SYNOPTICAL OUTLINE

· Introduction

· Evolution of the concept of the Right to Health

· Arguments and Criticism · Health under Constitution

· Role of Judiciary

-Paschim Banga Khet Mazdoor Samity v. State of West Bengal

-Occupational Health & Safety Association v. Union of India & Ors.

-Bandhua Mukti Morcha v. Union of India

-Unnikrishnan. JP v. State of Andhra Pradesh

-Mahnedra Pratap Singh v. State of Orrisa

· Conclusion
INTRODUCTION
All have known and believed one thing, “health is wealth”. Right to health care benefits is very
adequately understood and is being practiced. The UN has adopted various resolutions for
safeguarding the right to health. It’s almost a year of this pandemic, and we are still at our
homes. This pandemic has shown us the need for health care needs and the fact that it should be
considered as our fundamental right. The medical sector needs to be grown and the citizens
should get complete assistance of the health sector. 13 According to the World Health
Organization, the word Health refers to a state of complete physical, mental and social well-
being and not merely the absence of disease or [Link] is referred to the enjoyment of the
highest attainable standard of health is one of the fundamental of every human being regardless
of the race, religion, political believe etc.3 . “Right to health is not included directly as a
fundamental right under constitution of India. This duty is on the state to ensure social and
economic justice by Part IV of the constitution. These provisions are directly or indirectly related
to public health.” This statement has made it pretty clear that our constitution doesn’t recognize
right to health as a fundamental right but it has surely taken care of it under part IV, under
“Directive Principles of State Policy”. Our Constitution has Given power to this state to take care
of the health services of each individual. Though this right is not a fundamental right but it is one
of the human rights that has to be protected.

EVOLUTION OF THE CONCEPT OF THE RIGHT TO HEALTH

The universal Declaration of Health Rights, 1984 has mentioned health as a part of right to an
adequate standard of living that relates to Article 25. Even before this, WHO Constitution stated
that every human being has the right to enjoy the highest attained standard of health. Right to
health must not only refer to timely and correct medical assistance but also to clean and safe
working conditions, proper sanitation, safe and clean drinking water etc. Every country in some
way or the other has international treaty that relates to healthcare and its practices. In 2002, The
Human Rights Council created the mandate of Special rapporteur on the right of everyone to the
highest attainable standard of physical and mental health. Even the UN Special procedures talk
about health and have a direct or indirect link to it. Jonathan Mann said, health and human rights
are complementary approaches for defining and advancing human well-being. Health Equity
relates that states have a special obligation to provide those who doesn’t have sufficient means.
Discrimination should not be made on any basis for providing healthcare benefits and advances.
3 Inernational Journal of Legal Department and Allied Issues. Right to Health: A Basic Human
Right. The Law Brigade Publishers. May 24, 2017. [Link]
law/right-to-health-a-basic-human-right/ 14 Right to health phenomenon can be tracked in the
law of torts also. Right to health care and protection has been recognized by India in the early
times. There are many international conventions on this right being recognized. In this regard a
number of committees have been made and discussions have taken place. Several
recommendations were made on the same. By these committees there have been a change and
right to health has been referred and preferred4 .

ARGUMENTS AND CRITICISM

It is not that from the very beginning the right to health was protected. There were many who
did not support this. It was said, health care should not be considered as a human right because it
was very much difficult to define what “minimum standards’’ would be counted in. It was also
said that it is very unclear about who will hold the responsibility of the healthcare and give the
advancements. Right is defined as something that has to be protected at all costs and should be
something that the judicial system has defined or explained. It was also said that making health
care a right would make government spend a large amount of its resources to provide with it. As
the resources are limited, even the government would not be able to fulfil all. Attempting to
provide everyone with limited resources would result in the economic collapse. The resource
constraints make it almost impossible to provide such resources to all.

