Right to Health – Constitutional Law

By Akash Bhardwaj

INTRODUCTION

As stated in Article 25(1) of Universal Declaration of Human Rights (1948), “Everyone has the right
to a standard of living adequate for the health and well-being of himself and of his family, including
food, clothing, housing and medical care and necessary social services, and the right to security in the
event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in
circumstances beyond his control.” To abide by this, every state have some set of Laws and Directives
to secure health care rights to every individual in the society. The question arises in the enforceability
and justifiable nature of the directives. The right to life was again recognised as a human right in the
coveted “International Covenant on Economic, Social and Cultural Rights” 1966. Quoting Salmond
“With every right comes a corresponding duty to be fulfilled and there can be no right without an
element of duty. So, the Right to health puts an enforceable responsibility on the government of the
state for the health and well being of the society.

DEFINITION OF HEALTH

The origin of ‘Right to Health’ dates back to 1946 with the origin of the first ever International Health
Organisation- World Health Organisation (WHO). This right originated in the constitution of the
WHO which stated “...the enjoyment of the highest attainable standard of health is one of the
fundamental rights of every human being…” The Preamble of this constitution redefines the
definition of Health as “A state of complete physical, mental and social well-being and not merely
the absence of disease or infirmity”. The definition by WHO delimit the typical and narrow
definition which meant health as only an absence of disease. Its liberal meaning of Health not only
means absence of disease or infirmity but also incorporate mental and social well-being. The
definition has successfully accomplished to include ability to lead economically and live a social
productive life.

RIGHT TO HEALTH- THE CONSTITUTION OF INDIA

The preamble is the preface or the introduction of the Constitution. The basic principles set out in the
constitution are the result of the Preamble. In other words Preamble constitutes the basic structure of
the Constitution. The Preamble clearly indicates that India is a Democratic Socialist country. The
Supreme Court in one of its judgement has stated “Democratic socialism aims to end poverty,
ignorance, disease and inequality of opportunity.” The principles of Socialism are also embodied in
part III and IV of the Indian Constitution.

When right to health is seen with its definition, it is clear that Constitution framework directly doesn’t
provide anything of such sort. Right to health is a result of various case laws decided by the Judiciary
of India from time to time. Talking about human rights, the constitution of India has divided such
rights into two separate parts. Firstly the fundamental rights in part III of the Constitution which deals
with Right to equality , freedom , right against exploitation , right to freedom of religion, cultural and
education rights and right to constitutional remedies which are also termed as political rights.
Secondly the Directive Principles of State Policy (DPSP) in part IV of the Constitution which include
social, economic and cultural rights.

The main difference between DPSP’s and Fundamental Rights is that the Fundamental rights are
justifiable i.e. they are legally enforceable by the courts whereas the DPSP’s are not justifiable.

The founding fathers of the Indian Constitution tried to impose the duty on the state in the form of
DPSPs under which state is under the responsibility to ensure social and economic justice to its
citizen. Article 381 clearly states the responsibility of the states to secure the social order for welfare
of public health. Article 39(e)2 talks about the protection of health and strength of the workers.
Similarly article 41 pertains to public assistance by the state in case of sickness and disablement.
Article 42 relates to maternity benefits indirectly assisting infant and the mother. Likewise article 48A
directs state for promotion of healthy pollution free environment. However, these DPSP’s are of
pervasive nature and not enforceable in any court of law.

As the DPSP’s are of non justifiable nature, the state took this as an advantage and overlooks many
aspects of public health and well being and got away with the obligation. Thereafter in the Maneka
Gandhi Case3, Supreme Court took a wider interpretation of Article 21(Fundamental Rights). After
this case, Article 21 is not confined to mere animal existence or survival but right to live with human
dignity and all the aspects which makes life meaningful, complete and worth living. Article 21 of
Constitution of India states that “No person shall be deprived of his life or personal liberty except
according to procedure established by law.” Supreme Court also ruled that the expression “Personal
Liberty” is of the wildest amplitude and it covers a variety of rights that go to constitute personal
liberty of a man.

