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FUNDAMENTAL RIGHTS AND PUBLIC HEALTH LAW
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FUNDAMENTAL RIGHTS AND PUBLIC HEALTH LAW
AUTHORED BY - RESHEL BRETNY FERNANDES
ABSTRACT
Health is the situation of mental and
physical well being of human being which in a broad perspective has connected
towards the happy living among the members of community . The public health was
brought into concept to suite the betterment of the individuals so that the all
round development among all the sectors are found . Law is the strong
foundation under which the aspect of public health functions completely
influencing the policy intervention so that it is taken seriously among the
people that retains the sustenance . The public health cannot function only
with the scientific upholdings , but proves best only with the social setups
that which can reach the majority of the people leading to emergence of the “
Public Health Law.” Indeed , in India we find that , along with the
constitutional ties a lot of developments are made that they serve to be making
these laws successful . The international declarations has led to the depth of
providing roots which ensures that the constitution serve as the foundation
inorder to control and formulate the policies and plans which would be balance
between rights and duties in securing safety with clean and healthy conditions
for the living of citizens . The essay paper consists of the broad purview
where the fundamental rights through numerous dimensions serves to be dealing with the recent developments and its
necessity in the modern through many changes in the health sector . The
significance and awareness is the objective of making the health law intruding
towards the modifications with the outcome of Covid -19 . The need of time is
to understand that our aim lies at the sustainable future which can be achieved
through the public health systems.
Key Words: Public health , Constitution of
India , Sustainable future ,Modern living
INTRODUCTION
India has the glory of its unique way
of working through the ancient systems[1]
and traditions in all the fields which has led to the preserving of the community
health that has been in modern terms given rise to the concept of the public
health which our country was rich through historic times . But then if we
consider the sources , we find that , public health was in concern without the
authority to govern it . When the industrialization[2]
began , this concept required a special attention which had turned to have
legislations on it’s behalf regarding it as “ Public Health law” [3],
which refers to the legal approach and jurisdiction to control and improve the
health standards among the community . The public health law is created to
ensure the ties of applying the healthy living among the people so that the
efficiency is noticed in the outcomes which is the power and duty of the
citizens to work and gain the facilities towards the better living in the
society . In the society considering the context of India , we notice that ,
the public health law is along with the constitution for the better functioning
with particular aims . The significance of its growth began globally when the
need to combat dreadful diseases was the centered view. This inturn curbs all
the illegal practices that effects the health of the people but to create and
bind the legislations that has been scattered . Today Bioterrorism is the
concern all over the world , under which the outline of Universal Declaration
of Human Rights [4](UDHR) in
1948 strongly emphasized the domestic countries to take strict actions which
creates a balance between the citizens and the government .
DISEASES, DISCRIMINATION AND PUBLIC
EMPLOYMENT
The mental health among the people
remains as hazardous with the working class which is curbed through laws. To
note that , even the disabled are provided with the rights to be employed with
special measures . Oftenly the community
which should set aback the differences among the people and support all the
people in the society . India since times is known to maintain brotherhood
among people in helping out a lot of people without bias which through
legislations has tried to stabilize the public health and control diseases in
the employment sector . The introduction of National Policy on safety , health
and environment with the Ministry of Labour[5]
along with directive principles strongly commands to avoid health risks and
provide clean sanitation facilities . Recently during Pandemic new codes are
introduced to safeguard health, especially among who work at mines and
hazardous places and at industries maintenance of appliances without harm under
Health Provisions under Factories Act 1948[6] .
The premises with proper sanitation and healthy environment . The legislations
in India promote that the mental health under the National Mental Health
Programme[7].
The Employment state insurance Act 1948 [8]conveys
that with guarantee to secure health conditions . In the fundamental rights ,
we find Right to freedom seeks any individual to not be discriminated in the
employment on any grounds.
CASE STUDY: National Policy on
HIV/AIDS and World of Work[9]
Under this , the major part of HIV
cases noted are from the working age group in India who often face
discrimination . The ILO code of practice[10]
along with guiding principles makes this
policy to be success with making them go ahead and remove the stigmas which
will be a move towards public health by removing discrimination with removing
screening in the employment list and maintaining confidentiality . The support
at workplace by the making of medical checkups but in confidential manner with
giving utmost importance to the capabilities of an individual . This policy
strongly gives a way for the infected people to work and provide termination
until their physical and mental conditions are proper.
