The Right to Health w.r.t Prisoners and Refugees

By Shubhi Jadoun, Lloyd Law College, and Avni Kritika, Amity University

Abstract

The Right to Wellbeing is viewed as an inborn essential common freedom, accessible to each individual, regardless of their managerial status. However, as far as the current status of medical services in India is concerned, it is pertinent to highlight the issues in the medical services arrangement and framework pertaining to prisoners and refugees in India. This article aims at emphasizing on health related issues faced by prisoners and refugees and their Right to Health.

Introduction

Even after plenty of judgements which decided that health is a part and parcel of life, without which, life would be meaningless. India still has not added the Right to Health as an express or direct Fundamental Right to the Constitution of India. Citizens still need to to pay emphasis on precedent rule or rely on the DPSPs, which only have persuasive value and are not enforceable in a court.

Prisoners And Right To Health

Regardless of whether a person is guilty or innocent, maintenance of their life is a duty of the State. Prisoners are human beings as well and therefore they are entitled to Fundamental Rights as well, and not providing just and humane conditions to live in along with proper sanitation is violative of their rights under Article 21 of the Constitution of India. The Right to Health is a part and parcel of Article 21 and being a prisoner might shrink some Fundamental rights but it does not suspend them. It is no doubt true that the imposition of such a punishment does curtail some rights like the right to move freely and so on, but, the right to health and proper healthcare cannot be curtailed. In the case of Sunil Batra v. Delhi Administration,[11] the court observed the conditions of prisoners and gave out the following observation: “Are prisoners persons? Yes, of course. To answer in the negative is to convict the nation and the Constitution of dehumanization and to repudiate the world legal order, which now recognizes rights of prisoners in the International Covenant on Prisoners’ Rights to which our country has signed assent.

In the case of Rasikbhai Ramsun Rana v. State of Gujarat, the Court directed the State to install proper equipment and appoint sufficient staffs.  The List of the problems faced by the prisoners, also affirmed in case of Rama Murthy v. State of Karnataka, are as follows;-

  • Overcrowding in the prisons
  • Inadequate food and supply
  • Long lasting delay in Trials
  • Improper Sanitation
  • No proper implementation of committee reports
  • Air blocking in prisons.

The Prisons Act, 1894

Chapter VIII of this act expressly mentions that if any prisoner requires any kind of medical attention, they should be directed to a medical officer without any delay. [12] Further, if the medical officer gives any medical supplies, it should be duly noted in the prisoner’s history ticket.[13] Section 39 talks about the establishment of a hospital or similar place in the prisons for sick prisoners.

Model Prison Manual, 2016

To control continuous violation of legislations, ignorance of medical care, sanitation issues and proper food requirements, amongst other issues that prisoners face, the Ministry of Home Affairs, Government of India, released these guidelines exercising their powers given by The Prisons Act, 1894.[14] The manual regulates the entire administration of medical supplies/equipment, prison hospitals,[15] labs,[16] and the appointment of doctors. It pays special emphasis to health and care of aged prisoners[17] and drug addicts.[18] The duties of an Assistant Surgeon[19] direct them to look after sanitation, cleanliness of prisoners, [20] inspection of food supplies, [21] vaccination,[22] and so on.

The manual covers almost all aspects required to keep prisoners healthy and for healthcare to be easily accessible to them and also takes care of their surroundings by ensuring proper ventilation, sanitation, medical equipment and medical human resources.

Mental Health And Prisoners

Cases of emotional wellness issues are generously higher among Indian detainees. A study by NHRC lists two causes for rise of suicide in prisons, which are – Surroundings in the prison and Crisis situations faced by an inmate.[23]

As per the 2018 NCRB report, 149 prisoners died an unnatural death, out of which 129 inmates committed suicide. The National Institute of Mental Health and Neuro-Sciences tracked down that such increase in mental illness cases is due to carelessness by jail staff and other such factors.[24] Also Custodial deaths and steady torture are likewise of significant purposes behind both mental and physical ailment. Inmates recall being tortured which was also covered in a study done by Project 39A, “When anyone is tortured like I was, it no longer matters whether you did it or not, you will agree to anything to make the torture stop”.[25]

Refugees And Health

India shares its boundaries with certain states, which brings a hike in the statistics of refugees coming to India every year. Currently, it is among the highest refugees host countries across the South East Asia. The UNHCR report shows that India is a host to about 210,201 refugees and asylum seekers, as of 20th January 2020.[26] India has always been at the back foot when it comes to being a signatory to the Refugee Convention, 1951, or coming up with a national refugee protection framework. However, it follows the principle of non-refoulement[27] and provides them protection under Article 21 of the Constitution of India, which deals with right to life of a person.

The Hon’ble  Supreme Court, in the matter of National Human Rights Commission v. State of Arunachal Pradesh,[28] has given importance of Article 21 by stating that it talks about every human being, which includes refugees. Therefore, even refugees and asylum seekers can avail the right to health in India.

