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CONSTITUTIONAL PERSPECTIVES ON RIGHT TO HEALTH IN INDIA BY: ADV. RUSHIL SHARMA
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CONSTITUTIONAL
PERSPECTIVES ON RIGHT TO HEALTH IN INDIA
AUTHORED BY: ADV.
RUSHIL SHARMA
Assistant Professor
(Guest), UILS, Panjab University
A healthy body is
the very foundation for all human activities. That is why the adage "Sariramadyam Khaludharma Sadhanara”[1].
The maintenance and improvement of public health and welfare rank as one of the
highest priorities because these are indispensable to the very physical
existence of the community and on the betterment of these, depends the building
of the society of which the Constitution makers envisaged.
In a welfare state[2]
such as ours, the government assumes responsibility for the social and economic
well-being of its citizens, aiming to ensure that everyone has access to basic
necessities and essential services. Central to this commitment is the
recognition of the right to health as a fundamental human right and a
cornerstone of social welfare policies.
The framework of the right to health
in India primarily draws from the Fundamental Rights, Directive Principles of
State Policy and judicial interpretations by the Supreme Court.
I.
Fundamental
Rights
Fundamental rights in Part III of the
Indian Constitution have been described to be the Magna Carta of India. The need and necessity of fundamental rights
arises from the fact that the Constituent assembly envisaged India as a modern
democracy and hence, deemed it essential to protect and preserve the rights of
its people against encroachment of the power that they themselves have given to
their government.
Fundamental rights have gone through
several stages of evolution in terms of their interpretation. Starting from the
A.K. Gopalan case[3]
which recognized the notion that individual rights must always be subject to
reasonable conditions to the widening of scope of the fundamental rights to
then, ruling in the case of Maneka Gandhi[4] that
the widest possible interpretation should be given to the provisions of third
part of Constitution.
Article 21 of the Constitution
provides for the protection of life and liberty of person. It may be noted that
throughout the passage of time, the Hon’ble Apex Court has been instrumental in
widening its meaning and scope. The
expression 'life' used in the
said Article has a broad connotation and import. It includes within
itself an array of or a bundle of rights which
have been given recognition by the law makers from time to time and the also
the judiciary. Right to life is not only limited to preserving life of a
person but encompasses several aspects such as Right to live with dignity,
Right to privacy[5], Right
to livelihood[6], Speedy
delivery of justice[7], Right
to shelter[8], Right
to free legal aid[9], Right
against solitary confinement[10]
etc.
The right to health is intricately
linked with various fundamental rights, including the right to life provided
under Article 21. Right to health is a fundamental aspect of human dignity and
well-being, and it finds expression within the constitutional framework of
India.[11]
Although the Indian Constitution does not explicitly enumerate a right to
health, various provisions implicitly recognize and protect this right.
In the year 2018, Supreme Court
decided the case Ashwini Kumar v. Union
of India[12] whereby
the rights of dignity, health and safety of the elderly was considered before
the Hon’ble Court, it was held that the said rights of health, safety and
shelter are to be protected and enforced by the state[13]
and are indelible part of Article 21 of the Indian Constitution.
II.
Directive
Principles of State Policy
Directive principles of state policy
can be found in Part IV of the Constitution. This part provides for the
principles which are to be followed by the state while governing the country.
Even though these principles are non-enforceable which entails that no person
can approach the Court of law for enforcing these principles, these directive
principles are fundamental in governance of our country and establishing a
welfare state.
It can be said that Directive
principles are those goals or ideals that are to be kept in mind by the
legislature be it at the Union level or State level. The ideal being a welfare
state which was envisioned by the framers of our Constitution can only be
achieved if the government makes an effort to implement the directives with a
high sense of moral duty.
a. Article 39 (e) and (f) of Indian
Constitution:
The directive in Article
39(e) secures and ensures that the health of workers be it man or woman should
not be abused. It also mandates that the health and strength of children is
protected and they are not abused or exploited and that no one is on account of
economic necessity made to enter or join professions which is unsuited to their
age and strength.[14]
Right to health of worker
was also a point of primary consideration in the CERC case[15]
where the issue of appalling conditions of workers, health hazards faced by
them and dangers of asbestos exposure was taken into consideration by the Apex
Court. It was held by the Supreme Court that right to health and medical care
is a fundamental right and it includes the protection of health and strength of
worker. Court further held that the State is enjoined to take all actions which
promote health, strength and vigour of workmen not only during employment but
also after retirement.
