Health As A Fundamental Right - Legal Framework And Policies In India
Author: LawSphereX
Category: Constitutional & Human Rights
Published:
Updated:
HEALTH AS A FUNDAMENTAL RIGHT: LEGAL
FRAMEWORK AND POLICIES IN INDIA
Dr. Mahendra Kumar Baishya, Assistant Professor, Faculty of Law, Sri J. N. P. G. College, Lucknow, U. P.
ABSTRACT
India has been acknowledged for its affluent tradition heritage and culture. With its unity in diversity it has been abode to many early civilizations in many a ways of life. And one such vital concept has been health. Health is defined as the physical, mental, emotional as well as spiritual wellbeing of an individual. A good health represents value of its own which provides good income and ultimately a higher living standard. Therefore, the framers of the constitution incorporated the directive principles to impose the duty on the state to achieve social, economic and political justice to safeguard individual rights and national well–being. Hence, the inferences drawn from the Directive Principles of State Policy (Part IV) of the Constitution incorporates public policy in terms of health too. The obligation of the state towards good health is contained in Article 39, 42, 47 and 48.
The present paper attempts to focus on the significance of health economics and throws light on health as a human right vis –a vis right to health in Indian law and policy. Keywords: India, Health Care, Right to Health, DPSP, Law, Policy, Health Economics, Care, Right to Health, DPSP, Law, Policy, Health Economics,
SECTION -I
“For he who has health has hope; and he who has hope, has everything.” – Owen Arthur
INTRODUCTION:
Health is a very comprehensive concept and hence it is not easy to define. A common idea about health is the nonappearance of alienation at the same time ability to perform physically and mentally. However, the broader definition of health include of physical, mental, physiological, social, and even ethical well-being of a human being. The ancient philosophers have emphasized on the importance of health. There are various philosophical discussions about mind body and soul however it was in the 5th century BC, that Pindar defined health as “harmonious functioning of the organs,”1 which incorporated the physical element of health, its overall functionality, the feeling of comfort and absence of pain. Till date, this definition is as an essential requirement for the health in general and wellness of the individuals.
The ancient Greek philosophy focuses on the concept of “a healthy mind in a healthy body”. The other notion in this regard was of Aristotle who accented in maintaining good health of the community. Interestingly in the feudal ages, the awareness of health was powerfully prejudiced by church and religion. This was in contrast to the idea of Industrial Revolution which added economic factor to health, with an emphasis on good working condition which will consequently enhance the value of health in reaping the economic profit. Nevertheless there are different aspects of health but the consideration has been the same that is the capacity of the individual to adapt from the environment to the amount that the individual could bear and oppose with strength to be fittest to perform all the physical and mental duties.
The modern concept of health definition is very wide as it takes into account health as added than the lack of ailment, and imposing a maximum ability of the entity for self-attainment and self-execution. The public health approach advocates the dealings of the individuals by giving them equal importance to the health of the groups and the community as well. It is very essential to mention the definition given by the World Health Organizations (WHO) which defines health 1Concepts and definitions of health and health-related values in the knowledge landscapes of the digital societyAnna Lydia Svalastog,1 Doncho Donev,2 Nina Jahren Kristoffersen,1and Srećko Gajović3, Croatina medical journal v (58) 6 2017 Dec
as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”2 The idea is to add physical and mental health to social welfare as is it a central piece of the taken as a whole since the health is directly linked to both living and working conditions of social milieu. The preamble to the Constitution of the World Health Organization (WHO), states that “The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, and political belief, economic or social condition.”3 Therefore, the objective of health sponsorship is to encourage and persuade the individuals and the community for their active approach towards healthy lifestyles.
SECTION -II
Right To Health: A Human Right Right to health refers to attainment to health that every human being is entitled to. It is considered to be the fundamental human right in India as well as by the international community under International Human Rights law. The first constitutional expression of “Right to life and liberty” can be traced back in England in the Magna Carta (AD 1215). 4 Decades ago, it was quite difficult to co-relate the link between health and human right. With the inception of United Nations and its accountability towards the achievement of health and human right, the said relationship has been progressively more recognized. The Universal Declaration of Human Right and International Covenant on Economic, Social, and Cultural Rights acknowledge health as a fundamental to the dignity of a human being.
