RIGHT TO HEALTH IN INDIA WITH SPECIAL

REFERENCE TO DISTRICT UDHAM SINGH

NAGAR (UTTRAKHAND)

Summary
Submitted To
Kumaun University Nainital
For award of Ph.D. Degree
2015-2016

Under the Supervision of Submitted by

DR. J. S. BISHT NASEEM AHMED
ASSOCIATE PROFESSOR RESEARCH SCHOLAR
FACULTY OF LAW
SSJ CAMPUS ALMORA
KUMAUN UNIVERSITY,
NAINITAL

FACULTY OF LAW
S.S. JEENA CAMPUS KUMAUN UNIVERSITY,
NAINITAL
SUMMARY
 Summary

T
he Purpose of this thesis The Right to Health in India with Special Reference
to District Udham Singh Nagar, Uttrakhand is to examine the status of right
to health as fundamental right as well as human right. The present work
organizes into eight chapters. The First chapter introduces the topic generally and
enumerate the problems concerning right to health and includes purpose of the study,
ranging from statement of the problem, selection of field site, objectives, methods of
analysis, sources of the data, chapter schemes of the thesis, limitations of the study.
The Second chapter traces the conceptual foundation of heath and right to health. It
describes the meaning and definition health and right to health. Historically, health
was dependent on income and environment, nutrition, food and employment, water,
sanitation rather than availability for health care system and services. With the model
of development now being pursued health is now related to more areas like accident
prevention and waste management, medical education and health insurance, town
planning and family planning and many other disparate issues. Health policy therefore
has become too complex and inter-related to a variety of other policies pursued in the
name of welfare and development. Hence law makes need to appreciate the health
dimension of every new development initiative they might undertake public health is
to be considered as a precondition for all development. Promoting the right to health
involves reorganization, reorientation and redistribution of health resources on a
societal scale. Enjoyment of the right to health is vital to all aspects of a person’s life
and well being, and is crucial to the realization of many others fundamental human
rights and freedom.

The Purpose of this thesis The Right to Health in India with Special
Reference to District Udham Singh Nagar, Uttrakhand is to examine the status of right
to health as fundamental right as well as human right. The present work organizes into
eight chapters. The First chapter introduces the topic generally and enumerate the
problems concerning right to health and includes purpose of the study, ranging from
statement of the problem, selection of field site, objectives, methods of analysis,
sources of the data, chapter schemes of the thesis, limitations of the study. The Second
chapter traces the conceptual foundation of heath and right to health. It describes the
meaning and definition health and right to health. Historically, health was dependent

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 Summary

on income and environment, nutrition, food and employment, water, sanitation rather
than availability for health care system and services. With the model of development
now being pursued health is now related to more areas like accident prevention and
waste management, medical education and health insurance, town planning and family
planning and many other disparate issues. Health policy therefore has become too
complex and inter-related to a variety of other policies pursued in the name of welfare
and development. Hence law makes need to appreciate the health dimension of every
new development initiative they might undertake public health is to be considered as a
precondition for all development. Promoting the right to health involves
reorganization, reorientation and redistribution of health resources on a societal scale.
Enjoyment of the right to health is vital to all aspects of a person’s life and well being,
and is crucial to the realization of many others fundamental human rights and freedom.

The third chapter traces the right to health in international perspective and
Include treaties, declaration and covenants, customary international law relating to
right to health. Health is a basic human right and it’s positive aspect is achievement of
a socially and economically productive life. The citizens have a right to quality health
care, treatment and medication regardless of race, religion, social status and ability to
pay. The Declaration, Covenants, Conventions, Principles of International legal
instruments demand that the member nations secure the recognition and observance of
the said rights. India is a party of the international covenant on the International
Covenant on Economic, Social and Cultural rights also.

