on subnational financing in 2021 and 2022 will
be determined by the degree and continuance of higher-level government support.
Conclusion
The outbreak has revealed India's
healthcare system's serious flaws. Much of this can be attributed to India's
low public health spending with – 1.29 percent of GDP (in 2019-20), which
is lower than most other nations. Another important reason for India's poor
public health is the lack of a legal framework that exclusively guarantees a
fundamental right to health and implements it within the framework of legal
devices and human rights principles of solidarity, proportionality, and
transparency, which will aid India in addressing COVID19's challenges. The
right to health will be implemented within India's co-operative federalism
framework, which will strengthen capacities where they are most needed — at the
grassroots.
The COVID-19 epidemic has pushed
governments to use all of their regional development and governance policy
instruments as soon as possible. It also emphasised the necessity of strong
leadership and the need for a place-based approach to crisis management and
rehabilitation. It demonstrates the necessity of government and non-government
entities working together in coordination, consultation, and collaboration.
This disaster has also highlighted the critical role that public trust plays in
crisis management and health outcomes, as well as the need of good
communication with stakeholders and individuals.
The epidemic has raised concerns in
India about a variety of issues, including the quality of health treatment,
government and institutional responses, and law and order concerns. These
issues should be addressed via the constitutional and legislative framework.
While the Indian government effectively implemented the lockdown and decreased
the number of cases, several MPs and legal experts questioned the lockdown's
constitutional legitimacy and the government's response. Despite the fact that
the EDA and DMA have been adopted by the central government, they are
insufficient to properly address the health emergency due to the disease's
dynamic character.These disasters will provide enough opportunity to remedy
legislative gaps, allowing future generations to be better prepared for any
form of health emergency.
There will be many challenges with
respect to laws related to healthcare to be adequate and efficient. Currently,
there are numerous legislations which are contradictory to each other creating
hindrance in serving justice by the hon’ble courts.