RIGHT TO HEALTH UNDER THE CONSTITUTION OF INDIA

 

PRIMER

Health, Education, Life and Personal Liberty are the supplements for the development of a country. Health is the quintessential factor for the development of a country as human development will lead to socio-economic development. The Indian Constitution, 1950 has recognised certain provisions for the right to health and even the Supreme Court has declared that the right to health is a fundamental right coming under Article 21. There are various provisions in the Constitution which certainly deals with the health of its citizens. Right to health and health care is the need to give better health conditions to human life. It is that important right which needs to be to exercise our other rights. Directive Principles of state policies even, do have certain provisions of right to health apart from Fundamental Right with a perspective to give protection to the citizens at large. The central advantage of health care system from right to health viewpoint is that to establish an equal right to health and oblige to the state to ensure and safeguard it. There are some drawbacks in the working of the state even that they are not giving recognition to right to health which is unfortunate for this developing country where the marginalised section of the society is suffering at a large. In this paper, a clear attempt is made to analyse right to health within the Constitution of India with some medico-legal cases with a complete doctrinal research method.

According to Salmond, every right has a corresponding duty to be fulfilled and there can be no right without parallel element of duty.

Article 21 of the constitution of India provides life and personal liberty. The word life has a wider meaning. The word life includes all the variety of life which go to make up the personal liberties of a person either male or female.

The aspect of life, which makes a person live with human dignity are included within the meaning of life. The protection under the article is enjoyed by both citizen and non-citizens.

Our parliament, the highest political institution in the country, has always been energetic to meet the needs of the society. The Parliament makes, alter or change in any Article as per the call of the society. The most important thing about the ‘change’ is whenever there is change in the society then the law also needs to change or made.

The Indian parliament has done much to improve the social pattern of citizens by enacting social welfare legislations. These legislations are framed in order to achieve the goal set in our constitution.

 

PROVISIONS RELATING TO HEALTH

 

Article 21 of the constitution lays down that “no person shall be deprived of his life or personal liberty except according to procedure established by law”. This article has been interpreted in the widest possible manner so as to include a variety of fundamental rights including right to health. The word ‘procedure established by law’. Though the right to health has not been expressly identified in the Indian Constitution under Article 21 still the Supreme Court of India has declared the right to health as a constitutional right taking references with the International Law. Constitution of India is the supreme law of the land which advocates every other law of the country. Article 21 of the Indian Constitution guarantees the right to life and personal liberty. Here, the expression ‘life’ denotes the life with dignity and not only the mere survival with having a wider explanation to have everything to live a life of a better standard. Furthermore, it is not only the Fundamental right but even the Directive Principles of State Policy do have certain provisions for the better standard of health hence it is the duty of the state to implement the directives to give the citizens more benefits on the right to health. Article 21 of the Indian Constitution should not be interpreted alone it should be combined with more articles such that Article 38, 42, and 47 to have the clear understanding on the nature of the responsibility of the State to ensure better health condition in the ambit of the right to health.

 

MEANING OF HEALTH

“According to the World Health Organization definition of Health is a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity.” The definition itself is sufficient to explain that what health is? World Health Organization has not only given us the definition of health but also a wider aspect of health with health care. The right to health means that everyone has the right to attain the highest sustainable condition with the basic needs of sanitation, food, safe water, maternal and child health care, housing, healthy environment, medical assistance, family planning and better working conditions. The provision of health protection should also be included. Medical assistance means in the broader sense that hospitals, clinics, doctors and medical services should be easily available and accessible to all whenever and wherever they need in a good condition and it should be guaranteed to every citizen. The State should ensure a proper infrastructure all around the area to make medical assistance easily accessible to all.

Health has been defined to mean a state of absolute mental, physical and social wellbeing, and therefore is not only restricted to merely absence of diseases. The definition has been further simplified to include ability to lead economically as well as social productive life. This led to the expansion of the dimensions and scope of right to health which has multiple effect on the duty and responsibility of the health professionals along with their relationship with the society at large.

 

HOW A PERSON GET BETTER HEALTH?

 There can be various elements for the right to health which are as follows:

  1. The right to proper and correct health care at affordable price so that

the poor people can avail the facility.

    2. The right to sufficient supply of water, food, shelter and nutrition.

Though the Govt. provide the food to the children in Govt. school but due to some greedy people the safe food could not reach to the children. In the current epidemicsituation of Covid-19, the government are providing foods to all people who cannot able to meet their food

    3. The right to have a safe and healthy working environment is very

essential component to stay healthy. One cannot stay health in stress.