The Chapter four focuses on the discussion on right to health in Indian

perspective and discusses on the Constitutional provision and others health legislation
in India. It also examines some of the policies and programme that attempt to address
health in India. This chapter based on socio-legal concept of right to health. Judicial
pronouncements are also important part of legal right. When we look at right to health
and healthcare in the legal and constitutional framework, it is clearly evident that the
constitution and laws of the land do not in any way accord health and health care the
status of rights. There are instances in case law where for instance the right to life in
Article 21 of the constitution or various directive principles has been used to demand
access to healthcare, especially in emerging situations or references made to the
international covenant

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The Constitution of India recognized that medical care as a fundamental

right and casts duty on the State to provide appropriate health services to protect that
health right of the citizen. But many people in India are suffering due to deficiency of
health services. In spite of this the medical professionals have a great role to play in
building individuals and communities and serving the people through their life giving
works. The medical profession is a noble professional. But some profit-oriented black
sheep among them with the motive of self-service are destroying its noble character by
their callous attitude in the treatment of patients especially the poor and thereby
destroying their lives. The Supreme Court of India also in its landmark judgment in
V.P. Shanta Case laid down the law relating professional negligence under Consumer
Protection Act, 1986 and enunciated certain principles that medical practitioners,
Government hospitals, private hospitals and nursing homes are also covered under the
consumer law. Finally, it may be said that, providing Medicare to every individual
(including patient) should be the prime objectives of a doctor as the right to health as
life is a fundamental right guaranteed by the Constitution of India.

The fifth chapter covers the human rights standards in health in Indian
scenario, delivery of health services in the public sector, organizational structure of the
public health delivery system, goal-setting and strategic interventions, and an
overview of the evolution of the health system in India and peoples’ perceptions and
responses to right to health. It also covers health as human right. This means that
human rights are so important that the international community has deemed that
everyone has them, regardless of where they live, etc. health as human right
recognized by many international instruments, i.e. Universal Declaration of Human
Right, International Convention on Economic, Social and Cultural Rights etc. Thus,
health and human rights interconnected and their promotion fundamentally and
inextricably intertwined. Every country in the world is now party to at least one human
right treaty that addresses health related rights, to protect the human right, i.e. right to
health because the realization of other right is not possible if an individual cannot
maintain his/her own health.

Chapter six shall discuss right to health as fundamental right and leading
case law on right to health. The judicial pronouncements by the Indian Judiciary
suggest a potential role for a creative and sensitive judiciary to enforce constitutional
social rights. The deep analysis of the litigations reaching the Supreme Court has given

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 Summary

rise to the Court articulating and recognizing the specific right to health. This is done
mainly due to the kind of petitions brought before the court, the campaigns behind
these petitions and the arguments of constitutional social rights that were raised before
the court. These judgments show that the Supreme Court has refashioned its
institutional role to readily enforce social rights and even impose positive obligation
on the state. There has been some concern about the legitimacy and accountability of
such overt judicial activism but the Court, however, continues to justify its
interventions by asserting that it is temporarily filling the void created by the lack of
strong executive and legislature branches.

The constitutional and human rights interpretation is a dynamic process that

involves the creativity and commitment of individuals to the underlying values of
society. The Indian experiment also vividly demonstrates that language can be given
widely different meanings depending on the goal to be reached. It proves as such
(1999) argues that ‘the Constitution is what we say it is.’ In addition, the Supreme
Court has shown that judges have the enormous potential to effect change in society
when they so desire. Therefore, despite being non-Justifiable in the Constitution, the
social rights in the Directive Principles, have nevertheless been made enforceable and
have been treated as justifiable by the Supreme Court.. Therefore the last decade,
along with some insensitive court orders and no implementation of social rights
legislation, has also seen some very innovative directions given by the Supreme Court
and creative monitoring and ground level implementation of remedies. We can see that
a positive response has been received more often in situations where public interest
litigations were backed by strong civil society movements and campaigns at the
ground level, to push the show and lethargic administration of the state into action. 1
For many who subscribe to the ‘generational approach to human rights protection-that
civil and political rights are on a higher rung than the social, economic and cultural
rights by virtue of being enforceable, if the above mentioned examples of the Indian
experience are may indication, their enforceability is clearly fundamental. In several
cases the Supreme Court has rejected the notion of no enforceability of social rights.
There is no reason therefore, why social rights such as the right to food, health,
education, housing, livelihood and others cannot be made subject to judicial
determination. The Indian experiment proves that societies can indeed choose to make

1 Jayana Kothari, “Social Rights And The Constitution”, Note 6.

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social rights justifiable and develop appropriate methods for their implementation and
enforcement.2. It also deals with the role of judiciary and National Human Right
Commission.