If individuals are not able to maintain their health, then they are in no position to recognize their rights. 5 Health and Human rights are the prevailing recent approaches in the attainment of human well-being. 6 The establishment of the World Health Organization in 1946 formulated health as a fundamental human right. Nevertheless, in 1948, Universal Declaration of Human Rights 2The definition was proposed by Dr Andrija Štampar, a prominent scholar from Croatia in the field of social medicine and public health and one of the founders of the WHO. 3https://www. who. int/about/mission/en/last visited on 24 Dec 2023
4 Prof. Lily srivastava, Law& Medicine, Second Edition, Universal, law publication.
5Dnyaneshwar P. Chouri,Right To Health and Legal Protection,Regal Publication 2017
6 B.R.P. Bhaskar,Human Rights, 2001,Banglore: Vigil India Movement,2001
“assured everyone the right to a standard of living adequate for the health and well-being of himself and of his family, including medical care, sickness and disability coverage. ” At present, sincere attempt is made by the World Health Organization to attain the right to health by laying down certain indicators for the attainment of highest standards of health. Good governance plays a vital role in securing human development. Hence, the concern of the human rights regime is over the critical role that the state has to play in ensuring the basic healthcare to its citizens irrespective of their race, caste, sex and economic status. Therefore, it is the duty of the state to respect, guard and accomplish the objectives of Right to health to all the citizens of a country. In this regard, Salmond has very rightly pointed out that there can be no right without a parallel element of duty.
7 In order to second this right, many countries of the world are party to human right treaty. By and large the idea is to promote right to health, owing to the fact that the realization of other rights is not possible, if an individual is not able to maintain his/ her own health So, it would be an exaggeration to say that “human rights represent those extreme rights which one has specifically because of being a human being. 8 But there is certain requirement that has to be taken into account for the health consideration. The first in line is availability of public health care facilities which of course would include clean drinking water, appropriate sanitation facilities and essential drugs etc. There should be economical accessibility to health care facility on non-discriminatory basis that is it should fall in line with the ethics of medical acceptability.
Last but not the least, the quality of the health facility should be scientifically approved. 9 Right to Health in India It was during 1947 that a democratic regime was set upon the perception of welfare state to accomplish economic growth and development. The framers of the constitution incorporated the directive principles that oblige the state to achieve social, economic and political justice to safeguard individual rights and national well–being. Therefore, the inferences drawn from here are that DPSP which is contained in Part IV of the Constitution of India also incorporates public policy in terms of health, either in a direct way or in a roundabout way.
7 https://www.jstor.org/stable/1274761 \ last visited on 1 Feb 2024
8 D.D Raphel,Political Theory and Rights of Man, McMillian,London,1967.pg.54
9Supra note 6
The obligation of the state towards good health is contained in Article 39, 42, 47 and 48 of the Constitution of India, where Article 39(e) particularly states that “the health and strength of workers, men and women and the tender age of children are shall not be abused and the State should ensure that they are not forced by economic necessity to enter avocations unsuited to their age or strength. ” Further, children should be given the right set of circumstances and amenities to develop in strong approach in the surroundings of freedom and dignity and that infancy and youth are sheltered against abuse of moral and material abandonment as highlighted in Article 39(f). 10 This indicates that the framers of the constitution were very visionary in their approach and thus, they emphasized on the entire well-being or in other words on the good health of its children.
Therefore, it is the duty of the state to enact policies to secure the upbringing of children and the youth against exploitation of moral and material rejection. Adhering to the directives mentioned in Art 39 (e), the state government has come up with the national policy for the welfare of the children, where the objective of the policy is to promote welfare of the youth and children by protecting them from exploitation and cruelty. 11 In pursuance of Art. 39 (f), the Supreme Court administered the release of children from jail below the age of 16 and directed to set up remand homes and juvenile courts. Adding to this, Article 42 exclusively provides the foundations of the labour laws in India. It requires that the state should make proviso for securing just and compassionate condition of work and for maternity reprieve. In Bandhua Mukti Morcha v. Union of India & Ors.
a PIL was filed under Article 32 of the Indian Constitution where the Supreme Court of India directed the State of Uttar Pradesh to eradicate the child labor from the carpet industry under the age of
14 and offer offspring the access to education and health facilities in an endeavor to eliminate
child labour. Thus, it can lead us to the point where the state should ensure good living standard of the people by improving public health and nutrition. The endeavor of the state shall be to prohibit the consumption of invigorating beverages drinks and drugs which are detrimental to health as mentioned in Article 47.12 10 There was modification in the clause (f) with a view to emphasis on constrictive role of the state with regard to children by the 42nd Amendment.
11 M.P. Jain, Indian Constitutional Law, 5th Edition, Nagpur:Wadwa and company,Rep ,2006, p,1379.
12 J.S Verma, The New Universe of Human Rights, 1sted.,New Delhi, Universal Law Publishing Co.Pvt.
Ltd.,2004,p.233
In furtherance to the above mentioned provisions, as highlighted in Art. 48A, where it is the duty of the state to protect and safeguard the forest and wild life of the country. This has been very well explained in the case of M. C. Mehta v. Union of India (UOI) and Ors. ,13 wherein the court “held that Article 39(e), 47 and 48A together impose duty on the state to secure the health of the people, to promote public health and to protect and improve the environment. ” Thereafter, the Environment (Protection) Act, 1986 was enacted for the protection and sustainable development of the environment and for matters associated therewith. Health as a fundamental Right: Law and Policy in India Article 21 of the constitution of India declares that “No person shall be deprived of his life or personal liberty except according to the procedure establish by the law.
