Right to Health: Limits of Recognition*

Coverage

What is right to health
Core components of right to health
Right to health and Indian Constitutions and other legislations

1. As a fundamental right

2. As a human right

(WHO 1946)
Universal declaration of Human Rights, 1948
United Nations.

3. Right to health bill in rajasthan,2022

4. Right to health focusing children

5. Right to health during pandemic and healthcare facilities.

Recent Developments in India
Status of the healthcare facilities Abroad.
Subjected violations or infringement.
Relevant Case laws/ Judgements.
Conclusion. .
FAQ’S

What is meant by the term Right to Health:

The right to health is a fundamental right which is essential for the overall well being and dignity of all the individuals.The adage about this right delves around the old saying "Sariram Adyam Khalu Dharma Sadhanam'' which translates that one’s body is like a temple i.e sacred and keeping it healthy is the very foundation of all the activities.The mention of Right to health as provided in the constitution of the World Health Organization(1946) is a “State of complete physical, mental and social well-being and not merely the absence of disease or infirmity”.This definition also stirs around how one can access the healthcare and what are various underlying determinants such as safe drinking water, requisite sanitization standards, adequate nutrition, housing etc.

Basically this right covers four important and interrelated elements/components that are availability, accessibility, acceptability and quality.

Availability:

it refers to the presence of requisite amount of quantities of functioning health facilities, goods and services for all.This availability could be measured by thorough analysis of the jumbled or the disintegrated data of different stratifiers which include criterias or factors like age, sex, religion, social and economic status along with the qualitative surveys which help in getting the clarity about the gaps.

Accessibility:

This facilitates the functioning of health facilities so that the basic goods services are available to everyone.It is strictly followed that the dimensions like non-discrimination, physical accessibility, economic accessibility (affordability) and information accessibility.These dimensions are quite helpful for the specially abled(disabled) who significantly face barriers related to it for e,g lack of appropriate services or facilities and many more.

Assessing:

Dimension of accessibility requires analysis of various factors like physical, geographical, financial and a few other barriers to health systems and services, and how they may impact people who are marginalized. It requires the establishment or application of clear norms and standards in both law and policy to address these barriers.

Acceptability: It is basically to respect medical ethics,culturally appropriate, and sensitivity to gender segments. Acceptability in general requires that health facilities, goods, services and programmes are people-oriented and cater to the specific needs of diverse population groups and in accordance with international standards of medical ethics for confidentiality and informed consent.

Quality: It is yet another important aspect of these 4 dimensions which extends to the underlying determinants of health, for instance ,safe and potable water and sanitation and many others as aforesaid.Quality is a key component of universal health coverage (UHC). Quality health services should be:

safe: avoiding injuries to people for whom the care is intended;
effective: providing evidence-based services to those who need them;
people-centered: providing care that responds to individual needs;
timely: reducing waiting times and harmful delays;
equitable: providing care that does not vary in quality on account of age, gender, ethnicity, disability, geographic location, and socio-economic status;
integrated: providing a full range of health services throughout the life course; and
efficient: maximizing the benefit of available resources and avoiding waste.

Earlier the Right to Health in the Indian context had about 260 million Indian citizens who were below the poverty line and without the fundamental assurance of healthcare, which has now been limited to only 4.5 to 5 percent of India’s population as of 2023 reports.The World Health Organization (WHO) earlier ranked India as 112th on the list of 199 member countries with regard to the health care systems, which has significantly improved and now India stands at 66th place out of 199 countries. In India, the government's concern for the health and safety of its people is indicated by the legislations enacted for health care.In India, this right to health has not been mentioned exclusively, but it is judicially interpreted with Article 21 of Indian Constitution(Article 21 states about Right to Life and Personal liberty).The right to health has been an integral part of right to life.As a human right this right has been recognized which aligns well with the with international human rights instruments.The Directive Principles of State Policy contains various articles like 39, 47, and 48A in Part IV of the Constitution which provide guidelines for the state to ensure the health and well-being of its citizens. These include raising nutrition levels, improving public health, and protecting the environment.International Recognition of the Right to Health has been on a large scale too for instance:-

1. The World Health Organization’s Constitution (1946): The W.H.O Constitution was the first ever international body or an instrument that enshrined the right to health as a fundamental human right in it.There were several human rights treaties which included Right to health as their integral part.Few of them are International Covenant on Economic, Social and Cultural Rights (Article 12) Forms of Discrimination Against Women (Articles 11(1) (f), 12 and 14(2)(b);Elimination of All Forms of Racial Discrimination (Article 5(e) iv);International Convention on the Elimination of All and many more.

