Chapters
1. Introduction
2. Meaning and Definition
3. Constitutional prospective
4. Application of right to health
5. Conclusion
Synopsis
Ch. 1 – Introduction
Health is the most important factor in national development. It is a condition of a person’s
physical and mental state and signifies freedom from any disease or pain. Right to health is a
vital right without which none can exercise one’s basic human rights. The Government is
under obligation to protect the health of the people because there is close nexus between
Health and the quality of life of a person. There are various provisions under the Constitution
of India which deal with the Health of the Public at large. The founding fathers of the Indian
Constitution rightly inserted Directive principles of State Policy (DPSP) with a view to
protect the health of the public at large. Health is the most precious prerequisite for
happiness.
Right to health have been considered as a human right in international prospects. It was first
articulated in the 1946 Constitution of the World Health Organization (WHO), whose
preamble defines health as “a state of complete physical, mental and social well-being and
not merely the absence of disease or infirmity”. The preamble further states that “the
enjoyment of the highest attainable standard of health is one of the fundamental rights of
every human being without distinction of race, religion, political belief, economic or social
condition.”
The 1948 Universal Declaration of Human Rights also mentioned health as part of the right
to an adequate standard of living (art. 25). The right to health was again recognized as a
human right in the 1966 International Covenant on Economic, Social and Cultural Rights.
Since then, other international human rights treaties have recognized or referred to the right
to health or to elements of it, such as the right to medical care.
In Indian Constitution, Right to health is not included directly in as a fundamental Right. The
Constitution maker imposed this duty on state to ensure social and economic justice. Part four
of 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.
The Constitution of India not provides for the right to health as a fundamental right. The
Constitution directs the state to take measures to improve the condition of health care of the
people. Thus the preamble to the Constitution of India, inter alia, seeks to secure for all its
citizens justice-social and economic. It provides a framework for the achievement of the
objectives laid down in the preamble. The preamble has been amplified and elaborated in the
Directive Principles of State policy.
Ch. 2 – Meaning and Definition
Indian Constitution has a wide range of aspects. It is not confined or based on a particular
theme or theory. Even if it does not expressly enumerates the right to health but it has been
covered under various articles such as art. 21, art. 51 – A (g), art. 42 etc. According to the
WHO “Health is a state of complete physical, mental and social wellbeing and not merely the
absence of disease1.” In recent years, this statement has been amplified to include the ability
to lead a ‘socially and economically productive life’. Through this definition, WHO has
helped to move health thinking beyond a limited, biomedical and pathology-based
perspective to the more positive domain of “wellbeing”.
The right to health is an inclusive right. We frequently associate the right to health with
access to health care and the building of hospitals. This is correct, but the right to health
extends further. It includes a wide range of factors that can help us lead a healthy life. The
Committee on Economic, Social and Cultural Rights, the body responsible for monitoring the
International Covenant on Economic, Social and Cultural Rights, 2 calls these the “underlying
determinants of health”. They include safe drinking water and adequate sanitation; safe food;
adequate nutrition and housing; healthy working and environmental conditions; health-related
education and information; gender equality.
1 Preamble to the Constitution of the World Health Organization as adopted by the International Health
Conference, New York, 19–22 June 1946; signed on 22 July 1947 by the representatives of 61 States (Official
Records of the World Health Organization, no. 2, p. 100); and entered into force on 7 April 1948
2 The Covenant was adopted by the United Nations General Assembly in its resolution 2200A (XXI) of 16
December 1966. It entered into force in 1976 and by 1 December 2007 had been ratified by 157 States.
Ch. 3 – Constitutional Prospective
Part IV of the constitution comprises of the Directive Principles of State Policy. Article 39
states that the state should follow certain principles while exercising the law making power.
Under this article child and workers have been given emphasis expressly. In the case of
Sheela Barse v. Union of India 3 Supreme Court has held that “A child is a national asset and
therefore, it is the duty of the State to look after the child with a view to ensuring full
development of its Personality.” Clause (f) was modified by the Constitution 42nd
Amendment Act, 1976 with a view to emphasising the constructive role of the State with
regard to children.4
Article 42 of the constitution deals with maternity benefits for the working women. In
U.P.S.C. Board v. Harishankar5, Supreme Court has held that Article 42 provides the basis
of the larger body of labour law in India. Further referring to Article 42 and 43, the Supreme
Court has emphasised that the Constitution expresses a deep concern for the welfare of the
workers. The Court may not enforce the Directive Principles as such, but they must interpret
law so as to further and not hinder the goal set out in the Directive Principles.
