The Constitution of India also has provisions regarding the right to health. They are outlined the Directive Principles of State Policy- Articles 42 and 47, outlined in Chapter IV, and are therefore non-justiciable.
“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”
“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 he 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”[i]
The above articles act as guidelines that the State must pursue towards achieving certain standards of living for its citizens’. It also shows clearly the understanding of the State that nutrition, conditions of work and maternity benefit as being integral to health.
Although the DPSP quoted above are a compelling argument for the right to health, this alone is not a guarantee. There must be a clearly defined right to health so that individuals can have this right enforced and violations can be redressed.
The Indian judiciary has interpreted the right to health in many ways. Through public interest litigation as well as litigation arising out of claims that individuals have made on the State, with respect to health services etc. As a result there is substantial case law in India, which shows the gamut of issues that are related to health.
The Fundamental Right to Life, as stated in Article 21 of the Indian Constitution, guaranties to the individual her/his life which or personal liberty except by a procedure established by law. The Supreme Court has widely interpreted this fundamental right and has included in Article 21 the right to live with dignity and “all the necessities of life such as adequate nutrition, clothing….”. It has also held that act which affects the dignity of an individual will also violate her/his right to life.[ii]. Similarly in Bandhua Mukti Morcha Vs Union of India, the Supreme Court has held that the Right to life includes the right to live with dignity.
The recognition that the right to health is essential for human existence and is, therefore, an integral part of the Right to Life, is laid out clearly in Consumer Education and Resource Centre Vs Union of India[iii]. It also held in the same judgment that humane working conditions and health services and medical care are an essential part of Article 21.
Further in, State of Punjab and Others v. Mohinder Singh[iv] “It is now a settled law that right to health is integral to right to life. Government has a constitutional obligation to provide health facilities.”Apart from recognizing the fundamental right to health as an integral part of the Right to Life, there is sufficient case law both from the Supreme and High Courts that lays down the obligation of the State to provide medical health services.
This has been explicitly held with regard to the provision of emergency medical treatment in Parmanand Katara Vs Union of India [v]. It was held that “Every doctor whether at a government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life”.
The issue of adequacy of medical helath services was also addressed in Paschim Baga Khet Mazoor Samiti Vs State of West Bengal.[vi] The question before the court was whether the non-availability of services in the government health centres amount to a violation of Article 21? It was held that that 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. Therefore, the failure of a government run health centre to provide timely treatment, is violative of a person’s right to life. Further, the Court ordered that Primary health care centres be equipped to deal with medical emergencies. It has also been held in this judgement that the lack of financial resources cannot be a reason for the State to shy away from its constitutional obligation.
In Mahendra Pratap Singh v. State of Orissa[vii], a case pertaining to the failure of the govrnment in opening a primary health care centre ina village, the court had held “In a country like ours, it may not be possible to have sophisticated hospitals but definitely villagers within their limitations can aspire to have a Primary Health Centre. The government is required to assist people get treatment and lead a healthy life. Healthy society is a collective gain and no Government should make any effort to smother it. Primary concern should be the primary health centre and technical fetters cannot be introduced as subterfuges to cause hindrances in the establishment of health centre.” It also stated that, “ great achievements and accomplishments in life are possible if one is permitted to lead an acceptably healthy life”. Thereby, there is an implication that the enforcing of the right to life is a duty of the state and that this duty covers the providing of right to primary health care. This would then imply that the right to life includes the right to primary health care.
The instrument of Public Interest Litigation used by Common Cause,[viii] addresses the issue of the working of commercial blood banks. The court while recognizing that blood donation is considered as a great life saving service to humanity, it must be ensured that the blood that is available with the blood banks for use is healthy and free from infection. The Supreme Court in this case laid down a system of licensing of blood banks. It may be inferred from the above reasoning that the State is entrusted with the responsibility in matters of health, to ensure efficient functioning all centres relating to health care.
More recently the Supreme Court has addressed the epidemic of HIV/ AIDS. In a case where the court had to decide whether an HIV positive man should disclose his condition to the woman he was to marry, the court has held that “the woman’s right to good health to precedence over the man’s right to privacy”.[ix] It found that the hospital did not error in disclosing his status to his fiancé. In MX VS ZY[x], the Bombay High Court found that if a person were fired from his employment solely because of his HIV positive condition, it would be condemning a person to "certain economic death".
While the provision of health services is essential to ensure good health, there are several others factors that influence a person’s health. The Supreme Court has recognized this in a number of ways. This was first addressed in Bandhua Mukti Morcha V Union of India,[xi] a case concerning the living and working conditions of stone quarry workers and whether these conditions deprived them of their right to life. The court held that humane working conditions are essential to the pursuit of the right life. It laid down that workers should be provided with medical facilities, clean drinking water and sanitation facilities so that they may live with human dignity.
In Citizens and Inhabitants of Municipal Ward v. Municipal Corporation, Gwalior the court deliberated on the question- Is the State machinery bound to assure adequate conditions necessary for health? The case involved the maintaining of sanitation and drainage facilities by municipal corporartions. It was held that the State and its machineries (in the instant case, the Muncipal Corporation) are bound to assure hygienic conditions of living and therefore, health.
