Law > Medical Jurisprudence > Law and Medicine > Right to Health in the Constitution
Health is a vital indicator of human development and human development is the basic ingredient of economic and social development. According to the World Health Organization (WHO), health is a state of complete physical, mental and social well-being and not merely the absence of disease. The right to health for all people means that everyone should have access to the health services they need, when and where they need them, without suffering financial hardship. No one should get sick and die just because they are poor, or because they cannot access the health services they need. Good health is also clearly determined by other basic human rights including access to safe drinking water and sanitation, nutritious foods, adequate housing, education and safe working conditions. Everyone has the right to privacy and to be treated with respect and dignity. Nobody should be subjected to medical experimentation, forced medical examination, or given treatment without informed consent. The Indian Constitution has granted certain fundamental rights to its citizen under part III of it these rights play an important role with reference to the health and health care.
In CESC Ltd. v. Subash Chandra Bose, AIR 1992 SC 573 case, the Supreme Court relied on international instruments and concluded that right to health is a fundamental right. It went further and observed that health is not merely absence of sickness: “The term health implies more than an absence of sickness. Medical care and health facilities not only protect against sickness but also ensure stable manpower for economic development. Facilities of health and medical care generate devotion and dedication to give the workers’ best, physically as well as mentally, in productivity. It enables the worker to enjoy the fruit of his labour, to keep him physically fit and mentally alert for leading a successful economic, social and cultural life. The medical facilities are, therefore, part of social security and like gilt edged security, it would yield immediate return in the increased production or at any rate reduce absenteeism on grounds of sickness, etc. Health is thus a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”
Constitutional Provisions:
There is no direct mention of the “Right of Health” in the Constitution. But Article 21 refers to right to life which includes living with a good Health. In a leading case, the Supreme Court held that the right to life implies the right to live healthy life. The Constitution of India not only provides for the health care of the people but also directs the state to take necessary measures to improve the condition of health of the people. Though the provisions enshrined under this part have no direct link with the healthcare, however from various judicial interpretations it has been established that the intention of the legislature were there to cover the health as a right of the citizens.
Fundamental Rights:
Article 14:
Article 14 speaks about equality before law where the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Article 15:
Article 15 contains provisions for a particular application of the general principle of ‘equality of treatment’ embodied in Article 14. It prohibits discrimination against citizens on the grounds only of religion, race, caste, sex, place of birth or any of them. Even nothing in this Article shall prevent the State from making any special provision for women and children for their betterment of life.
Article 19(1)(g):
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 Burrabazar Fire Works Dealers Association v. Commissioner of Police, Calcutta, AIR 1998 Cal 121 case, the Supreme Court held that Article 19 (1) (g) does not guarantee the freedom which takes away that community’s safety, health and peace.
Article 21:
According to Article 21 of the Constitution of India “no person shall be deprived of his/her life or personal liberty except according to the procedure established by law. Right to life under Article 21 of the Constitution has been generously deciphered to mean something more than only human presence and incorporates the right to live with nobility and conventionality. The use of word ‘Life’ in Article 21 of the Constitution has a lot more extensive importance which includes human nobility, the right to livelihood, right to health, right to pollution free air, and so forth.
In Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802 case, Bhagwati, J. observed: “This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and Particularly clauses (e) and (f) of Article 39 and Article 41 and 42.” Since the Directive Principles of State Policy are not enforceable in a Court of law, it may not be possible to compel the State through judicial process to make provision by statutory enactment or executive fiat for ensuring these basic essentials which go on to ensure a life of human dignity.
In Paschim Banga Khet Mazdoor Samity v. State of West Bengal, (1996) 4 SCC 37 case, while widening the scope of Article 21 and the government’s responsibility to provide medical aid to every person in the country, the Apex Court held that in a welfare state, the primary duty of the government is to secure the welfare of the people. Providing adequate medical facilities for the people is an obligation undertaken by the government in a welfare state. The government discharges this obligation by providing medical care to the persons seeking to avail of those facilities.
In Unnikrishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178 case, the Court held that the maintenance and improvement of public health is the duty of the State to fulfill its constitutional obligations cast on it under Article 21 of the Constitution.
In the State of Punjab v. M.S. Chawla, AIR 1997 SC1225 case, the Court held that-the right to life ensured under Article 21 incorporates inside its ambit the right to health and clinical consideration.
in Consumer Education and Research Center v. Union of India, AIR 1995 SC 922 case, the Supreme Court held that right to health, medical aid to protect the health and vigour of a worker while in service or postretirement is a fundamental right under Article 21.
In Parmananda Katara Vs Union of India, AIR 1989 SC 2039 case, the apex court held that every doctor is bound to provide medical aid to the victims irrespective of the cause of injury; he cannot take any excuse of allowing law to take its course. Hence, if now a doctor refuses treatment, in case of emergency, he/she could be sued under the law. Once the doctor accepts the case and starts treatment, then the doctor-patient relationship is established. The Court further stated that preservation of health is of paramount importance. Once life is lost it cannot be restored. Hence, it is the duty of doctors to preserve life without any kind of discrimination.
