2018-19 HEALTH AND HUMAN RIGHTS

NATIONAL LAW INSTITUTE

UNIVERSITY

SUBJECT- HUMAN RIGHTS LAW

PROJECT WORK ON
HEALTH AND HUMAN HIGHTS
SUBMITTED TO- (PROF.) DR. U.P SINGH

SUBMITTED BY
VAIBHAV GUPTA

2016BALLB100
7TH TRIMESTER

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ACKNOWLEDGEMENT

At the outset, I would like to thank my Mentor & Faculty of Human Rights Law, (Prof.)
Dr. U.P Singh, for being a guiding force throughout the course of this submission and
being instrumental in the successful completion of this project report without which my
efforts would have been in vain. He has been kind enough to give me his precious time
and all the help which I needed. I am immensely thankful for the strength that he has
endowed me with.

I would also like to express my heartfelt gratitude to the other staff of National Law
Institute University, for being immeasurably accommodating to the requirements of this
humble endeavor.

Vaibhav Gupta
National Law Institute University
Bhopal

ii

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TABLE OF CONTENT

AIMS AND OBJECTIVE- ............................................................................................................. 2

RESEARCH METHODOLOGY:- ................................................................................................. 5
SOURCES OF DATA:- .................................................................................................................. 5
SCOPES AND LIMITATIONS:- ................................................................................................... 5
HYPOTHESIS:- .............................................................................................................................. 5
THEME:- ........................................................................................................................................ 5
TABLE OF CONTENT .................................................................................................................. 3

INTRODUCTION .......................................................................................................................... 6

DEFINITION .................................................................................................................................. 8

Definition of Health .................................................................................................................... 8

Definition of Human Right ......................................................................................................... 8
Health as a Human Right ............................................................................................................ 9
RIGHT TO HEALTH ................................................................................................................... 11

Development of the Concept of the Right to Health................................................................. 11

Key aspects of the right to health .............................................................................................. 13
The right to health contains freedoms ....................................................................................... 13
EVOLUTUION OF THE HEALTH SYSTEM IN INDIA ........................................................ 144

Phase I (1947-83) .................................................................................................................... 145

Phase II (1983-2000)............................................................................................................... 156
Phase III (post 2000) ............................................................................................................... 170
REASONS FOR BAD HEALTH SITUATION IN INDIA ....................................................... 190

Poor goal setting and lack of formation of strategic interventions ....................................... ..190
Goal-setting and Strategic Interventions ................................................................................. 190
Lack of Focus, Evidence and capacity.................................................................................... 211
Inadequate Capacity to Plan and Implement at the Centre, State and District levels ............. 222
CONSTITUTIONAL MANDATE TO THE STATE…………………………………………23

INDIVISIBILITY AND INTERDEPENDENCE ........................................................................ 24

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Right to food ............................................................................................................................. 24
Right to a healthy environment ............................................................................................... 224
Health as right to life................................................................................................................. 24
STATE’S OBLIGATION TO PRESERVE LIFE ........................................................................ 26

Responsibilities of Municipalities and Panchayats ................................................................... 26

RIGHT TO HEALTH: JUDICIAL ACTIVISM ........................................................................ 289

CONCLUSION ……………………………………………………………………………………………………32
BIBLIOGRAPHY……………………………………………………………………………….33

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AIMS AND OBJECTIVE-

The aim of researcher, in doing the research work is to give a broad outline of health and
human right. The project will further analyze the various aspect of “right to health and health as
human right” in contrast with the various judicial precedents which are relevant to the topic.

RESEARCH METHODOLOGY:-
As whole research work for this work is confined to the library and books and no field
work has been done hence researcher in his research work has opted the doctrinal methodology
of research. Researcher has also followed the uniform mode of citation throughout the project
work.

SOURCES OF DATA:-
For doing the research work various sources has been used. Researcher in the research
work has relied upon the sources like many books of International Law, Articles, and Journals.
The online materials have been remained as a trustworthy and helpful source for the research.

SCOPES AND LIMITATIONS:-

Though the researcher has tried his level best to not to left any stone unturned in doing
his research work to highlight the various aspects relating to the topic, but the topic being so vast
and dynamic field of law and whose horizon and ambit cannot be confined and narrowed down,
the research work has sought with some of the unavoidable limitations.

HYPOTHESIS:-
Researcher by reading and doing preliminary research researcher is of the opinion that
health and human rights are co related, but they don’t have direct reference with each other in
any International Instruments or any national documents.

THEME:-
Researcher is basically dealing with the “health and human rights” in domestic
perspective. Very least observations have been made on International point.

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INTRODUCTION

What is the “right to health?” This preliminary issue is the subject of much debate. It stresses the
need for detailing meaningful definitions for health conditions. Most of the definitional issues
raised by researcher with regards to “drowning” apply to the definition of ‘Health’. Although
concerns with health and disease have been a major pre-occupation of humans since antiquity,
so, the use of the word ‘health’ to describe human ‘well being’ is relatively recent. The word
health was derived from the old English word ‘hoelth’, which meant a state of being sound, and
was generally used to infer a soundness of the body. 1 Prior to enigmatic physician known as
Hippocrates (c 460-377 BCE, or more appropriately, from around 5 BCE), health was perceived
as a divine gift. Hippocrates was credited with the pioneering shift from divine notions of health,
and using observation as a basis for acquiring health knowledge.

