Constitution project

Research Paper:
Right to Health in India: Promises and Practices of the welfare
state
Submitted to lovely professional university
Course Code: LAW201

CLASS: B.A L.L.B.

SECTION: L1702
Roll no.:016
SUBMITTED TO: Mrs Neeru Mittal
SUBMITTED BY:
PRIYA GARG
11718820

Right to Health in India: Promises and Practices of

the Welfare State
Introduction

‘We the people of India’ when these words were being written in the
Constituent Assembly by those who represented all the Indians for times to come,
could never have imagined that the people of India will have to fight for even
their basic needs like primary health in the so called Socialist, Sovereign,
Republic and Democratic State even after the 62 years of the enactment of the
Constitution. Every State in the modern period has its own Constitution to work its organs
according to some fundamental rights and duties . The Constitution of India is the law of the
land. The fundamental rights governs the relationship between State and its citizens. The
purpose behind Constitutional framers is to reach goals which is given in the preamble . The
Preamble to the Constitution of India talks about rights of citizens, imposes duties on them
and how the state has to protect the rights of we the people . Health services in India at
the time of Independence were a function of the socio-economic and political
interests of the colonial rulers. The post independence witnessed a real effort in
providing comprehensive health care, and in extending the infrastructure of health
services. However, the improvements in our health delivery system did not match
the needs of a enormous majority of our people. Neither the stated commitment of
the government, nor its implementation, was able to make a significant dent in the
status of health or in health care delivery systems. 1

This part of the research examines those very Constitutional promises and their
implications and reflections in the policy matters. It is a matter of great concern
that the accesses to primary health is still a mirage for large part of the
population. 2

1
Amit Sen Gupta and Jan Swasthya Abhiyan, “From Primary Health Care to A Right to Health
Movement:The Indian Experience”at 154 as available
at:http://nutritionfoundationofindia.res.in/workshop_symposia/primary_health_care_new_initiati
ves2006.pdf/Dr%20A%20S%20Gupta_From%20primary%20health%20care%20to%20a%20right
%20to%20health%20movement_the%20India%20exprience_pages_154.pdf as accessed on
29.09.2018.
2
Annual Report to The People on Health September 2010, (Ministry Of Health And Family
Welfare Government Of India), available at: http://www.mohfw.nic.in/ as accessed on 2 oct 2018.,
see also: family welfare statistics in India 2009, (Ministry Of Health And Family Welfare
Government Of India) available at: http://www.mohfw.nic.in/Complete%20BOOK/Complete
%20BOOK.pdf as accessed on 1.10.2018.
 Apart from the Constitutional aims and aspirations accesses to primary
health is very important from the angle of right to development even in Indian
scenario. 3

Right to Health under Constitutional Law

The post independence era in India is the era of Constitutionalism and as it

was observed earlier also, that in the very Constitution so many promises were
made to ‘we the people of India’. But it has to be kept in mind that when India
being a nascent democracy was busy in framing it’s Constitution, even at that
time, India was considered as one of the important and responsible member of
international community. More over, the framers of the Constitution were having
the experiences of working of the best Constitution of the world before them. It is
a well known fact that they try to assimilate some of good provision in our
Constitution from all over the world. Therefore, one find the reflection of not
only of various Constitution but also the various other important human rights
documents accepted and adopted by the world community.

However, it has observed that why and how India could not achieve those
promised goals and why it failed . Why like so many other promises it only
remained at the stage of fiction and it is not implemented . It is in this
environment it has to be measured that where does India stand today regarding
the fundamental principles of the right to health is - availability, accessibility,
acceptability and quality in terms of the State’s responsibility to respect, protect
and fulfill the right to health is concerned. 4 It has also to be examined that
whether the Indian Constitution recognize the fundamental right to health and
health care? If so, what is the domain and scope of the right to health care? Does
the State is under obligation to make available health care facilities to all
citizens? Does this duty extend to providing free aid,checkup and cheap or
sponsored medical care? Whether this obligation has to be shared by the private

