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.

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In this article, we shall study the powers of State Pollution Control Board.

Power to Obtain Information (Section 20):

For the purposes of enabling the State Pollution Control Board to perform the functions prescribed by the Water (Prevention and Control of Pollution) Act, 1974, it may survey any area and keep records of the flow and volume and other characteristics of a stream or well. The State Pollution Control Board is empowered to give directions requiring any person who is abstracting water from any such stream or well or is discharging sewage or trade effluent into any such stream or well, to give such information as to the abstraction or the discharge in the form prescribed. The state pollution control board is also empowered to give directions to any person in charge of any establishment where any industry, operation or process, or treatment and disposal system is carried out, to furnish all information regarding the construction, installation or operation of such establishment or of any disposal system or of any extension or addition thereto in such establishment.

Power to Take Samples of Effluents for Analysis (Section 21):

The State Pollution Control Board or any officer authorized by the State Pollution Control Board shall have the power to take samples of water from any stream or well or samples of any sewage or trade effluent, for the purpose of analysis.

In Delhi Bottling Co. Pvt. Ltd. v. Central Board for the Prevention and Control of Water Pollution, AIR 1986 Delhi 152 case, a sample of trade effluent was taken by the board from bottling company’s discharge stream and after the analysis was found not confirming the requirements of the consent order granted to the company. The board filed a suit under the Water (Prevention and Control of Pollution) Act, 1974 and accordingly an injunction was issued by the court requiring the company to establish a treatment plant which the bottling company challenged. The Court held that the sample was not taken in strict compliance with the procedure as under Section 21 of the Water (Prevention and Control of Pollution) Act, 1974 and this evidence cannot be regarded as admissible.

In Abdul Hamid v. Gwalior Rayon Co. 1989 CrLJ 2013 M.P.  case, the Court pointed out that Section 21 of the Water (Prevention and Control of Pollution) Act, 1974 is meant for protection of the industries and industrialists ensuring a proper balance between the hazards to the citizens and conflicting claims of the nation’s industrial progress.

Power of Entry and Inspection (Section 23):

Section 23 of the Water (Prevention and Control of Pollution) Act, 1974 confers the power of entry and inspection on the State Pollution Control Boards. This Section provides that any person empowered by the State Board in this behalf shall have a right to enter, at any time and with such assistance as he considers necessary, any place for the following purposes: (a) For performing any of the functions of the State Board entrusted to him;

(b) For determining whether and if so in what manner (i) any such functions are to be performed, or (ii) whether provisions of this Act or rules made thereunder, or (iii) any notice, order, direction or authorization, served, made, given or granted under this Act is being or has been complied with;

(c) For examining any plant, record, register, document or any other material object;

(d) For conducting a search of any place in which he has reasons to believe that an offence under this Act or the rules made thereunder has been or is being or is about to be committed; and

(e) for seizing any such plant, record, register, document or other material object, if he has reasons to believe that it may furnish any evidence for the commission of offence punishable under this Act for the rules made thereunder.

Power to Impose Restrictions on New Outlets and New Discharges (Section 25):

Section 25 provides that no person shall without the previous consent of the State Pollution Control Board :

(a) Establish or take any steps to establish any (i) industry, (ii) operation or process, (iii) any treatment and disposal system, or (iv) any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well, sewer or on land; or

(b) Bring into use any new or altered outlet for the discharge of sewage, or

(c) Begin to make any new discharge of sewage.

In M.C.Mehta v. Union of India, AIR 1988 SC 1037, the Court held that the financial capacity of the tanneries is not a relevant consideration while requiring them to set up primary treatment plants. A tannery which cannot set up a primary treatment plant cannot be granted consent by the State Pollution Control Board to continue its existence.

In Narula Dying and Printing Works v. Union of India, AIR 1995 Guj 185 case, the Court held that a consent order made under section 25 (2) of the Water (Prevention and Control of Pollution) Act, 1974 by the State Pollution Control Board does not entitle the industrial unit to discharge trade effluents into stream and it is obligatory for the unit to comply with the conditions mentioned in the consent order and put up effluent treatment plants with the time specified in the consent order.