The seventh chapter shall trace the real status of right to health in Udham
Singh Nagar, Uttrakhand. It shall incorporate an empirical study of the problem in
Sitarganj block District Udham Singh Nagar, Uttrakhand.

The last chapter summarize the whole study and make relevant suggestions
to enrich and enlarge the horizons of knowledge on all aspect of the problem of the
right to health.

The monograph has been prepared using the descriptive and analytical
methods based on both primary and secondary sources. The primary sources include
published report (census, education, health and other) proceeding, contemporary
newspaper etc. These are collected from various libraries and record rooms of various
national and state level institutions and organization. The secondary sources which
comprise books and papers written on different aspect of health, right to health and
various socio-cultural, economic and political issues related to health have been used
in this monograph. The data collected have been critically analyzed and corroborated
from other sources to reach at an objective analysis free any bias and prejudices.

The purpose of the study is to explore health legislation and international

standard on right to health, collection and study of different cases had been started by
the researcher. A consider number of cases decided by the Supreme Court has been
reviewed and recalled as sources material the researcher is always at the lookout for
relevant and precise literature related to his problem under taken study. The
following point outline of the proposed study is being framed:

 To define the conceptual importance of right to health in socialist India.

 The objective of this study is to find out whether the law is adequate or not
for promoting health.

 To critically evaluate the health care legislation.

 To critically evaluate the various International covenant relating to right to

health.

2 See Jayana Kothari, “Social Rights And The Constitution”, Note 6.

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 To focus on international and Indian legal instruments and standards relating

to the right to health and their relevance to India.

The study also aims to evaluate the extent to which the court has safeguarded
and has imported right to health the masses and deprived class.

The purpose of the study is also to explore the extent to which universal
standards of right to health, health care or health protection are being shaped—and to
some degree and level, recognized—under the rubric of a social or entitlement within
the law of human rights. It also examines the issues of indeterminacy, justifiability and
progressive realization of present serious roadblocks to the goal of codifying and then
implementing the right to health. While measured progress in meeting these first two
challenges is occurring, the most contentious impediment remains: namely,
determining the extent to which a sustained level of economic stability must be
attained, in the first instance, before a state can seek to recognize, enforce and observe
the standards of right to health at any minimal and maximal level.

In this context that the Universal Declaration of Human Rights, adopted by

the United Nations, states that everyone has the ‘right to adequate standard of living
and well-being of his/her family including medical care’ and also the World Health
Assembly of World Health Organization has resolved that ‘the right to health is a
fundamental right’. Fundamental rights recognized in various constitutions of the
world. It means to protect citizens against their violation by the executive actions of
the state or by laws enacted by legislatures. It is common in the literature on law to
refer to them as negative rights in the sense that what is guaranteed is freedom from
the states interference, without due process, in the citizen’s rights to such matter as
life, personal liberty, equality of opportunity and so on. In contrast, the right to health
care is primarily a claim to an entitlement, is a positive right, which can acquire an
operational content only to the extent that the state is willing and able to ensure its
realization. Not a protective fence as entitlements rights are contrasted with privileges,
group ideals, societal obligations, or acts of charity, and once legislated they become
claims justified by the laws of the state.

