Sources of the Right to Health: Where does our Right to Health come from?

By Shubhi Jadoun, Lloyd Law College

Abstract

In recent years, increasing attention has been paid to the right to the highest attainable standard of health, for instance by human rights treaty monitoring bodies, by WHO and by the Commission on Human Rights (now replaced by the Human Rights Council), which in 2002 created the mandate of Special Rapporteur on the right of everyone to the highest attainable standard of physical and mental health. These initiatives have helped clarify the nature of the right to health and how it can be achieved. India is one of the founding member countries of United Nations and signed it in 1945 and thus being inspired and influenced from its conventions; health has held importance since its inception in our constitution. However, health and related aspects were not given express position as a Fundamental Right but can be traced in DPSPs. Time and again judicial interpretations have been made with respect to health, its definition, and its inclusion in Article 21 as a fundamental right due to health being a part and parcel of life. However, it has still not gained the position of a separate Fundamental Right. In this article, we will analyse what the various sources of right to health are along with healthcare and its aspects in domestic sources as well as international sources.

History and Origin of the Right to Health

In 1802, UK passed one of the first factory legislations namely the Health and Moral Apprentices Act which related to work conditions of labour with respect to labourers in cotton mills at that point of time. This was one of the primary legislation to highlight the importance of health, which was followed by Public Health Act of 1848, which is considered as a gem in the journey of development of public health as a right. The Cholera epidemic of 1831, which was said to have emerged in modern urban areas or industrial cities because of sewage, disinfection and ghetto issues, was one of the motivations to start the stride. For the first time, sanitation and management of resources and environmental issues were taken up by the government. Further, local health boards were set up to regulate the same. Both these legislations began an excursion of amplifying the significance of general wellbeing.

In 1946, the World Health Organisation was formed and right to health was recognized globally. The Constitution of WHO states that, “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being…” and also defines ‘health’ as a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”.[1] It is essential to note how the meaning of health changed from simply being a condition of non-attendance of infection to a more extensive definition that tallies not only your psychological wellbeing but also your social prosperity wellbeing. The change in definition itself is a proof of advancement of health as a right.

After WHO, numerous nations were inspired to embrace right to health and in this manner adopted the right in a general sense in their constitutions. Furthermore, this also led to different conventions and treaties like the Universal Declaration of Human Rights (UDHR) and the European Convention etc. to perceive health as a significant right that should be tended to.

Gradually the right to health transformed from being a mere right to being a human right. In furtherance of the same, the International Convenant on Economic, Social and Cultural Rights (ICESR) recognized it as a right through Article 12 which also led to various other international human rights conventions and treaties like the International Convention on the Elimination of All Forms of Racial Discrimination to recognize the right to health as a human right on a global forum. The right to health is relevant to all States; every State has ratified at least one international human rights treaty recognizing the right to health. Moreover, States have committed themselves to protect this right through international declarations, domestic legislation and policies, and international conferences.

Domestic Sources of Right to Health

Preamble, Constitution of India

The Preamble of the Constitution of India embodies the principle of socialism, which aims at being a welfare State and also providing social justice, equality of opportunity and promoting human dignity. Socialism is when the egalitarian principles are followed, rights are valued & the dignity of each individual is upheld.[2] All together, the preamble aims at promoting social welfare which includes proper levels of nutrition, standards of living, equal opportunities for healthcare facilities and schemes and therefore, lifts up the entire public health sector as a whole.

Fundamental Rights

Part III of the Indian Constitution consists of Fundamental rights, which are guaranteed and protected which means they are justiciable and enforceable in a court of law and any piece of legislation that violates Fundamental Rights is void.[3] There are a plethora of direct and indirect Fundamental Rights that guarantee the right to health and healthcare to people –            

 Article 14

To start with, Article 14 guarantees equal protection of laws and equality before the law, and when read with Article 15, it embodies the principle of ‘equality of treatment’. While forming any policy, healthcare scheme or law with respect to health, the State shall not discriminate and should always ponder upon social realities before finalising any health related policy. The best example for it in recent times is the vaccine policy, wherein people were required to register online, however the State failed to consider a large section of society that is unaware or does not have access to such technology. The State was unsuccessful in considering the social realities of our country which are worse due to the pandemic, and such policy resulted in large sections of the society, particularly those from burdened and weak strata, not having access to vaccine registration and also the vaccine itself.