In Mahavir Soap and Godakhu Factory v. Union of India, AIR 1995 Orissa 218 case, the State Pollution Control Board refused the consent to the continuation of the factory in a thickly populated area on the public complaint. The Court held that it was a genuine reason for the refusal to grant consent and the Court had no reason to substitute its opinion in place of State Pollution Control Board’s decision.

In T.N. Godaverman Tirumalpad v. Union of India (2006) 5 SCC 47 case, the Court held that where there are various sources of pollution, they may be regulated by the State Pollution Control Board step by step and it was not for the Court to direct the government as to which step should be regulated first and so on.

In Andhra Pradesh Pollution Control Board v. M.V. Nayudu, (2001) 2 SCC 62 case, the Court made it clear that prohibition under section 25 of the Water (Prevention and Control of Pollution) Act, 1974 extends even to newly opening industries which are in the process of being set up. Therefore, permission from the State Pollution Control Board must be sought when steps are being taken to establish an industry.

Power to refuse or withdraw consent for establishment of any industry etc., (Section 27):

The State Pollution Control Board shall not grant its consent for the establishment of any industry, operation or process, etc. is to establish as to comply with all the conditions imposed by the Board. The State Pollution Control Board may from time to time review any condition and may require the person to whom the consent is granted to make a reasonable variation of such condition or the State Pollution Control Board may revoke any such condition.

In Narula Dying and Printing Works v. Union of India, AIR 1995 Guj 185 case, the Court held that obtaining a consent order from the State Pollution Control Board does not mean that the industry is entitled to discharge trade effluent into the stream. It is incumbent upon the industry to comply with all the conditions prescribed in the Consent order within the stipulated time limit failure to fulfill the conditions will result in the lapse of the consent.

In Mahavir Soap and Godakhu Factory v. Union of India, AIR 1995 Orissa 218 case, the State Pollution Control Board refused the consent to the continuation of industry on the ground that factory is located in the populated area and there was a public complain. It was held that the reasons cited by the State Pollution Control Board are in conformity with the object of the Water (Prevention and Control of Pollution) Act, 1974. The Court further held that the refusal is in the discretion of the State Pollution Control Board.

Power to carry out certain work (Section 30):

In cases where the State Pollution Control Board has granted consent subject to certain conditions and such conditions require such person to execute any work in connection therewith, the person is expected to carry out those works to fulfil the conditions under which the consent was granted. If the person fails to execute any work in connection with the fulfillment of the conditions imposed by the State Pollution Control Board, then the State Pollution Control Board serve a notice on the person requiring him to execute the work within the time period prescribed in the notice. In spite of the notice if the person to whom the notice is served fails to execute such work and all expenses incurred by the State Pollution Control Board for the execution of the aforesaid work together with the interest will be recovered by the State Pollution Control Board from the person concerned as arrears of the land revenue.

Power to carry out emergency operations in the case of pollution of streams or well (Section 32):

If it appears to the State Pollution Control Board that any poisonous, noxious or polluting matter is present in any stream or well or on land by reason of discharge of such matter in such stream or such well or such land or as entered into that stream or well due to any accident or other unforeseen act or event, the State Pollution Control Board may for the reasons recorded in writing carry out certain emergency operations for all or any of the following purposes:

• Removing the matter from the stream or well or on the land and disposing it off in such a manner as the Board considerers appropriate;
• Remedying or mitigating any pollution caused by its presence in the stream or well;
• Issuing order immediately restraining or prohibiting the person concerned from the discharging any poisonous, noxious or polluting matter into the stream or well or on land or from making unsanitary use of the stream or well.