In the Indian constitution, this obligation is placed in a number of Articles,

which deal with ‘Fundamental Rights’ and ‘Directive Principles of States Policy’.
Article 13 says that laws inconsistent with or in derogation of the fundamental rights

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will cease to be law as the India, has the power to declare this ultra virus. Article 21
affirms protection of life and personal liberty. Here protection of life includes right to
health which means medical aid in government hospital-failure on the part of the
government hospital to provide timely medical treatment to the patient in need of such
treatment, amounts to violation of the right to life. ‘Directive Principles of State
Policy’, article 47 stipulates that ‘the state shall regard the raising of the level of
nutrition and the standard of living of its people and the improvement of public health
as among its primary duties’, article 39 calls on the state to protect the health and
strength of workers, men, women, and to prevent the abuse of the ‘tender age of
children’. Article 41 and 42 call upon the state to make effective provision for public
assistance in case of old age, sickness, disability and for maternity relief. Is it to be
realized at grass-root level? Is state withdrawing from public health sector? What then
happens to article 47 of the constitution of India read with article 21 and health
provisions of United Nation resolution 2200, (calls for member states to ensure among
others ‘the highest attainable standards of physical and mental health’ under
international covenant on economic social and cultural rights approved by the United
Nations General Assembly on 16th Dec 1996.

Further, using human rights approach also implies that the entitlement is
universal. This means there is no exclusion from the provisions made to assure
healthcare on any grounds whether purchasing power, employment status, residence,
religion, caste, gender, disability, or any other basis of discrimination. But this does
not discount the special needs of disadvantaged and vulnerable groups who may need
special entitlements through affirmative action to rectify historical or other inequities
suffered by them.

Thus, establishing universal healthcare through the human rights route is the
best way to fulfil the obligations mandated by international standards which influence
the domestic constitutional provisions. International law, specifically International
Convent on Economic Social and Cultural Rights, the Alma Ata Declaration among
others, provide the basis for the core content of right to health and healthcare.
However, country situations are very different and hence there should be sensitivity to
the specificity of each country. Country specific thresholds should be developed by
indicators measuring nutrition, infant mortality, disease frequency, life expectancy,
income, unemployment and underemployment, and by indicators relating to adequate

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food consumption. States should have an immediate obligation to ensure the fulfilment
of this minimum threshold. However, in the long run we should realize the
international standards set through several United Nations declarations and covenants
and World Health Organization indicators. The study also aims to evaluate the extent
to which the court has safeguarded and has imported right to health the masses and
deprived class.

There is no specific provision in Indian constitution directly dealing with the

right to health yet the supreme court of India by dynamic interpretation of article 21 of
the constitution declared that right to health is implicit in right to life and personal
liberty guaranteed under the article 21 of the constitution. Supreme Court in the case
of Consumer education and Research Centre and Others vs. Union of India 3 observed
that it must be held that the right to health and medical care is a fundamental right
under Article 21 read with Article 39(c) 41 and 43 of the constitution and make the life
of the workman meaningful and purposeful with dignity of person.

The judiciary has also responded well to socio-medico-legal problem and

tried to lay down different guidelines or principles ensuring right to health to all
persons. The Supreme Court of India has declared in R.V. Chandran V. State of Tamil
Nadu4 the Right to life is not only fundamental right but also right to lead a decent life
and to enjoy fresh air and water by using Parks and greeneries, which is meant for
public at large.

In a social welfare state like India, it is the obligation of the state to ensure
the creation and the sustaining of conditions congenital to good health. The preamble
of the constitution of India promises to secure all its citizens, inter-alia, “Justice social,
economic and political". If socio-economic justice is to be ensured to all, it requires
interaction of many social and economic factors including just and favorable condition
of work, periodical treatment and prevention of other disabilities. Social justice an
arch of the constitution which ensure life to be meaningful and livable with human
dignity. In a developing society like ours steeped with unbridgeable and ever widening
gaps of inequality is status and opportunity, law is catalyst, Rubicon to the poor to
reach the ladder of social justice. Article 14 ensures "equality before the law" and

3 INSC91L1995)3SSC42

4 AIR 2010 Mad 189

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"equal protection of the laws" to all persons with in the territory of India. There can be
no valid law which arbitrarily denies to persons right to health. Article 19(1) provides
six fundamental freedoms to all its citizens which can be restricted only on grounds
mentioned in clauses (2) to (6) of article 19 of the constitution. These fundamental
freedoms can be effectively enjoyed only if a person has a healthy life to live with
dignity and free from any kind of disease or exploitation which is further ensured by
the mandate of article 21 of the constitution.

