Judicial response to "Right to Health"

The Indian judiciary has interpreted the right to health in many ways. Through public interest litigation as well as litigation arising out of claims that individuals have made on the State, with respect to health services etc. As a result there is substantial case law in India, which shows the range of issues that are related to health.

Article 47 makes improvement of public health a primary duty of State. Hence, the court should enforce this duty against a defaulting authority on pain of penalty prescribe by law, regardless of the financial resources of such authority.[i]

a. Right to HEALTH as Fundamental Right:

From, State of Punjab and Others v. Mohinder Singhvi[ii] “it is now a settled law that right to health is integral to right to life under Article 21. Government has a constitutional obligation to provide health facilities.”Apart from recognizing the fundamental right to health as an integral part of the Right to Life, there is sufficient case law both from the Supreme and High Courts that lays down the obligation of the State to provide medical health services.

The Supreme Court, while examining the issue of the constitutional right to health care under arts 21, 41 and 47 of the Constitution of India in State of Punjab v Ram Lubhaya Bagga observed that the right of one person correlates to a duty upon another, individual, employer, government or authority. Hence, the right of a citizen to live under art 21 casts and obligation on the state. This obligation is further reinforced under art 47; it is for the state to secure health to its citizens as its primary duty. No doubt the government is rendering this obligation by opening government hospitals and health centers, but to be meaningful, they must be within the reach of its people, and of sufficient liquid quality.[iii]

b. Accident Victims and protection of their life:

This has been explicitly held with regard to the provision of emergency medical treatment inParmanand Katara Vs Union of India. It was held that “Every doctor whether at a government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. The state has an obligation under Article 21 to safeguard the right to life of every person, preservation of human life being of paramount importance. Whether the patient be an innocent person or be a criminal liable to punishment under the law, it is the obligation of those who are in charge of the health of the community to preserve life so that innocent may be protected and the guilty may be punished.”[iv]

The Supreme Court, in Paschim Banga Khet mazdoor Samity & ors v. State of West Bengal & ors, while widening the scope of art 21 and the government’s responsibility to provide medical aid to every person in the country, held that in a welfare state, the primary duty of the government is to secure the welfare of the people. Preservation of human life is thus of paramount importance.[v] The Court made certain additional direction in respect of serious medical cases:

Adequate facilities be provided at the public health centers where the patient can be given basic treatment and his condition stabilized.

Hospitals at the district and sub divisional level should be upgraded so that serious cases be treated there. .

In order to ensure availability of bed in any emergency at State level hospitals, there should be a centralized communication system so that the patient can be sent immediately to the hospital where bed is available in respect of the treatment, which is required.

Proper arrangement of ambulance should be made for transport of a patient from the public health center to the State hospital.

c.  Environment pollution and Health:

Municipal Council Ratlam vs. Vardichand and Ors[vi]  is a crucial case because for the first time the Supreme Court prescribed that in matters concerning public health financial inability was no ground for State authorities not to carry out their duties. The Apex Court held that, …A responsible Municipal Council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial inability. Decency and dignity are non-negotiable facets of human rights and are a first charge on local self governing bodies. Similarly, providing drainage system – not pompous and attractive, but in  working condition and sufficient to meet the needs

In Virender Gaur vs. State of Haryana[vii], the Supreme Court held that environmental, ecological, air and water pollution, etc., should be regarded as amounting to violation of right to health guaranteed by Article 21 of the Constitution.

d.  Women, Child and Health:

In Sheela Barse v Union of India and others the Supreme Court has entrusted to High Courts the duty to monitor the conditions of “mentally ill and insane” women and children in prisons and pass appropriate orders from time to time.

e. AIDs patient and their Health:

More recently the Supreme Court has addressed the epidemic of HIV/ AIDS. In a case where the court had to decide whether an HIV positive man should disclose his condition to the woman he was to marry, the court has held that “the woman’s right to good health to precedence over the man’s right to privacy”.[viii] It found that the hospital did not error in disclosing his status to his fiancé. In MX VS ZY[ix], the Bombay High Court found that if a person were fired from his employment solely because of his HIV positive condition, it would be condemning a person to "certain economic death".

f. Workers Right to Health:

The Supreme Court has recognized the rights of the workers and their right to basic health facilities under the Constitution, as well as under the international conventions to which India is a party. In its path breaking judgment in Bandhua Mukti Morcha v Union of India, the court delineated the scope of art 21 of the Constitution, and held that it is the fundamental right of every one in this country, assured under the interpretation given to art 21 by this court in Francis Mullin’s Case to live with human dignity, free from exploitation. This right to live with human dignity enshrined in art 21 derives its life breath from the directive principles of state policy and particularly clause (e) and (f) of art 39 and arts 41 and 42. It must include protection of the health and strength of workers, men and women; and children of tender age against abuse; opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity; educational facilities; just and humane conditions of work and maternity relief.

In CESE Ltd v Subhash Chandra Bose[x] the court held that, the health and strength of a worker is an integral facet of the right to life. The aim of fundamental rights is to create an egalitarian society to free all citizens from coercion or restrictions by society and to make liberty available for all.

g. Medical Negligence:

Medical negligence gives rise to civil and criminal liability. The degree of medical negligence must be such that it shows complete apathy for the life and safety of the patient as to amount to a crime against the state.[xi]

h. Reproductive Rights:

Reproductive rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. In Javed vs. State of Haryana and Ors[xii], more than 200 writ petitions and high court appeals were consolidated into one case against the State of Haryana and the Union of India. The litigants challenged the constitutionality of a coercive population control provision in the Haryana Panchayati Raj Act of 1994 (the Haryana Provision) that governs the election of panchayat (village council) representatives in Haryana. The Haryana Provision disqualifies “a person has more than two living children” from holding specified offices in panchayats. The objective of this two-child norm was to popularize family planning the implication being that the restrained reproductive behavior of elected leaders would be a model for other citizens to follow. The Apex court upheld the provision, disqualifying the persons having more than two children to contest election at panchayat level or to hold any post. In its judgment the Supreme Court held we are clearly of the opinion that the impugned provision is neither arbitrary nor unreasonable nor discriminatory. The disqualification contained in Haryana Act seeks to achieve a laudable purpose - socio-economic welfare and health care of the masses and is consistent with the national population policy. It is not violative of Article 14 of the Constitution. The court held that the classification is intelligible and is not arbitrary or discriminatory.

Conclusion:

From the above discussion of cases it is evident that the judiciary has clearly read into Article 21, Right to Life, the right to health. It in fact has gone deeper into the meaning of health and has substantiated the meaning of the right to life.

Also, closely associated with health are the issues of nutrition and clean drinking water, which must be available throughout the year. The judiciary has read into Article21, the right