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FROM DECLARATION TO REALITY: THE HISTORICAL EVOLUTION OF THE RIGHT TO HEALTH IN CONSTITUTIONAL LAW AND ITS IMPACT ON PUBLIC HEALTH POLICIES
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Article Details
FROM DECLARATION TO REALITY: THE HISTORICAL EVOLUTION
OF THE RIGHT TO HEALTH IN
CONSTITUTIONAL LAW AND ITS IMPACT ON PUBLIC
HEALTH POLICIES
AUTHORED BY - MANASI JIGAJINNI
LLM in
Constitutional and Administrative Law School of Law
Christ (deemed to be) University,
Bangalore
Phone No: 8762343849
Abstract
This research paper delves into the historical evolution of the Right to
health within the realm of
constitutional law and its profound implications on shaping public health
policies. Tracing its origins from
international declarations to its incorporation into national constitution, the study examines the transformative journey
of the Right to health as a fundamental human
right. Through a comprehensive analysis of five-year plans in India,
legal frameworks, and judicial
interpretations, the paper explores how the Right to health has evolved,
emphasizing the pivotal role of constitutional interpretations.
The research critically evaluates the impact of constitutional
recognition of the Right to health on developing and implementing
public health policies in various jurisdictions. It investigates how constitutional guarantees influence healthcare accessibility, affordability, and quality,
thereby shaping the overall health landscape of nations.
Drawing upon historical contexts, legal analyses, and real-world examples, this research contributes valuable insights into the
ongoing discourse surrounding the Right to health. By understanding the historical evolution and the contemporary
challenges, policymakers, legal scholars, and healthcare practitioners can gain a nuanced perspective to inform future legislative reforms
and policy initiatives. This paper ultimately advocates for a comprehensive
approach, where legal frameworks, public health policies, and societal efforts harmoniously converge to realize the fundamental
human right to health for all.
Key Words
1.
Right to Health
2.
History
3.
Constitutional recognition
4.
Policy implementation
Introduction
In India, the concept of health has
been highly valued throughout its historical development. In ancient times,
emphasis was placed on cleanliness and a healthy environment, recognized as
vital components of good health. Additionally, the period saw the flourishing
of Ayurveda, with renowned physicians like Charaka and Susruta contributing
significantly to healthcare. During the Mughal Rule, Unani and Siddha medicine
gained prominence, and later, under British Rule, modern medical science
emerged.
After Independence, health was initially categorized as a non-justiciable right under the Directive Principles of State Policy,
subject to state discretion for implementation. However, recognizing its crucial importance, the Supreme Court of India elevated health to the status of a Fundamental Right, incorporating it
within the broader scope of the 'Right to Life' under Article 21 through landmark decisions. Despite its significance, the lack of explicit
mention in the Constitution has led to insufficient awareness, violating this vital Right.
To enhance public awareness and
safeguard this fundamental right effectively, there is a pressing need to explicitly include
the 'Right to Health' under Article 21 through a constitutional amendment, similar to the incorporation of the Right to Education
under Article 21A.
The Right to health, a fundamental
aspect of human dignity and societal well-being, has profoundly evolved within the intricate framework of
constitutional law. Emerging from international
declarations and finding its resonance in national constitutions, this Right
has played a pivotal role in shaping
public health policies
across diverse jurisdictions. Its historical
trajectory, marked by legal battles, social movements, and transformative
policy shifts, illuminates the
complex interplay between legal mandates and practical healthcare provisions.
Meaning of
Health
Health is a fundamental human right
of every individual. We usually mean the Right to health as the availability or accessibility of primary
healthcare facilities without
discrimination against everyone.
However, it is something beyond that in which pure drinking water, sanitation,
clean environment, etc, are all included. Some freedoms, such as freedom from non-consensual medical treatment or
medical research, forced sterilization, and freedom from cruel, inhuman, or degrading
treatment or punishment, are also included.
Health is a state of complete
emotional, mental, and physical well-being. Healthcare exists to help people stay well in these key areas
of Life.[1]
Historical Background of Right
to Health
The historical background of the
Right to health is intricate and spans several centuries. The concept
of the Right to health as a fundamental human right has evolved, influenced by social, economic,
political, and medical
developments. Here is a brief overview of the historical background of the Right to health:
1.
