UNIT I
Good health, free from disease, is not only the very foundation for a healthy
life, but equally recognized as a human right and a constitutional
fundamental. Health, being one of the essential components of an adequate
standard of living is always accompanied by the legal regulations.
a. What is right to health:
The right to health includes healthy environment to live or work in, and
access to adequate health care facilities including medical, preventative, and
mental, nutrition, sanitation, and to clean water and air.
While the availability, accessibility, acceptability and quality of these is
important, the question of access to drugs stands out in the context of the
TRIPs Agreement.
b. Constitutional Provisions:
The humbler the Indian human, the higher the state's duty to protect the
person
The obligation on the State to ensure the creation and the sustaining of
conditions congenial to good health is cast by the Constitutional directives
contained in various articles viz: .
The Preamble to the Constitution which gives a broad direction for the
Indian Republic, refers to social, economic and political justice and also
equality of status and of opportunity. Under the term Social Justice, one can
bring in the question of access to health care facilities and the principle of
justice involved in the equality of access to these facilities
Article 21 of the Constitution guarantees protection of life and personal
liberty by providing that, No person shall be deprived of his life or
personal liberty except according to the procedure established by
law.
As a result of liberal interpretation of the words life and liberty, Article 21
has now come to be invoked almost as a residuary right. Public interest
petitions have been founded on this provision for providing special treatment
to children in jail; against health hazards due to pollution; against health
hazards from harmful drugs; for redress against failure to provide immediate
medical aid to injured persons; against starvation deaths; against inhuman
conditions in after-care home and on scores of other aspects which make life
meaningful and not a mere vegetative existence. A positive thrust is given to
the nature and content of this right by the Apex Court imposing a positive
obligation upon the State to take effective steps for ensuring to the
individual a better enjoyment of his life. The Supreme Court has held that the
right to live with human dignity enshrined in Article 21 derives its life and
breath from the directive principles of State. Few of the landmark cases are
as under:
Parmananda Katara v. Union of India AIR 1989 SC 2039
Article 21 of the Constitution casts the obligation on the State to preserve
life.
Paschim Bang Khet Mazdoor Samiti v. State of W.B. (1996) 4 SCC 37
The Supreme Court held that Art. 21 imposes an obligation on the State to
provide medical assistance to every injured person. Preservation of human
life is of paramount importance.
Consumer Education and Research Centre v. Union of India (1995) 3
SCC 42
Right to Life in Art. 21 does not connote mere animal existence. It has a
much wider meaning which includes right to livelihood, better standard
of life, hygienic conditions in workplace and leisure.
Kirloskar Brothers Ltd. v. Employees State Insurance Corporation
(1996) 2 SCC 682.
The Supreme Court, following the above case, held that right to health is a
fundamental right. The Court further held that it is a right not only
available against the State and its instrumentalities but even
private industries
State of Punjab v. Mohinder Singh Chawla AIR 1997 SC 1225
right to health has been declared a fundamental right under the Constitution
of India and State is obliged to provide adequate condition for healthy life.
Article 39(e)
- health and strength of workers, men and women, and the
tender age of children are not abused and that citizens are not forced by
economic necessity to enter avocations unsuited to their age or strength
Article 39(f)
- children are given opportunities and facilities to develop
in a healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and against moral
and material abandonment.
Article 42 - The State is required to make provision for just and humane
conditions of work and for maternity benefit.
Article 47
- It is the primary duty of the State to endeavor the raising
of the level of nutrition and standard of living of its people and improvement
of public health and to bring about prohibition of the consumption, except for
medicinal purposes of intoxicating drinks and of drugs which are injurious to
health.
ARTILCE 51A(a)It shall be the duty of every citizen to protect and improve
the natural environment including forests, lakes, rivers and wild life, and to
have compassion for living creatures
Article 243G and 243W empowers panchayats and municipalities
respectively , with such powers and authority and may be necessary to
enable them to function appropiatley for the preparation of plans for
economic development and social justice;
VII Schedule:
State List- Entry 6 : State legislature is empowered to make laws with
respect to public health and sanitation, hospitals and dispensaries.
Concurrent List Entries 23, 26 and 29 : Both the Centre and the States
have power to legislate in the matters of social security and social insurance,
medical professions, and, prevention of the extension from one State to
another of infections or contagious diseases or pests affecting man, animals
or plants, by entries 23, 26 and 29 respectively contained in the concurrent
list of the Seventh Schedule.
International Scenario on Right to health
Right to health has also been a concern at the international community and
the same can be seen from the various declarations and conventions.
Universal Declaration of Human Rights, 1948: Article 25
guarantees a right to adequate standard of living for the health and well-
being of a person and his family including food, clothing, housing and
medical care and necessary social services, and the right to security in the
event of unemployment, sickness, disability, widowhood, old age or other
lack of livelihood in circumstances beyond his control.
International Convention on the Elimination of All Forms of
Racial Discrimination 1965: Under article 5 (e) (iv) the right to health is
recognized.
International Convention on the Elimination of All Forms of
Racial Discrimination, 1969: Article 5 in compliance with the
fundamental obligations laid down in article 2 of this Convention, requires
the States Parties to prohibit and to eliminate racial discrimination in all its
forms; guarantees social, economic and cultural right of everyone, without
distinction as to race, colour, or national or ethnic origin Article 7, 11 and
12 recognize the right of everyone to ... just and favourable conditions of
work.
International Covenant on Economic, Social & Cultural Rights,
1976: Article 12 recognizes the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health... and also requires
the State to take necessary steps for the reduction of the stillbirth-rate and
of infant mortality and for the healthy development of the child; for the
improvement of environmental and industrial hygiene; for the prevention,
treatment and control of epidemic, endemic, occupational and other
diseases, etc.
Committee on Economic, Social & Cultural Rights : General
Comment 14: Article 12 guarantees the highest attainable standard of
health.
Convention on the Elimination of All Forms of Discrimination
against Women, 1979: Article 11, 12 and 14 assures the safety in
working conditions, appropriate measures to eliminate discrimination against
women and providing special attention and care to women.
Convention on the Rights of the Child, 1989: Article 24 requires
the State to ensure that no child is deprived of his/ her right of highest
attainable standard of health and access to such health care services set
forth in the present Convention and in other international human rights or
humanitarian instruments to which the said States are Parties.
African [Banjul] Charter on Human and Peoples' Rights: Article
16 recognises the right of everyone to enjoy the best attainable state of
physical and mental health.
Similarly the entire Constitution of the World Health Organization is relevant
to the right to health without distinction of race, religion, political belief,
economic or social condition."
Several regional human rights instruments also recognize the right to health,
such as the European Social Charter of 1961 as revised (art. 11), the African
Charter on Human and Peoples' Rights of 1981 (art. 16) and the Additional
Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights of 1988 (art. 10). Similarly, the right to
health has been proclaimed by the Commission on Human Rights as well as
in the Vienna Declaration and Programme of Action of 1993 and other
international instruments.
Thus, various Conferences, Treaties, Declarations, Conventions, etc have
been made at the international era to recognize the right to health and a
duty has been caste upon the state to provide such adequate means and
conditions for the enjoyment of such right. India is also a member of most of
the above.
Thus, on the one hand, it is the duty of the Government to provide adequate
facilities for a healthy life, while on the other hand, TRIPS requires the states
to provide for the product patent resulting in the hike of the drug prices and
ultimately posing a severe question of affordability. Thus, it is difficult to
determine, whether right to health is a myth or reality?