Health is a fundamental human right and a worldwide social goal Health is necessary for the
realization of basic human needs and to attain the status of a better quality of life In 1977, the
30th World Health Assembly decided that the main social target of governments and World
Health Organization (WHO) in the coming decades should be " the attainment by all the citizens
of the world by the year 2000 of a level of health that will permit them to lead a socially and
economically productive life" (WHO 1979)

Such a declaration has led most of the governments in western countries to give much more
priority to their health care systems through higher allocation and better utilization of resources
in order to improve the quality of health care Less developed countries are in the process of
improving it and some among them are yet to start India also has been attempting towards this
end The major hindrances on its way could be attributed to inadequate allocation of resources for
the health sector, rapid population growth, inefficient use of the resources allocated and above all
lack of public consciousness about their own health status Health being a State subject in the
Indian federal system, different states in the country have been trying to meet the WHO health
goal through mobilization of both internal and external resources including the funds from

1
Dolfman, Michael L., ‘The Concept of Health: An Historic and Analytic Examination, Journal of School Health’,
Published by American School Health Association, Temple University, Philadelphia, Pennsylvania, 1973,
Vol. 43, Pp. 491-497

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foreign agencies Specifically, the state of Andhra Pradesh has been in the forefront in this regard
and somewhat successful in developing a better public health care delivery system.

However, the achievement of the goal of "health for all" for the state is perhaps still a distant
dream Here a major point that needs to be understood is that the country needs to give emphasis
on the rural health services where nearly 70% of total Indian Population still lives. Despite
repeated pronouncements by the policy makers about the need for rural emphasis, health services
provided to the people have continued to be urban oriented where a major chunk of the resources
allocated to the health sector are spent In this chapter we attempt to give an outline of the
functioning of the health care delivery system of India in general and Andhra Pradesh in
particular Before going into detailed debate on the issues involved it may be useful to clarify
certain baste concepts that are frequently used in health care research.

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DEFINITION
Definition of Health

Different professional groups define the concept of health in different ways Medical
professionals define health in terms of illness, which, in turn is expressed in terms of mental or
physical disorders.

This concept of health is predominantly based on pathology and is concerned with the presence
or absence of disease and the stage of its invasiveness Some others define illness through giving
emphasis to the amount of pain suffered or the degree to which individuals are restricted in
undertaking their normal day to day activities For some, the maintenance of health is also linked
to social aspects such as unemployment and wealth. The broadest definition of health appears to
accept anything and everything that can affect health status the most widely accepted definition
of health given by World Health Organization is as follows

"Health is a state of complete physical, mental and social well being and not merely an absence
of disease or infirmity"2

Definition of Human Rights

The fundamental rights that humans have by the fact of being human, and that are neither created
nor can be abrogated by any government.3

Supreme Court and High Court judges at many time emphasized about importance of Human
Right.

In Maneka Gandhi V Union of India,4 all those rights which are essential for the protection and
maintenance of dignity of individuals and create conditions in which every human being can
develop his personality to the fullest extent may be termed Human Rights.

2
FRCH 1987, World Health Organisation
3
UDHR,1948

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However, dignity has never been precisely defined on the basis of consensus, but it accords
roughly with justice and good society.5 The world conference on Human Rights held in 1993 in
Vienna stated in Declaration that all human rights derive from the dignity and worth inherent in
the human person, and that the human person is the central subject of the human rights and
fundamental freedoms.

Health as a Human Right

Article 25 of the UDHR emphasizes recognition of the right of all persons to an adequate
standard of living, including guarantees for health and well-being. It acknowledges the
relationship between health and well-being and its link with other rights, such as the right to food
and the right to housing, as well as medical and social services. It adopts a broad view of the
right to health as a human right, even though health is but one component of an adequate
standard of living.

In article 12 of the ICESCR, states parties recognize "the right of everyone to the enjoyment of
the highest attainable standard of physical and mental health." That article identifies some of the
measures the state should take "to achieve the full realization of this right."

Articles 23 and 24 of the CRC recognize the right to health for all children and identify several
steps for its realization. Similarly, CEDAW establishes the obligation to adopt adequate
measures to guarantee women access to health and medical care, with no discrimination
whatsoever, including access to family planning services. It also establishes the commitment to
guarantee adequate maternal and child health care (art. 12[2]).

It is important to clarify that reproductive rights and reproductive health are not the same.
Reproductive health is only a small component of reproductive rights. Further access to
reproductive health services is only one part of the right to reproductive health, just as access to
health services is only one aspect of the right to health. For women to have good reproductive
health they have to have good general health and the physical, economic and social conditions

4
AIR 1978 SC 597
5
David P Forsythe, The Internationalization of Human Rights, P 1

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that make possible good health overall Numerous other instruments also provide for the right to
health.

These are: the International Convention on the Elimination of All Forms of Racial
Discrimination, the Convention relating to the Status of Refugees, the International Convention
on the Protection of the Rights of All Migrant Workers and Members of Their Families, the
Geneva Conventions, the Declaration on the Protection of Women and Children in Emergency
and Armed Conflict, the Standard Minimum Rules for the Treatment of Prisoners, the
Declaration on the Rights of Mentally Retarded Persons, the Declaration on the Rights of
Disabled Persons, and the Declaration on the Rights of AIDS Patients.

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RIGHT TO HEALTH

Development of the Concept of the Right to Health

Traditionally health was seen as falling within the private, rather than public, realm. Health was
also understood as the "absence of disease." The first laws containing health-related provisions
go back to the era of industrialization. The Moral Apprentices Act (1802) and Public Health Act
(1848) were adopted in the United Kingdom as a means of containing social pressure arising
from poor labor conditions. The 1843 Mexican Constitution included references to the state’s
responsibility for preserving public health.6

The evolution towards defining health as a social issue led to the founding of the World Health
Organization (WHO) in 1946. With the emergence of health as a public issue, the conception of
health changed. WHO developed and promulgated the understanding of health as "a state of
complete physical, mental and social well-being and not merely the absence of disease or
infirmity."7 It defined an integrated approach linking together all the factors related to human
well-being, including physical and social surroundings conducive to good health.