3
Michael Maurice Engelgau et.al, “Capitalizing on the Demographic Transition: Tackling
Non communicable Diseases in South Asia February 2011”, Conference Edition, A Report by
World Bank as available at http://siteresources.worldbank.org/SOUTHASIAEXT/
Resources/223546-1296680097256/77074371296680114157/NCDs_South_Asia_
February_2011.pdf as accessed on 26.09.2018.
4
Ravi Duggal, “Right to Health and Health Care- Theoretical Perspective”, in Mihir Desai
and Kamayani Bali Mahabal (Eds), Health Care Case law in India, 1-16 at 14 (2007) as available
at http://www.cehat.orghumanrightscaselaws.pdf last seen on 31.09.2018.
health care sector also? 5 Whether they should get proper health treatment and thus
it includes under the constitution on india , thus it is fundamental right of the
citizen to assure they health under article 19(1)(g)of the Indian constitution ?

Even today when the Indian political leadership have almost adopted the
model of development based on liberalization, privatization and globalization,
theoretically speaking the Indian Constitution still promise for a collective
pattern of development based on the idea of welfare state. It basically talks about
two sets of rights while civil and political rights are protected as Fundamental
Rights which are justiciable, while social and economic rights like health,
education, livelihoods etc. are promised in Directive Principles for the State and
therefore, not justiciable. The second category of rights comes under the sphere
of planned development, which the State try to fulfill through the Five Year Plans
and other development policy initiatives. 6

Part 3 of the Indian constitution deals with fundamental rights.Right is health is

not included in the constitution of india directly but our framers indirectly
includes right to health as a fundamental right under article 21 of the constitution
for all the citizens . So right to health is implied under Right to life and personal
liberty as guaranteed by the constitution of imdia

The Supreme Court in C.E.R.C. v. Union of India 7, held that right to health, medical aid to
protect the health and vigour of a worker while in service or post-retirement is a fundamental
right under Article 21. In one the cazse relating to medical health Mr.X.vs Hospital Z 8 , in
this question arises before the honorable court can a doctor disclose to the wife
(with whom he is going marry )that his husband is suffering from HIV postivite .
or does husband can clain that it is my right to privacy and it should not be
disclosed to anyone without my permission . The court said that the lady is who is
going to mary that person entiled to all the human rights which are available to
all the humans .so it includes that doctor should the person who is getting married

5
Mihir Desai and Dipti Chand, “Fundamental Right to Health and Public Health Care”, in
Mihir Desai and Kamayani Bali Mahabal (Eds), Health Care Case law in India, 17-36 at 17
(2007) as available at http://www.cehat.orghumanrightscaselaws.pdf last seen on 31.09.2018.
6
Supra note 4
7
C.E.R.C. v. Union of India AIR 1995 SC 922
8
Mr.X.vs Hospital Z AIR 2003 SC 664
to that person The Supreme Court in this instance gave primacy to the Right to Health over
right to privacy.

If one examines the Indian Constitution there are ample direct proof of
upholding the promises to provide the people of India with right to health care.
Articles 41 9 , 42 10 and 47 11 of the Directive Principles in Constitution provide the
basis to develop the right to health and healthcare. Above mentioned articles are
basically aiming at social security, social insurance, standard of living, and
public health coupled with the policy statements , which in a sense constitutes the
interpretation of these Constitutional provisions, and supported by international
legal commitments, form the basis to develop right to health and health care in
India. However, one can notice that since these rights falls in the part IV of the
Constitution of India, therefore, principal of justiciability is not applicable here.
However, it is emphasized that in the context of healthcare there is a greater
urgency to make it enforceable because it is directly related to life and death. It is
also pertinent to mention here that the above mentioned social security is
available to a non significant number of the working population. Here one can
argue that this can be made more inclusive rather universal in nature meaning
thereby that such security can be extended even to the common people. Limiting
this privilege to a limited amount of population does not only reflects the
discrimination and inequity that violates the principle of non-discrimination , but
it also influence against the idea of equality contained in Article 14 of the
Constitution. 12