We can notice that public health laws
are generated under various articles to promote and uphold healthy conditions
with safe living among people . But , not only that the mindset can decide
better employment levels which through support can make the illness work in to
a boon that we could notice during Covid
-19 pandemic[11] .
PRIVACY AND HEALTH DATA SHARING: EMERGING CONCERNS
Today with the step towards
digitalization , we find that the health services are connected towards the
digital techniques of working . The National Digital Health Mission during 2020
had introduced creating health data storage and technologies . It ensures to
provide the security and confidentiality in the information which was built
using the privacy control operators with the health ID’s .It has spread its
purview among the securing the information of the health care workers , pharma
companies . The PDP bill [12]ensures
the health related institutions to be processed and stored . They have
standardized operational measures to store the data and even while sharing the
data they have special measures to be noticed over which marks crucial step
under the system making mandatory with the records of ID systems . With the
outbreak of covid -19 a new measure taken by GOI which implemented DISHA
[Digital Information Security In Healthcare Act] [13]which
has served best in securing data and information under health care services
having health data and identifiable information . Under this the personal data
and health care records are stored . But , it has posed issues like gaining the
consent from owner to cross verify or gain the information .Due to the cyber
attacks which pose serious threat of the malwares that try to seize the
information regarding the stored data . Sensitization of data [14]which
is the need today.
CASE STUDY - CERTAIN DATA ISSUES
We find in Ahmedabad [15],
paper record were found at rural areas and in urban places digital data is
found .For the sake accuracy it poses a hinderance in all fronts . The
translation of English records for its regional implementation are a problem .
The conversion of data to be shared is an issue . The transfer of data remained
a risk from places where the shift was necessary. A firm noted that the denial
of charges towards the survelliance over it’s information is needed . The new
health ID is introduced at regions but fraud calls can trap it . Similarly ,
the Arogya Setu [16]apps has
location sharing via Bluetooth where
personal data can be easily tracked .
Certain crucial chronic diseases information the victims have the fear
of getting loss of information . The researchers from abroad collecting data
seem to be a critical way to think for acquisition of data without IRB consent.
LEGALITY OF POPULATION CONTROL MEASURES
India since times with the
traditional base is leading in its population , but due to the insecurity in
the living standards which has led to the creation of population control laws.
In consideration of the health hazards .Normally the informal techniques were
utilized into terms with the spread of education by raising the standards of
women promoting better social security . In 2019, the population control Bill was
introduced in Rajya Sabha which enables two child policy to the couple . The
other ideas is to develop economic stability among the people through
employment . The recent measure taken to raise the marriage age from 18 to 21[17]
is helpful to promote development . The usage of contraceptives under the
Family Planning programmes , promoting exports under the Import and Export
control Act , 1947 [18]and
drug selling and manufacturing acts between 1940-47 have promoted the sales
.The publicity also is given under the act of 1954 would allow the same . The
surgical methods under the Medical Termination Act , 1971 [19]continuity
with Indian Penal Code promotes abortions , sterilizations . Under the public
employees act the first two children are provided with maternal facilities .
The concurrent list promotes population control giving control to the state
governments to make necessary plans . We find that , the maintaining of healthy
standards among the individuals is noticed which enables them to provide the
citizens who have enriched themselves in qualitative betterments ,
CASE STUDY –KERELA [20]
In this state we find that there is
efficiency of population control , with this betterment in all fields have
taken with clean sanitation facilities and promotion of awareness among the
women . It is that the awareness and adult education was provided under the
population control policy . We find that , the contraceptive measures are taken
here so that the population remains under control and people can avail better
amenities among the people. Even the MMR
and IMR rates seemed to be under control that the facilities have reached a
larger amount of people in the society at that place ensuring public health . Even
in 2022 the healthy circumstances are seen here.