With the establishment of WHO, for the first time the right to health was recognized
internationally. The WHO Constitution affirms that "the enjoyment of the highest attainable
standard of health is one of the fundamental rights of every human being without distinction of
race, religion, political belief, economic or social condition." Over time, this recognition was
reiterated, in a wide array of formulations, in several international and regional human rights
instruments, which include:-

• Universal Declaration of Human Rights (art. 25)

• American Declaration on the Rights and Duties of Man (art. 33)
• European Social Charter (art. 11)
• International Covenant on Economic, Social and Cultural Rights (art. 12)
• African Charter on Human and Peoples’ Rights (art. 16)

Universal recognition of the right to health was further confirmed in the 1978 Declaration of
Alma-Ata on Primary Health Care, in which states pledged to progressively develop
6
The first nation to formally incorporate guarantees for ESC rights was Mexico (1917 Constitution), though no
specific mention is made of the right to health.
7
Constitution of the World Health Organization, Basic Documents, Official Document No. 240 (Washington, 1991).

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comprehensive health care systems to ensure effective and equitable distribution of resources for
maintaining health. They reiterated their responsibility to provide for the health of their
populations, "which can be fulfilled only by the provision of adequate health and social
measures."8 The Declaration develops the bases for implementing primary health care systems,
which have implications for the observance of the right. While this instrument is not binding, it
does represent a further commitment on the part of states in respect of the right to health, and
establishes the framework for an integrated policy aimed at securing its enjoyment.

In the context of the Alma-Ata Conference, WHO designed the plan, Health for All by the Year
2000,9 which consists of a series of goals and programs to achieve minimum levels of health for
all. Nonetheless, in a context in which health problems associated with poverty and inequity
continue to pose the main obstacles to attaining minimal levels of well-being for most of the
world’s population, the failure to achieve these goals points to the need to rework strategies.

Promoting health, one of the fundamental aspects of primary health care, has been addressed
independently by four successive conferences, the first in Ottawa, Canada, in 198610 and the
most recent in Jakarta, Indonesia, in 1997. The Declaration of Jakarta includes an updated
conceptualization of health and identifies the requirements for its attainment as we head into the
next century. These include "peace, housing, education, social security, social relations, food,
income, women’s empowerment, a stable ecosystem, the sustainable use of resources, social
justice, respect for human rights, and equity. Above all else, poverty is the greatest threat to
health."11

Other relevant international initiatives in recent years related to health are the Program of Action
of the International Conference on Population and Development (Cairo, 1994), which
encompassed three goals related to reducing infant and maternal mortality, and guaranteeing
universal access to reproductive health and family planning services; and the Platform of Action
of the Fourth World Conference on Women (Beijing, 1995), which adopted five strategic
objectives aimed at improving women’s health worldwide.

8
WHO, Declaration of Alma-Ata, International Conference on Primary Health Care, Alma-Ata, USSR, 6-12
September 1978.
9
WHO, Global Strategy for Health for All by the Year 2000 (Geneva, 1981).
10
First International Conference on Promotion of Health, which issued the Declaration of Ottawa.
11
Jakarta Declaration on Health Promotion (1997).

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Key aspects of the right to health
The right to health is an inclusive right. We frequently associate the right to health with access to
health care and the building of hospitals. This is correct, but the right to health extends further. It
includes a wide range of factors that can help us lead a healthy life. The Committee on
Economic, Social and Cultural Rights, the body responsible for monitoring the International
Covenant on Economic, Social and Cultural Rights, calls these the “underlying determinants of
health”. They include:

➢ Safe drinking water and adequate sanitation;

➢ Safe food;
➢ Adequate nutrition and housing;
➢ Healthy working and environmental conditions;
➢ Health-related education and information;
➢ Gender equality

The right to health contains freedoms

These freedoms include the right to be free from non-consensual medical treatment, such as
medical experiments and research or forced sterilization, and to be free from torture and other
cruel, inhuman or degrading treatment or punishment.

The right to health contains entitlements. These entitlements include:

➢ The right to a system of health protection providing equality of opportunity for everyone
to enjoy the highest attainable level of health;
➢ The right to prevention, treatment and control of diseases;
➢ Access to essential medicines;
➢ Maternal, child and reproductive health;
➢ Equal and timely access to basic health services;
➢ The provision of health-related education and information;

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EVOLUTUION OF THE HEALTH SYSTEM IN INDIA

The evolution of India's health system can be categorized into three distinct phases:

i. Phase I (1947-83)-when the health policy was based on two principles: that none should
be denied care for want of ability to pay, and (ii) that it was the state's responsibility to
provide health care to the people.

ii. Phase II (1983-2000)-when the first National Health Policy of 1983 articulated the need
to encourage private initiative in health care service delivery, while at the same time
expanding access to publicly funded comprehensive primary health care.

iii. Phase III (post-2000)-which is witnessing a further shift that has the potential to
profoundly affect the health sector in three important ways: (i) the desire to utilize private
sector resources for addressing public health goals; (ii) liberalization of the insurance
sector to provide new avenues for health financing; and (iii) redefining the role of the
state from being only a provider to a financier of health services as well.

Phase I (1947-83)

At the time of Independence, malaria affected almost a quarter of India's population; virulent
diseases such as smallpox, plague and cholera were rampant, maternal mortality was over 2000
per 100,000 live-births and longevity of life was less than 32 years (Bhore 1946). While the
public sector consisted of a few city hospitals, the private sector consisted largely of individual
practitioners of Indian systems of medicine and licentiates practicing in villages, as family
doctors. With meagre resources, this period saw the effective containment of malaria, bringing
down the incidence from an estimated 750 lakh to less than 20 lakh, eradication of smallpox and
plague, halving of the maternal mortality rate (MMR), reduction of the infant mortality rate
(IMR) from 160 per 1000 live-births to about 105, containing cholera and increasing longevity of
life to almost 54 years. Institutes of excellence such as the All India Institute of Medical Sciences
(AIIMS) were set up for research and quality training, making India an exporter of highly trained

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medical doctors. These gains were in no s mall measure due to the strong foundation of public
health on which the health system was grounded and the highly professionalized cadre of public
health specialist who provided leadership from the front, camping in villages in hostile
environmental conditions, whether to eradicate smallpox or supervise the malaria worker.

