Overview: Right to Health as a Constitutional Right in India

INTRODUCTION

Every individual needs to be aware of their rights as citizens of the world especially in these trying circumstances that surround us. The Right to Health is a fundamental part of our human rights and of our understanding of a life in dignity. The traditional notion of healthcare has evolved considerably so as to include many aspects related to healthcare. Although health is a very subjective aspect and the definition of staying healthy may vary from person to person, there are certain aspects which are considered to be included in the definition of health by the World Health Organisation (WHO) some of which would be discussed briefly hereinafter. In recent years, immense importance has been given to achieving the highest attainable standard of health by various international organisations as well. In this regard, the Right to Health has rightly been given the status of a fundamental right of every citizen of India under Article 21 of the Constitution of India.

RIGHT TO HEALTH- KEY ASPECTS

Some of the key aspects with respect to the Right to Health[1] that every individual needs to understand are as follows-

1. It is an inclusive right-

The Right to Health includes but is not limited to access to healthcare and health infrastructure development. There are other underlying determinants of health which are as follows-

• Adequate nutrition and housing;
• Gender equality;
• Health-related education and information;
• Healthy working and environmental conditions;
• Safe drinking water and adequate sanitation;
• Safe food.[2]

1. Freedoms and Entitlements-

The right includes freedoms, such as the right to be free from discrimination and involuntary medical treatment. It also includes entitlements, such as the right to essential primary health care, access to essential medicines, provision of health-related education and information, etc.

1. Right to Non-Discrimination-

All the facilities, goods and services related to healthcare must be provided to everyone without any form of discriminations based on any grounds.

1. Good Quality-

The health-care facilities in a State must not only be insufficient quantity but also of good quality- scientifically and medically. They should be medically and culturally acceptable and must be physically accessible easily.

RIGHT TO HEALTH FOR SPECIFIC GROUPS-

Some specific groups face specific difficulties with respect to Right to Health. Some of those groups are as follows-

1. Children and Adolescents- State parties are responsible for ensuring the children’s right to health and health-care services and take appropriate measures for the implementation of the same.[3] The State is also responsible for the promotion of children’s physical and psychological recovery and social reintegration.[4]
2. Migrants- Most countries have defined their health obligations towards non-citizens in terms of “essential care” or “emergency health care” only. Each and every migrant worker and their families have the right to such emergency medical care.[5] Migrant workers in the workplace are also entitled to the same safe and healthy working conditions as the nationals of that particular State.[6]
3. Persons Living with HIV/AIDS- The Right to Health of persons living with HIV/AIDS is undermined by discrimination and stigma. For example, fear of being identified with HIV/AIDS may stop people who suffer discrimination, such as sex workers or intravenous drug users, from voluntarily seeking counselling, testing or treatment.[7] Thus, an important component of the Right to health of the persons living with HIV/AIDS is universal access to care and treatment. It is equally important for State parties to ensure the prevention of HIV/AIDS by taking adequate steps and formulating effective implementation mechanisms for the same.
4. Persons With Disabilities- It is the State’s responsibility to ensure the fulfilment of all the human rights and fundamental freedoms of persons with disabilities which includes the right to their health.[8] The State should take effective measures to fulfil the right to the enjoyment of the highest attainable standard of health without any discrimination for persons with disabilities.[9]
5. Women- Every State parties have a responsibility to ensure that women (specifically in rural areas) have access to adequate healthcare facilities, counselling and services in family planning[10] and this should be provided without any discrimination based on their gender, i.e. equal access should be provided to both men and women.[11] Sexual and reproductive health is also a key aspect of women’s Right to Health.

RIGHT TO HEALTH AS A CONSTITUTIONAL RIGHT IN INDIA

• Article 21-

Right to Health (and Dignity) was included within the ambit of Article 21 (Right to Life and Liberty) in the case of Bandhua Mukti Morcha v. Union of India[12] wherein it was also held that the DPSP should be effectively implemented by the State even though they are of persuasive value only. In another case of Consumer Education and Research Centre v. Union of India,[13] it was clearly opined that the right to health is an integral part of the right to life. In yet another case, the scope of Article 21 was further widened and it was held that it is the responsibility of the concerned Government to provide adequate medical aid.[14] In another case, it was held that Right to Health is a Fundamental Right and it is not related to merely the absence of sickness or disease.[15]

v Some of the other provisions which are concerned with the Right to Health either explicitly or impliedly in the Constitution of India are as follows-

• Article 38
• Article 39 (e)
• Article 41
• Article 42
• Article 47
• Article 48A

OBLIGATIONS OF STATE WITH RESPECT TO RIGHT TO HEALTH

The States have three types of obligations i.e. the obligation to respect, protect and fulfil. With respect to the Right to health, these can be understood as under-

1. The Obligation to Respect- Under this obligation, the States are supposed to refrain from interfering or meddling with the right to health, either directly or indirectly.
2. The Obligation To Protect- Under this obligation, the States are responsible to see to it that the third parties do not interfere with the right to health, directly or indirectly.
3. The Obligation To Fulfil- This obligation requires States to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures to fully realize the right to health.

v, In order to ensure that the above obligations are met by the State parties, mechanisms of accountability, is crucial. Monitoring should take place at the national, regional and international levels for the same.

CONCLUSION

Thus, within the constitutional framework of India, citizens’ Right to Health is nowhere mentioned explicitly. The Right to Health is not a Fundamental Right in India but it is incorporated within the ambit of the Directive Principles of State Policy (DPSP). The reason behind this is the constitutional framers found the direct enforcement of the right to health to be difficult. Initially, the matters concerning the right to health were decided only on the basis of various Public Interest Litigations filed before the Supreme Court of India. However, in recent times, the Supreme Court of India has, in a lot of judicial decisions, interpreted Article 21 in a very broad sense so as to include Right to Health within its ambit.

This article is authored by Nandini Menon, a 3rd-year student pursuing a 5-year law course [BSW LLB (Hons.)] at the Gujarat National Law University (GNLU).

Disclaimer: The article is an original submission of the Author. Niti Manthan does not hold any liability arising out of this article. Kindly refer to our terms of use or write to us in case of any concern.

[1] 'The Right To Health' (Ohchr.org) <https://www.ohchr.org/Documents/Publications/Factsheet31.pdf> accessed 13 July 2020.

[2] Committee on Economic, Social and Cultural Rights.

[3] The Convention on the Rights of the Child, Article 24.

[4] The Convention on the Rights of the Child, Article 39.

[5] The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Article 28.

[6] The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Article 25.

[7] 'The Right To Health' (Ohchr.org) <https://www.ohchr.org/Documents/Publications/Factsheet31.pdf> accessed 13 July 2020.

[8] The Convention on the Rights of Persons with Disabilities, Article 1.

[9] The Convention on the Rights of Persons with Disabilities, Article 25.

[10] The Convention on Elimination of All Forms of Discrimination against Women, Article 14.

[11] International Covenant on Economic, Social and Cultural Rights; Convention on the Elimination of All Forms of Discrimination against Women.

[12] AIR [1984] SC 812.

[13] [1995] AIR 922, [1995] SCC (3) 42.

[14] Paschim Banga Khet Mazdoor Samity and Ors. v. State of West Bengal [1996] 4 SCC 37.

[15] CESC Ltd. v. Subash Chandra Bose AIR [1992] SC 573.