Article 21

The Right to Health is said to be an indirect Fundamental Right according to the Supreme Court of India, which through a progression of legal precedents, coherently expanded its understanding of the right to life to incorporate the right to health. The Constitution of India does not expressly guarantee a fundamental right to health; however, through various precedents it has been held thatthe right to life in Article 21 doesn’t talk about mere animal existence.In the case of State of Maharashtra Vs. Chandrabhan,[4]the apex court held that:

“Article 21 means something more than survival or animal existence. It includes all those aspects of life which go to make a man’s life meaningful, complete and worth living.”

Also, in the case of State of Punjab & Ors. v. Mohinder Singh Chawla,[5]  the apex court reaffirmed that the right to health is fundamental to the right to life and should be put on record that the government had a constitutional obligation to provide health services.

Article 23 & 24

Both Article 23 & Article 24 of the Constitution are rights against exploitation in respect of human trafficking and child labour. Article 39 r/w 23 & 24, gives us insight that children have a right against being exploited and that in their tender age, should not be employed below the age of 14 in factories, mines or other hazardous employment. The State has an obligation to ensure the health and strength of workers is not abused by economic necessity. Child labour has a deep impact not only on the physical state of a child but also on their mental state. The cases of children getting injured in the firecracker industry is never-ending news. Such labour can cause severe illness or permanent disability. Further no treatment costs or healthcare is provided for the children that are affected due to bonded labour, thus, jeopardizing the health of children who have to work due to their economic or family needs.

On the other hand, human trafficking also has major health impacts; victims of such trafficking experience brutality, sexual abuse, mental maltreatment, helpless day to day environments and a plethora of diseases, which may have enduring results on their physical, conceptive and emotional wellness. Thus, prohibition on both these practices is an indirect way to assure health as right.

Directive Principles of State Policy

Part IV of the Indian Constitution consists of directives principles that are not justiciable rights or enforceable in the court of law, however are very fundamental to the governance of a country.[6]

In the case of Bandhua Mukti Morcha v. Union Of India,[7] it was observed that it is no doubt true that DPSPs are persuasive in nature, yet they should be duly implemented by the state.

With respect to health, directly and indirectly there are various DPSPs in our constitution with Article 38 being the base for all such principles which states that, State shall strive to promote the welfare of the people……..”.

Article 39 (e) directs the State to form policies that deal with providing sufficient facilities to safeguard the strength and health of men, women and children especially so that they do not indulge in any job for economic support that may abuse their tender age. It is further ensured that children have a healthy environment for growth and development.[8]

Article 41 & 42 inculcate that the State shall, within the limits of its economic capacity and development, make effective provisions for securing the right to work, right to education and the right to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want and that the State shall make provisions for securing just and humane conditions of work and for maternity relief.

Further, it is the duty of the State to increase the standard of living, levels of nutrition, and put in continuous efforts to improve public health. As per Article 47 of the Constitution, it furthers states that in order to curb ill health and reach a good level of living, prohibition on certain habits which are detrimental to health shall also be done.

Lastly Article 48A, safeguards health indirectly as it covers the ambit of safeguarding environment, forest and wildlife. It is no doubt true that the quality of air in the 21st century is one of the biggest reasons for majority of breathing and respiratory diseases, which is a matter of grave concern especially in COVID-19. Degradation of environment, deforestation and other such atrocities have a major impact on public health and thus in order to safeguard the public health at large, there should be policies to govern industrial practices such as dumping waste in rivers and legislations to regulate individuals and various urbanization projects causing deforestation etc.

One on hand due to poverty, individuals engage in harmful employment to meet their economic needs, like working in poor conditioned factories, manual scavenging. These same poverty stricken individuals lack resources to get proper medical attention towards the harms caused by working under these conditions.

Poor health limits the ability of an individual to work which further increases his poverty and therefore these individuals lose all hope for proper medical treatment. Time and again, issues like poverty had struck the legislature and policy makers and even though the government has tried to ensure free medical check-ups, treatment camps and employment opportunities, it still has a long way to go.

Just like poverty, there are ample of issues that directly or indirectly affect public health and since these DPSPs are fundamental to governance, time and again, the State and Central Government has created legislations drawing inspiration from these principles, including the Maternity Benefit Act, 1961, for mothers; a plethora of labour laws dealing with working conditions of workers; and Wildlife conservation acts and Epidemic acts. Also, to ensure that sub-standard food is not consumed, we have The Food Corporation of India to ensure the same. However, it is the poor who are still consuming sub-standard food due to the obvious lack of resources and therefore it is the duty of the State to ensure that, conforming to Article 47, they are equally benefited to access health facilities.