However, under the overarching influence of modernization that characterized the post-colonial
phase of global development, the urge to be on par with the western norms of modern medicine
proved to be too strong to resist. India, unlike China, missed the opportunity to launch public
health campaigns to promote, at the community and individual household levels, healthy
lifestyles alongside expanding public investment to assure universal access to water, sanitation,
nutrition and education. Instead, and more particularly during the 1960s and 1970s, public health
campaigns were focused only on promotion of the small family norm and family planning. India
also failed to utilize the strengths of the traditionally used and accepted modes of medical
treatment and gave undue emphasis to allopathy, gradually laying the base for an expanded
market for western style curative services, which are urbanbased as well as costly.

Phase II (1983-2000)

The National Health Policy of 1983

Despite the remarkable achievements in disease control, the failure to control the population, the
lack of access to basic health facilities in rural areas, and the international commitment to focus
on providing comprehensive primary care as envisioned by the Alma Ata Declaration in 1978,
led to the formulation of the National Health Policy of 1983. Limited resources to meet the
growing demand for health services led to the articulation for private sector to shoulder some
part of the burden. An estimated Rs 6500 crore worth of subsidy in terms of exemptions in
customs duty for import of equipment, subsidized inputs such as land, etc. were extended to
stimulate private investment in health. Alongside, the focus of state policy shifted to primary
health care to reduce the iniquitous urban-rural divide and expand access to the rural populations,
particularly the poor.
Lack of resources resulted in segmenting health into independent silos of disease control
programmes rather than visualizing health care as a continuum of service. Such segmentation led
to simplistic formulations of the role of state being confined to primary health care and a selected

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list of diseases and health interventions, rather than being responsible for the well-being and
health of the people. This phase witnessed an expansion of health facilities for providing primary
health care in rural areas and the implementation of national health programmes (NHPs) for
disease control under vertically designed and centrally monitored structures.

The adoption of this twin strategy had its advantages. With less than Rs 200 per capita
investment (2000), prioritization of interventions that benefit the poor and entail wide
externalities, provided a moral and technical justification. Besides the establishment of health
facilities in accordance with a population norm, guinea worm was eradicated and the disease
load due to infectious diseases reduced and deaths averted. During the 1990s, with assistance
from the World Bank, NHPs were upscaled with impressive outcomes: the cure rate of
tuberculosis (TB) under the Directly Observed Treatment, Short-course (DOTS) programme
doubled and averted an estimated 50 lakh deaths, leprosy was eliminated except in 70 districts,
the incidence of cataract as a cause of blindness reduced from 80% to less than 50% and the
number of polio cases decreased drastically from 29,709 to about 100.

Fiscal stress gave rise to innovation; various States attempted to improve the overall performance
of public health facilities by a combination of policies-improved availability of inputs, greater
flexibility in spending; defining responsibilities and rationalizing performance outputs; widening
the scope for involvement of local bodies, non-governmental organizations (NGOs), etc. It gives
a broad idea of the policy areas, the direction and nature of such innovation and names of the
pioneer states. The initiatives taken and the outcomes are impressive when analyzed in reference
to wide disparities in income and socio cultural behavior, a fast-changing economic scenario,
comparatively unstable political environment in several States and a near stagnant average per
capita investment in primary health care of Rs 105.

Despite the reduced health spending as a result of fiscal pressures that States faced during this
period, most of them took advantage of available opportunities to achieve whatever they could,
underscoring the fact that a limited level of investment can only give a commensurate level of
outcome.
Notwithstanding the above, five serious omissions occurred in the public health policy:

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(i) The private sector was encouraged without provisions for regulations, standards and
accreditation processes;
(ii) There was an absence of surveillance and epidemiological surveys to get a more accurate
understanding of the changing profile of disease prevalence and incidence, which is necessary
for measuring risk factors, designing interventions and launching information campaigns to
reduce risky behavior;
(iii) Advantage was not taken of the 73rd and 74th Constitutional Amendments for
decentralizing programme implementation to the local bodies/ community for increasing
accountability in the system;
(iv) Neglected of research and development to promote technological innovation; and
(v) Provided inadequate investment in developing the critical mass of required skills and human
resources.
In other words, the governments ran public health programmes that would have been more cost-
effective for the communities and local bodies and in the process neglected their more
fundamental responsibility of governance- of laying down a framework, defining the rules of the
game and monitoring systems to see that no player takes undue advantage in the health sector.

Phase III (post 2000)

National Health Policy II, 2002

By 2000, India had not achieved 13 out of the 17 goals laid down in the first National Health
Policy of 1983 (see Annexure IV). Analysis of the 52nd Round National Sample Survey (NSS)
on the utilization of health services showed that during 1986-96, there was a decrease in the
utilization of public facilities for outpatient care from 26% to 19%; a decrease in access to free
care from 19% to 10% and an increase in the number of persons not seeking care due to financial
incapacity. State-wise comparisons show that the poorest in the poorer States of UP and Bihar
had to pay substantial amounts for outpatient treatment and a low utilization of public facilities,
which indicates a virtual breakdown of the public health system.

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On the other hand, in Assam and Orissa, a large proportion of persons did not avail of treatment
at all. Read along with the number of untreated ailments due to financial reasons, the picture is
dismal, as it further emphasizes the failure of the public health system in providing risk
protection, since the average cost of outpatient treatment for every episode of illness is
equivalent to three to five days' wage of one earning member of the family.

To reduce the disease burden affecting the poor and alarmed by the falling levels in the
utilization of public facilities, the government brought forth the National Population Policy
(2000), the National Health Policy (2002), and the AYUSH Policy (2000), reiterating its resolve
and commitment to achieve a set of goals by 2010. The goals envisaged are to increase public
investment in health from the current level of 0.9% to 2%-3%; to increase the utilization of
primary care facilities from less than 19% to over 75%; to reduce the MMR by three quarters
from the current level of over 540 per 1000; to reduce the IMR from 62 per 1000 live-births to
less than 30, eradicate polio, eliminate leprosy, reduce deaths on account of TB and malaria by
over 50%, etc. Many of these objectives are in consonance with the Millennium Development
Goals (MDGs) for 2015.

