A.

INTRODUCTION
Health is a vital indicator of human development and human development is the basic
ingredient of economic and social development. In India, the right to health care and
protection has been recognized, since early times, Independent India approached the public as
the right holder and the state as the duty-bound primary provider of health for all. As our
country is a founder member of the United Nations, it has ratified various international
conventions promising to secure health care right of individuals in society. In Indian
Constitution does not expressly recognize the fundamental right to health. However, Article
21 of the Constitution of India guarantees a fundamental right to life & personal liberty. The
expression ‘life in this article means a life with human dignity & not mere survival or animal
existence. It has a much wider meaning which includes right to livelihood, better standard of
life, hygienic condition in workplace & leisure. The right to health is inherent to a life with
dignity, and Article 21 should be read with Articles 38, 42, 43, &47 to understand the nature
of the obligation of the state in order to ensure the effective realization of this right.

a. Definition of Health

According to World HEALTH organization, Health is a state of complete physical, mental

and social wellbeing and not merely the absence of disease.1

From the definition itself, it is clearly indicated that condition of life of the individual should
incorporate physical, mental & social well being & must be devoid of disease & infirmity.
Thus, this pioneering institution (WTO) has played the best supportive role in guiding health
policy development and action at the global and national levels, with an overall objective of
ensuring & attaining the highest standards of health care to all the people around the world.
WHO has not only given a wider definition to HEALTH but also brought the vision of
HEALTH CARE.

1
Preamble to the Constitution of the WHO as adopted by the International Health Conference (Official records of
the WHO, no 2, P. 100
 B. RIGHT TO HEALTH AS A HUMAN RIGHT UNDER INTERNATIONAL LAW
International human rights law plays an important role in international health law. Given that
international health law is aimed at the protection of health, the most important human rights
norm is the ‘right to the highest attainable standard of health’, in short, the ‘right to health’.
Arguably, the right to health features as a core standard in the field of international health
law, as it places the emphasis on the protection of individual health worldwide, and because it
emphasises the need to strive for equity in health.

The WHO was the first organisation to lay down a right to health. The preamble to the
Constitution of the WHO both defines ‘health’ and recognises health as a right. 2 In
connection with the right to health, the Preamble refers to the relation between health
problems and unequal development in different countries, to the importance of the healthy
development of the child, and to the importance of the informed opinion and active co-
operation on the part of the public: notions that still bear relevance today. The adoption of the
right to health by the WHO was a breakthrough in the field of international health and human
rights law and it created an important point of departure for the further elaboration of a right
to health in human rights documents.

The ‘right to health’ in the Constitution of the WHO has inspired the right to health
provisions that were drafted at a later stage, in particular Article 12 of the UN International
Covenant on Economic, Social and Cultural Rights (the ICESCR).3 Article 12 of the

2
Preamble to the Constitution of the World Health Organization, adopted 22 July 1946 (entry into force 7 April
1948).
3
Other right to health provisions can be found, inter alia, in Article 12 of the Convention on the Elimination of
all forms of Discrimination against Women (CEDAW, 1979) and Article 24 of the Convention of the Rights of
the Child (CRC, 1989). While 12 CEDAW focuses primarily on access to healthcare for women, Article 24
CRC covers the broader right to health of children, in referring not only to healthcare facilities, but also to
adequate food, drinking water and prohibition of harmful traditional practices. In addition to the above-
mentioned provisions, a number of other UN treaties and declarations exist that refer to a right to health. In
addition, the Convention on the Protection of the Rights of All Migrant Workers and Members of their Families
(MWC, 1990) places emphasis on equal access to medical care for migrant workers. Article 5(e)(iv) of the
Convention on the Elimination of All Forms of Racial Discrimination (CERD, 1965) is slightly more elaborate,
in that it provides in general terms that States Parties are to prohibit and eliminate racial discrimination in the
enjoyment of public health, medical care, social security and social services. Also worth mentioning are Rules
22 to 26 of the Standard Minimum Rules for the Treatment of Prisoners (1957), which lay down a number of
principles for the treatment of sick prisoners. Finally, the Conventions of the ILO contain numerous references
to a specific area of health, namely occupational health. Different in character is Article 25 of ILO Convention
No. 169 (1989), which explicitly recognises a right to health of indigenous and tribal peoples. Lastly, worth
mentioning is the Convention on the Rights of Persons with Disabilities (CRPD, 2006), which contains several
references to the health of disabled persons, including Article 25 on the right to health of disabled persons.
ICESCR contains a provision along the lines of the the WHO Constitution.4 It recognises the
‘right to the highest attainable standard of health’ and mentions four concrete undertakings
for States to realise this goal. In 2000, the Committee on Economic, Social and Cultural
Rights (the CESCR) adopted General Comment 14, an explanatory document to the right to
health in Article 12 of the ICESCR.5 While this document is not legally binding and can thus
be characterised as a ‘soft law’ instrument, it is considered authoritative by many scholars
and practitioners from the field.6 It mentions a range of important signposts for the right to
health which are frequently mentioned and applied by human rights scholars, NGOs, and
increasingly also by judicial bodies and State authorities.7