COMPULSORY VACCINATION IN INDIA
In the modern times , we can notice
that certain deadly chronic diseases are not found in large number due to
immediate vaccination measures taken by GOI . Right from 1978 [21]and
later the Vaccination policies had started which considered the health issues to
stop the maternal and infant deaths in India . Under the Universal Immunization
Programme which included with the note to technology mission . It spread to
rural areas in 2005 [22]seriously
along the National Rural Health Mission . In 2014 due to this plan , India was
declared Polio –free by WHO and these necessities through PHC’s are provided
with awareness right from birth itself . The new born child is injected with
vaccinations to prevent diseases . Further ASHA and AWW [23]support
is rendered for the success of the drives . During the Covid -19 pandemic the
compulsory vaccination arrangements were made to prevent the infections lead to
larger level which has made our surroundings better . The strict rules in
certain places were made to produce the vaccination certificate which was to
ensure healthy life to people . The AEFI survelliance [24]systems
has been created to link channels for magnificient storage among the medical
services. Under the NHP the secured systems of vaccine storage are created . The
equipped system must reinnovate with research techniques to restructure the
drives . Making vaccinations compulsory leads to the promoting of safety
measures.
CASE STUDY – CERTAIN VACCINATIONS AND
IMPACT
In 2005 massive outbreak of Japanese encephalitis[25]
spread in UP and Bihar ,GOI even during a decade introduced compulsory
vaccination system and led to the successful combating of such disease . The
PATH along with government of AP worked to provide this vaccination at rural
and urban areas under roughly 156 million children[26]
gained immunization under this .With the compulsion for vaccination on appropriate
vaccination in 2020-21 tenure with 2 doses it was successful in reaching 1
crore population[27]
maintaining the healthy growth and fight back against the pandemic.
We can say that , the care of every
citizen lies in the hands of GOI through the public health laws introduces
immunizations and vaccines from an infant to adult which making it compulsory
leads to better facilities among the public which contributes towards secured
chains in all the levels confronting betterments .
RIGHT TO HEALTH AS A FUNDAMENTAL RIGHT
Although in India we find that ,
there is no separate section in the Part III of the Indian constitution in the
fundamental rights . But we can find the articles that uphold the essence of
public health of community and the individual . The right to equality principle
conveys in Article 14 [28]that
the people have equal circumstances and whatever laws are guaranteed under
health perspective conveys the same . Along with which Article 21[29]
which says the right of an individual over life which means that the
destruction of any individuals life is not possible at all . Indeed right to
health must be added as a separate section guaranteeing its purview , but
nevertheless it is already found but under other legislations and articles . If
we look broader , making right to health as a fundamental right can make its
significance to be raised at best levels . Under the directive principles of
state policy we find relevance of rights , Article 39 {E} [30]securing
the health of workers , Article 42 states humane working conditions and
maternity relief . Article 47 is to raise the health standards.
CASE STUDY – RIGHT TO EQUALITY IN CONNECTION
TO RIGH TO HEALTH
Under the Abortion rights, we find
mainly the consent of the mothers are needed which inturn affecting their
health , mothers are given the right to decide . If any person pollutes the
public place or any industry emitting harmful chemicals all the people under
the fundamental right can question and file petition on it . Ayushman Bharat[31]
is an enthusiastic scheme making the capability to reach citizens.
ANALYZATION:
But interpreting all these , making
right to health as a foundation would make the people gain services and the
balance in socio-economic conditions making focused attention in the public
health . The plans and schemes introduced gains the support and importance from
all . It would improvise the levels by service oriented developments . To make a sustainable future , it is health
which contributes in numerous ways towards the people gaining betterment in all
the sectors . For example, The RTE plan[32]
when implemented made it sound effect on the educational sector , similarly ,
this health with the previledge can stop illegal happenings in the medical
arena providing safe ecosystem . We find shortage in the health infrastructures
which needs to be rectified and when it becomes a right even the people will
have the zeal to acquire and avail those schemes . Though we face certain
issues at the health sector through the call from WHO and other International
organizations making it as a fundamental rights can bridge the gap between
urban and rural India with successive method in reaching the public gaining the
better standards . It is possible for the people to quickly access to health ,
in Covid -19 pandemic we found the urgent need of those measures .