Early Philosophical Foundations:
The
idea of health as a fundamental human right has roots in ancient civilizations.
Early philosophical writings,
including those from ancient Greece and Rome, emphasized the importance of health for individual well-being and societal prosperity. However, these notions
needed to be codified into
legal or constitutional frameworks.
2.
Post-World War II Declarations:
The aftermath
of World War II and establishing the United Nations
(UN) ushered in a new era
for human rights. The UDHR, 1948 declared the right to a sufficient standard of
living for health and well-being, encompassing medical care. This declaration set a foundational precedent for internationally recognizing health as
a human right.
3.
International Covenant
on Economic, Social, and Cultural
Rights (ICESCR):
The ICESCR, adopted in 1966, provided a more detailed framework for economic, social,
and cultural rights, including
the Right to health. Article 12 of the ICESCR
recognizes "Everyone has the
right to enjoy the best possible physical and mental health." It obligates states
to take steps to prevent,
treat, and control diseases.
4.
Alma-Ata Declaration (1978):
The
Alma-Ata Declaration emerged from an international conference on primary health
care which is organized by the World
Health Organization (WHO) and UNICEF. It emphasized the significance of primary healthcare as the essential means to
attain the objective of "Health for
All."This declaration highlighted the significance of health as a
fundamental right and stressed the need
for accessible and affordable
healthcare services.
5.
Evolution in Constitutional Law:
Many
countries started incorporating the Right to health into their constitutions or
legal frameworks during the latter half of the 20th century and into the 21st century.
These constitutional
provisions recognized the Right to health as a fundamental human right, often leading
to legal obligations to provide healthcare services.
6.
Millennium Development Goals (MDGs) and Sustainable Development Goals (SDGs):
The
international community's commitment to health as a human right was further
reinforced through the MDGs and,
later, the SDGs. Goal 3 of the SDGs aims to ensure healthy lives and promote well-being for all irresepctive
thier age, emphasizing the universal Right to health and healthcare
access.
7.
Recent Developments:
Ongoing
global health crises, such as the HIV/AIDS pandemic, Ebola outbreaks, and the COVID-19 pandemic, have highlighted the
importance of the Right to health. These crises have spurred discussions on equitable access to healthcare
services, the role of governments, and
international cooperation in upholding the Right to health. In summary, the
historical background of the Right to
health reflects a continuous progression from philosophical ideals to international declarations, legal
frameworks, and global development goals. This evolution underscores the recognition of health as a fundamental human
right and the ongoing efforts to ensure
that this Right is realized for everyone, regardless of their socioeconomic
status or geographic location.
Five-Year Plans And Health
India's
journey in the healthcare sector, from the First Five-Year Plan (1951-1956) to
the present, has witnessed
significant contributions and transformations. Here is an overview of India's
progress in the healthcare sector across various
Five-Year Plans and beyond
The
first to Fourth Five-Year Plans (1951-1966) focused on basic healthcare
structures and control of
communicable diseases. Initiatives were introduced to improve maternal and
child healthcare to reduce maternal and
child mortality rates. In the Fifth to Eighth Five-Year Plans (1966-1997), the healthcare network
expanded further by establishing medical
colleges, nursing schools, and
specialized healthcare institutions. Alma-Ata Act of 1978 emphasized primary health care services. Various
national health programs were launched, including the Expanded Program on Immunization (EPI) and the National Rural
Health Mission (NRHM) and population
control through family planning. Ninth to Eleventh Five-Year Plans (1997- 2012) focused on the advancement of
medical technology, Collaborations between the public and private sectors
in healthcare service
delivery increased, Focus on disease
control continued with
initiatives against HIV/AIDS, malaria, and other significant diseases, Health insurance schemes, including the Rashtriya
Swasthya Bima Yojana (RSBY), was introduced to
provide financial protection for healthcare expenses, NRHM aimed at
strengthening rural healthcare
services, focusing on maternal and child health, immunization, and disease
control which was established in 2005.