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REASONS FOR BAD HEALTH SITUATION IN INDIA

Poor goal setting and lack of formation of strategic interventions

There has been a clear absence of any deliberate strategy to use the organizational tool for
achieving public health goals, except family planning, until the Sixth Five-year Plan when, under
the Minimum Needs Programme, concerted efforts were made to focus on expanding access to
primary care in rural areas. Thus, built over the years, the public health delivery system consists
of a large number of dispensaries, primary health care institutions, small hospitals providing
some specialist services, large hospitals providing tertiary care, medical colleges, paramedical
training institutions, laboratories, etc.
The failure to improve the health status, be accountable and responsive to people's needs or
protect them from financial risk has brought into focus the functioning of the public health
system, underscoring its failure in fulfilling such legitimate expectations. The focus of this
section is to understand the causal factors that have led to such a failure. These causal factors can
be divided into three broad groups:
1. Poor goal setting and lack of formulation of strategic interventions;
2. Management Failures;
3. Limited role of the State.

Goal-setting and Strategic Interventions

The public health system is inaccessible, disconnected to public health goals and inadequately
equipped to address people's expectations. For the majority of citizens, the public health system
is out of their reach due to distance, lack of money, lack of confidence in the system or the
availability of a cheaper alternative. The organizational structure requires a villager to travel an
average distance of 2.2 km to reach the first health post for getting a paracetamol; over 6 km for
a blood test and nearly 20 km for hospital care. Given the poor road connectivity, the
unreliability of finding the provider at the health centre, the indirect costs for transport and wages
foregone, the marginal cost of availing a public service outweighs that of getting some treatment
from the local quack.

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Further, even when accessed, there is no continuity of care guaranteed. In other words, the
segmentation of the health system into primary, secondary and tertiary, administered and In 8
States, substantial investments were mobilized from the World Bank to upgrade, strengthen and
establish hospitals at the district, sub-district and block levels.
Shortage of funds has been primarily responsible for the non-availability of facilities in
accordance with the norms set by the government; and inadequate provisioning of critical inputs
such as drugs, equipment, facilities such as operation theatre, etc. Due to lack of budgets and the
pressure to achieve targets, several States upgraded the two-roomed subcentres to PHCs. With no
place for laboratory, examination, pharmacy, etc. most are non-functional. There are PHCs with
over 33 subcentres and there are subcentres which cover over 200 habitations. It is estimated that
25% of people in Madhya Pradesh and Orissa, and 11% in Uttar Pradesh could not access
medical care due to locational reasons (NSS-India Health Report, 2003). The question that then
arises is to what extent is infrastructure an important determinant in health outcomes? Is there
any association?
The mockery we have made of the health care service delivery system by having subcentres
function in non-standardized places denying dignity and privacy to women who visit the ANM
for treatment and care. It gives the levels of utilization of the PHC facilities.
What emerges from the data is that while in the poorer performing States, the ratio of facilities to
100,000 population are on par with the rest of the States, and even better than that in Andhra
Pradesh and West Bengal, the health outcomes are poor. This shows that it is not the mere
establishment of a physical facility but a combination of factors such as distance, availability and
quality of skills, adequacy of infrastructure and access to alternative sources of care that seem to
influence health-seeking behaviour and determine outcomes which have been captured by a set
of indicators such as complete immunization, percentage of those severely malnourished, full
antenatal coverage, safe and institutional deliveries and finally, the IMR and the under 5
mortality rate (U5MR).
While it is clear that infrastructure development had little linkage to goal setting, it is also seen
that policy interventions per se often lacked focus, were not based on hard evidence, and had
weak institutional capacity to translate policy into action.

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Lack of Focus, Evidence and capacity

Lack of focus: Vertical versus horizontal programmes The NHP 1983 made a strong policy
commitment to establish a comprehensive primary health care, based on the active involvement
of the community and intersect orally linked to non-health determinants such as water,
sanitation, etc. Such an approach if implemented would have helped avert an additional 15 lakh
infant and 800,000 maternal deaths. Gains could have been impressive. The adoption of the
strategy of selective primary health care, running counter to the vision of a comprehensive
primary health care laid down in the NHP of 1983 was on account of resource constraints.
Compulsions to prioritize resulted in selecting interventions based on the criteria of the extent to
which the disease/condition affected the poor disproportionately more, was technically feasible
to implement and could be made available at comparatively low cost, and to be implemented
vertically from the centre.

Besides, a legitimate concern expressed widely is the potential for increase in primary multidrug
resistant (MDR) TB, which is currently estimated to be 2.8% in North Arcot near Chennai. This
is largely on account of the existence of multidrug regimens being administered by doctors in the
private sector and the tendency of shopping that patients resort to, on an average about 6-9
providers, before finally reaching the DOTS center. Such frequent switching of doctors by the
patients is not only draining their financial base but also, with the irrational prescriptions given,
could well be contributing to drug resistance. In Russia, it is reported that during 1997-99, MDR
TB rose from 6% to 13% while among the chronic cases it was over 60%. Drug resistance
happens due to inadequate treatment, use of sub-standard drugs, use of inappropriate preparation
and non-compliance by the patient due to various reasons. MDR TB is not only far more
expensive to treat but may also not be treatable. Yet, India barely has a surveillance network to
closely monitor this aspect. The story of TB reiterates the need for social/community control on
the process and the need for adopting a public health approach to the disease (Atre and Mistry,
FRCH 2005).