Therefore, to make right to health a more universal right is one of the

biggest challenge. As it was noted previously also that the provisions related to
health care generally falls in part IV 13 of the Constitution and this scheme of the
Constitution makes it a non -justiciable right however, it should be noted that the
9
Right to work, to education and to public assistance in certain cases.- The State shall,
within the limits of its economic capacity and development, make effective provision for securing
the right to work, to education and to public assistance in cases of unemployment, old age,
sickness and disablement, and in other cases of undeserved want.
10
Provision for just and humane conditions of work and maternity relief.- The State shall
make provision for securing just and humane conditions of work and for maternity relief.
11
Duty of the State to raise the level of nutrition and the standard of living and to improve
public health.- The State shall regard the raising of the level of nutrition and the standard of living
of its people and the improvement of public health as among its primary duties and, in particular,
the State shall endeavour to bring about prohibition of the consumption except for medicinal
purposes of intoxicating drinks and of drugs which are injurious to health.
12
Supra note 4
real intention of the framers of the Constitution was that these principle should be
fundamental in the governance of the country moreover not making it justiciable
in the court of law never meant that it should not be implemented.

According to WHO A rights-based approach to health requires that health policy and
programmes must arrange the needs of those furthest behind first towards greater equity, a
principle that has been boomed in the recently adopted 2030 Agenda for Sustainable
Development and Universal Health Coverage. The right to health must be enjoyed without
discrimination on the grounds of race, age, culture or any other status. Non-discrimination
and equality requires states to take steps to compensation any discriminatory law, practice or
policy.Another feature of rights-based approaches is meaningful participation. Participation
means ensuring that national stakeholders – including non-state actors such as non-
governmental organizations – are meaningfully involved in all phases of programming:
assessment, analysis, development, execution, monitoring 14

Judicail Intervention: Activisim and Innovations

As it has been already discussed in the paper that Courts are barred from taking
into account and put into effect individual health rights claims, at the most it can
give some non binding guidelines. However, express codification is not a bar to
consideration of health issues by courts. Though, it needs an innovative approach
and liberal interpretation of presents guarantees by both lawyers and judges in
order to give real meaning to the principle of indivisibility and interdependence
of rights. 15 It took almost more than two decades to Indian judiciary to come out
of its Positivism shell. However, one can witness a visible shift in judicial
approach from positivism to sociological approach with some initial interruptions
and unwillingness. With this new found approach in early 1970s India observed a

13
Application of the principles contained in this Part.- The provisions contained in this Part
shall not be enforceable by any court, but the principles therein laid down are nevertheless
fundamental in the governance of the country and it shall be the duty of the State to apply these
principles in making laws.
14
Human rights and health,available at: http://www.who.int/news-room/fact-sheets/detail/human-
rights-and-health ,last seen on 3 oct 2018.

15
Iain Byrne, Making the Right to Health a Reality : Legal Strategies for Effective
Implementation, (Commonwealth Law Conference, London, September 2005) as available at:
http://www.escr-net.org/usr_doc/health_paper.doc as accessed on 2.10.2018.
defining moment in human rights litigation with the Fundamental Rights Case 16
bringing in a new era of sociological jurisprudence following the recognition by
the Court that DPSP should be treated at par with fundamental rights. At this very
moment concept of locus standi regarding the enforcement of fundamental right,
were diluted to encourage public interest litigation. Suddenly there was a huge
change in Indian legal system and it witnessed that writ petitions could be even
submitted on a postcard. 17 The Supreme Court mainly use article 21 as tool for
bringing equivalence between civil rights and their economic and social
counterparts by liberally interpreting the meaning of right to life. The right to
health was one of the first branches of liberal interpretation of Article 21 of the
Constitution. 18

Indian judiciary is known for its judicial activism and innovation 19 and in fact,
last few decades country has witnessed so many social, political and economic
changes initiated and led by the judiciary and especially the Supreme Court. As
far as the right to health is concerned there are so many land mark judgments of
the courts which have played a role in determining the scope of right to health

Through its decisions courts have dealt with wide range of issues like it held that
the right to life to secure the right to emergency medical care concluding that
such an essential obligation could not be avoided by pleading financial
constraints. 20 The supreme court observed as follows: 21