Firstly, General Comment 14 recognises that the right to health is not a right to be healthy,
but rather a broad human right extending not only to access to healthcare services but also to
the underlying determinants of health, including an access to safe and potable water and
adequate sanitation, healthy occupational and environmental conditions, and access to health-
related education and information.8

As such, the right to health has two dimensions: a right to healthcare services and a right to a
broad set of underlying conditions for health. So it has many cross-connections with the other
existing human rights (indirectly) aimed at protecting health, including the rights to
education, water and sanitation, and housing.

A further important component of General Comment 14 concerns the identification of a set of

guiding principles that apply with respect to all health-related services: States are to
guarantee the availability, accessibility, acceptability and quality of health facilities (the so-
called ‘AAAQ’).9

Accessibility has four overlapping dimensions: non-discrimination, physical accessibility,

economic accessibility (affordability) and information accessibility. 10 Furthermore, General

4
Brigit Toebes, The Right to Health as a Human Right in International Law(Intersentia/Hart, Antwerp/Oxford,
1999) 43
5
Committee on Economic, Social and Cultural Rights, The Right to the Highest Attainable Standard of Health,
UN General Comment No 14 (2000), UN Doc E/C12/200/4 (11 August 2000).
6
http://www.ohchr.org/EN/Issues/Health/Pages/SRRightHealthIndex.aspx
7
See also Helen Potts, Accountability and the Right to the Highest Attainable Standard of Health, University of
Essex Human Rights Centre/Open Society Institute <http://repository.essex.ac.uk/9717/1/accountability-right-
highest-attainable-standard-health.pdf>
8
General Comment 14 supra note 47 [8, 11]
9
Ibid [12]
10
Ibid [12]
Comment 14 defines a set of legal state obligations to ‘respect, protect and fulfil’ human
rights and also describes potential violations of states in relation to a right to health. 11 Lastly,
an important component of the General Comment is the definition of a set of legal core
obligations resulting from the right to health, minimum essential levels of health services
which States have to guarantee ‘at the very least’.12 As mentioned above, the minimum core
obligations were partly inspired by the WHO’s Primary Health Care Strategy. 13 This
‘minimum core’ may provide inspiration for the identification of minimum obligations in
specific settings such as humanitarian and man-made emergencies or periods of financial
crisis.

As was suggested above, the right to health could feature as a key standard in international
health law, thus reflecting the need to protect and promote the health of the world’s
population. When it comes to applying the right to health in this way, a word of caution is
also appropriate. The right to health has rightly been criticised for being imprecise, only
progressively realisable and often unenforceable.14 There is, thus, an urgent need to study the
potentials and limitations of the right to health in this context.