” It is one of the articles which has been interpreted by the higher courts to see the scope of the words ‘life’ and ‘liberty’ in order to bring health under the umbrella of Article 21. The Directive Principle of State Policy is the bed rock of Article 21 as the DPSPs encompassing Articles 39(e), 39(f), 41and 42 which clearly includes safeguard of health. The wider interpretation of Art. 21 envisage that with no good health, it is impossible for an individual to enjoy other fundamental rights which includes freedom of speech and expression, to move freely throughout the territory of the country and so on. Therefore, it is imperative to note that without assurance of good health and well–beings of the individuals, these freedoms cannot be exercised absolutely. As, this point has been very well highlighted in the matter of Vincent Panikurlangara v. Union of India (UOI) and Ors.
,14 where the PIL was filed to seek directions, regarding the production and distribution and import, of such drugs which were recommended for banning and for the cancellation of all licenses of the same by the Drugs Consultative Committee. The petitioner also asked for a “direction from the Central Government to constitute a high-powered authority to find out the hazards suffered by people of the country on account of such drugs being in circulation and suggest corrective measures counting the award of compensation”. Therefore, the court held “that Article 21 of the Constitution guarantees right to health. The obligation of the welfare state is to guarantee life with normal amenities ensuring good living which include medical attention, life free from diseases and longevity up to normal exceptions”.
The magnificence of the judgment was that health was seen as a part and parcel of right to life.
13 (18.11.1997 - SC) : MANU/SC/1590/1998 last visited on 31 May2021
14MANU/SC/0985/1987
Hence, the above judgment throws light on the fact that the right to health consists of combination of other rights as well.
SECTION - III
National Health Protection Scheme -Ayushman Bharat 15 Intended Objective of the Policy Under the duty of DPSP Part IV of the Indian constitution, the public sector in India offers healthcare at little or no cost. In this regard, The Ayushman Bharat: National Health Protection Scheme AB-NHPS16 was launched by the central government on 25th September 2019 The scheme addresses one of the prime issues of healthcare system in our country. The Scheme, has been rolled out, covering approximately over 10 crore poor and vulnerable families providing them a cover up to 5 lakh rupees for secondary and tertiary care hospitalization17. Research conducted by the Government claims that about 63% of the people in our country have to bear the cost for their own protection scheme.
Ayushman Bharat policy aims to ensure that the smallest member of the target population is enrolled so as to be the part of the centrally sponsored schemes such as Rashtriya Swasthya Bima Yojana (RSBY) and the Senior Citizen Health Insurance Scheme (SCHIS). 18 Unintended objective of the policy The deliberation of AB-NHPS is praiseworthy, but the implementation of it seems to be challenging. Health is a state subject under the 7th schedule of the Indian constitution; therefore, the implementation of Ayushman Bharat as centrally sponsored scheme may possibly create difficulty in certain states. The rationale for this is straightforward as a major chunk of the hospitals/ medical centers are owned and operated by the states including All India Institute of Medical Sciences. Therefore, the responsibility lies with the state government to insure the supply of healthcare facilities.
Moreover the participation of states in scheme is for the development of the health care at a faster speed.
15 The schme was launched by the Modi led government on 23rd September 2018.
16https://www.livemint.com/Opinion/m8C6St66ulRHEgZ2ZBkcnN/Opinion--Ayushman-Bharat-a-criticalperspective.html last visited on 15 Feb 2024.
17 Supra note 16
18 https://www.india.gov.in/spotlight/ayushman-bharat-national-health-protection-mission.
In India, major chunk of population is deprived of basic health care facilities. Under such circumstances, one of the options is portable health care facility. Such type of facility allows the beneficiaries to avail cashless benefits at any hospital across the country of their choice. Currently, access to health services vary considerably across the country. According to National Health Profile, 2018, single allopathic government doctor is available for around 11,082 people crossways in the country, a figure more than 10 times the optional ratio of 1:100019 which in turn greatly reduces the accessibility of healthcare facilities in the entire country. The result will be influx of patients in states where infrastructure for health facilities is quite good. This will increase the burden on the state exchequer by negatively affecting their service provided to the public.
This will also mean relocation of wealth from the states where healthcare facilities is poor to the state where the same facilities are best. In the long run, the states having enhanced communications would be in the position to progress and the cost of this would be borne by the low-performing states. Centre and the state collusion can bear the positive externalities of healthcare by launching auxiliary schemes such as the Swacch Bharat Abhiyan to take care of the genuine hygiene to prevent diseases and not merely of their treatment.