Twelfth to Fifteenth Five-Year Plans (2012-2022) were placed
very prominent in which the goal of achieving Universal Health Coverage (UHC) gained prominence. Initiatives like
Ayushman Bharat - Pradhan Mantri Jan Arogya Yojana (PMJAY) aimed to provide health insurance coverage for
vulnerable populations. Efforts increased
to address non-communicable diseases like diabetes, cardiovascular diseases,
and cancer. The Ayushman Bharat
scheme included the establishment of Health and Wellness Centers, focusing on preventive and primary
healthcare. The healthcare sector played a central
role during the COVID-19 pandemic, with the Government implementing various measures
to control the spread of the virus and provide healthcare support.
In
recent years, India's healthcare sector has seen significant advancements in
digital health, telemedicine,
research and development, and public-private partnerships, contributing to a more comprehensive and accessible healthcare ecosystem. While challenges remain, the country
continues to make strides in
improving healthcare services for its citizens.
Role of Committees and implementation of health polices
The various
committees have contributed to health planning
to improve the healthcare sectors. One of the most prominent
committees is the Bhore Committee, constituted before Independence i.e., in 1943. It is also known as the Health Survey and Development Committee, headed by Chairperson Mr. Joseph Bhore. The committee
recommended developing the primary health sector in two stages:
short-term measures and long-term measures and publicly financed
assistance. The present
Ayushman Bharath scheme is following the recommendations of the Bhore committee. After Independence, there two prominent
committees significantly contributed to health care. Firstly, the Mudaliar committee in 1962. It is also called the
"Health Survey and Planning Committee”. This committee addressed the all the lacunas which were there in the first two five-year plans. The
main recommendations of this
committee are to Consolidate the
progress made in the first two 5-year plans, to upgrade the existing
primary heath care centres, and to enhance the
capabilities of district
hospitals by deploying
specialists, enabling them to function
as effective referral centers
and provide better services as a central base of regional services, to establish a regional administrative tier
positioned between the state headquarters and district levels, led by Regional Deputy or Assistant Directors. Each of
these officials will oversee the work of 2 or
3 district medical and health
officers.
Secondly,
the Chadha committee in 1963 recommended the integration of health and family planning services and there should be
vigilance operations under NMES, and the Basic health workers were seen as ‘multipurpose workers.'
To
review the U.N advisory mission the Government of India commissioned the
special committee called Mukherjee
Committee. After a fourth year plan, which was badly criticized for its overweight of social, economic and
political turmoil, and Fifth year plan has been implemented, In 1973 the Karthar Singh committee which
recommended to remove uni- purpose
working system as it was leading to loss of public money and shift to to multi- purpose
working system,
The
Srinivasan Committee in 1975 mainly focused on the Medical Education and
addressed the shortage of man power
in health care centres in rural areas, and recommended to have a more trained manpower and to improve in
the medical education. All the recommendations
were at stay due to declaration of emergency in mid of fifth year plan due to which The family planning measures were got disturbed which had one of the
authoritarian tone in the overall policies.
Sixth year plan was completely
focused on the Community based health system and it occupied
the centre stage of health policy which primarily influenced the Alma-Ata declaration,1978 and ICSSR and ICMR report
1980. The plan advocated the community- based
health care system with underlying object of introducing the inclusive health
care system. The health policies in
India had experienced a paradigm shift in the form of first National
Health Policy in 1983.
It
was the first National Health Policy India which was time bound programme with
a object to set up a well dispersed
network of primary health care centres and an integrated network of evenly
spread speciality and super
specialty services, by the year
2000.
To
achieve above objects, policy recommended for de-professionalism and
decentralized system of health care
system. Unfortunately due to poor socio-economic condition in the country
and biased policies, the 1983 policy
have failed.
In
the year 2002, the Government of India revised the policy and they bought the
unmet goals to achieve better
health care services. The main
objectives of this policy are, including primary
health care approach and decentralised health care system it aimed for enhanced contribution of private and NGOs in health
care systems and strengthening and extending the public health
services.
Although
the 1983 and 2002 policies guided to serve the recommendations of five year
plans but as the priorities towards
health are changing, the new health policy 2017 is implemented to serve these changing priorities and
betterment in the health care sector. The main objective of this new policy is to expand preventive, promotive,
curative, palliative and rehabilitative services with focus on quality. And to talk about specific
goals of this policy is to increase life
expectancy from 67.5 to 70 by 2025, Reduction of TFR to 2.1 at national and
sub- national level by 2025. It aimed
to reduce the incidence of increase in TB and to completely eliminate by 2025 and cure more than 85%
of TB patients. It also aimed to reduce the prevalence
blindness and 25% of premature mortality from cardiovascular diseases, cancer, diabetes and etc., by 2025.