Article 21 of the Indian Constitution has been interpreted to incorporate the right to health in right to life and hence this right has now acquired a constitutional status through judicial activism,which basically can be judicially enforced. The Directive Principles of State Policy provide norms which are against the exploitation of weaker sections of society, including children and mandates the state to raise the levels of nutrition, the standard of living and improve public health. Protection and improvement of the environment and safeguarding forests and wildlife is also an obligation of the state. These are contained in articles 39, 47 and 48A in Part IV of the Constitution as aforementioned.

Numerous statutory enactments also safeguard the health of those employed in factories, large-scale industrial undertakings and mines, the health of women and children and also protect the human environment. These statutory enactments cover a wide range of areas including food safety legislations, labor laws and environmental legislations etc. all of which are within the spirit of the Constitution. The Role of Indian Courts in Gradation of Right to health The Indian Supreme Court has interpreted Article 21 of the Indian Constitution in the Marshallian spirit and has broadened its scope repeatedly, relying on general legal doctrines, international convention and fascinatingly, the Directive Principles of State Policy, thus making some of them enforceable.

The table below covers various insights of how were the recent reforms in this sector along with the data on what are the different takes of India and other foreign countries on this sector:-

Recent Developments in India Status of Healthcare Facilities Abroad

Right to Health Bill:Rajasthan became the first ever state in India in September 2022 to pass a Right to Health Bill.This includes free healthcare benefits to all residents, setting up a grievance redressal system and State Health Authorities for healthcare-related issues and to oversee implementation. Various countries have various mechanisms to handle their health related problems.This means many countries have a comprehensive healthcare system that ensures universal coverage.

Right to Health Focusing on Children:In the recent time India has made significant strides in improving the sector for children.Missions like Indradhanush(2014) which increases the immunization;Projects like Poshaan Abhiyan which aim at improving the nutritional outcomes for children;Rashtriya Bal Swasthya Karyakram programme which screens the from birth to adulthood and scans for any deficiencies or health conditions. Status of Developed Countries:Countries like the United Kingdom provide services like the NHS(National Health Service) which is a free comprehensive healthcare service.Similarly, countries like Germany which have a universal multi-payer healthcare system with both statutory health insurance and private health insurance.Japan on the other hand has a very high life expectancy,Japan has a universal health care system which mandates its citizens for a mandatory health insurance.

Pre and Post Pandemic era:The pandemic proved to be a very crucial aspect of the Healthcare Infrastructure of India,It basically underlined both weakness and strengths of our facilities.It ultimately increased the testing and treatment facilities;Development and production of indigenous vaccines;Implementation of telemedicine services.Post pandemic especially focussed more on

Strengthening primary healthcare infrastructure
Improving disease surveillance systems
Enhancing emergency preparedness

Status of Developing Countries:Countries like Brazil and South Africa have services like the Unified Health System (UHS) which basically provides free universal health coverage, but ultimately lacks in quality and faces challenges in accessing the rural areas.

The Courts in India have shown keen interest in protecting the health of people in the society and have accepted it in clear-cut manner that administrative as well as judicial wings of the State are under a duty not to adopt an indifferent attitude in this respect. Right to health is one the various indivisible rights that have been recognised by the Supreme Court under Article 21.As the recognition to the right increases so does many complex issues or complications.Few of them cause infringements to one’s rights.Despite all these legal protections, there may arise violations of the right to health on different grounds, some of which are mentioned below:

1. Disparities related to the access of amenities :

Rural areas usually lack adequate healthcare facilities and the right amount of personnel.