A specific concern is that, in the field of international health law, the right to health would
primarily be used as a ‘collective’ norm, protecting the health-related interests of a
community or the population at large. The right to health is then understood as a norm that
reflects the protection of ‘public health’. It is somewhat problematic to perceive the right to
health as a norm that pertains to collective claims; firstly, because as a human right the right
to health pertains to an individual rather than to a collective claim.15 This does not mean that
our existing individual rights cannot lead to collective claims, however. We could perceive
the right as materially conferred on individual members of a group, but procedurally looked
after by the collectivity. Hence this could potentially be overcome by perceiving the
collective right to health as a bundle of individual rights.16 An example of a legal mechanism
where the right to health and other economic and social rights are exercised in this way is the

11
Ibid, [33–37].
12
Ibid, [43–44].
13
WHO, Declaration of Alma-Ata, 6–12 September 1978.
<http://www.who.int/publications/almaata_declaration_en.pdf>
14
Lawrence O Gostin, Global Health Law (Harvard Univ Press, Cambridge, 2014)
15
Brigit Toebes, Human Rights and Public Health: Towards a Balanced Relationship, 19(4) Intl J Human
Rights (2015) 488–504.
16
Marlies Galenkamp, Collective Rights, in, SIM Special No 16 (Netherlands Institute of Human Rights,
Utrecht, 1995) 53–102, 70–71.
collective complaints procedure under the (Revised) European Social Charter, which is
monitored by the European Committee on Social Rights.17

Another concern in the collective exercise of the right to health is that there can be a tension
between this presumed public health component of the right to health and the civil and
political rights of individuals, including their rights to security, liberty, physical integrity,
privacy and family life, but potentially also their individual right to the best possible
healthcare. To give one example: in the 2014 Ebola crisis, measures had to be taken for the
protection of ‘public health’. However, at the same time, the rights of individual patients and
others involved in the crisis had to be respected and protected.18 This tension shows that if the
right to health is to be employed as a core standard in international health law, more research
should go into understanding how it can be applied in a sensible way without undermining
the rights of individuals.

In addition to the ‘right to health’, many other human rights are, in one way or another,
connected to health, including the right to life, the prohibition of torture as well as the rights
to information and education.19 Increasingly, therefore, reference is made to ‘health and
human rights’ as a distinct field of human rights law, so as to refer to the many intersections
between health and the various relevant human rights standards.20 Important concerns that are
addressed from this perspective include the position of vulnerable persons in healthcare
settings, reproductive health issues, medical-ethical issues such as abortion and euthanasia,
and the health protection of vulnerable groups such as women, children and the elderly. The
emerging human rights field of ‘health and human rights’ plays an important role in
international health law.

17
European Committee of Social Rights (Council of Europe), Collective Complaints Procedure
18
Brigit Toebes, Human Rights and Public Health: Towards a Balanced Relationship, 19(4) Intl J Human
Rights (2015) 488–504
19
The so-called ‘International Bill of Human Rights’ embraces the Universal Declaration of Human Rights
(UDHR, 1948), the International Covenant on Civil and Political Rights (ICCPR, 1966) and the International
Covenant on Economic, Social and Cultural Rights (ICESCR, 1966). The UDHR, which contains both civil and
political rights and economic, social and cultural rights, recognises a right to an adequate standard of living
(Article 25), which includes a right to medical care and necessary social services. While the ICCPR contains a
number of health-related civil and political human rights, including the right to life and the prohibition of
torture, the ICESCR recognises in Article 12 the ‘right to the highest attainable standard of health’.
Subsequently, a number of UN human rights treaties were gradually adopted that integrate civil and political
rights and economic, social and cultural rights.
20
Toebes, Introduction, in, Brigit Toebes et al, Health and Human Rights in Europe,(Intersentia, Antwerp,
2012), 13, 15–16.
 C. RIGHT TO HEALTH UNDER CONSTITUTION OF INDIA
a. Right to Health And The Preamble of The Constitution