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Inadequate Capacity to Plan and Implement at the Centre, State and District levels

Failure to develop a public health cadre and widening the eligibility criteria to include clinicians,
without making public health training a mandatory requirement for working in posts that need
public health skills, have adversely affected the implementation of public health programmes.
Non-reservation of posts or the absence of a dedicated public health cadre have also reduced the
employability of persons trained in public health resulting in an accumulated shortage of the
critical mass of epidemiologists, biostatisticians and other personnel. With radiographers,
orthopaedicians, surgeons working as additional chief medical officers in charge of the RCH
programme or programmes for malaria or TB, or IAS officers as project officers of HIV/AIDS,
etc., the lack of technical capacity in providing the required level and quality of leadership at the
State/district-level has been a serious handicap. Mavlankar (Mavlankar 1999), persuasively
argues that one reason for the successful implementation of the maternal health strategies by Sri
Lanka and Malaysia is the availability of technical capacity to design and monitor at all levels,
from the village to the Central Government.

The collection and review of data is hardly given any importance, leave alone analysing it for
future planning. Monitoring is essentially confined to the bare minimum of NHP targets and
now, polio pulse immunization targets. In the absence of any system of surveillance or
epidemiological data gathering, planning interventions lack an evidence base and also make it
impossible for the system to be responsive to felt needs. A study conducted in Zenana Hospital
in Udaipur, Rajasthan found that during 1983-93 nothing had changed despite the improved road
network and awareness levels (Pendse 1993).

The report further observes the failure of the system to provide ambulance services, which
resulted in incurring expenditures on transport ranging between Rs 150 and 300, borrowed from
moneylenders ‘leaving the people poorer both materially and emotionally when despite their
desperate efforts the woman's life could not be saved'. The study also showed that during this
period while there was a drop in eclampsia, there was a 6-fold increase of deaths on account of
malaria induced anaemia and abortions induced by unqualified practitioners.

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CONSTITUTIONAL MANDATE TO THE STATE

The obligation of the State to ensure the creation and the sustaining of conditions congenial to
good health is cast by the Constitutional directives contained in Articles 39(e) (f), 42 and 47 in
part IV of the Constitution of India.12 State has to direct its policy towards securing that health
and strength of workers, men and women, and the children are not put to health hazards and that
citizens are not forced by economic necessity to enter avocations unsuited to their age or strength
(Article 39(e)) and 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 moral and material abandonment (Article 39(f)). The State is required to
make provision for just and humane conditions of work and for maternity benefit (Article 42). It
is the primary duty of the State to endeavour for raising of the level of nutrition and standard
ofliving of its people and improvement of public health and to bring about prohibition of the
consumption, except for medicinal purposes of intoxicating drinks and of drugs which are
injurious to health (Article 47). Protection and improvement of environment is also made one of
the cardinal duties of the State (Article 48 A). The State legislature is (under entry 6 of the State
List) contained in the Seventh Schedule to the Constitution, empowered to make laws with
respect to public health and sanitation, hospitals and dispensaries. Both the Centre and the States
have power to legislate in the matters of social security and social insurance, medical
professions, and, prevention of the extension from one State to another of infections or
contagious diseases or pests affecting man, animals or plants, by entries 23, 26 and 29
respectively contained in the concurrent list of the Seventh Schedule.

12
Part III, Constitution of India 1950

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2018-19 HEALTH AND HUMAN RIGHTS
INDIVISIBILITY AND INTERDEPENDENCE

Right to food

Nutrition programs and provision of food are substantial components of pri-mary health care
strategies. In article 24(2)(c) of the CRC and article 12(2) of CEDAW re-spectively, the right to
food is considered to be part of the right to health of both children and women. According to the
CESCR’s General Comment 12, national strategies on the right to food need be developed in
coordination with the development of health measures, among others (para. 25). (See Module 12
on the right to food.)

Right to a healthy environment

Article 12(2)(b) of the ICESCR specifies the environment as one of the areas for state
intervention in the realization of the right to health. This provision has traditionally been
interpreted as relating simply to occupational health, but in state reporting to the CESCR, it is
increasingly being considered as relating to all environmental issues that affect human health.
Primary health care strategies include access to clean drinking water and sewage services, and
preventive health programs should include control over human activities that may expose people
to environmental hazards detrimental to their health.

Right to adequate housing

General Comment 4 on the right to adequate housing links the availability of basic services,
such as drinking water, housing conditions that protect individuals from health hazards, the
availability of health care services and freedom from health-related environmental risks as core
elements of the right (para. 8). WHO has identified housing conditions as the environmental
factor having the most relevant impact on the prevalence of epidemiological diseases.

Health as right to life

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2018-19 HEALTH AND HUMAN RIGHTS
Article 21 of the Constitution guarantees protection of life and personal liberty by providing that
no person shall be deprived of his life or personal liberty except according to the procedure
established by law. As a result of liberal interpretation of the words ‘life’ and ‘liberty’, Article 21
has now come to be invoked almost as a residuary right. Public interest petitions have been
founded on this provision for providing special treatment to children in jail; against health
hazards due to pollution; from harmful drugs; for redress against failure to provide immediate
medical aid to injured persons; against starvation deaths; inhuman conditions in after-care home
and on scores of other aspects which make life meaningful and not a mere vegetative existence.
A positive thrust is given to the nature and content of this right by the Apex Court imposing a
positive obligation upon the State to take effective steps for ensuring to the individual a better
enjoyment of his life. The Supreme Court has held that the right to live with human dignity
enshrined in Article 21 derives its life and breath from the directive principles of State policy
particularly Article 39(e) & (f), 41 and 42 and would therefore include protection of health as
envisaged in the directives.

The expanded meaning of right to life is wholly justified, for, without health of a person being
protected and his well-being being looked after, it would be impossible for him to enjoy other
fundamental rights such as rights to freedom of speech and expression, to move freely
throughout the territory of India, to practice any profession or carrying on any trade, occupation
or business, to form associations guaranteed by Article 19 in a positive manner.