2. Quality Issues:

Due to the large population many public hospitals suffer from overcrowding, due to which adequate infrastructure is lacking which in turn causes shortages of medicines.

3. Discrimination:

Even after the abolishment of various discriminatory practices marginalized groups, including women, lower castes, and tribal populations, often face discrimination in healthcare settings.

4. Affordability:

Even though the industry has improved drastically but due to the new technological advancements the high out-of-pocket expenses push millions into poverty each year.

5. Maternal Health:

India though emerging out of the orthodox social evils still struggles with high maternal mortality rates in some regions due to lack of education and practices.

6. Mental Health:

There's a significant treatment gap for mental health conditions due to stigma and lack of resources.

Due to the few mentioned possible infringement factors, many cases arose regarding these stipulations. The case of Workmen of State Pencil Manufacturing Industries of Madhya Pradesh, revolving around the death of workers at young age in the state pencil manufacturing industries, due to the accumulation of soot in their lungs, was one the first health related public interest litigation to be filed in the Supreme Court. The Court required the State to ensure installation of safety/precautionary measures in the concerned factories, failing any compliances could eventually lead to the closure of it. In Pt. Parmahand Katara v. Union of India & others, the Supreme Court held that whether the patient is innocent or a criminal liable to punishment under the law, it is the obligation of a doctor at the governmental hospital positioned to meet the constitutional obligation directed on the state by virtue of Article 21 to preserve life. Justice Ranganath Mishra gave the opinion in the following words: No law or state action can intervene to avoid/ delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore give way. Similarly in Paschim Banga Khet Mazdoor Samiti v. State of West Bengal, the Supreme Court reasserted that failure on the part of the government hospital to provide timely medical treatment results in violation of the injured victimâ€™s right to life guaranteed by Article 21.

The court gave seven guidelines regarding the timely medical treatment and mentioned it is the constitutional obligation of the state to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done.â€ The increasing role of the Court from the recognition of right to health at the first level and then to managerial role could be understood by the gradual development from the Parmanand Case to Dr. Chandra Prakash Case. In Dr. Chandra Prakash Case Court took the managerial role by commenting on tapping the resources of revenue for free medical treatment to the victims of road accidents. In A.S. Mittal v. State of Uttar Pradesh, the Supreme Court ordered the state government of Uttar Pradesh to pay compensation, as it had not followed the norms prescribed for the eye-camp and caused serious injuries to 84 patients. In Vincent Panikurlangara v. Union of India the Supreme Court observed that in a welfare state it is the obligation of the state to ensure the creation and the sustaining of conditions congenial to good-health. Directions were sought from the Supreme Court for banning the import, manufacture, sale and distribution of drugs recommended for a ban by the Drugs Consultative Committee, and for cancellation of all licenses authorizing all such drugs. The importance of this judgment could be seen in the light of recent international agreement on TRIPS. Justice Ranganath Mishraâ€™s observation regarding right to health vis- a-vis right to life in that case was as follows:Article 21 of the constitution guarantees right to life and this court has interpreted the guarantee to cover a life with normal amenities assuring good living which include medical attention, life free from diseases and longevity up to normal expectations.

The Supreme Court has also brought an insight to occupational health hazards to workers within the coverage of Article 21. The right to health and medical care to protect the health and vigor of a worker while in service or post-retirement has been held to be fundamental right under Article 21 read with the directive principles contained in Article 39(e), 41, 43 and 47 and all fundamental human rights to make the life of workers meaningful and purposeful, with dignity of person. In Kirloskar Brothers Ltd. v. Employeeâ€™s State Insurance Corporation, Supreme Court held that Right to Health is the fundamental right of the workers and is available not only against the state and its instrumentalities but also against the private industries. In Murli S. Deora v. Union of India, the Supreme Court recognizing Right to health under Article 21 of the Constitution held that smoking is injurious to health and banned smoking at public places. In State of Punjab & Others v. Mohinder Singh Chawla a Government official was reimbursed the expenses incurred on his treatment. However, this extension of right to health constitutionally obliging the state to provide such facilities was moderated in State of Punjab v. Ram Lubhaya Bagga. Here the government had framed a policy allowing reimbursement to the extent of rate prior fixed. Upholding the policy- for no state can have boundless resources- the Court opined it did not violate Article 21 or Article 47 of the Suprema Lex.

