Right to Health as a Fundamental Right Guaranteed by the Constitution of India
The outbreak of COVID-19 has posed a series of intricate policy
challenges to legislators, the
government and public health professionals.
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 WHO goes on to clarify that it is the
state’s legal obligation to ensure uniform access to “timely, acceptable,
and affordable health care of appropriate quality as well as to provide for the
underlying determinants
of health, such as safe and potable water, sanitation, food, housing,
health-related information and education, and gender equality” to all its
people. In India, this right, which is a natural corollary to promoting public
health, is protected under the Constitution of India in multiple ways.
The
Directive Principles of State Policy (DPSP), enshrined in Chapter IV of the
Constitution of India, require the state to, among other duties,
·
promote
the welfare of its people (Art.38);
·
protect
their health and strength from abuse (Art 39(e));
·
provide
public assistance in case of sickness, disability or “undeserved want” (Art
41);
·
ensure
just and humane conditions of work; and
·
raise
nutrition levels, improve the standard of living and consider improvement of
public health as its primary duty (Art 47).
In
addition to the DPSP, some other health-related provisions can be found in the 11th
and 12th Schedules, as subjects within the jurisdictions of
Panchayats and Municipalities, respectively. These include the duty to provide
clean drinking water, adequate healthcare and sanitation (including hospitals,
primary health care centers and dispensaries), promotion of family welfare, development
of women and children, promotion of social welfare, etc.
The
Constitution of India does not expressly recognize Right to Health as a
fundamental right under Part III of the Constitution (Fundamental Rights).
However, through judicial interpretation, this has been read into the fundamental
right to life & personal liberty (Article 21) and is now considered an inseparable
part of the Right to Life. Article 23 of the Constitution of India also
indirectly contributes to protecting the Right to Health as it prohibits human
trafficking and child labour.
The
role of Indian Supreme Court in protecting the health of the public at large is
noteworthy. The Supreme Court has repeatedly observed that the expression “life”
in Article 21 means a life with human dignity and not mere survival or animal
existence (Francis
Coralie Mullin vs The Administrator, Union Territory of Delhi AIR 1981 746).
Right to life has a very broad scope which includes right to livelihood, better
standard of life, hygienic conditions in the workplace & right to leisure. Right
to Health is, therefore, an inherent and inescapable part of a dignified life. Article
21 should also be read in tandem with the directive principles of state policy,
cited above, to truly understand the nature of the obligations of the state in this
respect.
In
the case of Bandhua
Mukti Morcha v. Union of India AIR 1984 SC 812, the Supreme Court held that
although the DPSP are not binding obligations but hold only persuasive value,
yet they should be duly implemented by the State. Further, the Court held that dignity
and health fall within the ambit of life and liberty under Article 21.
In
the case of Paschim Banga Khet Mazoor Samity v. State of West
Bengal (1996) 4 SCC 37,
the scope of Article 21 was further widened, as the court held that it is the
responsibility of the Government to provide adequate medical aid to every
person and to strive for the welfare of the public at large.
Further,
the Supreme Court in the case of Parmanand
Katara v Union of India
AIR 1989 S.C. 2039,
held that every doctor at Government hospital or otherwise has the professional
obligation to extend his services with due expertise for protecting life of a
patient.
In
the subsequent case of Consumer
Education and Research Centre V. Union of India AIR 1995 SC 922, held that right
to health and medical aid to protect the health and vigor of a worker, both
while in service and post-retirement, is a fundamental right under Article 21.
Further,
According to Article 19 (1) (g) of the Indian Constitution, the fundamental
right of all citizens to practice any profession, or carry
on any occupation, trade or business is subject to
restrictions imposed in the interest of the general public under Article
19(6). The Hon’ble Supreme Court in the case of Burrabazar
Fire Works Dealers Association and Others v. Commissioner of Police, Calcutta AIR 1998 Cal. 121,
held that Article 19 (1) (g) does not guarantee any freedom which is at the
cost of the community’s safety, health and peace.
Right
to Health is a part and parcel of Right to Life and therefore right to health is
a fundamental right guaranteed to every citizen of India under Article 21 of
the Constitution of India. We owe the recognition of this right to the fact
that the Supreme Court of India, through a series of judicial precedents,
logically extended its interpretation of the right to life to include right to
health.
Therefore,
it is the duty of the State to care for the health of the public at large and
the Central Government and various State governments have, rightfully and
proactively, taken various measures to contain the entry and spread of the COVID-19
pandemic.