SECTION -IV
Conclusion Even after 72 years of independence and continuous growth and development, India’s healthcare system is at the rear of other emerging economies. According to the latest UN data, the approximate population of India is 1,350,438,098. 20 As the population of India is rising at alarming rate with enormous diversity, it also brings an enormous challenge to the healthcare delivery system. This brings into sharp focus the WHO theme of 2018, which calls for “Universal Health Coverage- Everyone, Everywhere. ”21 There are certain crucial challenges which need to be tackled to provide health care to everyone everywhere particularly in the rural 19The NHP, 2018 is a comprehensive annual compilation of data highlighting the demographic, socio-economic, health status, finance, infrastructure and resources in the country and has released on a regular basis since 2005. 20http://www.
indiapopulation2019. in/last visited on 1Feb 2024. 21Arvind KasthuriChallenges to Healthcare in India - The Five A's Indian J Community Med. 2018 Jul-Sep.
India. India with 1. 37 billion (expected data)22 billion people has made vital improvement, as average life expectancy has increased to 65 years for male and female. As of now, it is also free from polio. Yet a larger section of India’s population is deprived of good quality healthcare. Improved healthcare facility enhances labour productivity which in turn results in the increase incomes of household ultimately breaking the vicious cycle of poverty. Right now, the major concern of the country is to fight with chronic diseases and promote healthy life. Our country is facing lot of difficulties in the prevention and treatment of non-communicable disease, which is a threat to health in middle life and beyond. Moreover there is a widespread perception that “health care has not been a political priority in India.
” The Indian healthcare system presents a complementary situation as high tech medical facilities are available in urban areas on the other end the rural areas are trying desperately to have the same . With the dynamic change in the this field the gaps are likely to widen more in the future. The law and policy laid by the government should bridge the gap efficiently to meet the guideline laid by the DPSP of our constitution. A very unique thing that can be noticed in the Indian population is lack of health awareness.
People do not pay attention to their health until and unless they are diagnosed with some serious health issues. The reasons are very clear as low educational status, poor practical literacy, and low priority for health in the population are prevalent among others. A review article on geriatric morbidity found that 20. 3% of participants were aware of common causes of prevalent illness and their prevention23 but at the same time, studies in Bihar and Jharkhand demonstrated improved levels of awareness and perceptions about abortion following a behavioral change intervention. 24 The note is very clear; efforts are needed to enhance awareness levels which have shown promising results. Therefore, government should implement policies to generate awareness of healthy life, by making mandatory the health education in the school and university levels. 22http://www. indiapopulation2019.
in/last visited on 15 Jan 2024. 23Tamanna MZ, Eram U, Al Harbi TM, Alrashdi SA, Khateeb SU, Aladhrai SA, et al. Clinical value of leukocyte counts in evaluation of patients with suspected appendicitis in emergency department. Ulus TravmaAcilCerrahiDerg. 2012;18:474–8. 24Banerjee SK, Andersen KL, Warvadekar J, Pearson E. Effectiveness of a behavior change communication intervention to improve knowledge and perceptions about abortion in Bihar and Jharkhand, India. IntPerspect Sex Reprod Health. 2013;39:142–51
While the National (Rural) Health Mission has done much to improve the infrastructure in the Indian Government healthcare system, still a lot of the primary health centers (PHCs) lack basic infrastructural facilities such as proper building beds, regular supply of electricity, wards, toilets, drinking water facility as well as clean labor rooms for delivery. Lack of qualified doctors is another big discouragement to the health-seeking behavior of the population. Therefore for the successful implementation of law and policy the basic facilities of the healthcare should be made compulsory. Under the obligation of DPSP of the Indian Constitution, the social services are the responsibility of states. Ironically the State has very limited revenue which creates high degree of fiscal imbalance for the implementation of such services.
Hence the budget allocation for the states for the said sector should be increased. The state should also endorse a traditional knowledge base and development of institutions to carry a national heritage by promoting Ayurveda, Homeopathy and Sidda Medicine, which will not only enhance the periphery of prevention and cure of diseases but will also increase employment opportunities. Last but not the least; state should imbibe within its philosophy mentioned in the Upanishads : “Om Sarve Bhavantu Sukhinah Sarv Santu Nir-Aamayaah Sarve Bhadraanni Pashyantu Maa Kashcid-Duhkha-Bhaag-Bhavet Om Shaantih Shaantih Shaantih. ”25 25It means that may everyone be happy, may everyone be free from all diseases, may everyone see goodness and auspiciousness in everything, may none be unhappy or distressed.