Conclusion the judgment of the State of Punjab v. Lubhaya Bagga shows a clear change in trend in the policy of the court with regard to the right to health. The courts have bowed before the foreboding presence of the factor of paucity of resources. This bitter reality has been experienced by the legal systems of many developing nations. For example in the case of Vietnam, the constitution of 1980, included the right to health care and the state guaranteed free medical examination and treatment but upon the country facing an economic crunch, this right was deleted and a narrower right which provides that '' the citizen is entitled to a regime of health population'' was accorded. The tragic choice of resources seems to be a reality, which may be seriously contemplated while according the right to health. This is not only the case with developing nations like India but is also true for developed and resource laden countries like the U.K. and the U.S. The choice that has to be made is between having a narrow, resource based, right to health accorded to the citizens or to having a wide and idealistic right of health, which has no connection with the amount of resources available.The argument in favour of having the former is that only through such a system can we accord rights, which can realistically be availed.

One can avoid a situation where there is ''loss of faith'' in the judiciary and the legal system as a whole. This would bring a great amount of certainty in the rights available to the citizens and would make them more concrete. While in favour of the latter, it can be argued that only when a wide right of health is granted, can the bounds of the rights that can realistically be availed be increased. When one would consider the resources before considering the extent of rights available, one would not be able to increase the resources made available for such purposes. The other major argument in support of this is that the real problem is not one of ''lack of resources'' but of ''improper allocation of resources''. Corruption, undersized budgets allocated to the health sector, are some of the examples of such improper allocation. In the face of such a situation a resource-based system of rights would not be the correct solution. Keeping in view the situation in India, where the courts have not followed a resource based system of rights for the last decade or so,it is submitted that the best solution would be to try out this system of rights (as the courts have already started doing) , while trying to tackle the problem of ''improper allocation of resources'' through other channels.

Few other relevant Case Laws/Judgements

1. Navtej Singh Johar v. Union of India (2018)10 SCC 1):

The Supreme Court in this case recognized the right to health of L.G.B.T.Q+ individuals,while emphasizing that sexual orientation is an essential component of identity of an individual and that any discrimination on this basis violates the right to health indirectly.

2. Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors (W.P.(C) 8853/2008):

The Delhi High Court in this case held that the right to health includes the very right to access and receive a minimum standard of treatment and care at a facility, especially for pregnant women.

3. Consumer Education & Research Centre v. Union of India (1995) 3 SCC 42):

The Supreme Court held that the right to health and medical care is a fundamental right under Article 21, extending to the protection of a worker's health and strength.

4. Mohd. Ahmed (Minor) v. Union of India & Ors (W.P.(C) 7279/2013):

The Delhi High Court ruled that the government must provide free treatment to patients suffering from rare diseases, emphasizing the state's duty to preserve life.

FAQs

1. What is considered to be a Violation to the Right to Health?

Any implicit discrimination in delivery of the health services is said to be a hindrance in this domain.Both within the health workforce and between health workers and service users -acts as a powerful barrier to health services, and contributes to poor quality care.

2. Is the right to health a Fundamental Right?

Fundamental Rights: Article 21 of the Constitution of India guarantees a fundamental right to life & personal liberty. The right to health is inherent to a life with dignity. DPSP: Articles 38, 39, 42, 43, & 47 put the obligation on the state in order to ensure the effective realization of the right to health.

3. What is the National Health Policy?

What are the Objectives of National Health Policy? The National Health Policy aims to achieve the following goals: It aims to offer superior health services to every age group and gender. The policy focuses on providing universal access to excellent quality health care services at a reasonable cost.

4. What are the essentials of the Right to health?

The right to health includes 4 essential, interrelated elements: availability, accessibility, acceptability and quality. Availability refers to the need for a sufficient quantity of functioning health facilities, goods and services for all.

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