Further, Article 39(f)
provides that children should be given facilities and adequate opportunities in
a healthy manner and that they are protected against exploitation and against
moral and material abandonment. Hence, this article directs the state to ensure
that children being the future of country should grow in a healthy manner.
b. Article 42 mandates provisions for
just and humane conditions of work and maternity relief. It stands as the basis
of laws on labor welfare. Evenly, Justice Bhagwati had observed in the landmark
judgment of Bandhua Mukti
Morcha[16] that the right to live with dignity which is
enshrined in Article 21 itself derives its breath from directive principles
such as clause (e), (f) of Article 39, Article 41 and Article 42 of the
Constitution.
c. Article 47 lays down
the duty on the state to raise the level of nutrition and standard of living
and improving public health. It highlights the state's duty to promote public
health as one of its primary responsibilities. By prioritizing public health,
the state indirectly acknowledges the importance of ensuring access to
healthcare services, clean water, sanitation, and other determinants of health
that are essential for the well-being of its citizens.
It
entails the importance of education on health and activities which raise
awareness. By emphasizing the need to improve the standard of living and
nutrition, the state implicitly recognizes the significance of educating
citizens about healthy lifestyle choices, nutrition, and preventive healthcare
practices.
III.
Judicial
approach towards right to health
In India, the right
to health has been increasingly recognized and addressed by the judiciary over
the years. The judiciary
has played a significant role in expanding the scope of the right to health and
holding the state accountable for ensuring access to healthcare services. It
can be said that whenever the legislature has failed to make laws in order to
expand and secure the right to health, the Courts
have intervened in such matters and ensured complete justice to the victims.
Time and again the judiciary
has used its extensive powers and intervened to ensure that healthcare services
are accessible to marginalized and vulnerable populations, including women,
children, the elderly, persons with disabilities, and disadvantaged
communities. Certain landmark judgments associated with the right to health
under constitution are as follows:
a. In the Pt. Parmanand Katara case[17]
a Public interest
litigation was filed before the Hon’ble Supreme Court requesting that the Union of India provide clear instructions for
immediate medical assistance to any injured citizen seeking treatment to save
lives, followed by the appropriate application of criminal procedural law to
prevent negligent deaths. In cases of non-compliance with such directives, in
addition to any actions taken for negligence, suitable compensation should be
granted.[18]
The
Petitioner attached a report of Hindustan times titled 'Law helps the injured
to die', which was published and was included and appended with the writ
petition. The report recounted an incident where a speeding car collided with a
scooter, injuring the rider. A passerby rushed the injured individual to the
nearest hospital, but the medical staff refused treatment, instructing the
passerby to take the patient to a different hospital authorized for
medico-legal cases, situated 20 kilometers away. Despite the passerby's prompt
efforts to reach the designated hospital, the victim tragically succumbed to
their injuries en route.
The
Supreme Court after noting the facts clarified that preserving life is of
paramount importance and Article 21 casts an obligation upon the state to
preserve life. The Court gave directions that it is the duty of those in charge
of the health of community that life is preserved and every hospital regardless
of whether it is a private or government one has the obligation to extend their
services in such cases.
b. In the case of Vincent Panigurkala[19]
the Petitioner who was an advocate by profession argued before the Supreme
Court that there should be directions for prohibition and banning of the
import, manufacture, sale etc. of such drugs which have been banned by western
nations. The directions were sought to be made in view of achieving the object
behind drugs and cosmetics act, 1940 and to protect and preserve the right to
health of citizens.
While highlighting that
the issue is an absolute obligation of the state, the Supreme Court noted that
this issue of drugs and medicine has several complexities and facets to it and
that this field of medicine and remedies is ever changing. It is the obligation
of the state to enforce and ensure that only quality drugs are produced and the
ones which may potentially cause injuries to the citizens should be eliminated.