The right to live with human dignity enshrined in article 21 of the

constitution of India derives its life and breath from the various directive principles of
state policy enshrined in part IV of the constitution. Article 38(1) lays down the
foundation, for human rights. In provides that "the state shall strive to promote the
welfare of the people by securing and protecting as effectively as it many a social
order in which justice, social, economic and political, shall inform all the institutions
of the national life". Thus in order to secure socio-economic justice to the people and
to promote their welfare, the state is under a constitutional duty to take effective steps
for providing proper health care and ensuring a life of dignity to them. In view of
article 37 of the constitution all the directive principles given in part iv are
"fundamental in the governance of the country and it shall be the duty of the state to
apply, these principles in making laws". Hence the state cannot treat these
constitutional obligations regarding "the raising of the standard of living of its people
and improvement of public health" as mere pious obligation. They are part of the
supreme law of the land and they must be implemented. These are the minimum
requirements which must exist in order to enable a person to live with human dignity
and failure to take any positive action, ensuring the same would amount to breach of
constitutional commitments. No doubt, in view of article 37 of the constitution, the
directive principles cannot in very nature of things be enforced in the court of law, but
it does not mean that directive principles are less important than the fundamental rights
or that they are not binding on the organs of his States. In fact, the court can in a fit
case direct the executive to carry out the directive principles of the constitution and
when ever- there is inaction or show action by the executive the judiciary must
intervene.

Fundamental rights are enforceable by and large only against the state. The
chapter of fundamental rights prescribes the duty and the obligations of the state vis-a-

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vis the citizens. Thus when one is talking about right to health and health care as a
fundamental right we are speaking of the state obligation and not the obligation of
private players-either individual practitioners or private hospitals or nursing homes.
This does not mean that private player do not have an obligation to their patients or
can behave in a negligent manner. But these players have no obligation to have a
ceiling on their professional charges and so no obligation to provide free, subsidized or
even cheap treatment. There are certain exceptions to this principle that will be
discussed later on in this volume. It is in this context that privatization of health care
needs to be viewed. To be able to appreciate the tasks ahead, one may look at the
legislative record under articles 42 and 47 in the last six decades and the scheme being
implemented at the instance of the Health Ministry in the context of the political
economy now in place and the constitutional mandate in response of public health.

Till the 1970s the court, by and large, had interpreted 'life' literally i.e. Right
to exist - right not to be killed. In late 1970s, the Supreme Court began to give an
expanded meaning to the term 'life' appearing in article-21. Over the years it has come
to be accepted that life does not only mean animal existence but the life of a dignified
human being with all its concomitant attributes. This would include a healthy
environment and effective health care facilities. Today therefore, the fundamental right
of life is seen in a broad context. Right to life is not only fundamental right but also
right to lead a decent life and to enjoy fresh air and water by using parks and
greeneries, which is meant for public at large5. The Supreme Court Further held that
the right to health and medical care is a fundamental right under article 21 of the
constitution of India. Right to life encodes protection of health and strength of a
person. Public interest petitions have been founded on this provision for providing
special treatment to children in jail, against health hazards due to pollution, against
health hazard from harmful drugs, for redress against failure to provide immediate
medicals aid to injured persons, against starvation death, against inhuman conditions
in after care home and on scores of other aspects which make life meaningful and not
a mere vegetative existence.

