(2011) PL January S-2 State Responsibility For Ensuring Health Care: Assam Leads The Way! S R E H C: A L W !

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(2011) PL January S-2
State responsibility for ensuring health care: Assam leads the way!
STATE RESPONSIBILITY FOR ENSURING HEALTH CARE: ASSAM LEADS THE WAY!
by
Sujata Pawar*
The Constitution of the World Health Organisation in its Preamble defines “health”
as, “a state of complete physical, mental and social well-being, not merely the
absence of disease or infirmity”. It further states that, “the enjoyment of the highest
attainable standard of health is one of the fundamental rights of every human
being….”
The right to health is now universally recognised. Provision of adequate health care
for all is one of the essential preconditions for sustained and equitable economic
growth. Every country in the world is now party to some or the other human rights
treaty that addresses health-related rights, including the right to health and a number
of rights related to conditions necessary for health.
Difference between right to health and right to health care
Right to health care focuses on medical care or access to health care services,
whereas, from a broader perspective, right to health encompasses all those socio-
economic, environmental and legal issues that have any direct implication on health.
Right to health care focuses on medical care or access to health care services,
whereas, from a broader perspective, right to health encompasses all those socio-
economic, environmental and legal issues that have any direct implication on health.
Right to health is a wider right than right to health care, which at least must be
secured for all.
However it must be noted that health is also dependent on genetic factors,
individual immunities, environmental conditions, personal as well as social habits and
individual lifestyle issues and cannot always be controlled by the State. The
contributory role of individuals, family, society is equally important. Nevertheless the
State as a welfare State has some positive obligations to perform in creating
conditions, that are conducive to healthy living by people.
Core content of health care and progressive realisation of right to health
The State is duty-bound legally to provide for basic minimum rights for securing
health, including easily accessible and affordable, good quality health care for all. And
according to the availability of resources, should gradually ensure the progressive
realisation of health as per international standards.
Basis of the State responsibility for health care of people
The major considerations would include,
1. State responsibility to abide by various international obligations.
2. The constitutional obligation for providing for right to
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health.
3. Legal obligation of the State arising out of legislation concerning public health.
4. State obligation arising out of human rights approach.
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5. Provision of health facilities — a welfare State function.

6. Right to health as an integral part of Article 21 — judicial responses.
State responsibility to abide by various international obligations
India has signed and ratified many international conventions and is duty-bound to
abide by its obligations under international law by virtue of Article 51 of the
Constitution read with Entries 12, 13, and 14 in List I of Schedule VII of the
Constitution. The human right to health and the responsibility of the State to provide
for public health is recognised in numerous international instruments.
The Universal Declaration of Human Rights in Article 25(1) states that:
25. (1) 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.
The International Covenant on Civil and Political Rights recognises this basic right to
life in Article 6.
The International Covenant on Economic, Social and Cultural Rights stresses on the
obligation of States and specifically lays down the core contents of general right to
health. As per Article 12(1) the State parties to the present covenant recognise the
right of everyone to the enjoyment of the highest attainable standard of physical and
mental health. It further requires all State parties to create the conditions which would
assure to all medical service and medical attention in the event of sickness. This
Covenant states a broad right to health, while other treaties focus on the rights of
specific groups: women (CEDAW ), social minorities (CERD) and children (Convention
on rights of children).
Agenda 21, Chapter 6, Paras 1 and 12 states, “Health and development are
intimately interconnected. Both insufficient development leading to poverty and
inappropriate development … can result in severe environmental health problems….
The primary health needs of the world's population … are integral to the achievement
of the goals of sustainable development and primary environmental care.”1
In World Conference on Human Rights, 14-25 June 1993, Vienna, Austria,
representatives of 171 States adopted by consensus the Vienna Declaration to take
new steps forward in order to promote the human rights of the poorest, and to put an
end to extreme poverty and social exclusion and to promote the enjoyment of the
fruits of social progress.
The Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights was adopted by the General Assembly at Geneva on 10-12-2008 to
commemorate the 60th anniversary of the Universal Declaration of Human Rights. It
makes it clear that economic, social and cultural rights, including the rights to
adequate housing, food, health, education and work, are not a matter of charity, but
rather rights that can be claimed by all without discrimination of any kind.
Several regional human rights instruments also recognise the right to health, such
as (Article 11) of the European Social Charter of 1961, (Article 10) of the Additional
Protocol to American Convention on Human Rights, the African Charter on Human and
People's Rights of 1981 (Article 16), Qatar Declaration: Health and Well-being through
Health Systems based on Primary Health Care, 2008, and many other international
instruments.
In South Africa, constitutional amendments made in 1996 have introduced the right
to emergency medical care as a fundamental right in Section 27 ensuring everyone the
right to health care, food, water and social security.
In Cuba, the Constitution recognises the right to health as a civil and political right.
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The constitutional obligation of providing for right to health

The Constitution of India too declares in Article 21:
21. Protection of life and personal liberty.—No person shall be deprived of his life
or personal liberty except according to procedure established by law.