Recognition of the
Right to Health by the Judiciary
The provisions of Directive principles of State policy obligateThe state aims to elevate nutrition levels, enhance living
standards, and better public health conditions. However, as these provisions are not enforceable in courts
of law, it felt inadequate to mandate health care services. Therefore, the Judiciary, the guardian of the
Constitution, had often interpreted constitutional provisions, such as the Right to Life
and personal liberty,
expansively to include the
Right to health. In India, Article 21 of the Constitution has been interpreted
to encompass the Right to health and
medical care. For mandating healthcare services, Courts can issue directives to ensure the provision of healthcare services.
The
first case in which the Right to health was challenged was in 1981. The Indian
Supreme Court declared that the Right
to health and medical care is a part of Article
21 of the Indian Constitution.[5]
After three years, in 1984, the
Supreme Court again held that the Right to health
is an integral part of Article 21, which itself derived from the Directive
principles of state policy.[6] Right to Life encompasses workers' health;
the provision mandates all the stakeholders,
be it State/industry, be it private or public, to ensure health and leisure to workers in employment, which should be
ensured even after employment.[7]
It is the primary duty of both Public health centers
and Private health
centers to provide
immediate medical aid to accidental cases without waiting
to complete the formalities of the police in order to preserve human Life.[8] The Supreme Court issued the guidelines for the functioning of the blood bank,
and blood banks should ensure the availability of blood that is healthy and
free from any infections.[9]
Thus,
it is evident that the Judiciary played a significant role in Recognizing the
Right to health as a Fundamental
Right. However, there is still a long way to bring all healthcare facilities to the public.
Critical analysis
of Right to health
As
we have seen from the history, how much struggle it was to access to the health
care services. Several committees recommended for the different approaches to
the betterment of the health status
in the nation, Five years plans have been implemented in responsive of many committee recommendations which have
again failed to fulfilled the expected status of health due to various reasons but one common reason for failure of
all the policies are Socio- economic
conditions. In the current scenario, although 2017 policy is one of the best
policies and bought many positive
changes and Judiciary recognised it as Fundamental Right under Article 21, Do you all think still the
expected results are achieved ? The Covid-19 is the best example which demonstrated the survival of richest. Where is the
equal treatment under Article 14? Doctor used to treat only people who are close to them or family friends, Where is the Fundamental Right under Article 21?
Conclusion
The
Right to Health is undoubtedly a basic Human Right that must be available to
everyone without discrimination. In every development phase, International Covenants, Health committees, and
the Judiciary contributed significantly. Courts have recognized this Right as Fundamental through various leading
judgments. In recent times, after COVID-19, the Right to health is considered of paramount importance. Even after all
the efforts made by the Judiciary to
recognize the Right and the Five-year plans helped to implement sound policies throughout, the Right still needs to reach
the public as there is a lack of proper treatment in public hospitals and more corruption in private health sectors. In rural
areas, people need more
awareness about the Right to health and the remedies available against its
violation. To overcome this, the
Government must take the initiative to host awareness programs, and the legislature must consider inserting it as an
expressed Fundamental Right.
References
1.
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6.
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[1] Defined by WHO in 1948
[2] See National Health
Policy 1983
[3] See National Health Policy 2022
[4] See National Health Policy 2017
[5] Francis Coralie Mullin v. Union
Territory of Delhi 1981
[6] Bndhua Mukti Morcha v. Union
of India, 1984
[7] Consumer Education and Resource
Centre v. Union of India, 1995)
[8] Parmananda Katara v. Union of India, 1989
[9] Union of India v. Common
Cause, 1996
Article Information
FROM DECLARATION TO REALITY: THE HISTORICAL EVOLUTION OF THE RIGHT TO HEALTH IN CONSTITUTIONAL LAW AND ITS IMPACT ON PUBLIC HEALTH POLICIES
Authors: MANASI JIGAJINNI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/09
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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