The Constitution envisages the establishment of a welfare state at the

federal level as well as at the state level. In a welfare state the primary
duty of the Government is to secure the welfare of the people. Providing
adequate medical facilities for the people is an essential part of the
obligations undertaken by the Government in a welfare state. The
Government discharges this obligation running hospitals and health centres which
16
Keshavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
17
S. Muralidhar, “Justiciability of Economic and Social Rights – The Indian Experience”, in
Circle of Rights (IHRP 2000).
18
Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, (1981) 2 SCR 516
concerning detention conditions and Parmanand Katara v. Union of India (1989) 4 SCC 286
regarding obligation of state to provide emergency medical treatment.
19
Manoj Kumar Sinha, “Judicial Response to Tackle HIV/AIDS in India”, in Indian
Journal of International law, Vol. 49, No. 1, 53-87 at 53 (January-March 2009).
20
Paschim Banag Khet Samity v. State of West Bengal, (1996) 4 SCC 37.
21
Ibid. as available at: http://judis.nic.in/supremecourt/citation1.aspx as accessed on
3.10.2018.
provide medical care to the person seeking to avail those facilities. Article 21 imposes
an obligation on the State to safeguard the right to life of every person. Preservation
of human life is thus of paramount importance. The Government hospitals run by the
State and the medical officers employed therein are duty bound to extend medical
assistance for preserving human life. 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 right to life guaranteed under Article 21.

It was further suggested in the same case to provide for the following facilities 22
such as :

 Suitable facilities should be available at the Primary Health Centres

where the patient can be given immediate primary treatment so as to
control the condition;

 Hospitals at the district level and Sub-Division level are upgraded so

that serious case can be treated there; and patient need not to run in
the cities for better treatement .

 Facilities for giving specialist treatment are increased and are

available at the hospitals at District level and Sub-Division level
having regard to the growing needs. In order to ensure availability of
bed in an emergency at State level hospitals there is 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 is made for transport of a patient

from the Primary Health Centre to the District hospital or Sub-
Division hospital and from the District hospital or Sub Division
hospital to the State hospital.

 The ambulance is adequately provided with necessary equipment and

medical personnel. The Health Canters and the hospitals and the
medical personnel attached to these Centers and hospitals are geared
to deal with larger number of patients needing emergency treatment
22
Ibid.
 on account of higher risk of accidents on certain occasions and in
certain seasons.

However, courts recognised the financial limit of the state in providing the
medical benefits it was held that, no State or country can have unlimited
resources to spend on any of its projects. That is why it only approves its projects
to the extent it is reasonable. The same holds good for providing medical
facilities to its citizens including its employees. 23 Degradation of environment
and its important effect on the public health has been a big issue and courts have
many time highlighted this concern through its decisions. For instance court
consider over the issues like automobile or vehicular pollution. 24 Statutory bodies
like municipal corporations were directed to perform and clean garbage despite
their plea for financial inability. 25

The term health implies more than an absence of sickness. Medical care
and health facilities not only protect against sickness but also ensure stable
manpower for economic development. 26 The Supreme Court held that right to
health and medical care is a fundamental right under Article 21 read with Article
39(e), 41 and 43. 27 The Supreme Court held that right to pollution-free water and
air is an enforceable fundamental right guaranteed under Article 21, 28 it was held
that the right to health is a part of the right to life guaranteed by Article 21 of the
Constitution. 29