The preamble of the Constitution of India, which strives to provide for welfare state with
socialistic patterns of society under the Article 21 of the Constitution, guarantees the right to
life & personal liberty. The concept of democratic socialism aims to improve the condition of
health care of the people. The principle of socialism is also embodied in various provisions of
part III & part IV of the Constitution. Socialist when the egalitarian principles are followed,
rights are valued & the dignity of each individual is upheld.21

b. Directive Principle of State Policy And Health

Part IV of the Indian Constitution which is DPSP imposed duty on states. If we only see those
provisions then we find that some provisions of them has directly or indirectly related with
public health. It directs the state to take measures to improve the condition of health care of
the people. Articles 38 impose liability on state that state secure a social order for the
promotion of welfare of the people but without public health we can’t achieve it. Article
39(e) related with workers to protect their health. Article 41 imposed duty on state to public
assistance basically for those who are sick & disable. Article 42 it’s a primary responsibility
of the state to protect the health of infant & mother by maternity benefit. Article 47 spell out
the duty of the state to raise the level of nutrition & the standard of living of its people as
primary responsibility.22 Some other provisions relating to health fall in DPSP. The state shall
in particular, direct its policy towards securing health of workers. State organized village
panchayats & give such powers & authority for to function as units of self government.

c. Panchayat, Municipality and Health

Not only the state but also panchayat, Municipalities are liable to improve and protect public
health. “The legislature of a state may endow the panchayats with necessary power and
authority in relation to matters listed in the eleventh schedule.”23 The entries in this schedule
having direct relevance to health are as follows;

 Drinking

 Health and sanitation including hospitals, primary health centers & dispensaries

21
Bakshi, P.M., “The Constitution of India”, Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2003
22
Javed V State of Haryna,AIR 2003 SC 3057
23
Article 243G of The Constitution of India
  Family welfare

 Women and child development

 Social welfare including welfare of the handicapped and mentally retarded

 Water supply for domestic industrial and commercial purpose

 Public health, sanitation conservancy and solid waste management

 Regulation of slaughter – houses and tanneries.

d. Fundamental Right And Health

The DPSP are only directive to the state. These are non – justifiable. No person can claim for
non- fulfilling these directions. Article 21 deals with “no person shall be deprived of his life
orpersonal liberty except according to procedure established by law”. The right to live means
something more, than more animal existence & includes the right to life consistently with
human dignity & decency. In numerous cases the Supreme Court held that right to health &
medical care is a fundamental right covered by Article 21 since health is essential for making
the life of workmen meaningful & purposeful & compatible with personal dignity. Article 23
is indirectly related to health. Article 23(1) prohibits traffic in human beings. It is well known
that traffic in women leads to prostitution, which is turn is to major factor in spread of AIDS.
Article 24 is relating to child labour it deal with “no child below the age of 14 years shall be
employed to work in any factory or mine or engaged in any other hazardous employment.
Thus this article directs the relevance to child health.24 In addition to Constitutional remedies
sensitizing of the relevant ordering law towards late health for all adds to the content of right
to health. Legal prohibition of commercialized transplantation of human organ and effective
application of consumer protection Act to deal with deficient medical services has animated
right to health.25

24
Shukla M N .Indian constitution, Central Law Agency Publication, 2013
25
Spring Meadow Hospital V Harijol Ahluwaliya, AIR 1988 SC 180
 D. JUDICIAL RESPONSE TOWARDS RIGHT TO HEALTH AND MEDICAL
ASSISTANCE
The Indian judiciary played a very active role by entertaining public interest litigation which
provides an opportunity to the judiciary to examine the socio economic and environmental
conditions of the oppressed, poor and the downtrodden people through PIL under Article 32
of the Constitution, the Supreme court has directed the government to implement the
fundamental right to life and liberty and executed protection measures in the public interest.
Likewise, the court also pointed out that fundamental right are intended to foster the ideal of
political democracy and to prevent the establishment of authoritarian rule but they are of no
value unless they can be enforces by resort to courts. But it does not mean that directive
principles are less important than fundamental rights or they are not binding on the various
organs of the stare the supreme court , while widening the scope of Article 21 of the
Constitution in Paschim Bangal Khet Mazdoor Samity & Others V State of West Bengal &
Others26 held that in a welfare state, primary duty of the government is to secure the welfare
of the people and more over it is the obligation of the government to provide adequate
medical facilities for its people.

The government discharges this obligation by providing medical care to the persons seeking
to avail those facilities. Article 21 impose 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 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 art 21. The
court made certain additional direction in respect of serious medical cases:

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

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

26
AIR 1996 SC 2426
  Facilities for given specialist treatment should be increased and having regard to the
growing needs, it must be made available at the district and sub divisional level
hospitals.