Ill health operates as a substantial restriction upon the enjoyment of right to life
and liberty. Moreover, when such ill health, disease or aggravation of diseases is
caused by malnutrition, starvation, insanitation and unhealthy environment or lack of
medical care, showing the State's negligence in providing for public health: an
important welfare State function, then it amounts to serious violation of the right to
life guaranteed in Article 21.
Right to life and personal liberty has both positive and negative aspects. Positive
aspect demands conditions and environment conducive for living with dignity. Its
negative aspect implies that, no person should be deprived of his life, in its broadest
connotation, without a just, fair and reasonable procedure. Thus, it becomes the duty
of the State to make positive provisions for promoting the “public health” and also to
ensure that, no person should be denied medical help and none should be deprived of
his right to health.
The directive principles of State policy in Part IV of the Constitution also, specifically
provide for the right to health in Articles 38, 39, 41, 42, 43 and 47.
Responsibilities of Municipalities and Panchayats under the Constitution
Article 242-W and Article 243-G of the Constitution provides that the legislature of
a State may by law, endow the municipalities with such powers and duties in the
sphere of public health and sanitation.
253. Legislation for giving effect to international agreements.—…Parliament has
power to make any law for the whole or any part of the territory of India for
implementing any treaty, agreement or convention with any other country or
countries or any decision made at any international conference, association or other
body.
Legal obligation of the State arising out of legislation concerning public health
The State is empowered by the
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Constitution under Article 246 to make laws on the entries contained in Schedule VII,
the matters concerning public health, even though certain matters, such as port
quarantine (Union List, Entry 28) are left to the Union. The main legislative entry
relating to public health is State List Entry 6, “Public health and sanitation; hospitals
and dispensaries”.
Concurrent List, Entry 29, takes care of the inter-State element in public health and
reads as:
29. Prevention of the extension from one State to another of infectious or
contagious diseases or pests affecting men, animals or plants.
Some other entries in the Concurrent List indirectly concern public health, such as,
lunacy and mental deficiency, including places for the reception and treatment of
lunatics and mental deficient, etc.
State obligation arising out of human rights approach
As a basic human right, the State has obligation to protect as well as to promote
that right by creating favourable conditions in the society. The Government of India
has committed itself to providing various services and conditions related to this basic
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human right of health in 1975 in the Alma Ata Declaration of “Health for all by 2000”,
which remains a dream even in 2010.
Reduced State responsibility and retreat from the goal of health for all, inequitable
policies of privatisation of health services imply health care as a commodity rather
than as a human right.
A human rights approach to health therefore necessitates both non-discrimination
and affirmative action to eliminate historical inequities and patterns of discrimination
in access to health services. It is high time to establish the right to health and health
care as basic human rights in a rights-based approach.2
In the words of the United Nations Secretary General, Kofi Annan, “health should be
seen not as a blessing to be wished for; but as a human right to be fought for”.
Public health care is a core area of concern for the National Human Rights
Commission of India. The Commission has called upon the Government to adopt a
rights based approach to strengthen the public health infrastructure in the country.
Levy of charges for various investigations, etc. may amount to indirect denial of quality
health services to the patients, who are not financially well off. The authorities need to
give this move a relook in the interest of human rights of the marginally weaker
sections of the society.3
Regional public hearings organised by the National Human Rights Commission have
shown that citizen's right to health care is being violated on a significant scale. Hence
there is a need to make the right to health care, which is one of the most basic of
human rights, explicit, justiciable and operational.
To operationalise the right to health care, a legislation such as a National Public
Health Services Act or National Health Act needs to be drafted and enacted, which
would recognise and delineate the health rights of citizens, duties of the public health
system and public health obligations of private health care providers. Given the fact
that health is a State subject, this National Act could be accompanied by State Public
Health Services Acts or Rules to operationalise health rights in each State of India.
To improve the dismal health scenario in India, articulating the right to health care
is necessary. The key ingredient to achieve health for all is real political commitment
to reach the poor and involve them in the process of change. Without this, no major
change is possible; with this, no change is impossible.4
Provision of health facilities — A welfare State function
In a welfare State the primary duty of the Government is to secure the welfare of
the people by providing adequate medical facilities for the people. The Constitution
envisages the establishment of a welfare State at the federal level as well as at the
State level. In a welfare State the primary duty of the Government is to serve 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 the obligation by running hospitals and health centres which
provide medical care to the person seeking to avail of those facilities.5
The State's obligation to preserve life an integral part of Article 21 — Judicial
responses
In a series of cases dealing with the substantive content of the right to life the
Court has found that the right to live with human dignity includes the right to good
health.6
The movement of judicial view from the early discussions on health to the late
nineties clearly shows that the right to health and access to medical treatment has
become part of Article 21. A corollary of this development is that while so long the
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negative language of Article 21 was supposed to impose upon the State only the
negative duty not to interfere with the life or liberty of an individual without the
sanction of law, Judges have now imposed a positive obligation upon the State to take
steps for ensuring to the individual a better enjoyment of his life and dignity. 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 slow and lethargic administration of the State into
action.7
Health of a person is an integral facet of his right to life. In Vincent v. Union of

India8 the Court observed, “[a] healthy body is the very foundation for all human
activities. … In a welfare State, therefore, it is the obligation of the State to ensure the
creation and the sustaining of conditions congenial to good health.”
