Right To Health Under The Indian Constitution

According to Salmond, every right has a corresponding duty to be fulfilled and there can be no right without a parallel element of duty.(1)

Similarly, there are both positive and negative enforceable contents regarding the right to health; these ranges from adequate protection by the state, providing equal health care facilities to each individual and imposing the most important obligation upon the state to create such favorable conditions which render the fulfillment of the right to health. (2)

The origination of the right to health dates back to 1946 when the first international organization, World Health Organisation (WHO) came into existence to formulate health terms like human rights.(3) And even prior to the coming of the World Health Organisation, there were several countries that have been in the phase of granting of health as a fundamental right. The movement owes its existence to the industrial revolutions also wherein the workers were treated as a commodity and the employers paid no heed to the unsanitary conditions of working areas. Subsequently, the demand for health grew to the extent that it came to be treated as one of the important aspects of the fundamental and basic human rights that any human being having his/her existence on earth is entitled to.

IMPLICATIONS OF RIGHT TO HEALTH ON THE CONSTITUTION OF INDIA

ROLE OF THE STATE IN IMPLEMENTING THE RIGHT TO HEALTH AND THE BASIC REQUIREMENTS TO BE FULFILLED IN PROVIDING THE SAME

A closer look at the bare text of the Constitution of India will render to the conclusion that the Right to health has not been directly incorporated as a fundamental right. However, the framers and the founding fathers of the constitution had really farfetched vision and thus, had imposed the duty on the state in the nature of Directive Principles of State Policy under Part IV of the Constitution wherein it is the responsibility of the state to ensure social and economic justice to its citizens. Therefore, a general inference is that Part IV of the Constitution directly or indirectly relates to public policy in terms of health.

Article 38 of the Constitution lays down the responsibility of the state to secure a social order for the promotion of the welfare of public health.

Article 39 clause (e) pertains to the protection of the health of the workers.

Article 41 relates to providing public assistance from the state in special circumstances such as sickness, disability, old age, etc.

Article 42 protects the health of the infant and the mothers, i.e. in a way, it pertains to maternity benefit.

Article 47 imposes a primary duty of the state in the improvement of public health, in securing of justice, providing humane conditions of work for the workers, extension of benefits pertaining to sickness, disability, old age, and maternity benefits. In addition to this, the state is under an obligation to prohibit the consumption of liquor in the interest of the public good.

Article 48A states the duty of the state towards providing a good and healthy pollution-free environment.

The recognition of the dignity and fundamental right to life led to recognizing the importance of health. In the case of Bandhua Mukti Morcha v. Union of India(7), the court held that although the Directive Principles of State Policy hold persuasive value, yet they should be duly implemented by the state; and it was in this case also that the court had interpreted the dignity and health within the ambit of life and liberty under Article 21 of the Constitution of India.

ROLE OF JUDICIARY IN INTERPRETING THE RIGHT TO HEALTH UNDER PART III OF THE CONSTITUTION

For the very reason of Direct Principles holding only persuasive value, the state used this as a weapon to escape its duty, responsibility, and liabilities in providing and protecting the health of the common public. Therefore, the Hon’ble Supreme came to the rescue and brought the right under the purview of Article 21 of the Constitution of India. The scope of Article 21 has, thus, been widened. Article 21 ensures the right of life and liberty to each individual, citizens, or non-citizens.

The concept of personal liberty is meant to include rights that may or may not be directly linked to the life and liberty of a person; which now includes the right to health as well.

With the evolution of Public Interest Litigation, the recognition of health care as a fundamental right started formulating. This is because the Supreme Court allowed individuals to approach directly for the protection of human rights.

The right to life under Article 21 of the Constitution has been liberally interpreted to mean something more than merely human existence and includes the right to live with dignity and decency.

In 1995, the Hon’ble Supreme Court of India in the case of ParmanandKatra(5) held that those who are indulged into the profession of medicine are in charge of public health and have an inherent obligation to protect the same so that those who are innocent can be protected and the guilty be punished.

In yet another case of Spring Meadow Hospital(6), the court held that there is a need for sensitization of relevant law pertaining to the content of the right to health. An act to deal with the legal prohibition of commercialized transplantation has further animated the right to health.

In Consumer Education and Research Centre v. Union of India, the court had expressly opined that the right to health was also an integral factor to lead a meaningful life and for the right to life under Part III. And the court also stated that health includes access to medical care for the highest attainment of living standards.

In Ram Lubhaya's case, while examining the revolving around the issue of the right to health under Article 21, 41, and 47 of the Constitution of India, the court observed that right of one correlates with the duty of another. Hence, the right entrusted under Article 21 imposes a parallel duty on the state which is further reinforced as under Article 47. Even though several schools and hospitals are set up by the government but the duty is not fulfilled until they can be in reach of the general public. It is pertinent to note that the Hon’ble Court, in this case, regarded health to be a sacrosanct, sacred, and valuable right.

Further, in Paschim Banga Ket Mazdoor Samity(8) case, the scope of Article 21 was further widened; herein the court held that it is the responsibility of the government to provide adequate medical aid to every person and to work in the welfare of the general public. Moreover, Article 21 imposes an obligation on the state, the state is required to protect and safeguard the right of every person.

The Hon’ble Supreme in another case held that health is a fundamental right and is not restricted to merely the absence of diseases or sickness. The medical and health facilities are a sort of incentive for the workers’ to work with the best productivity both in physical and mental terms. Conclusively, medical facilities are also part of social security. (9)

CONCLUSION

Heath has been regarded as a fundamental human right by the World Health Organisation (hereinafter referred to as WHO). The member nations have, consensually, considered that the enjoyment of the highest and most attainable standard of health is the basic and fundamental right of every human being, irrespective of religion, race, caste, sex, creed, and political belief, social or economic condition. Meaning thereby, health is the fundamental right of all people and everyone must have access to the required services as and when the need arises.

[The author, Srishti Sharma is a second-year law student at IIMT School of Law, Karkardooma, affiliated to the Guru Gobind Singh Indraprastha University, Delhi.]

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1. Deepika Prasad, Jurisprudence-relationship between rights and duties, LegalCrystal Blog (March 9, 2013) last accessed on 21 Feb 2018.
2. Ibid (n 1).
3. The preamble to Constitution of the WHO, adopted by the International Health Conference, New York (signed on July 22, 1947, entered into force on April 7, 1948)
4. Keshwanand Bharti v. the State of Kerala, (1973) 4 SCC 225.
5. Parmanand Katra v. Union of India, AIR 1989 SC 2039
6. Spring Meadow Hospital v. Harijol Ahluwaliya, AIR 1998 SC 180
7. AIR 1984 SC 812
8. Paschim Banga Khet Mazdoor Samity & Ors. v. State of West Bengal, (1996) 4 SCC 37
9. CESC Ltd. v. Subash Chandra Bose, AIR 1992 SC 573