Table of Contents
THE RIGHT TO HEALTH AS A FUNDAMENTAL RIGHT
INTRODUCTION
According to the World Health Organization, health can be described as a state of complete physical, mental and social wellbeing and not merely the absence of disease. The World health organisation further attest that it is the state’s legal obligation to ensure universal access to timely, acceptable, and affordable health care of appropriate quality as well as to take note of the many underlying issues of health such as safe and water, sanitation, food, proper 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.
HEALTH DISCRIMINATION
In March 2012, Anil Kumar Meena an MBBS student committed suicide at the All India Institute of Medical Sciences (2). He was a tribal, with a good academic record, but had difficulty in understanding English. The teachers allegedly humiliated him instead of helping him. His performance dropped. He ultimately took his life. This was the second suicide in AIIMS in two years, and protesters said that nothing was done to improve circumstances. The administration however denied that Anil was discriminated against because he was a tribal. The situation is worse than it appears. In 2007, the Thorat Committee Report (3) described extensive discrimination against SC/ST students in AIIMS, where 85% of the students reported that internal examiners wanted to know the caste of the students, and that they were blatantly discriminatory in awarding grades. The upper caste students too were openly aggressive against the reserved category. The opposition to such students is based on the conviction that they don’t have merit (they didn’t know enough English to understand the lectures and do the tests). As is well known, the phenomena of fatal discrimination and suicides in higher education extend far beyond AIIMS as an institute, medicine as a discipline.
LEGAL PROVISIONS
The right to Life and Personal Liberty is assured by the Indian Constitution under Article 21. This is a very important and wide topic and has several implications for the citizens of India Right to Health: The right to health, as with other rights, includes both freedoms and entitlements:
- Freedoms include the right to control one’s health and body (for example, sexual and reproductive rights) and to be free from interference (for example, free from torture and non-consensual medical treatment and experimentation).
- Entitlements include the right to a system of health protection that gives everyone an equal opportunity to best possible health care.
- Directive Principles of State Policy Articles 38, 39, 42, 43 & 47 put the obligation on the state in order to ensure the effective realization of the right to health
- India is a signatory of Article 25 of the Universal Declaration of Human Rights (1948) by the United Nations. It grants the right to a basic standard of living adequate for the health and well-being of humans including food, medical care and necessary social services.
CASE LAWS
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. 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 wellbeing of a worker, both while in service and post-retirement, is a fundamental right under Article 21 The Supreme Court in the case of Burrabazar Fire Works Dealers Association and Others v. Commissioner of Police 1998, noted that Article 19 (1) (g) does not provide any freedom which is at the cost of the community’s safety, health and peace. In the case of Parmanand Katara Vs Union Of India (1989) judgement, the Supreme Court had ruled that every doctor whether at a government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life.
SUGGESTIONS
- There must be coordination between the centre and states without impeding cooperative federalism – an essential element of the Indian Constitution.
- The aspect of right to health in India should be implemented within the framework of principles of solidarity, proportionality, and transparency that are key to human rights and health law, as proposed by the Professor of Health Law Katharina.
- There should also be a comprehensive public health legislation, incorporation of the right to health may be passed by the Parliament.
- There is a need to build a designated and autonomous agency to perform some key functions like disease surveillance, gathering information on the health impact of some major non-health departments’ policies, collection of national health statistics, enforcement of public health regulations, and provide clear information to the public.
- There is a great need for a Developmental Finance Institution (DFI) enacted specifically for healthcare investments.
CONCLUSION
It is the duty of the State to adhere to the constitution of the nation and provide the best possible care for its citizens in accordance to the fundamental rights outlined in the article 19 of the constitution of India. In the former PM Pandit Jawaharlal Nehru plan of 1928, he highlights the right to health as a fundamental right. It should be noted that as much as the right to life is regarded as the heart of the fundamental rights, so should be the right to health. It is highly arguable that there should be certain provisions that should implement the right to health as a fundamental right as well on its own accord. The above stated provisions can also be taken into consideration when attempting to preserve or uphold the right to health with limitation to discrimination as well.
REFERENCES
https://www.orfonline.org/expert-speak/declaring-the-right-to-health-afundamental-right/
https://www.jsalaw.com/covid-19/right-to-health-as-a-fundamental-rightguaranteed-by-the-constitution-of-india/
https://www.drishtiias.com/daily-updates/daily-news-analysis/demandfor-right-to-health
https://byjus.com/free-ias-prep/evaluate-the-need-for-the-constitutionalright-to-health-for-all/
Author: Munashe Siwadi,
Lovely Professional University. 2nd Year student