Article 47 of the constitution emphasizes the nutrition and nourishment to the children. It also
says about the living standard and public health. Article 47 has been used for the control over
the intoxicated substances except for medical use.
Article 48A which speaks about the conservation of forest and wildlife has been inserted in
the 42nd amendment Act 1976.
Part IV- A of the constitution imposes some important duties on its citizens. Article 51 A (g)
states that it shall be duty of the citizens to conserve the forest, living creatures, rivers etc.
The Constitution of India has not included right to health i. e. right to enjoy the highest
attainable standard of physical and mental health under a specific provision. But it is the
Indian judiciary who treat right to health an integral part of right to life which is fundamental
for all human beings under Article 21 of the Constitution. The Supreme Court has given
recognition to right to health vide different techniques of interpretation. “The government is
under Constitutional obligation to provide health facilities.6
3 AIR 1986 SC 1786: (1986) 3 SCC 596
4 Dr. J. N Pandey, “Constitutional law of India”, Central Law Agency, Allahabad, 44 th Ed. 2007, p. 380
5 AIR 1979 SC 65: (1978) 4 SC 16
6 State of Punjab v. Mahinder Singh Chawla AIR 1997 SC 1225
According to Article 19 (1) (g) all citizens shall have the right to practice any profession, or
carry on any occupation, trade or business subject to restrictions imposed in the interest of
general public under clause (6) of Article 19. In Municipal Corporation v. Jan Mohammed7,
the Court held that the expression in the interest of the general public in clause (6) of Article
19 is of wide import comprehending public order, public health, public security , morals,
economic welfare of the community and the objects mentioned in Part IV of the Constitution.
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 India8. It also held in the same judgment that humane working
conditions and health services and medical care are an essential part of Article 21. The
Supreme Court in C.E.R.C. v. Union of India9, held that right to health, medical aid to
protect the health and vigour of a worker while in service or post-retirement is a fundamental
right under Article 21.
Article 25 guarantees to every person and not citizen of India the right to profess and practice
religion and Article 26 gives special protection to religious denominations. Both can be
enjoyed by any person subject to public order, morality and health and other provisions of the
respective part of the Constitution.
Chapter 4 Application of right to health
Some groups or individuals, such as children, women, persons with disabilities or persons
living with HIV/AIDS, face specific hurdles in relation to the right to health. These can result
from biological or socio-economic factors, discrimination and stigma, or, generally, a
combination of these. Considering health as a human right requires specific attention to
different individuals and groups of individuals in society, in particular those living in
vulnerable situations.
Women are affected by many of the same health conditions as men, but women experience
them differently.
Children and adolescents face particular health challenges related to the stage of their
physical and mental development, which makes them especially vulnerable to malnutrition
and infectious diseases, and, when they reach adolescence, to sexual, reproductive and mental
7 AIR 1986 SC 1205: (1986) 3 SCC 20
8 AIR 1995 SC 636.
9 AIR 1995 SC 922
health problems. Governments and health professionals should treat all children and
adolescents in a non-discriminatory manner.
Persons with disabilities States must provide health services and centres as close as possible
to people’s own communities, including in rural areas.
Migrants In order to comprehensively address migrants’ health issues, States should also
take steps to realize their rights to, among other things, adequate housing, safe and healthy
working conditions, an adequate standard of living, food, information, liberty and security of
person, due process, and freedom from slavery and compulsory labour.
Chapter 5 Sc in covid times
Final draft will deal with Role played by SC in covid times.
Chapter 6 Conclusion
Our constitution makers was much aware about the public health or right to health that’s why
they imposed liability on State by some provision (Article 38, 39(e) 41, 42, 47, 48A ) of
DPSP. Constitution makers included public health inform of DPSP because they were well-
known about it that only inclusion of right to health as F.R. will hive only right but it will not
ensure medical facilities. If right to health included as a F.R. then what happened it is clean
that State can protect himself to say that who is going to take away your right for example if
any person effected by T.B. defended for his right to health as a F.R., then State can protect
to say that go and be healthy T.B. is not caused to you by State. Thus right to health as F.R.
cannot be give remedy for ill person. For treatment of T.B. there are so many component are
requirement i.e. Hospital, doctor, medicine. So constitution makers included it in DPSP for to
impose duty to State so that State will protect and improve public health. Due to this duty
state are taking steps in this regard and hospitals are running in control of State to give free
health service to public at large. There is no need of right to health for a person to be healthy.
A person should have health entitlements, medical aid, medical assistance which provided by
States.