And such drugs which are found necessary should be manufactured in abundance
and their availability and accessibility must be ensured so that the life and
health of citizens is protected.
c. In Paschim Banga khet Mazdoor Samity case[20]
a worker was seriously injured when he fell from a running train. He was sent
from one government hospital to another and finally ended up at a private
hospital where he was treated and incurred an expense of Rs. 17,000/-. He felt
aggrieved on account of the response of government hospitals and approached the
Hon’ble Apex Court.
The
Court ruled that the Constitution has envisioned the establishment of a welfare
state and the primary duty of government is to provide medical facilities for
the people. Further that government hospitals who fail to provide timely
medical treatment to a needy person violates Article 21 of that person.
Therefore, on account of the aforesaid violation, the state was liable to pay
Rs. 25,000/- as compensation.
d. In Consumer Education Research Centre case[21]
a public interest litigation was filed seeking the court's intervention to
address the issue of inadequate healthcare facilities, particularly in rural
areas. The petitioner argued that the lack of access to healthcare services violated
the fundamental right to life guaranteed under Article 21.
It was
held that the state has a constitutional obligation to provide healthcare
services and ensure access to medical facilities for all citizens, especially
the marginalized and disadvantaged sections of society. [22]
e. In State of Punjab v. Mohinder Singh Chawla[23]
The Hon’ble Apex Court underscored the importance of accountability in the
healthcare sector and established legal precedents for addressing cases of
compensation in medical cases and right to health in India. It served as a
reminder to medical practitioners and healthcare institutions of their
obligations to prioritize patient safety and quality of care.
The
case also highlights the absolute duty of the state to provide for facilities
of health to its citizens and that the government is under a constitutional
obligation to provide the same [24].
When the state fails to provide for the same, it shall be the duty of the state
to remedy the violation
The Court held that
failure to provide medical treatment to a person in need constitutes a
violation of the right to life under Article 21. It emphasized the state's duty
to ensure access to medical facilities, irrespective of the financial status of
individuals.[25]
f.
Another
facet of right to health was discussed in Ashwini
Kumar v. Union of India[26]
whereby the broad issue of rights and welfare of the elderly was brought before
the Court. The issues raised before the Apex Court related to the Right of
dignity, of health, of adequate pension and the Right of shelter of the
elderly.
It was held that the right t life
under Article 21 encompasses and cover under it various rights of the elderly
and that there is a need and necessity to continuously monitor the
implementation and enforcement of these rights. The Court stated for
alleviating the problems of abuse of rights of the elderly a continuous
mandamus is needed to be issued in view of social justice.
The Apex Court held that there is a
constitutional mandate upon the state to ensure and make available to the
elderly, their right to live with dignity, provide them with shelter, medical
and healthcare facilities and even geriatric care.
These landmark judgments underscore
and emphasize that while India has made progress in recognizing the right to
health, challenges remain in terms of equitable access, quality of healthcare,
and implementation of policies. Efforts are needed to strengthen healthcare
infrastructure, enhance public health services, and address socioeconomic
determinants of health to realize the constitutional promise of the right to
health for all citizens.
[1] "In order to fulfill our dharma, first start
with the body."
[2] Article 38. State to secure a
social order for the promotion of welfare of the people.—(1) The State shall
strive to promote the welfare of the people by securing and protecting as
effectively as it may a social order in which justice, social, economic and
political, shall inform all the institutions of the national life. (2) The
State shall, in particular, strive to minimise the inequalities in income, and
endeavour to eliminate inequalities in status, facilities and opportunities,
not only amongst individuals but also amongst groups of people residing in
different areas or engaged in different vocations.
[3] A.K. Gopalan v. State of Madras, AIR 1950 SC 27.
[4] Maneka Gandhi v. Union of India AIR 1978 SC 597.
[5] K.S. Puttaswamy v. Union of India AIR 2017 SC 4161.