Article 32:
Under Article 32 of the Constitution, any person whose fundamental rights are violated can approach the Supreme Court for restoration of his fundamental right. Similarly, under Article 226 of the Constitution, any person whose fundamental rights are violated can approach High Court of respective State for restoration of his fundamental right.
Directive Principles:
The Directive Principles of State Policy (DPSP), enshrined in Chapter IV of the Constitution of India, require the state to, among other duties.
Article 38:
Article 38 provides that, “the State shall strive to promote the welfare of the people by securing and protecting, as effectively as it may, a social order in which justice– — social, economic and political, shall inform all the institution of the national life”. Thus, a constitutional liability is imposed on state that the State will secure a social order for the promotion of welfare of the people including public health because without public health welfare of people is practically meaningless.
Article 39:
Article 39 enjoins upon the State that (i) that the health and strength of workers 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 and (ii) that 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.
In Lakshami Kant Pandey v. Union of India, 1987 AIR 232 case, Bhagawati, J. while delivering the opinion of the court observed that: “It is obvious that in civilized society the importance of child welfare cannot be overemphasized because the welfare of the entire community, its growth and development depends upon the health and well-being of its children. Children are a „supremely important national asset and the future well-being of the nation depends on how its children grow and develop.”
In Sheela Barse v. Union of India, 1986 SCALE (2) 230 case, the Supreme Court 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.”
Article 41:
Article 41 deals with right to work, education and public assistance in certain cases and thus imposed duty on the State to public assistance basically for those who are old, sick and disable. This Article specifically says that “the state shall within the limits of its economic capacity and development, make effective provisions for securing the right to work, to education and to public assistance in case of unemployment, old age, sickness and disablement, and in other cases of undeserved want”. Their implications in relation to health are obvious.
In Mahendra Pratap Singh v. State of Orissa, AIR 1997 Ori 37 case, the Court held that 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. 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.
Article 42:
Article 42 provides for just and humane conditions of work and maternity relief and gives the power to the State for making provisions in this regard, which implies that this Article is intended to protect the health of infants and mothers by providing maternity benefit.
In U.P.S.E. Board v. Harishankar, AIR 1980 SC 65 case, the Supreme Court 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 emphasized 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.
In P Sivaswamy v. State of Andhra Pradesh, AIR 1988 SC 1863 case, the Supreme Court held that Article 42 of the Constitution makes it the obligation of the State to make provisions for securing just and humane conditions of work. There are several Articles in Part IV of the Constitution which indicate that it is the State’s obligation to create a social atmosphere befitting human dignity for citizens to live in.
Article 43:
Article 43 lays down that alia that the State must endeavour to secure a decent standard of life to all workers.
Article 45:
Article 45 lays down that the State must endeavour to provide any childhood care and education to all children under the age of six years.
Article 47:
Article 47 imposes duty on the State to raise the level of nutrition and the standard of living and to improve public health. It categorically provides that “the State shall regard the raising of the 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.”
In Vincent Panikurlangara v. Union of India, AIR 1987 SC 994 case, the Court stated that “maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends, the building of the society of which the Constitution makers envisaged. Attending to public health, in our opinion, therefore is of high priority perhaps the one at the top”. The Supreme Court while interpreting Article 47 has rightly stated that public health is to be protected for the betterment of the society. Further it has been held that, in this welfare era raising the level of nutrition and improvement in standard of living of the people are primary duties of the State.
Article 48A:
Article 48A ensures that State shall endeavour to protect and impose the pollution free environment for good health.
In M.C. Mehta v. Union of India, Writ Petition (civil) 13029 of 1985 Case, the Court held that, “Art 39 (a), 47 and 48-A by themselves and collectively cast a duty on the State to secure the health of the people, improve public health and protect and improve the environment”
In Virender Gaur v. State of Haryana, 1995 (2) SCC 577 case, the Supreme Court held that environmental, ecological, air and water pollution, etc., should be regarded as amounting to violation of right to health guaranteed by Article 21 of the Constitution.
Fundamental Duties:
Article 51A:
Article 51 A (g) under Part IV – A of the Constitution says that “it shall be the duties of every individual to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.”
Euthanasia:
Euthanasia is described as the deliberate and intentional killing of a person for the benefit of that person in order to relieve him from pain and suffering. The term ‘Euthanasia’ is derived from the Greek words which literally means “good death” (Eu= Good; Thanatos=Death). Euthanasia is defined as the act of bringing the death of a person (patient) for the purpose of relieving the patient’s intolerable and incurable suffering. Typically, the physician’s motive is merciful and intended to end suffering. In voluntary euthanasia, a consent from the patient is taken. In non-voluntary euthanasia, the consent of patient is unavailable due to some reason.
In active euthanasia, the death of patient is brought directly by giving him a lethal dose of poisonous drug. In passive euthanasia, the life supporting system to the patient is discontinued and ultimately patient dies. In Aruna Shanbaug v. Union of India, the Supreme Court opposed active euthanasia but has given nod to passive euthanasia.
Conclusion:
From the above discussion, it is evident that right to life also includes right to health and therefore the state and its instruments, are duty bound to provide health care facilities and services to all its citizens without any discrimination. The Constitution also stipulates certain duties for the citizens towards contributing to the promotion of health in the country.