DUTY OF STATE IN RELATION TO MENTAL HEALTH
Mental Health is crucial part in the
public health laws as the physical dangers can be controlled but it is very
difficult to control the mental imbalances . The GOI has considers the mental
health , with treatment of PMI where the mental disorders are treated without
their personal liberty for treatment under the British established law , Indian
Lunatic Asylum Act , 1886[33]
with providing an atmosphere to the mentally stressed people with counseling
support and established Mental Safety Authority under District Administrations
. Under MHA , it considers human rights to be protected which necessarily makes
the mental health to be upheld in best possible levels . In Persons with
disability Act , 1995[34] ,
we find that the opportunities are completely provided for mentally disabled
with a provision for reservation in public
sector . Similarly , the National Trust Act , 1999 welfare and empowerment with
the people closely connecting them to mainstream of society was noticed . In
2011 MHCB act [35],
promotes that Indian government with the protocols of UN would provide mental
health facilities , also made changes in admission process and provides chances
to their capabilities . Under Indian contract law, 1872 makes provisions to
legal unbiasedness and welfare in laws. In 2017 manual , GOI has provided with
facilities of qualified institutions to promote workforce with rights to improve
mental health . But we find there is a need today in society , in Covid-19
situation we find mental risks were due to isolation and work pressure , even
which was solved through helplines that the people need to avail these
facilities so that they are capable of leading normal life and platforms of
NGO’s[36]
which treats homeless people who are mentally ill , with community support they
can be helped .
CASE STUDY – NATIONAL MENTAL HEALTH
MISSION
In 2014 , under the Ministry of
health and family welfare , called for a mission named “ New pathways and New
Hope”[37],
which predicted the rise of mental illness among the youths and owed to make
them access towards the Mental Health Programmes with a policy group to
acknowledge medical and non- medical aspects in it . The Programme successfully
divides the empowerment in every step from child till the elderly people and
even among the people who are prone to poverty and also promoting the support
to families . Along with this ,community is made to recognize such individuals
and provide them institutional care . According to this proposal , all the
environmental contents should be safe which illegally found has legal action
like the Sexual harassment ..etc . Under this
various workshops and seminars in public ,private institutions are
supported to make citizens be sound mind .The options of research are given
with which can bring out acute problems that can be rectified . The aim is to
make community to participate for helping one another in cases like suicides
and with beat possible efforts make them come out from the situation . The
Local Self Governments[38]
are enriched with the authority to bring to notice in such cases along with
PHC’s .
INTERFACE BETWEEN PUBLIC HEALTH AND RELEGIOUS FREEDOM /FREEDOM OF TRADE ,
COMMERCE AND PROFESSION
The practices of religion endowed to
the ways of ‘Sarva Dharma Sambhava’[39],
which makes among the people to maintain healthy and cooperative relations . In
the terms of certain religious practices that should not harm the peace and
harmony in the society that ensures through Article 25 of Indian constitution .
The humanistic ways of dealing under it are found . We find in the population
policies , traditional religious methods supersede wherein the right of
religion constitutes its right in action . The religious practices [40]should
be of the ways in which that it does not mentally exert pressure among the
people . During the covid-19 with a precautionary measure , the religious institutions
though being a right to religion were not allowed to maintain safety among the
people which was to secure the public health . The follow of ethics even makes
the human to be mentally sound .
Under the Article 19 [41],
we find that , the public health is ensured wherein the illegal trade of human
trafficking which affects the community health are not allowed. The legal
sanctions over intoxicating materials are made whose regulations are to be
followed strictly . We find in Covid-19 situation strict protocols are
maintained for the sake of community development . Though , the tradings are
allowed the food imbalances and climatic changes can adversely affect the lives
of people . Sometimes the occupations at hazardous industrial areas[42]
can create effects to health , further disturbing the community . The trade of
food materials must have a investigation so that quality foods get sold . The
drugs to be noted whether they are legally allowed for sales and even the
trading merchants or agents to maintain their health standards as moving from
one place to another can sometimes adversely impact on their health and become mediators
to certain communicable diseases . The need is to even maintain the mental
health so as to promote the safe communities towards the healthy and happy
atmosphere among the individuals . The indulging in mining activities should
not make way serious harm to the lives of people which would lead to an
imbalance . The indulging of trading practices without patent rights would be a
major setback and can be misused which would lead to problem among the
individuals.