The Karnataka High Court has deliberated on the right of an individual to have access to drinking water. In Puttappa Honnappa Talavar v. Deputy Commissioner, Dharwad [xii], the High Court has held that the right to dig bore wells therefore can be restricted or regulated only by an Act of legislature and that the right to life includes the right to have access to clean drinking water.
The High Court of Rajasthan has held that stray animals in urban areas pose a danger to people and also cause nuisance to the public.[xiii] The question before the court was, does the negligence of restraining the number of these animals violate Art 21 of the public at large? The court found that stray animals on the road interfere with transportation, polluted the city and therefore posed a health risk to people. It was held that public nuisance caused by these stray animals was a violation of Art. 21,of the public at large.
With regard to maintaining a clean environment, which is critical to a person’s health, there are many questions that Courts have deliberated on. For example in Municipal Council, Ratnam v Shri Vardichan [xiv], where the Court had been called upon to decide whether municipalities are obligated to maintain certain conditions to ensure public health. It was held by the court that a public body constituted for the principal statutory duty of ensuring sanitation and health is not entitled to an immunity on breach of this duty. Further, “pollutants being discharged by big factories… are a challenge to the social justice component of the rule of law”.
Also in Santosh Kumar Gupta v Secretary, Ministry of Environment, New Delhi[xv], contended that the policy, controls/regulations and their implementations are inadequate thereby causing health hazards. In its judgements, the High Court of Madhya Pradesh has laid down that pollution from cars poses a helath hazard to people and that the State must ensure that emission standards are implemented maintained.
In the land mark MC Mehta v Union of India[xvi], the Supreme Court has held that environmental pollution causes several health hazards, and therefore violates right to life. Specifically, the case dealt with the pollution discharged by industries into the Ganges. It was held that victims, affected by the pollution caused, were liable to be compensated.
There is sufficient case law on the issue of health in State run institutions such as remand homes for children and “care homes”. In Sheela Barse v Union of India and Another [xvii], a case pertaining to the admitting of non-criminal mentally ill persons to prisons in West Bengal, the Supreme Court has held that “(1) Admission of non-criminal mentally ill persons to jails is illegal and unconstitutional…. The Judicial Magistrate will, upon a mentally ill person being produced, have him or her examined by a Mental Helath Professional/Psychiatrist and if advised by such MHP/Psychiatrist send the mentally ill person to the nearest place of treatment and care.” It has further directed the state to improve mental health institutions and integrate mental health into primary health care, among others.
Further in Sheela Barse v Union of India and others[xviii], the Supreme Court has entrusted to High Courts the duty to monitor the conditions of “mentally ill and insane” women and children in prisons and pass appropriate orders from time to time.
In the most recent case involving the death of 25 inmates of a mental helath institution in Erawadi, Ramnathapuram District[xix] as they were chained to poles or beds and could not escape from a fire that broke out, the Supreme Court has directed the state to implement the provisions of the mental health act as well s undertake a survey of all institutions that provide mental health facilities and ensure that they are maintaining standards of care.
From the above discussion of cases it is evident that the judiciary has clearly read into Article 21, Right to Life, the right to health. It in fact has gone deepr into the meaning of health and has substantiated the meaning of the the right to life.
The question that must be discussued more thoroughly is whether an amendment to the Constitution, which will state the fundamental right to helath, is desirable. Enumerated rights have an edge over wider interpretations of existing rights, as States can be held accountable for violations. However, with the extensive case law that is available is it not possible to use what is available to ensure that health care, facilities and condition ensuring health are fundamental rights of every citizen? If the case law reflects the ability of the courts to read the meaning of ‘health’ in very wide sense (everything from the responsibility of the municipal corporation to provide sanitation facilities down to access to emergency medical treatment has been interpreted in the right to health) then why not use the instrument of case law to confer rights? It is this question that must be examine in the light of the recent amendment guaranteeing primary education for all. Th process that led upto the amendment must be looked at crtically as well as how the implementation of it is currently taking place.
Also, closely associated with helath are the issues of nutrition and clean drinking water, which must be available through out the year. The judiciary has read into Article21, the right to food. These are complementary rights, the guaranteeing of the right to health, will have no meaning without the others.
Any amendment guaranteeing the right to health should have a focus on primary health care, which is preventive and curative. It should also have specific focus on the health of women- more specifically reproductive health, children, and the disabled- both physically and mentally.
Keeping this in mind there must be more detailed examination of an amendment to the Constitution, guaranteeing the right to health.
[i] Part IV, Constitution of India adopted on 26th November 1949
[ii] Mullin Vs Union Teritory of Delhi
[iii] AIR 1995 SC 636
[iv] AIR 1997 SC 1225
[v] AIR 1989 SC 2039
[vi] AIR 1996 SC 2426
[vii] AIR 1997 Ori 37
[viii] AIR 1996 SC 83
[ix] AIR 1999 SC 495
[x] MX v. ZY, A.I.R. 1997 Bom. 406
[xi] A.I.R. 1984 S.C. 802, 808
[xii] AIR 1998 Kar 10
[xiii] Sanjay Phophaliya v. State of Rajasthan, AIR 1998 Raj 96
[xiv] 1980 (4) SCC 162
[xv] AIR 1998 MP 43
[xvi] A.I.R. 1987 S.C. 1086
[xvii] 1993-(004)-SCC -0204 -SC
[xviii] 1995-(005)-SCC -0654 -SC
[xix] 2002-(003)-SCC -0031 -SC