     4. The right to know every information about a better health and care.

There should be health awareness sessions in every village. So that the poor persons can get the treatment on time.

 

It is the fundamental right of the citizens to have all the information and have access to all health-related problems, such as HIV AIDS, cancer and other diseases. They should know the side effects of the excessive use of cigarettes, drugs and alcohols. They should be aware of the laws regulating the child violence and domestic violence. They should be made aware of the new technical and safe medical practices in place of old traditional practices.

It is the duty of the State as well as the people to get involved and make involvement from both the sides to have better health laws. They should make communities for such discussion and promote the viewpoints. They should involve the participation at both national and international levels. They should be encouraged in political decision making as well that are related to health.

 

The Preamble of the Constitution of India talks about India being a Republic State with social, economic and political justice. It talks about equality both in status and opportunities. It even talks about welfare state with a socialistic manner of the society which clearly comes under the ambit of article 21 of the Indian Constitution which talks about the right to life and personal liberty. Socialistic principles are evident in both Part III and Part IV of the Constitution in which rights of the individual and dignity are protected. The term “Social Justice” hereby, means that everyone should be given access to health care facilities equally. There should even be equality in the being the medical practitioner as well as having medical education so that the socio-economic conditions of the citizens can be improved. Article 21 of the Indian Constitution clearly says that “no person shall be deprived of his life or personal liberty except according to the procedure established by law”. In SiddharamSatlingappaMhetrev.State of Maharashtra, A.I.R. 2011 1 S.C.C. 694, Right to life is one of the basic human rights and not even the State has the authority to violate that right.Right to health and proper health care is also a part of basic human right without health care there will be no living with dignity and the life will be just mere existence. “Life”, in the Article 21 is not merely the physical act of breathing. Right to life having a wider ambit includes right to good health care system as well as the right to have medical assistance when needed. No one should be deprived of these facilities in any situation. The citizens should have the benefit of medical insurance and aid. The Supreme Court relied on the international instruments and finally came to the conclusion that the right to health is a Fundamental Right (CESC Ltd. vs. Subash Chandra Bose, A.I.R 1992 S.C. 573,585). There are many cases in which the Supreme Court has said the right to health is Fundamental Right coming under article 21 with a proper medical care. Right to life includes the right to health (State of Punjab v. Mohinder Singh Chawala A.I.R 1997 S.C. 1225). The government is under the constitutionally obliged to provide its citizens with proper health facilities and those who cannot afford it should get subsidized rates and some medical health care should be free of cost. The hospitals are under obligation to provide a casualty medical treatment on time so as the patient should not lose his life hence violating the right to life of the patient. Numerous Public Interest Litigations have been filed in the court of law for the violation of the right to health.

 

DIRECTIVE PRINCIPLE OF STATE POLICY FOR HEALTH IN THE CONSTITUTION ON INDIA

Coming to the Part IV the Directive Principle of State Policy in the Indian Constitution which has incorporated many articles related to the right to health into it but the issues arising here is that they are non-justiciable. Article 38 of the Indian Constitution says that “State to secure a social order for the promotion of the welfare of the people” thereby meaning that for securing the welfare of the people the State has to provide proper healthcare. Therefore, the State needs to focus on the psychological and physical health of the people irrespective of their social, economic, and political status. Article 42 of the Indian Constitution says that “Provision for just and humane conditions of work and maternity relief” thereby meaning the State is obliged to provide a healthy and friendly environment at work, such conditions should be made available to all the citizens without any discrimination. The State has to intervene to provide and secure proper conditions at work as well as provide the mother with the maternity relief of some months which the government is doing in our country since years including anti-natal and post-natal.

 

REMEDY IN CASE OF BREACH OF RIGHT TO HEALTH

As it has been already discussed above that there is no direct provision relating to Right to Health under the Indian Constitution. But, however, there are some provisions relating to Health under the Directive Principles of State Policy.

The common remedies available to a citizen in respect of breach of Right to Health are articles 32 and 226 of the Indian Constitution. Under article 32 and 226 the Supreme Court and the High Court has a power to issue orders and writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

 

                                                         

                  

 

                             Muskan Khandelwal

BBA with LL.b (8 th sem)

                                Sangam University ,

Bhilwara

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