Constitutional perspective on the Right to Health, and the

Governments shortages

The Supreme Court has read the right to health into article 21 of the Constitution.
Furthermore, Article 47 makes improvement of public health a primary duty of State.
However, the government has refused to fulfil its obligations to provide free health services
to the wider population. This paper suggests that the government open up avenues for more
efficient drug trade. This includes removing stringent licensing of various drugs, and
legalizing others. This would allow individuals access to a greater variety of treatments, in
furtherance of their fundamental right. On the other hand, reforming industry patents by
incorporating the right to health could allow for the horizontal imposition of rights, where the
government lacks resources; while allowing economically deprived access to expensive
medications.
The right to health has transformed over the past 50 years into a universal concept. It has
evolved from narrow protective measures implemented by governments, to a broader positive
duty of governments to address public health needs. The right to health is an important facet
of human rights. Article 25 of the Universal Declaration of Human Rights seeks to establish a
right to a standard of living adequate for the health and well-being of himself and of his
family; access to medical care; and the right to security in case of sickness.1 The right to
healthcare was expanded by the World Health Declaration, adopted by the member states of
the World Health Organisation in 1998. It provides every human being with the fundamental
right to health; and establishes a goal to achieve social and economic development through
the improvement of health systems.2
The Constitution of the World Health Organisation (hereinafter WHO) provides that Health
is a state of complete physical, mental and social well-being and not merely the absence of
disease or infirmity. The right to health encompasses various aspects, which includes the
right of access to drugs. This right is vital in the evolving debate between the governments
positive duties, its capabilities, and the individual liberties of citizens in India. The ICESCR
explained that the right to medications: should include appropriate quantities; be accessed
without discrimination; acceptable with respect to medical ethics and customs; and should be
of good quality. Furthermore, medications should be physically and economically accessible.3
This is pertinent as India has one of the lowest public expenditure percentage rates, at 1.3% in
the past 5 years.4

1 http://www.un.org/en/documents/udhr/index.shtml#a25
2 http://www.nszm.cz/cb21/archiv/material/worldhealthdeclaration.pdf
3 The Right to the Highest Attainable Standard of Health. General Comment 14. ECOSOC OR,
CESCR Report, 22nd session, Agenda Item 3, para 12(a) and 12(b). [E/C.12/2000/4 of 11 August
2000].
Dhruv Yadav (20131220), Sec. D
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Constitutional perspective on the Right to Health, and the

Governments shortages
The Supreme Court has also criticised the government for failing to create conditions to allow
individuals the right to live with human dignity. In Bandhua Mukti Morcha v. Union of
India5, the Supreme Court provided that article 21 derives its life breath from the directive
principles of state policy (hereinafter DPSP). Article 21 of the Constitution of India provides
for the protection of life and personal liberty of an individual. It allows individuals to live
with human dignity; and the Supreme Court has referred to the DPSP, to create unenumerated rights under article 21. Article 47 imposes a duty on the state to improve 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. In Consumer Education and
Research Centre v. Union of India6, the Supreme Court held that the right to health is an
integral facet of the right to life; and is necessary for a labourers livelihood. The initial
debate, although restricted to the economic aspects of labourers, imposed a positive duty on
The State, be Union or State government or an industry, public or private7 to promote
health, strength and vigour of the workman. Although India has a tremendous private health
sector, its public health spending is among the lowest in the world. It suffers from constant
under-funding; and lacks infrastructure. This paucity has not been compensated by the private
sector which primarily benefits urban areas, where a small percentage of the population has
the ability to afford high-end medical care at prohibitive costs.8 Furthermore, the trend does
not seem to be improving. The government has ordered a 20% cut in the healthcare budget
for 2014-2015 to meet its fiscal deficit.9 Such figures highlight the failure of the state to
provide for health care for all.10
At a broader level, the governments policies are not sufficient to provide a population of 1.2
billion people their fundamental right to health care. The governments lack of resources is a
serious threat to the fundamental right to health. However, this should not allow the state to
rely on a profit-driven health care system. The states inadequacies have been recognised by
the Supreme Court, which has recognised that no state has unlimited resources11. Thus, the
Supreme Court, while holding that the right to medical aid is a fundamental right of all
4 http://data.worldbank.org/indicator/SH.XPD.PUBL.ZS?
order=wbapi_data_value_2012+wbapi_data_value+wbapi_data_value-last&sort=asc
5 AIR 1984 SC 802. At para. 14.
6 AIR 1995 SC 922. At para. 26.
7 Id.
8 Human Right to Health, Avanish Kumar, p. 180.
9 http://in.reuters.com/article/2014/12/23/india-health-budget-idINKBN0K10Y020141223
10 Human Right to Health, Avanish Kumar, p. 181.
Dhruv Yadav (20131220), Sec. D
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Constitutional perspective on the Right to Health, and the