To conclude, Salmond’s theory states that-, “every right has a corresponding duty to be fulfilled and there can be no right without parallel element of duty”. It is pertinent to note that there runs an inter-relation between Fundamental Rights and DPSPs.[9] As long as the State ensures, forms policies and implements them with respect to health, citizens can enjoy the same and when citizens are entitled to right to health they are casted with duty such as to keep their environment clean and so on.

Other relevant Articles in the Constitution

Apart from casting a duty upon its States, the Constitution of India casts duties on Panchayats and municipalities as well through Article 243G and Article 243W respectively to prepare plans for social justice and implement and promote schemes for matters listed in the Eleventh and Twelfth schedules respectively.

Some of the aspects that are related to public health and are duties of the Panchayat are covered under the ambit of the Eleventh schedule (Panchayats) and include –

  • Drinking water
  • Health and sanitation
  • Family welfare.
  • Social welfare, including welfare of the handicapped and mentally retarded.
  • Welfare of the weaker sections      

Some of the items that concern public health in Twelfth schedule (Municipalities) are as follows:-

  • Water supply for domestic, industrial and commercial purposes.
  • Public health, sanitation conservancy and solid waste management
  • Urban forestry, protection of the environment and promotion of ecological aspects.
  • Slum improvement and up gradation.
  • Urban poverty alleviation.

Medical Schemes, Policies and Bills

  • Ayushman Bharat Scheme: On the  recommendation of the National Health Policy of 2017, the  Ministry of Health and Family Welfare launched this scheme in 2018, which provided free access to secondary and tertiary medical treatment free of cost to people with low income. This scheme covers accommodation, treatment, laboratory and diagnostics, food, intensive care, implantation, post hospitalization care (up to 15 days) and much more. It aims to cover up 5 lakhs cost per family.
  • Rashtriya Swasthiya Bima Yojna: This scheme aims to cover Rs. 30,000 as hospitalization cost for below families living below the poverty line. Both private and public hospitals are covered under this scheme and one can go for pre-existing illnesses as well.
  • Aam Aadmi Bima Yojna:[10] This scheme started in 2007 for landless households in rural areas where on natural death, Rs. 30,000 is compensated and on accidental death or partial/permanent disability Rs. 75,000 and so on is compensated.
  • National Health Policy 2017: After a gap of 14 years, the policy of 2017 was launched with the aim of increasing investments in healthcare, medical research, medical pluralism, advanced technologies, promoting good health among the citizens and most importantly prioritising the accountability of government.[11] Swacch Bharat Abhiyan, Yatri Suraksha, and Nirbhaya Nari were also prioritized in this policy to promote good health.[12] One of the most important areas of work in this policy was of medical education and nursing and paramedical skills.
  • National Policy for RARE Diseases, 2021: This police wasvery critical in the advancement of recognising uncommon infections. Though it has no extensive and fixed definition, it is defined as “a disease that occurs infrequently…”.[13] To combat this issue to some extent, the National policy of 2021 was introduced which aimed at creating awareness among the masses about these rare diseases, consolidating manpower to combat it and investment in medical research.

International Sources

According to Article 51 of the Indian Constitution, in order to promote peace and security internationally, the State shall “foster respect for international law and treaty obligations”. Thus, India has ratified various international conventions and treaties that directly or indirectly recognize health as a basic human right such as –