Without a guarantee of health and well being most of these freedoms cannot be exercised fully.
To make other rights meaningful and effective right to a healthy life is the basis underlying the
constitutional guarantees. All that the courts have done is to provide redressal by a meaningful
and just interpretation to the right to life and commanding enforcement of the duties of a welfare
State. The Court itself being an authority and therefore ‘State’ within the meaning of Article 12
which definition is made applicable by Article 36 to part IV containing the Directive Principles
of State Policy, has to bear in mind these directives in its decision making process.

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STATE’S OBLIGATION TO PRESERVE LIFE

Article 21 casts an obligation on the State to safeguard the right to life of every person,
preservation of human life being of paramount importance. The Apex court has held that whether
the patient be innocent person or be a criminal liable to punishment under the law, it is the
obligation of those who are in charge of the health of the community to preserve life so that
innocent may be protected and the guilty be punished. A doctor at the government hospital
positioned to meet this State obligation is, therefore, duty bound to extend medical assistance for
preserving life. Every doctor, whether at government Hospital or otherwise, has a professional
obligation to extend his services with due expertise and care for protecting life. It has been held
that this obligation is total, absolute and paramount, and laws of procedure, whether in Statutes
or otherwise, which would interfere with the discharge of this obligation cannot be sustained and
must therefore give way to higher standards. A doctor does not contravene the law of the land by
proceeding to treat the injured victim on his appearance before him either by himself or being
carried by others.

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 essential part of the obligations
undertaken by the government in a welfare state. The government discharges this obligation by
running hospitals and health centres which provide medical care to the person seeking to avail of
those facilities. The government hospitals run by the State and Medical Officers engaged therein
are duty bound to extend medical assistance for preserving human life. Failure on the part of a
government hospital to provide timely medical treatment to a person in need of such treatment
results in violation of the injured victim’s right to life guaranteed by Article 21.

Responsibilities of Municipalities and Panchayats

Article 242 of the constitution provides that the legislature of a State may by law, endow the
municipalities with such powers and authority as may be necessary to enable them to function as
institutions of self government and provide with respect to the performance of functions and
implementation of schemes as may be entrusted to them including those in relation to the matters
listed in the Twelfth Schedule to the Constitution which include at item 6, ‘Public health,

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sanitation conservancy and solid waste management’. Similar provision is made for the
panchayats under Article 243-G read with the Eleventh Schedule (item 23), of the Constitution.
Various municipal laws prescribe duties of such local authorities in the sphere of public health
and sanitation which include establishment and maintenance of dispensaries, expansion of health
services, regulating or abating harmful or dangerous trades or practices, providing a supply of
water proper and sufficient for preventing danger to the health of the inhabitants from the
insufficiency or unwholesomeness of the existing supply, public vaccination, cleansing public
places and removing noxious substances, disposal of night soil and rubbish, providing special
medical aid and accommodation for the sick in the time of dangerous diseases, taking measures
to prevent the outbreak of diseases etc. Therefore, whenever there is failure of these statutory
obligations of the local authorities, the citizens can approach the High Court under Article 226 of
the Constitution for seeking a mandamus to get the duties enforced.

There is, however, a significant difference between local government authorities and the State
health authorities, the latter having enormous powers to make available financial resources and
make key appointments. Healthy alliances between the two types of authorities are crucial, if
health is to be effectively promoted. This continues to be one of the areas of tension between
these two levels of the authority.

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RIGHT TO HEALTH: JUDICIAL ACTIVISM

Health as stated earlier is a state of complete physical, mental and social well being. The term
‘health’ implies more than mere absence of sickness as held by the Supreme Court. The Apex
Court in India has played a significant role in realization of the right to health by recognising the
right as a part of the fundamental right to life and issuing suitable directions to the State
authorities for the discharge of their duties. The Court has recognised that maintenance of health
is a most imperative constitutional goal whose realisation requires interaction of many social and
economic factors.13

In this context the theory of the inter-relatedness between rights was famously articulated in the
Maneka Gandhi14 decision. This became the basis for the subsequent expansion of the
understanding of the ‘protection of life and liberty’ under Article 21 of the Constitution of India.
The Supreme Court of India further went on to adopt an approach of harmonization between
fundamental rights and directive principles in several cases. With regard to health, a prominent
decision was delivered in Parmanand Katara v. Union of India15. In that case, the court was
confronted with a situation where hospitals were refusing to admit accident victims and were
directing them to specific hospitals designated to admit ‘medico-legal cases’. The court ruled that
while the medical authorities were free to draw up administrative rules to tackle cases based on
practical considerations, no medical authority could refuse immediate medical attention to a
patient in need. The court relied on various medical sources to conclude that such a refusal
amounted to a violation of universally accepted notions of medical ethics. It observed that such
measures violated the ‘protection of life and liberty’ guaranteed under Article 21 and hence
created a right to emergency medical treatment16.

Another significant decision which strengthened the recognition of the ‘right to health’ was that
in Indian Medical Association v. V.P. Shantha17. In that case, it was ruled that the provision of a
medical service (whether diagnosis or treatment) in return for monetary consideration amounted

13
Justice R. K., Abichandani, ‘High Court of Gujurat Report’, Ahmedabad, 2004
14
AIR 1978 SC 597
15
AIR 1989 SC 2039
16
Commentary cited from: Arun Thiruvengadam, ‘The Global Dialogue Among Courts: Social Rights
Jurisprudence Of The Supreme Court Of India from a Comparative Perspective’ in C. Raj Kumar & K.
17
AIR 1996 SC 550

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to a ‘service’ for the purpose of the Consumer Protection Act, 1986. The consequence of the
same was that medical practitioners could be held liable under the act for deficiency in service in
addition to negligence. This ruling has gone a long way towards protecting the interests of
patients. However, medical services offered free of cost were considered to be beyond the
purview of the said Act. With regard to the access and availability of medical facilities, the
leading decision of the Supreme Court was given in Paschim Banga Khet Mazdoor Samiti v.
26
State of West Bengal .