RIGHT TO SMOKE – TOBACCO CONTROL IN INDIA
It is a general fact that , tobacco
is not only a harm to public health , to one who smokes but also to the
surroundings . In 1975 [43],
one act was passed to mention the harm of consuming tobacco on the sachets.
Even under the Air pollution act , 1981 , the prevention is focused . The Cable
Television Networks Amendments Act , 2000 to prohibit it .The state governments
had strictly implemented at regional levels .
The GOI had strictly provided with the measures to curb the smoking at
public places under the COTPA act , 2003 [44]with
strict measures banning smoking .
Through NGO’s under this act many regulations are taking place by which
in many states of India it is implemented . We find the law prohibits even the tobacco
advertising and there are strict sales restrictions which even has strict
boundaries for the external trade . It
is found that both men and women use the tobacco , the reasons is to prevent
cancer and other chronic diseases by utilizing it . We find that though harmful
nearly 3.5 million people [45]are
working and employed in these industries . The federation taxation systems have
given notice that , the illegal trading and smuggling is to be prohibited . The
online trading practices regarding the tobacco was banned recently in 2019[46] .
The concern lies to promote healthy habits and various campaigns throughout the
country try to convey the same message of sustaining the future with healthy habits
which retains the better future of
youths .
CASE STUDY – NATIONAL TOPBACCO
CONTROL PROGRAMME [47]
Under the 11th Five Year
Plan , this initiative was taken with an aim to reach the people of different
states and setup camps , connect with YRC’s of the institutions to reach among
the people to save the youngsters of the affects of smoking . As per the
further laws in 2006 , it was found that due to this trainings , the tobacco
consumption has lowered . The control cells with three tier structure are made
at the National ,State and districts setups . In all these levels , the trained
ailments under the local urban and rural bodies are created. The Delhi governments had strictly tried to
ensure the plan at public places .Even other states have taken best measures
for the curb of tobacco .
CONCLUSION
From this above description , we can
understand that public health is the major concern among the people today and
even the GOI has the complete focus in its budget with a purview towards the
healthcare systems which has the transformation towards the digitization
process . So , we find that , ensuring the transparency is found towards the implementing of the
constitutional balance [48]with
the rights and duties among the citizens . The duty is to uphold the standards
among health to channelize and transform the living of the community through
implementing strict measures so that the citizens do not deprieve and not lack
behind in any forms of health issues . It is a true aspect that , the
enforcement of any idea lies through the legislation itself which the government is completely working to
preserve the standards among the people with the aim and aid of support and wellbieng
among the members with supportive nature[49] among
the individuals at all forms to enhance the happiness which through plans and
policies has been successful in implementing among the members of society. We
find that their functioning will prove towards the society moving towards the
incredible India. But , still we find areas of development that healthy habits need
to be promoted with effective legislations in the society and measures to check
the public health laws with complete reviews are necessary at all basis . With
the dedicated efforts and intelligence as Gopal Krishna Gokhale rightly opines
that: “ It does not take patience to quite long manifest into intelligence.”[50],
which truly marks that the indications towards the effective workings must be
noticed wherein we find the community development should remain as the main aim
leading towards the path of excellence .
Selvam Panneer
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[18] Pillai
Swapna , Exports and Imports documents , Sahitya Bhawan publication, (2018)
[19] Universal
, Medical termination Act and Bare act , Universal publications,(2020)
[20] P,G
pannikar , Health conditions in Kerela 1984
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[23] (2018),https://nhm.gov.in/images/pdf/communitisation/task-group-reports/guidelines-on-asha.pdf
[28] Basu
DD, constitution of India , lexis News publications ,2015
[29] Agarwal
PK ,the constitution of India ,prabhat publications ,2018
[30] (2017),
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[31] (2019)
,https://www.esic.nic.in/ab-pm-jay
[32] (2018),https://righttoeducation.in/
[36] (2015),https://www.fic.nih.gov/Global/Pages/NGOs.aspx
[38] (2017),https://www.ijlmh.com/paper/healthcare-system-and-role-of-local-self-government-during-covid-19-pandemic-in-india/
Article Information
FUNDAMENTAL RIGHTS AND PUBLIC HEALTH LAW
Authors: RESHEL BRETNY FERNANDES
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/05/30
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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