  • Universal Declaration of Human Right, 1948:  Article 25 of the UDHR states, “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family…..including medical care…”.[14] It also states that mothers and children are entitled for special care.[15]
  • American Declaration of Rights and Duties of a man: – Article XI ofThe declaration states that, “Every person has the right to the preservation of his health through sanitary and social measures relating to food, clothing, housing and medical care”.
  • European Social Charter: – Article 11 of the charter talks about adopting measures to eradicate ill-health,[16] epidemics, pandemics, other diseases,[17] and also talks about promotion of health.[18]
  • International Covenant on Economic, Social and Cultural rights: Article 12 of the covenant deals with ill health, epidemics, and pandemics.[19] It also aims at environmental and industrial hygiene,[20] and believes that everyone should enjoy the most noteworthy feasible norm of physical and emotional wellness.
  • UN Convention on Rights of the Child: Article 24 of the UNCRC obliges States to provide the highest standard of living and health care facilities to children, as they are considered the most neglected segment of society in terms of healthcare. The Article is also empowers the states to make and implement policies that deal with pre and post natal treatment,[21] issue of malnutrition,[22]  family planning education,[23] adequate food and water, preventive healthcare etc.
  • Convention on the Elimination of All forms of Discrimination against women of 1979: The convention gives right of social security to women when sick to prevent discrimination.[24] It also preservesthe right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.”[25] In addition to that it also suggests States to take measures regarding maternity pay and leave and other associated benefits.[26] Article 12 and 14 of the same convention also embodies the element of ensuring proper healthcare facilities of women as it guarantees equal access to healthcare facilities to women.
  • UN Convention on the Rights of Persons with Disabilities of 2006: It suggests States to take care ofrecovery, rehabilitation and social integration of people with disabilities.[27] This convention guarantees the right to health to persons with disabilities as it states,Persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability.[28] States should aim at providing free or affordable treatment[29] to them as well as prohibit any kind of discrimination in health insurance scheme[30] or during the treatment of any kind of health issue and aim at providing quality treatment without discrimination.[31]

Conclusion

The benefit of towering accessible standard of health is regarded as one of the most important fundamental rights of every human. India, being a member to the United Nations, has regarded right to health as a Fundamental Right under Article 21 of the Constitution of India though not directly but through precedents. Further, the same has been recognized at the international level as well. In order to ensure the smooth functioning of the said right, the State should ensure certain parameters with regard to:

  • Availability of proper public and private health care facilities within the state
  • Accessibility, most importantly to the vulnerable sections of the society,
  • Free from any discrimination
  • Acceptability with regard to the medical ethics
  • Quality with regard to the service provided by the health care units.

The pandemic is proof to the unfortunate fact that even if a person has the ability to pay, he may not be able to receive proper health care facilities. It has also highlighted the importance of health and the need for regulations regarding healthcare facilities, creation of hospitals and management of oxygen and medications.

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] WHO Const. Preamble.

[2] Bakshi, “The Constitution of India”, (Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2003)

[3] Indian Const. art. 13.

[4] State of Maharashtra Vs. Chandrabhan ,AIR 1983 SC 803.

[5] State of Punjab & Ors. v. Mohinder Singh Chawla, AIR 1997 SC 1225 

[6] Indian Const. art. 37.

[7] Bandhua Mukti Morcha v. Union Of India, (1997) 10 SCC 549.

[8] Indian Const. art. 37. Cl. (f).

[9] State of Punjab & Ors v Ram Lubhaya Bagga, (1998) 4 SCC 117.

[10] ‘National Health Insurance scheme in India’, Policy bazar, available at https://www.policybazaar.com/health-insurance/general-info/articles/national-health-insurance-scheme/.

[11] National Health Policy 2017, Ministry of Health and Family Welfare, Pg- 1, available at https://www.nhp.gov.in/nhpfiles/national_health_policy_2017.pdf.

[12] Id., pg-6.

[13] National Policy for RARE Disease, Government of India, pg-12, available at https://main.mohfw.gov.in/sites/default/files/Final%20NPRD%2C%202021.pdf.

[14] Universal Declaration of Human Right, 1948, art. 25. Cl. (1) , see at https://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf.

[15] Id, art. 25 Cl. (2).

[16] European Social Charter , art. 11 Cl. (1), see at  https://rm.coe.int/168006b642.

[17] Id, art. 11 Cl. (3).

[18] Id, art. 11 Cl. (2).

[19] International Covenant on Economic, Social and Cultural rights , art. 12 Cl. (c).

[20] Id, art.12 Cl. (b).

[21]UN Convention on Rights of the Child, art.24 Cl. (d)., see at https://www.ohchr.org/en/professionalinterest/pages/crc.aspx.

[22] Id, art. 24 Cl. (c).

[23] Id, art. 24 Cl. (f)

[24] Convention on the Elimination of All forms of Discrimination against women of 1979, Art. 11 Cl.1 (e).

[25] Id, art. 11 Cl. 1(f).

[26]Id, art. 11 Cl.  2

[27] UN Convention on the Rights of Persons with Disabilities of 2006,  Art. 16. Cl. 4.

[28] Id, art. 25.

[29] Id, art. 25. Cl. (a)

[30] Id, art. 25. Cl. (e)

[31] Id, art. 25 (d).

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