The facts that led to the case were that a train accident victim was turned away from a number of
government-run hospitals in Calcutta, on the ground that they did not have adequate facilities to
treat him. The said accident victim was ultimately treated in a private hospital but the delay in
treatment had aggravated his injuries. The Court realized that such situations routinely occurred
all over the country on account of inadequate primary health facilities. The Court issued notices
to all State governments and directed them to undertake measures to ensure the provision of
minimal primary health facilities. When confronted with the argument that the same was not
possible on account of financial constraints and limited personnel, the Court declared that lack of
resources could not be cited as an excuse for non-performance of a constitutionally mandated
obligation. The Court set up an expert committee to investigate the matter and endorsed the final
report of the said committee. This report contained a seven-point agenda addressing several
issues such as the upgrading of facilities all over the country and the establishment of a
centralized communications system amongst hospitals to ensure the adequacy and prompt
availability of ambulance equipment and personnel. Some commentators have argued that by
recognizing a governmental obligation to provide medical facilities, the Court has created a
justiciable ‘right to health’.

The judgment of the Supreme Court in Nilbati Behra State of Orissa18 case holds that in view of
the fundamental right to life (Article 21 of the Constitution)19 the Government cannot claim
‘sovereign immunity’ for liability for the negligence of its employees.

18
AIR 1993 SC 1960
19
Bakshi, P.M., Right to Life and Personal Liberty, “The Constitution of India”, Universal Law Publishing Co. Pvt.
Ltd., New Delhi, 2003

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The right to health and health care is protected under Article 21 of the Constitution of India, as a
right to life and reach of which can move the Supreme Court on High Court through writ
petition. Practice of medicine is capable of rendering great service to the society provided due
care, sincerity, efficiency and skill are observed by doctors. When doctors performed their duties
towards the patient negligently in a Government hospital, the servants of the state violated the
fundamental right of the patient, guaranteed under Article 21 of the Constitution.

Medical profession has its own ethical parameters and code of conduct. ‘Services’ of medical
establishments are more of purchasable commodities and the ‘business’ altitude has given an
impetus to more and more malpractices and instances of neglect. But the question is, whether, on
the whole, branding the entire medical community as a delinquent community would serve any
purpose or will it cause damage to the patients. The answer is, no doubt, the later. It is not that
measures to check such dereliction are absent. Victims of medical negligence, considering action
against an erring doctor, have three options.

➢ Compensatory mode - Seek financial compensation before the Consumer Disputes Redressal
Forum or before Civil Courts,
➢ Punitive/Deterrent mode - Lodge a criminal complaint against the doctor,
➢ Corrective/Deterrent mode - Complaint to the State Medical Council demanding that the doctor’s
license be revoked.
Jurisdiction of Civil Court was never disputed but its scope was limited for damages only. In the
recent times, professions are developing a tenancy to forget that the self-regulation which is at
the heart of their profession is a privilege and not a right and a profession obtains this privilege in
return for an implicit contract with society to provide good competent and accountable service to
the public. The self-regulator standards in the profession have shown a decline and this can be
attributed to the overwhelming impact of commercialization of the sector. There are reports
against doctors of exploitative medical practices, misuse of diagnostic procedures, brokering
deals for sale of human organs, etc.

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CONCLUSION

The main conclusions that can be drawn from the study are as follows:

1. Even though right to health is not specifically mentioned as a Fundamental right in the Indian
Constitution, the judiciary has read this right into Article 21 of the Constitution dealing with
right to life and personal liberty.

It means that certain components of the right to health are enforceable in the Indian context.
Coming specifically to accessibility, the Indian courts have dealt with this issue in all its
dimensions viz., Non discrimination, Physical accessibility, Economic accessibility and
Information accessibility.

2. In interpreting right to health, the courts have blurred the distinction between judicial
functions and administrative functions. In a traditional framework, an adjudicating body is not
expected to go into the measures adopted by the executive branch. Its function is confined to see
whether the measure adopted is a reasonable one and whether it is taken in good spirit. In the
select cases analyzed above, the Courts have gone into the micro management issues

3. The role of court as a facilitator in addressing issues of health is dynamic and timely. But
many a time the governments find it difficult to implement such decisions. Most of the time what
is prescribed as guidelines by the judiciary are in a way directions tending towards policy
making which is and should be confined to the powers of the State. Moreover, some of the
judicial decisions are reactions to some unfortunate extreme events and in their enthusiasm to do
justice, judiciary comes out with a number of policy prescriptions without adequately knowing
the ability of the state to implement such directions. Since this is the case, the respective State
Government may not be proactive in carrying forward the decision in to implementation plans

4. The study of some of the cases clearly brings out the other extreme nature of governance. In
the pendency of some of the case which are studied, it is noted that the Governments (Central
and States) brings in policy changes and legal amendments and also appoints commissions and
notify such changes to the satisfaction of the Court.

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5. ‘Health’ being a State subject in the Constitution, the decision of the Supreme Court and the
respective High Court adds to multitude of other issues. Invariably what is being pleaded by
many states is the lack of financial and manpower resources to undertake massive health
schemes. To be fair most of the health schemes involves high expenditure and requires
competent people. The direction of the Supreme Court or in some cases respective High Courts
are very difficult to implement owing to the above factors.

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BIBILIOGRAPHY

Websites

• .http://www.who.int/topics/human_rights/en/
• http://www.searo.who.int/en/
• https://www.hrw.org/india
• http://nhrc.nic.in
• http://www.legalservicesindia.com.
• http://www.ohchr.org
• http://legacy/forham.in

Books

• Kapoor, S.K, “International Law and Human Rights”, 20th edition 2016.

• Agrawal,H.O, “International Law and Human rights”, 20th edition 2014.

• Human Rights in World History By Peter N. Stearns

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