Now, considering the outbreak of COVID-19, that has been declared as a global pandemic by the World Health Organization, all refugees, asylum seekers and undocumented migrants have become one of the most vulnerable sections of the society. The government should come up with a proper policy for providing the right to get vaccinated to this section of the society as well.

Conclusion

The Right to Health is regarded as an inherent basic human right, available to every human being, irrespective of their administrative status. However, accessing health care services within the national boundaries varies from state to state for citizens and refugees and it depends on the legal status of the person. The most affected are prisoners and refugees, especially labour migrants due to their irregular situation and no official employment status.[29]

The 15th Finance Commission report suggested that the Right to Health should be declared a Fundamental Right. Apart from this recommendation to shift it from a state matter to concurrent matter was also put forth. However, the former suggestion, no doubt will strengthen a citizen’s claim with respect to the Right to Health but the later suggestion will lead to a constitutional conundrum.

Till today, no effective steps have been taken to implement the constitutional obligation upon the state to secure the health and strength of people. It has rightly been said that nutrition, health & education are the three inputs accepted as significant for the development of human resources. For achieving the Constitutional obligation and also objectives of Healthcare for all there is a need on the part of the government to mobilize NGOs and the general public towards their participation for monitoring and implementing healthcare facilities.

Disclaimer – All views and opinions expressed in this article are personal and belong solely to the author(s) and do not necessarily represent those of the LAABh Foundation or the individuals and institutions associated with LAABh Foundation.


[1] R Kumar, ‘Medical debt a major cause of poverty in India’, THE TRIBUNE, available at https://www.tribuneindia.com/news/archive/comment/medical-debt-a-major-cause-of-poverty-in-india-866182.

[2] ‘India- Health & Safety at work’, Asia Monitor Resource Centre, 1st Jan. 2007, available at https://amrc.org.hk/content/india-health-and-safety-work.

[3] Prohibition of Employment as Manual Scavenger and their Rehabilitation Act 2013, § 2(g).

[4]‘Hazardous Child Labour’, International Labour Organisation, available at, https://www.ilo.org/ipec/facts/WorstFormsofChildLabour/Hazardouschildlabour/lang–en/index.htm.

[5] Id.

[6] Malnutrition’, World Health Organisation, https://www.who.int/news-room/fact-sheets/detail/malnutrition.

[7] India facing shortage of 600,000 doctors, 2 million nurses: Study’, The Economic Time, available at https://health.economictimes.indiatimes.com/news/industry/india-facing-shortage-of-600000-doctors-2-million-nurses-study/68876861.

[8] ‘1 doctor for 1,511 people, 1 nurse for 670 — Covid exposes India’s healthcare ‘fault lines’, The Print, available at https://theprint.in/health/1-doctor-for-1511-people-1-nurse-for-670-covid-exposes-indias-healthcare-fault-lines/602784/.

[9] Madhav. G. Deo, “Doctor population ratio for India – The reality”, Indian Journal of Medical research, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3724242/.

[10] Chapter 2, ‘Role of Government in Health’, NCERT, available at https://ncert.nic.in/ncerts/l/gess302.pdf.

[11] Sunil Batra  v. Delhi Administration, 1980 AIR 1579.

[12] The Prisons Act, 1894, § 37.

[13]  The Prisons Act, 1894, § 38.

[14] The Prisons Act, 1894, § 59.

[15] Model Prisons Manual, 2016, Rule 7.03.

[16] Model Prisons Manual, 2016, Rule 7.33.

[17] Model Prisons Manual, 2016, Rule 7.16.

[18]Model Prisons Manual, 2016, Rule 7.17.

[19] Model Prisons Manual, 2016, Rule 7.45.

[20] Model Prisons Manual, 2016, Rule 7.45, vi.

[21] Model Prisons Manual, 2016, Rule 7.45 xvi.

[22] Model Prisons Manual, 2016, Rule 7.45 xxv.

[23]Neena Sawant, ‘Suicide in Indian Prisoners’, available at  https://www.researchgate.net/publication/325014885_Suicide_in_Indian_prisoners.

[24] Rao, Kamalapathi H. “South Indian jails top mentally ill prisoners’ list.” Deccan Chronicle. (Secunderabad, India) October 15, 2017. www.deccanchronicle.com/nation/current-affairs/161017/south-indian-jails-top-mentally-ill-prisoners-list.html.

[25] ‘Death Penalty India report’, Project 39A, available at https://www.project39a.com/dpir.

[26]UNHCR, ‘UNHCR India Refugee Fact Sheet’(January 2020), https://reporting.unhcr.org/sites/default/files/UNHCR%20India%20factsheet%20-%20January%202020.pdf.

[27] Nimrat Kaur, ‘Protection of refugees in India : A critical Analysis’, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2214274.

[28] National Human Rights Commission v. State of Arunachal Pradesh, 1996 SCC (1) 742.

[29] ‘Health of Refugees and migrant’, World Health Organisation, 2018, available at shttps://www.who.int/migrants/publications/EURO-report.pdf.

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