The Judiciary has also ensured that even various authorities under
definition of State especially those which come within the executive branch of it
like various ministries and departments of government should be sensitive to
matter related to right to health and duty bound to adhere the guidelines passed by
the judiciary from time to time. In a case against the Indian railways, the court
held that the right to health care was a fundamental right of all citizens, including
23
Consumer Education and Research Centre v. Union of India, (1995) 3 SCC 42.
24
Mehta v. Union of India, (1999) 6 SCC 9.
25
Municipal Council, Ratlam v. Vardhichand & Ors, 1980 Cri LJ 1075.
26
CESC Ltd. v. Subash Chandra Bose, AIR 1992 SC 573 at 585.
27
Consumer Education and Research Centre v. Union of India, (1995) 3 SCC 42.
28
Subhash Kumar v. State of Bihar, AIR 1991 SC 420.
29
Consumer Education and Research Centre and others v. Union of India and others , 1995 (3) SCC
42, see also, State of Punjab and others v. Mohinder Singh Chawla and others, 1997 (2) SCC 83.
passengers and so many directions were given which includes that in every
compartment of train, it shall be prominently notified that Medical Compartment
is attached with the train to provide medical assistance to the passengers free of
cost by a competent doctor and complaint book is available with the Train-
Guard. 30 Yet in another land mark case 31 the Supreme Court passed the mandatory
guidelines to be followed by authorities while making any arrest even there were
some guidelines which pertains to health of arrested person the court observed
that on the request of arrestee he or she should be examined. He should also be
examined at the time of its arrests and major and minor injuries, if any present on
his/her body, and the same must be recorded at that time. The “Inspection memo”
must be signed both by the arrestee and the police officer making the arrest and a
copy provided to the arrestee. The arrestee should be also be examined medically
by a trained doctor every 48 hours during his detention in custody. As a result of
this activism and innovation on the part of judiciary citizens have started
asserting their fundamental right to get better facilities from State hospitals, even
Prisoners have been held to be equally entitled for right to health.

Moreover, the State is required to enforce this fundamental right within its
financial capability and this very rider make this an abstract idea rather than
being a concrete right. At this stage there are many question which are still
unanswered. What is the scope and extent of free treatment which can be
demanded from the state? Can it be said that the free treatment extends to
providing expensive drugs and procedures free of charge? Can it include complex
surgeries? Nevertheless, it has been observed earlier also that although the Courts
have been recognizing it as a fundamental right, but with the rider of the financial
capacity of the State. These issues are going to be crucial in coming years and
these becomes more prominent in the wake of state’s withdrawal from the health
sector. Moreover this behavior of the state is being continuously questioned by
common citizens in the form of the people’s movements and till recently the
voices which remained unheard has come in the fore front against the process of
privatisation and commercialization of the health care which is considered as one
30
AIR 2005 RAJ 317.
31
D.K. Basu v. State of West Bengal, AIR 1997 SC 610.
of the important factor derogating the right to the health of the citizens. The
above mentioned decisions of courts would be a launching pad and valuable tool
for all those who want to make this right more universal and inclusive in nature. 32

Privatization of Health Sector: A Denial of Access to Right to

Health?

Recently privatization of health sector has been a debatble issue. It is being

said that privatization of health sector will lead to exclusion of marginal section
of society from the reach of medical facilities. As it is already known, right to
health in India is neither universal nor it is all inclusive one and therefore, it
creates limited entitlements in favour of its citizens. Private sector occupy an
important place in the development paradigm adopted by the political leadership.
The private sector accounts for more than 80% of total healthcare spending in
India. Unless there is a decline in the combined federal and state government
deficit, which currently stands at roughly 9%, the opportunity for significantly
higher public health spending will be limited. 33

Since, in India there is limited entitlement to right to health which creates

an opportunity for private players and in fact the door has been open wide for
them to exploit the situation at their whims. For instance private pharmaceutical
companies got a lot of subsidy and support for its growth. Similarly, while
production of doctors contributed largely to the development of private markets
in the health sector. Opening the door for private player and leaving the health
sector at the mercy of market has in fact lead to a situation which is more prone
to violation of rights. Since, the development approach was never rights-based
and hence the limited entitlements resulted in a limited impact. The input of the
five year plans to the social sectors has not been impressive ; less than one-fifth
of the Plan resources have been invested in this sector

Policies and Planning

32
Supra note 5
33
Healthcare in India Emerging market report 2007 (by price wealth cooper house)
available at: http://www.pwc.comen_GXgxhealthcarepdfemerging-market-report-hc-in-india.pdf
as accessed on 4.10.2018
 The recent success story of the Indian economy at the macro level is not
reflected at same the level in public health. The health indicators do not suggest
that the success at the economic front in any way have been utilized in health
sector at macro or micro level. Many a times it is suggested that it is the demand
of the hour that public health policy needs to be given a new outlook with a
paradigm shift to make it more effective and close to ground realities. This
paradigm shift should reflected by the inclusion of wide range of stake holders in
the framing of policy regarding the public health. Rather while framing any
policy the very dangerous “Drawing Room Policy Syndrome” should be carefully
avoided, from which most of policy has been traditionally suffering from. It is
hoped that in times to come any policy must preceded by an informed and
rigorous public debate over it. The above mentioned process will bring them the
larger acceptability by the different stake holders in the society. 34 It is in this
background annual report to the people on health suggests some burning and
thorny issues that needs to be taken care of in short term, which are as follows: 35

 Enhancement in Public funding: it is important that the government

should not shrug from its responsibility and there at least 2-3% of
GDP should be spent on the health sector.