 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 patient from the
public health center to the state hospitals

 Ambulance should be adequately provided with necessary equipment and medical

personnel.

It is true that no state or country can have unlimited resources to spend any amounts on its
projects. Similarly providing medical facilities to an employee by the state cannot be
unlimited and this point has arisen in the case of State of PunjabV Ram Lubhaya
Bagga27,Where medical services under a policy continue to be given to and employee, to get
treatment in any private hospital in India, but the amount of reimbursement may be limited.

Such a policy does not leave this limitation to the free will of the director, but it is done by a
committee of technical experts. The Supreme Court held that if no scale or rate is fixed then
in case private clinics or hospitals increase their rate to exorbitant scales, the state would be
bound to reimburse the same. The principle of fixing of rate and scale under such a policy is
justified, and cannot be held to violate art 21 or art 47 of the Constitution. The court further
held that the state can neither urge nor say that it has no obligation to provide medical
facilities. If that were so, it would be exfacie in violation of art 21.

It is the primary duty of the state to provide for secured health to its citizen. No doubt the
government is rendering this obligation by opening government hospitals and health centre’s,
but to be meaningful they must be within the reach of its people and of sufficient liquid
quality.

27
AIR 1988 SC 117
Since it is one of the most sacrosanct and sacred obligation of state, every citizen of this
welfare state looks towards the state to perform this obligation with top priority including by
way of allocation of sufficient funds. This in turn will not only secure the rights of its citizen
to their satisfaction, but will benefit the state in achieving its social, political and economic
goals. This sacred obligation shall be carried out by the health professionals whenever they
are attaining the life of an accident victim with due care and diligence. In light of the above
statement, the Supreme Court, in its land mark judgment in Pramand Katara V Union Of
India & others28 ruled that every sector whether at a government hospital or otherwise has the
professional obligation to extend his services with due expertise for protection life. No law or
state action can intervene to avoid or delay the discharge of the paramount obligation cast
upon members of the medical profession. The obligation being total, absolute, and
paramount, laws or procedure whether in statutes or otherwise which would interfere with the
discharge of this obligation cannot be sustained, and must, therefore give way. Similarly
again the Supreme

Court in State of Karnataka V Manjanna29deprecated the tendency of refusal to conduct

medical examination of rape victims by doctors in rural government hospitals unless referred
by the police. The court observed ‘ we wish to put on record our disapproval of the refusal of
some government doctors, particularly in rural areas, where hospitals are few and far between
to conduct any medical examination of a rape victim unless the case of rape is referred to
them by the police’. The court added that such a refusal to conduct the medical examination
necessary results in a delay in the ultimate examination of the victim by which the evidence
of rape may have been washed away by the complainant herself or be otherwise lost, the
court, therefore, directed that the state must ensure that such a situation does not recur in
future. In CESE Ltd V Subhash Chandra Bose,30 the court held that, the health and strength
of worker is an integral facet of the right t life. The aim of fundamental rights is to create an
egalitarian society to free all citizens from coercion or restriction by society and to make
liberty available for all. The court, while reiterating its stand for providing health facilities in
Vincent V Union of India31, held that a healthy body is the very foundation for all human
activities. A three judge’s bench of the Supreme Court in Consumer Education & Research

28
AIR 1989 SC 2039
29
AIR 2000 SC 2231
30
AIR 1992 SC 573
31
AIR 1987 SC 990
Centre & others V Union of India32 ruled that right to health and medical care, to protect
health and vigour while in service or post.

All related article and fundamental rights are intended to make the life of the workman
meaningful and purposeful. Lack of health denudes him if his livelihood compelling
economic necessity to work in an industry exposed to health hazards due to indigence to
bread winning for himself and his dependants should not be at the cost of the health and
vigour of the workman.

The court further ruled that the jurisprudence of personhood or philosophy of the right to life
envisaged in art 21 of the Constitution enlarges its sweep to encompass human personality in
full bloom to sustain the dignity of a person and to live a life with dignity and equality. The
health of the worker is an integral facet of the right to life. In that case, health insurance while
in service or after retirement was held to be a fundamental right and even private industries
are enjoined to provide health in insurance to the workman.

