Provisions relating Right to Health: An International Scenario
Good health, free from disease, is not only the very foundation for a healthy life, but equally recognized as a human right and a constitutional fundamental. Health, being one of the essential components of an adequate standard of living is always accompanied by the legal regulations.
a. What is right to health:
The right to health includes healthy environment to live or work in, and access to adequate health care facilities including medical, preventative, and mental, nutrition, sanitation, and to clean water and air.
While the availability, accessibility, acceptability and quality of these is important, the question of access to drugs stands out in the context of the TRIPs Agreement.
b. Constitutional Provisions:
“The humbler the Indian human, the higher the state's duty to protect the person”
The obligation on the State to ensure the creation and the sustaining of conditions congenial to good health is cast by the Constitutional directives contained in various articles viz: .
Article 39(e) - health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength
Article 39(f) - children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
Article 42 - The State is required to make provision for just and humane conditions of work and for maternity benefit.
Article 47 - It is the primary duty of the State to endeavor the raising of the level of nutrition and standard of living of its people and improvement of public health and to bring about prohibition of the consumption, except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
VII Schedule:
State List- Entry 6 : State legislature is empowered to make laws with respect to public health and sanitation, hospitals and dispensaries.
Concurrent List – Entries 23, 26 and 29 : Both the Centre and the States have power to legislate in the matters of social security and social insurance, medical professions, and, prevention of the extension from one State to another of infections or contagious diseases or pests affecting man, animals or plants, by entries 23, 26 and 29 respectively contained in the concurrent list of the Seventh Schedule.
d. Judicial Pronouncement: Health as right to life
Article 21 of the Constitution guarantees protection of life and personal liberty by providing that, “No person shall be deprived of his life or personal liberty except according to the procedure established by law”.
As a result of liberal interpretation of the words ‘life’ and ‘liberty’, Article 21 has now come to be invoked almost as a residuary right. Public interest petitions have been founded on this provision for providing special treatment to children in jail; against health hazards due to pollution; against health hazards from harmful drugs; for redress against failure to provide immediate medical aid to injured persons; against starvation deaths; against inhuman conditions in after-care home and on scores of other aspects which make life meaningful and not a mere vegetative existence. A positive thrust is given to the nature and content of this right by the
Parmananda Katara v. Union of
Facts:
In the para 7 of the Judgement, the Sc observed that there can be no second opinion that preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond 'the capacity of man. 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 innocent may be protected and the guilty may be punished. Social laws do not contemplate death by negligence to tantamount to legal punishment
Judgment:
Accordingly, Sc held that it is the professional obligation of all doctors, whether government or private, to extend medical aid to the injured immediately to preserve life without waiting legal formalities to be complied with by the police under Criminal Procedure Code. Article 21 of the Constitution casts the obligation on the State to preserve life.
Paschim Bang Khet Mazdoor Samiti v. State of
Facts:
In this case, the petitioner who was a member of an organisation of agriculture labourers had fallen from a running train and had suffered serious head injuries and brain hemorrhage. He was admitted in a private hospital and had to incur an expenditure of Rs. 17,000/- in his treatment merely because non availability of beds in the various government hospitals in the city of
Judgement:
The Supreme Court held that Art. 21 imposes an obligation on the State to provide medical assistance to every injured person. Preservation of human life is of paramount importance. Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his rights to life guaranteed under Art. 21 of the Constitution. The Court directed the State to pay Rs. 25,000/- to the petitioner as compensation.
Consumer Education and Research Centre v. Union of
In this historic judgment the Supreme Court has held that the right to health and medical care is a fundamental right under Art. 21 of the Constitution as it is essential for making the life of the workman meaningful and purposeful with dignity of person. “Right to Life” in Art. 21 does not connote mere animal existence. It has a much wider meaning which includes right to livelihood, better standard of life, hygienic conditions in workplace and leisure.
The Court further directed the Centre and all the State Governments to review after every 10 years or when the International Labour Organisation gives direction in this regard the standards of permissible exposure limit value of fibre in tune with the international standards. Thus, it is the duty of the State to provide adequate means of healthy life.