Power to make an application to courts for restraining apprehended pollution of water in streams or wells (Section 33):

If the State Pollution Control Board apprehend that the water in any stream or well is likely to be polluted by reason of the disposal or likely disposal of any matter in such streams or well or in sewer, or on any land, or otherwise, the SPCB may make an application to a court not inferior to a Metropolitan Magistrate or a Judicial Magistrate for restraining the person who is likely to cause such pollution from causing such pollution.

In Maharaja Shri Umaid Mills v. State of Rajasthan AIR 1998 Raj. 9, case, a trade effluent was being discharged in the Bandi River by the mill. The State Pollution Control Board filed an application under Section 33 of the Water (Prevention and Control of Pollution) Act, 1974 to restrain the industry of causing water pollution. The Court held that section 33 is a social piece of legislation and provides a remedial measure and makes a provision for remedial action being taken where there is an apprehension that the water in any stream or well is likely to be polluted on account of disposal or likely disposal of trade effluent in such stream or well.

In Sukhna Paper Mill v. State of Punjab (1995) III CCR 838 (P&H) case, the Court held that where the decision issued by the court is not complied with, the Court can authorize the Board to undertake removal or disposal of the matter in such manner as may be specified by the Court for desisting pollution of water in any stream or well.

Power to give directions (Section 33A):

The State Pollution Control Board may, in exercise of its powers and performance of its functions under the Water Act, issue any direction in writing to the person, officer or authority, and such person, officer, or authority shall be bound to comply with such directions. The power to issue directions includes the power to direct the closure, prohibition or regulation of any industry, operation or proves or the stoppage or regulation of electricity, water or any other services.

In Ambuja Petro Chemical v. A.P. Pollution Control Board AIR 1997 AP 41 case, a petition was filed before the court against misappropriate order of the Andhra Pradesh Pollution Control Board requiring the closure of the factory premises of the petitioner. The petitioner was issued with a notice alleging that the effluent sample disclosed the values are in excess of the standard prescribed by the State Pollution Control Board. It was also alleged that the petitioner was not lifting the effluent for final treatment and disposal. Thereafter, the State Pollution Control Board issued the preceding for the closure of the unit, which was challenged in the writ petition. While dismissing the writ petition the Andhra Pradesh High Court opined that the order passed by the State Pollution Control Board directing the closure of the industry is not appropriate. However, the court said that it was always open to the Petitioners Industry to comply with the directions issued by the State Pollution Control Board for restarting its industrial activities.

In Associated Trades v. State Of West Bengal, 1996 AIHC 2795  case, the Court held that the State Pollution Control Board should give the industry an opportunity to take any remedial measures for the purpose of prevention and control of water pollution before passing an order of closure of industry under Section 33-A of the Water (Prevention and Control of Pollution) Act, 1974.

In Mandu Distillers v. M.P Pradushan Niwaran Mandal AIR 1995 MP 57 case, the Court quashed the order of closure made by the State Pollution Control Board on the ground that there was a denial of principles of natural justice and violation of procedural safeguard.

In Re: Bhavani River Shakthi sugar Ltd., (1998) 2 SSC 601 case, the Court upheld the order of closure made by the State Pollution Control Board. Since the industry did not take any remedial steps despite enough time granted, The State Pollution Control Board ordered the closure of the Industry

In M.C. Mehta V. Union of India (1997)2 SSC 411 case, the Court upheld the order of closure of Tanneries made by the Board since the Tanneries in Calcutta were operating in violation of the provision of Water (Prevention and Control of Pollution) Act, 1974 as well as Environment (Protection) Act, 1986.

In Stella Silks v. State of Karnataka, AIR 2001 Kant 219. Case, the Court upheld the order of closure of industry made by the State Pollution Control Board. The Court noticed that in spite of the notice issued by the State Pollution Control Board, the petitioner continued to the industry and also continued to pollute the environment by discharging polluted water.

Under the Water (Prevention and Control of Pollution) Act, 1974, different penalties have been prescribed for violating different provisions of the water act. Sections 41 to 45-A are relevant provisions in this regard.

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