Though the Supreme court of India in a series of judgments has declared the right to health
care to be fundamental right, it had not been given due recognition by the state. What is also
quite unfortunate is that in a country where poor and marginalized are more in members and
these people cannot afford paid services in any government and private hospitals, the state
should develop novel health insurance policies at a nominal rate.

32
AIR1995 SC 42
 E. NON - RECOGNITION OF RIGHT TO HEALTH AS A SEPARATE RIGHT
The National Health Policy (NHP) 2017, proposes an ambitious health agenda, especially
with regard to the enhancement of public spending on health from the current level of 1.15%
of GDP to 2.5 %. However, the policy does not address many issues pointed out in the draft
NHP 2015.33

The policy explicitly rejects the idea of legislation on the right to healthcare, thus also
negating the rights-based approach to health care. The policy states: “The policy while
supporting the need for moving in the direction of a rights based approach to healthcare is
conscious of the fact that threshold levels of finances and infrastructure as a precondition for
an enabling environment, to ensure that the poorest of the poor stand to gain the maximum
and are not embroiled in legalities. The policy, therefore advocates a progressively
incremental assurance based approach, with assured funding to create an enabling
environment for realizing health care as a right in the future”.

Further, it also states: “Right to health cannot be perceived unless the basic health
infrastructure like doctor-patient ratio, patient -bed ratio, nurses-patient ratio, etc. are near or
above threshold levels and uniformly spread -out across the geographical frontiers of the
country”.

The policy cites the following reasons for the rejection of separate legislation on the right to
health.

 First, India’s economic and health system development is not up to the level to make
the right to health justiciable i.e. legally enforceable by the courts.

 Second, since health falls within the state list there is a lack of clarity with regard to
the utility of a central legislation while the state government is responsible for health.

 Third, the lack of clarity with regard to the scope of the legislation: whether the focus
of the legislation should be on the enforcement of public health standards or the
obligation of the government to ensure entitlements on public health.

It elaborates on the operational challenges to make the right to health a legally enforceable
right and states: “Excellent health care system needs to be in place to ensure effective

33
Rao Mohan, “ Draft National health Policy 2015 : A Public Health Analysis”, EPW Vol50(17) 94-101.
implementation of the health rights at the grassroots level. Right to health cannot be
perceived unless the basic health infrastructure like doctor-patient ratio, patient -bed ratio,
nurses-patient ratio, etc. are near or above threshold levels and uniformly spread -out across
the geographical frontiers of the country”. This tantamounts to a rejection of the legal
obligation on the right to health, especially since the right to healthcare is a critical
entitlement of right to health guaranteed under various international legal instruments and the
Indian Constitution.
 F. CONCLUSION
The term Right to health is nowhere mentioned in the constitution yet the Supreme Court has
interpreted it as a fundamental right under Right to life enshrined in Article 21. It is a
significant view of the Supreme Court that first it interpreted Right to Health under part IV.
i.e. Directive Principles of state policy & noted that it is the duty of the state to look after
health of the people at large. In its wider interpretation of Article 21 it was held by the
Supreme Court that, the rights to Health is a part and parcel of right to life & therefore are of
fundamental right provided under Indian Constitution. In the real sense, the court has played
a pivotal role in imposing positive obligations as authorities to maintain & improve public
Health.

From a legal perspective, the government of India is under a legal obligation to protect the
right to health including the right to healthcare even in the absence of dedicated legislation.
This legal obligation emanates from the following facts. First, India has undertaken an
international obligation to protect the right to health through the ratification of various human
rights treaties. Second, both the Supreme Court of India and High Courts recognised the right
to health as a fundamental right that falls within the scope of Article 21 of the Constitution.

For achieving the Constitutional obligation and also objectives of Health care for all there is a
need on the part of the government to mobilize nongovernmental organization and the
general public towards their participation for monitoring and implementation of health care
facilities. retirement, is a fundamental right of a worker under article 21, read with articles
39(e), 41, 43,48A.