Kirloskar Brothers Ltd. v. Employees’ State Insurance Corporation (1996) 2 SCC 682.
The Supreme Court, following the above case, held that “right to health” is a fundamental right. The Court further held that it is a right not only available against the State and its instrumentalities but even private industries to ensure to the workmen to provide facilities and opportunities for health and vigour of the workman assured in the provision of Part IV of the Constitution which are ‘integral part of right to equality under Art. 14 and right to invigorated life under Art. 21 which are fundamental rights to the workmen.
State of
Facts:
In this case the respondent, a state employee had heart ailment which required replacement of two valves in the heart. Since the facility of the treatment was not availed in the State Hospitals of
Judgement:
It was held that right to health is an integral part to right to life and Government has constitutional obligation to provide the health facilities and therefore, the State employees are entitled to medical reimbursement of expenses for treatment and room rent charges both in approved specialized hospitals outside the Government hospitals.
Thus, right to health has been declared a fundamental right under the Constitution of India and State is obliged to provide adequate condition for healthy l
e. International Scenario on Right to health
Right to health has also been a concern at the international community and the same can be seen from the various declarations and conventions.
Ø Universal Declaration of Human Rights, 1948: Article 25 guarantees a right to adequate standard of living for the health and well-being of a person and his family including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
Ø International Convention on the Elimination of All Forms of Racial Discrimination 1965: Under article 5 (e) (iv) the right to health is recognized.
Ø International Convention on the Elimination of All Forms of Racial Discrimination, 1969: Article 5 in compliance with the fundamental obligations laid down in article 2 of this Convention, requires the States Parties to prohibit and to eliminate racial discrimination in all its forms; guarantees social, economic and cultural right of everyone, without distinction as to race, colour, or national or ethnic origin Article 7, 11 and 12 recognize the right of everyone to ... just and favourable conditions of work.
Ø International Covenant on Economic, Social & Cultural Rights, 1976: Article 12 recognizes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health... and also requires the State to take necessary steps for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; for the improvement of environmental and industrial hygiene; for the prevention, treatment and control of epidemic, endemic, occupational and other diseases, etc.
Ø Committee on Economic, Social & Cultural Rights : General Comment 14: Article 12 guarantees the highest attainable standard of health.
Ø Convention on the Elimination of All Forms of Discrimination against Women, 1979: Article 11, 12 and 14 assures the safety in working conditions, appropriate measures to eliminate discrimination against women and providing special attention and care to women.
Ø Convention on the Rights of the Child, 1989: Article 24 requires the State to ensure that no child is deprived of his/ her right of highest attainable standard of health and access to such health care services set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.
Ø African [Banjul] Charter on Human and Peoples' Rights: Article 16 recognises the right of everyone to enjoy the best attainable state of physical and mental health.
Similarly the entire Constitution of the World Health Organization is relevant to the right to health without distinction of race, religion, political belief, economic or social condition."
f. POLITICAL COMMITMENTS
Besides the above conventions, various political commitments have taken place talking about the right to health viz:
·
· Commitment 6 of Copenhagen Declaration,
· Para 106 of Beijing Platform for Action,
· Article 17 of The Cairo Declaration on Human Rights in Islam,
· Article 1 of the Declaration of Alma-Ata,
· Article 10 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, 'Protocol of San Salvador',
g. other instruments
Several regional human rights instruments also recognize the right to health, such as the European Social Charter of 1961 as revised (art. 11), the African Charter on Human and Peoples' Rights of 1981 (art. 16) and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988 (art. 10). Similarly, the right to health has been proclaimed by the Commission on Human Rights as well as in the Vienna Declaration and Programme of Action of 1993 and other international instruments.
Thus, various Conferences, Treaties, Declarations, Conventions, etc have been made at the international era to recognize the right to health and a duty has been caste upon the state to provide such adequate means and conditions for the enjoyment of such right.
Thus, on the one hand, it is the duty of the Government to provide adequate facilities for a healthy life, while on the other hand, TRIPS requires the states to provide for the product patent resulting in the hike of the drug prices and ultimately posing a severe question of affordability. Thus, it is difficult to determine, whether right to health is a myth or reality?
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