[6] Narendra Kumar v. State of Haryana JT (1994) 2 SC 94
[7] Hussain v. Union of India AIR 2017 SC 1362
[8] Chameli Singh v. State of U.P. (1996) 2 SCC 549
[9] M.H. Hoskot v. State of Maharashtra AIR 1978 SC 1548
[10] Sunil Batra (No.1) v. Delhi Administration AIR 1978 SC 1575
[11] It
is well established that the right to life under Article
21 of the Constitution includes
the right to lead a dignified and meaningful life and the right to health
is an integral facet of this right. See Devika Biswas v. Union of India and
others, (2016) 10 SCC 726
[12] AIR 2018
SC (SUPP) 2541
[13] We accept that the
right to life provided for in Article
21 of the Constitution must be
given an expansive meaning. The right to life, we acknowledge, encompasses
several rights but for the time being we are concerned with three important
constitutional rights, each one of them W.P(Civil) No.193 of 2016 Page 22 being basic and fundamental. These rights
articulated by the petitioner are the right to live with dignity, the right to
shelter and the right to health. The State is obligated to ensure that these
fundamental rights are not only protected but are enforced and made available
to all citizens. Ashwini Kumar v.
Union of India AIR 2018 SC (SUPP) 254.
[14] This
right to live with human dignity enshrined in Article
21 derives its life breath from
the Directive Principles of State Policy and particularly clauses (e) and (f)
of Article 39 and Articles
41 and 42 and at the least, therefore, it must include
protection of the health and strength of the workers, men and women, and of the
tender age of children against abuse, opportunities and facilities for children
to develop in a healthy manner and in conditions of freedom and dignity,
educational facilities, just as humane condi- tions of work and maternity
relief. Bandhua Mukti Morcha v. Union of India, [1984] 3 SCC 161
[15] C.E.R.C. v. Union of India AIR 1995 SC 922
[16] Bandhua Mukti Morcha v. Union of India, [1984] 3 SCC 161
[17] Pt. Parmanand Katara v.
Union of India AIR 1989 SC 2039
[18] The patient whether he be an innocent person or be a criminal
liable to punishment under the laws of the society, it is the obligation of
those who are in-charge of the health of the community to preserve life so that
the inno- cent may be protected and the guilty may be punished. Social laws do
not contemplate death by negligence to tantamount to legal punishment. Pt.
Parmanand Katara v. Union of
India AIR 1989 SC 2039.
[19] Vincent Panikurlangara v. Union
Of India & Ors. 1987 AIR
990
[20] Paschim banga Khet Mazdoor Samity v. State of West Bengal 1996 (4)
SCC 37
[21]
Consumer Education Research Centre v. Union of India AIR 1995 SC 922.
[22] The Constitution envisages the establishment of a welfare
state at the federal level as well as at the state level. In a welfare state
the primary duty of the Government is to secure the welfare of the people.
Providing adequate medical facilities for the people is an essential part of
the obligations undertaken by the Government in a welfare state. The Government
discharges this obligation by running hospitals and health centres which provide
medical care to the person seeking to avail those facilities. Paschim Banga Khet Mazdoor Samity f Ors vs State Of
West Bengal & Anr. 1996 SCC (4) 37, JT
1996 (6) 43.
[23] AIR 1997 SUPREME COURT 1225
[24] Government has constitutional obligation to provide the
health facilities. If the Government servant has suffered an ailment which
requires treatment at a specialised approved hospital and on reference whereat
the Government servant had undergone such treatment therein, it is but the duty
of the State to bear the expenditure incurred by the Government servant. State
of Punjab v. Mohinder Singh Chawla AIR 1997 SUPREME COURT 1225
[25] It is now settled law that right to health is an integral to
right to life. Government has constitutional obligation to provide the health
facilities. State Of Punjab & Ors v. Mohinder Singh Chawla Etc. AIR 1997 SUPREME COURT 1225
Article Information
CONSTITUTIONAL PERSPECTIVES ON RIGHT TO HEALTH IN INDIA BY: ADV. RUSHIL SHARMA
Authors: PUSHPITA MITRA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/02/22
- Issue 7
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International Journal for Legal Research and Analysis
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