Governments shortages
citizens including ex-servicemen guaranteed by Article 21 of the Constitution12 also stated
that asking them to pay a 'one time contribution' would not be unconstitutional. The
government needs to generate political will in order to allocate more funds towards the public
health care system. The government is competent to enact schemes which can redistribute
revenues towards health care, obligating workers to create funds. However, the highly
political nature of such issues has left the infrastructure of the public health care system in a
dismal state.
Another aspect of the right to health is the right of access to drugs. The government has to
ensure that individuals are able to receive the best treatment through drugs available in the
market.13 Taking into account the lack of government resources for the implementation of
health care services; it should be able to reform the accessibility to a wider range of drugs, for
both scientific and medicinal purposes. In this aspect, the government needs to revisit The
Narcotic Drugs and Psychotropic Substances Act, 1985. The Act has been termed draconian
with respect to its procedural and punitive provisions.14 Section 4 of the Act delineates the
powers of the government to curb illicit drugs; it is an overarching provision which fails to
recognise the scientific and medicinal benefits of drugs. The Act should make an exception
for scientific and medicinal purposes. This would allow the public to receive a unique,
tailored access to medications, in furtherance of their fundamental right to life. The
government should consider the existence of certain drugs as potential medicines, and at the
very least, allow medical research to take place. Article 47 makes an exception to the
prohibition of intoxicating drugs, for medicinal purposes. However, The Punjab and Haryana
High Court has held that large scale misuse of a drug in the name of medicinal purposes
would warrant a prohibition.15 Such perceptions do not allow for the right to health to
develop. It is the states duty to regulate the use, treat addicts, and inform the public about the
proper usage of medications, while allowing for medical treatment. There will always be
misuse of drugs where the state fails in its duties; and it can be no justification for the
prohibition of drugs needed for medicinal purposes.
The NDPS Act (Amendment) Bill, 2014 has introduced section 2(viiia) which provides a new
category of essential narcotic drugs. This provision is a progressive step towards the access
to medicines as it provides a list, which the Central Government can notify on the basis of
11 Confederation of Ex-Servicemen Ass. v. Union of India, AIR 2006 SC 2945 at para. 40.
12 Id.
13 Human Right to Health, Avanish Kumar, p. 61.
14 http://timesofindia.indiatimes.com/india/Supreme-Court-finds-no-leniency-clause-in-NDPS-Actdraconian/articleshow/17947431.cms
15 L. Col. Pritpal Singh v. Chief Comm. Of Delhi, AIR 1996 Punj 4.
Dhruv Yadav (20131220), Sec. D
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Constitutional perspective on the Right to Health, and the