Though, the maintenance of public health is an indispensable task of

every modern welfare adversarial legal system, which is prevailing in India as well as
in other common law countries, is not suitable to the victims of health hazardous most

5 R.V. Chandran Vs. State Of Tamil Nadu (AIR 2010 Mad. 189).

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of the people, who become the victims of health hazardous activities, are either so
poor or ignorant of law that they hardly approach the courts for remedy and as a result
of that the offences against health are not checked6. In M.C. Mehta V/s Union of
India7, the Supreme Court held that in any case where there is an environmental
pollution that hazards public health would amount to a violation of fundamental rights
of an individual. Water pollution, Air pollution or any type of other pollution, which is
injurious to public health, will amount to violation of constitutional right of every
person. In Subhash Kumar Vs. State of Bihar8, the Supreme Court held that right to
pollution-free water and air is an enforceable fundamental right guaranteed under
Article 21.

The Court has been satisfied with giving certain directions so as to see that
people do not die for the want of food. The right to food includes the right to health
and Health-care and it is not merely the right to receive food in terms of minimum
calories, but, it includes the Right to Adequate food. The adequacy will then be
measured by not only what is necessary for survival, but by a person’s health or by his
ability to pursue a normal active existence. The concept of adequate food for the
maintenance of health, not only requires a minimum calorific intake but also a certain
balance of nutrients. The right to food should be understood together with a range of
other rights-access to health care, medical facilities, drinking water and sanitary
facilities. Unfortunately, the Supreme Court has not yet laid down the interrelationship
between right to food and right to health.

Every injured citizen brought for treatment should be instantaneously given

medical aid to preserve life and thereafter the procedural criminal law should be
allowed to operate in order to avoid negligent death. A petition was filed by a human
rights activist seeking directions against the Union of India in Permanand Katara vs
Union of India.9 The Petition also demanded that in the event of breach of such
direction, apart from any action that may be taken for negligence, appropriate
compensation should be admissible. Significantly, in this case the Supreme Court

6 Dr.Sunil Asopa-PILAnd Public Health

7 (1986)2 SCC 176

8 AIR 1991 SC 420

9 AIR 1989 SC 2039.

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observed that every doctor whether in a government establishment or a private

individual had the duty to extend immediate medical treatment.

In the legal order the affirmation of the right to health has established as a
cardinal principle to guide the action of political decision makers and the
characteristics of its normative status has become the subject of analysis that give rise
to a theoretical controversy. Health is a common theme in most cultures, but all
communities have their own concepts of health, as part of their culture. Health and
illness are conceived differently in different societies and in different historical periods
depending upon the prevailing healthiness of the population, its longevity, its
effectiveness and availability of treatment, the social situations of individuals within
the society and the dominant theories, epistemologies or cosmologies of the society. 10
Since the doctrine of Human Rights has clearly outlined the fields that are proper to
such rights and has separated the negative from the positive aspects, the right to health
has something of the nature of both categories. It includes a negative aspect in that the
beneficiaries have a right to expect the state to abstain from any act that might
jeopardize their health. In this respect, it is similar to traditional fundamental rights.
The right to health interpreted as a social right, has a programmatic nature or a positive
aspect in that it commits states to adopt the necessary measures for the prevention and
treatment of diseases, as well as committing them to set up the appropriate structures
and services for the protection or rehabilitation of the health of the persons entitled to
the right. Without the contribution of mechanisms to incorporate international
standards into national law, the right to health does not create a claim within the usual
meaning of the term, but it nevertheless constitutes a social duty to which the State
subscribes and for which it is responsible beyond the principles of political
responsibility. Now the idea has been mooted that the approach that distinguishes the
negative aspect from the positive aspect of human rights, could reconcile the
protagonists of the theoretical debate. Such reconciliation has not yet taken place,
since the question of the legal implications of the right to health is not an issue
exclusively with the international order, thus it would have the effect of limiting it to
the interactions between the international order and the domestic legal order. 11 An

10 Suresh Kulkarni, “Health For Peace”. (New Delhi : Institute Of Peace Research & Action 1992)

At 9.

11 Molinari, Supran. 1, At 47-48.

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increasing number of States have incorporated the right of health into their domestic
legal order converge to the concept into action and to affirm the health as Human
Right.

The monograph also indicates a different models and methods to be adopted

for the improvement of health care and the right to health of the people of Udham
Singh Nagar Uttrakhand.

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