 Public- Private Partnership: for making health universally accessible

partnership with private player is very crucial for proper utilization
of human recourses. But at the same time proper regulation to this is
also required.

 Other cause should not be ignored along with the core health sector
other determinant factors are also need to be taken care of without
which any public health policy can’t be successful. Facilities like
safe drinking water, pollution free environment are equally
important issue.

 Skilled Human Resources for Health: Despite of promoting India for

one of the important destination for medical tourism the fact remains
that there is lot to be done for developing skilled human resource at

34
Supra note 2
35
Supra note 2
 various front. Opening of new quality medical institutions etc is the
need of the hour.

 Impact of Technology and Technology Assessment: only

universalisation of public health is not important but the access to
that facility is equally important. the technological developments
have contributed to improved quality outcomes and can do miracles
in this regard in various ways for instance cutting the cost and also
in several cases reduced the need for hospitalisation.

 Affordability of drugs: the access to life saving medicine should not

be directly connected with the purchasing power with money. The
deregulation of price is a big concern especially in patent regime.
Something immediately need to be done in this regard so that
innovation can be promoted but at the time access to life saving
drugs can also ensured.

 Role for Civil Society Organisations: Civil societies can play an

important role becoming equal partners to government and private
sector in facilitating the health care services to the vast population
of this country. For the above mentioned purposes and targets one
can have glance over the programs through which it is intended to be
achieved during the Eleventh five year planning, 36

However it would be related to mention here that today in the name of

development strategy the key social development issues like health is being
ignored. Rather it is being not allowed to be a political issue and never became
political issues which would determine the course of the development strategy.
Any development strategy which ignores rights based approach will not raise the
desired result. In present scenario it appears that in the current neoliberal
developmental agenda the right to health cannot be realized. It is also suggested
that it should be included in the constitution like an independent fundamental
right. Only judicial interpretation to right to life is not sufficient every time. 37
36
Eleventh planning commission report on RTH at 57-58, as available at:
http://planningcommission.nic.inplansplanrelfiveyr11th11_v211v2_ch3.pdf as accessed on
6.10.2018.
37
Supra note 4
Under the original scheme of the constitution public health is basically with state
government but at the same time it provides place for the centre’s active role and
to a large extent centre has played a major role in stream facing the public health
in the country with central funding and planning. But the time has come where
state should also own their responsibility enthusiastically. 38

Conclusion

At last it can be said that goal for the right to health which need immediate
attention today is to promote and to encourage others to promote the right to
health as a fundamental human right.The judiciary held that Article 21 that is
Right to life embeds in it the Right to health also. The citizen have a right to
qualtity heath care , traeatment and medicine regardless of race, religion, social status
and capability to pay .Although theoretically it enjoys the same status under the
international law as so many other civil and political right does enjoy the status
of being a fundamental human right. However, practically it has not been given
the same status or we can say that it looking for its gratitude at the ground level.
It is declared that governments, and civil-society groups etc, can help to raise the
profile of the right to health as a fundamental human right. While it is
understandable that it is a time taking process before it actually start enjoying the
same status as other, more-established human rights, but it is more important that
it should be to ensured that the right to health receives extensive recognitions
nationally and internationally. 39 In the real sense, the court has played a essential role in
imposing positive obligations on authorities to maintain and improve public health.

38
Ibid.
39
Paul Hunt, “The UN Special Rapporteur on the Right to Health: Key Objectives, Themes,
and Interventions, Health and Human Rights”, Health and Human Rights, Vol. 7, No. 1 (2003),
pp.1-27 at 4, available at: http://www.jstor.org/stable/4065415 as accessed on 5.10.2018.