Governments shortages
expediency in medical practice.16 This would allow for the facilitation of obtaining drugs
without the need for multiple state licenses. Additionally, there is no mention of medicinal
use of such drugs, thus it may allow for the exemption of drugs for other treatments such as
drug dependence and pain relief17. However, it should be noted that this provision remains
upon governments discretion to notify a drug as an essential narcotic. This ultimately leaves
the accessibility to the largest lobby. The amendment would currently be limited to a wider
availability and accessibility to morphine.18
A further addition could have allowed for a faster and holistic approach to right to health. It
would require the government to also exempt narcotics based on renewed scientific evidence.
This would allow individuals to realise their right to health for medications, previously
unavailable, based on scientific evidence. The right to receive information is an essential
feature of the right of access to drugs; and allowing access to drugs based on scientific studies
would allow individuals to receive treatment of various diseases.19
Another obstacle hindering the accessibility to drugs is the private corporations, especially
multinational pharmaceutical companies which are in the forefront of pushing health
services as tradable commodity.20 The commitment of India under the TRIPS Agreement
seeks to make life saving medication inaccessible to the masses, as generic drug producers
are prevented from reproducing medications and selling them at cheaper rates.
The TRIPS Agreement created minimum standards for patents in WTO member states, and
enforcement mechanisms for corporations to defend their intellectual property. However, it
allowed each country to decide which patents to grant. Additionally, TRIPS provided
flexibilities to make provisions in a public health emergency. These exceptions are public
health safeguards. Section 3(d) of the Patents Act disallows patenting of new forms of
known substances, unless the new form exhibits a significant enhancement in efficacy.21 The
practice of patenting slight modifications is termed evergreening; hence the safeguard in
16 http://www.lawyerscollective.org/updates/parliament-passes-ndps-amendment-bill-2014-gainslosses.html
17 http://www.lawyerscollective.org/updates/parliament-passes-ndps-amendment-bill-2014-gainslosses.html
18 http://www.thehindu.com/todays-paper/tp-national/passing-of-ndps-act-amendment-bill-willmake-morphine-more-accessible/article5718188.ece
19 Human Right to Health, Avanish Kumar, p. 62.
20 Human Right to Health, Avanish Kumar, p. 181.
21 http://www.lawyerscollective.org/news/archived-news-a-articles/126-novartis-case-backgroundand-update-supreme-court-of-india-to-recommence-hearing.html
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Constitutional perspective on the Right to Health, and the

Governments shortages
section 3(d) allows producers of generic drugs to manufacture cheap drugs. It was in light of
the economic right to access drugs that the Supreme Court, in Novartis AG v. Union of
India22, denied Novartis the patents to their modified drugs. Hence these flexibilities are a
necessary tool for the attainment of access to health care to all, and should not be eroded by
the World Trade Organisation.23
In Mohd Ahmed v. Union of India24, the Delhi High Court recently held that the government

owes a positive duty to provide free medical treatment to the petitioner suffering from a rare
and a chronic disease, even though the treatment is expensive and recurring.25 The court
acknowledged the concerns of the government that it did not have the resources to provide
such treatments to everyone. However, considering the socio-economic condition of the
petitioner, it stated that
Government cannot cite financial crunch as a reason not to fulfil its obligation to
ensure access of medicines or to adopt a plan of action to treat rare diseases. In the
opinion of this Court, no government can wriggle out of its core obligation of
ensuring the right of access to health facilities for vulnerable and marginalized section
of society.26
Such decisions highlight the recognition of the irrevocable right to provide health care to all,
especially those in dire need. They also provide the government an external approach towards
IP policies, which should take into account public health and exceptions for the economically
handicapped.
Article 21 of the constitution provides for the right to livelihood of persons, so that they may
enjoy their fundamental rights. The right to health is an important facet and has been
considered as a fundamental right in the international arena, and in India. The primary aspect
of the right to health is its universal application. The Indian government has often cited a
shortage of economic resources in the public health sector to carry out its duty. However, it
has been complicit in failing to implement effective laws to provide for health care. It does
not allocate funds sufficiently, and there exist laws which prohibit potential medical
treatments. Furthermore, the government should not fail its duty in cases involving the
22 Novartis AG v. Union of India, CIVIL APPEAL Nos. 2706-2716 OF 2013 available at
http://supremecourtofindia.nic.in/outtoday/patent.pdf
23 Rich and poor countries divided on patent treaty , William New, Bulletin of the World Health
Organization Volume 84, Number 5, May 2006, p. 337-424.
24 W.P.(C) 7279/2013 available at http://indiankanoon.org/doc/77985236/
25 Id. at para. 46.
26 Id. at para. 69.
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Governments shortages
underprivileged. It should not undermine its sovereignty and shy away from making
exceptions to treaties that favour multinational corporations, and leave the masses cureless.

Dhruv Yadav (20131220), Sec. D

2nd year, BA LLB