HEALTH UNDER CONSTITUTION

When the term “Human Rights” is used under our constitution, it includes right to health and
access to medicines in sufficient quantities is also included. Many Articles and provisions under
the constitution protects the right to health even if it has not been recognized as a fundamental
right. In the Directive Principle of State Policy, in the Constitution of India has the power related
to the health healthcare provisions. In part IV of the Constitution the basis for the right to health
is provided. Under Articles 14,15,21,32,39(E),42,47,48(a),226,243G etc. Article 15, it contains
provisions for the application of a principle of “equality of treatment” embodied in Article 14. It
says that there should be no discrimination on grounds of caste, race 4 Dr. Soumitra Kumar
Chatterjee. Right to Health, Constitutional Safeguards and Role of Judiciary. Odisha
Government Magazine Review. Apr, 2006.
[Link] 15 etc. and this should
be applied on the healthcare benefits as well. Every person should have a right to visit a doctor
and seek medical help. If they themselves aren’t able to do so, they may seek states help for the
same5 . Article 21, of The Indian Constitution states, no person shall be deprived of his life or
personal liberty accept according to the procedure established by law. After the judicial
interpretation of the given article, one came to know the three elements in it:
• Right to Health – When a person falls sick, its his right to seek treatment. The same person has
the right to move to the court and demand for the same if not fulfilled.
• Right to Pollution free environment – This includes the demand to live in a pollution free
environment to support the individualism and support the wellbeing.
• Right to Doctor’s assistance – It states that every doctor either government or private, has a
professional obligation to extend his services for protecting life. SC has always suggested that
during any emergency, the formalities aren’t but the patient’s life is to be preferred. In India, in
all ways and manner, right to health is secured. Article 32 and Article 226, both these rights have
power to issue writs, directions or order in the Supreme Court and the High Court respectively.
Article 226, cannot be suspended even during an emergency. If any violation of our right to
health takes place, we can approach respected courts through these two articles. Article 39 Art
39(b) – the health and strength of workers, men and women, and the tender age of children are
not abused and the citizens are not forced by economic necessity to enter avocations unsuited to
their age or strength. Art 39(e) – It directs the state to secure health of workers. Art39(f) – talks
about the providing a healthy environment for children so that they grow and are against moral
and material abandonment. This is also in some way or the other related to the fulfilment of right
to health6 . 5 Nishant Sirohi. Declaring the right to health a fundamental right. Health Express.
Observer Researcher Foundation. Jul 14, 2020. [Link]
speak/declaring-the-right-to-health-a-fundamental-right/. 6 S. Y. K, R.D. Upadhyay v. State of
Andhra Pradesh & Ors. (SC). Apr 13, 2006. [Link] 16 Art 42 –
It directs the state to just and humane conditions of work and maternity relief. Art 47 – It casts
the duties of the state to raise the nutrition levels and standard of living of people and to improve
public health. Under the 7th Schedule, there are 3 lists in the Constitution –
• Centre List • State List • Concurrent List In the list II, State List, Entry 6 – Public Health and
Sanitation, Hospitals and Dispensaries. In the list III, Concurrent List, Entry 16 – Lunacy and
mental deficiency, including places for the reception or treatment of lunatics and mental
deficient. Entry 26 – Legal, medical and other professions7 . Through the Directive Principle of
State Policy, the Constitution has made an appeal for providing a descent standard of living to
the state. There are various legal procedures that show that the state is responsible for the
citizen’s healthcare. India contributes to the global healthcare and thus it shows that it
deliberately takes the responsibility of their own citizens very well. As this right to health is a
legislatively guaranteed right, this would make access to health care legally binding and ensure
accountability. Every citizen of India has a right to approach the court if they have faced any
violation of their right to health. If any of their rights is infringed, the individual can approach
the court and the court grants the solution and protects the right to health. Right to health is not a
fundamental right officially, but as one can approach the court and can have a solution for the
same, the condition for making it a right is either way fulfilled. Though it is not a fundamental
right, but it is protected by the SC of India whether the DPSPs are working correctly. Either
directly or indirectly, the right to health is provided to the citizens. 7 Dr. S. Nataraju. The Role of
State in the Implementation of Health Policies and Laws. JSS Law College. ISSN 2321- 4171.
[Link]
[Link] 17

ROLE OF THE JUDICIARY

As we know in India, right to health is not recognized as a fundamental right expressly. But the
judiciary has recognized it as a fundamental right under Article 21 of the Indian Constitution as
aa part to the “right to life’’. Human Rights instruments consider “Right to health” as a basic
human right. Medical profession has the responsibility to respect, protect and fulfill the right to
health but it also held the public functionaries such as administration and judges responsible. The
supreme court while interpreting about Article 21, said that the expression or word “Life” does
not refer to mere animal existence or continuation of life, but it involves, inter-alia, the
elimination of sickness and physical disability. Hereby are certain pronouncements on the same -
The Apex Court, in Paschim Banga Khet Mazdoor Samity V. State of west Bengal, said that it is
the government’s responsibility to provide medical aid to every person in the country. India
being a welfare has to work towards the welfare of public. This case widened the scope of
Article 21 of the Constitution8 . The Supreme Court, in Occupational Health and safety
Association v. Union of India and others, it’s the state’s responsibility when the workers are
engaged in hazardous risky jobs. This case was for protection of health workers and for better
and humane working conditions for them. In Bandhua Mukti Morcha v. Union of India, the apex
court addressed the type of health and medical care are to be provided to the workers and
laborers. It involves to let the worker enjoy the working hours, his hard-earned money and to
maintain a healthy life. The medical facilities are thus the part of economic, social and cultural
life. Health is thus a state of physical, mental and social well-being. In Unnikrishnan, JP v. State
of Andhra Pradesh, it’s the duty of the state to fulfil the maintenance and improvement of public
health. It is a constitutional obligation under Article 21 of the Indian Constitution. The
government is required to assist people and help them get treated equally. In the case of,
Mahendra Pratap Singh v. State of Orissa, the court stated that though the villagers aren’t able to
8 Mihir Desai. Kamayani Bali Mahabal. Health Care Case Laws in India. Centre for Inquiry into
Health and Allied Themes and India Centre for Human Rights & Law. Aug, 2007.
[Link] 18 reach a hospital easily but deserve to be
treated and assisted by a nearby health center created by the government. Judiciary has and will
make all the possible efforts to ensure the right to health has been provided to all the citizens of
the country. The constitution has taken all the necessary measures for the development of rights
and their fulfilment. Right to life is protected under the constitution though not as a fundamental
right but as a social and constitutional right9 . CONCLUSION The upper facts and statements
clearly suggest that right to life also includes right to health and that this is a basic right. It has
also shown that the state is bound to provide healthcare facilities and services without any
inequality and discrimination. Not only the government, but also the citizens of the country
should promote the health in the country. Though after many cases and PILs, right to health is
still not recognized as a fundamental right. Though the judiciary has very well protected this
right so far, but it has not attained the place in the fundamental rights. It’s the time, that the Right
to Health should be declared as a Fundamental Right. Bringing strong health laws will help grow
the country all together and would help in facing the future pandemics and emergencies.
Decentralization of power and creation of department and laws would make it easier for a county
to fight with any future medical emergencies. Constitution has made best of its effort to maintain
the right to health and the judiciary makes it clear that this right to health is to be protected under
the law without it being a fundamental right.