The right to live with human dignity mentioned in Article 21 of the Indian Constitution derives its
meaning from the DPSP’s and particularly from article 39(e) (f), 41 and 42. Therefore, it must
inculcate protection of the health and, opportunities and facilities for children to develop in a healthy
manner, just and humane conditions of work etc. These are some minimum essentials which must
exist in the meaning of article 21 in order to enable a person to live with human dignity. And neither
the Central Government nor any State Government has the legal right to make any law which will
abridge a person’s enjoyment of these basic essentials. 4

In State of Punjab v. Mohinder Singh Chawla 5, it was observed that Right to health is an integral to
the right to life and government has a constitution obligation to provide health facilities.

JUDICIAL RESPONSE TOWARDS RIGHT TO HEALTH

The Indian judiciary played a very active role by entertaining PIL (public interest litigation) which
provides an opportunity to the citizens of the country to move to Supreme Court directly in case of
infringement of any fundamental right under article 32 of the Constitution. Likewise, the court also
1
Constitution of India 1950
2
Constitution of India 1950
3
Maneka Gandhi v. UOI 1978
4
Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802
5
State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83
pointed out that fundamental right are intended to foster the ideal of Socialistic plus egalitarian
principles and to prevent the establishment of authoritarian rule. But they are of no value if they can’t
come to the purview of the courts. The Supreme Court widened the scope of Right to life enriched in
Article 21 in the following cases:

1. Ram Lubhaya Case6: While discussing about the issue of Right to health under article 21, 41
and 47, the Court observed that the right of one associate with the obligation of others. For
example, the rights endowed in article 21 puts an equal obligation on the part of the state
which is additionally strengthened as under article 47. Despite the fact that few schools and
medical facilities have been setup, the court is of the view that obligation is still not satisfied
until it reaches an overall population. The Court respected health to be a consecrated, holy
and important right. 
2. Paschim Bangal Khet Mazdoor Samity & Others V State of West Bengal & Others 7: It was
held that held that in a welfare state, essential obligation of the administration is to make sure
about the welfare of the individuals and also it is the duty of the legislature to give sufficient
clinical facilities to its people. The government can discharge this obligation by providing
medical care to the people who are in need of it. Article 21 of Constitution of India imposes a
legal obligation on the state to safeguard the right to life of every person which in itself
involve social and economic well being. The government hospitals run by the state are duty
bound to extend medical assistance for preserving human life. Failure on the part of hospital
will be considered as a failure of the government itself and taken as a violation of
fundamental right guaranteed under article 21.

The Supreme Court in another case held that right to health is a fundamental right. And health
is not restricted to merely absence of any infirmity. The medical and health facilities are sort
of motivation for the workers to work with best efficiently both in terms of physical and
mental aspect. To be precise, medical facilities are also part of the social and economic
security. 

CONCLUSION

The term “Right to Health” is nowhere mentioned in Constitution of India yet the Supreme Court has
interpreted it as a fundamental right under article 21 part IV. It is significant on the part of Supreme
Court for changing the nature of the enforceability of this right. Beforehand Right to health was a part
of DPSP i.e. Directive Principles of State Policy, but it wasn’t enforceable in the court of law.
Supreme Court in due of course of time with the help of case laws interpreted Right to health as a
fundamental right and put a legal duty on the government to look after health of the people at large.
The court interpreted Right to Health as a part and parcel of Right to Life. By putting the right to
health under the shadow of right to life, the Supreme Court and High Court welcome cases directly
under article 32 and 226 respectively. Therefore, the judiciary has played a pivotal role in making this
right enforceable in the eyes of law.

6
State of Punjab v. Ram Lubhaya Bagga AIR 1988 SC 117
7
1996 SCC (4) 37, JT 1996 (6) 43