In Consumer Education and Research Centre v. Union of India9 the Supreme Court
held that, right to life in Article 21 includes, right to human personality in its full
blossom with invigorated health which is a wealth to the workman to earn his
livelihood, to sustain the dignity of person and to a life with dignity and equality.
In CESC Ltd. v. Subhash Chandra Bose10 Ramaswamy, J. observed that, the aim of
fundamental rights is to create an egalitarian society and to make liberty available to
all…. the civil and political right to physical and mental health is to be treated as an
integral part of the right to life.
In Paschim Banga Khet Mazdoor Samity v. State of W.B.11 the Supreme Court held
that, to receive timely medical aid by a person was his right under Article 21 of the
Constitution. The Supreme Court further held that, the State would not avoid the
responsibility of providing medical aid to the people in the hospital run by the State.
The Court directed the State of West Bengal and other States to ensure proper medical
facilities for dealing with emergency cases in government hospitals, and passed
several directions for improvement of health services in government hospitals and
medical centres. It further stated that, the State could not avoid its constitutional
obligation in this regard on account of financial constraints.
In Kirloskar Bros. Ltd. v. ESI Corpn.12 the Supreme Court held that right to health
to be the fundamental right of workers and is available not only against the State and
its instrumentalities but also against the private industries.
In Municipal Council, Ratlam v. Vardichan13 the Supreme Court held that:
15. … A responsible municipal council constituted for the precise purpose of
preserving public health and providing better finances cannot run away from its
principal duty by pleading financial inability. Decency and dignity are non-
negotiable facets of human rights and are a first charge on local self-governing
bodies.
In Marri Yadamma v. State of A.P.14 the deceased was an undertrial who died of
“congestive cardiac failure”. The Court held that even the undertrials have the right to
adequate medical care.
In Laxman Balkrishna Joshi (Dr.) v. Dr. Trimbak Bapu Godbole15 the Supreme Court
has held that neither the Government nor even private hospitals can refuse treatment
in a medico-legal emergency.
Need to legislate on public right to emergency health care
Right to health is a prerequisite of right to life and to live with human dignity,
however, there are no serious attempts to achieve minimum standards of health care.
The Government's apathy, people's ignorance and environmental and industrial
invasions have contributed towards deterioration of these standards of health. Welfare
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State is morally and legally bound to undertake and provide clean environment,
medical facilities, preventive and curative methods of treatment of diseases,
availability of essential drugs at affordable costs, prevention of unusable medicines
and establishing primary health centres with necessary equipment, drugs and
specialised doctors, to its people.16
In a special issue on the right to health, The Lancet is helping to draw attention to
extraordinarily important reasons as to why the perspective of the right to health
seems to many to be remote. First, how can health be a right since there is no binding
legislation demanding just that? Second, how can the state of being in good health be
a right, when there is no way of ensuring that everyone does have good health? Third,
why think of health, rather than health care, as a right, since health care is under the
control of policy making, not the actual state of health of the people?17
The World Health Organisation (WHO) claimed in August 2008 that “social injustice
is killing people on a grand scale”. Its major report on the “social determinants of
health” concluded that social and economic inequality is a major global driver of
disease, and only massive Government intervention and redistribution of wealth can
improve the health of the poor.18
Status of health care in India
A large percentage of the population in India receives absolutely inadequate basic
health service. The problem has become more acute with increasing population. The
challenge lies in effective utilisation of the limited resources and providing maximum,
as well as, effective health care. The Bhore Committee as back as in 1946, was of the
view that the medical relief facilities available in the country were extremely
inadequate both in quantity and in quality. Medical institutions were without
provisions for adequate and properly qualified staff, equipment and maintenance
arrangements. Even today, the situation is the same; in fact it is grossly deficient to
cater to the needs of all. People are forced to spend on the private health care
substantially.
Steps must be taken at the national level in the Health Ministry to set into action
efforts to see that there is a uniform development of
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the law governing the liability of hospitals and nursing homes in the different States
and the regulation of such establishments. In India, the entire domain of health is
divided into public and private health sector. On one hand, the public sector is
severely ill and on the other hand the private sector is flourishing at the cost of “out of
pocket expenditure” from people and is virtually without any real or effective State
control. As a result public health is in a very critical condition. Existing framework of
health laws has miserably failed to achieve even the minimum health targets. Poor and
marginalised people are left at the mercy of dying public health services or the
uncontrolled private health sector. Their lives have no value, no significance for the
hardened politicians and policy makers. Legislative measures are required to articulate
the rights of the patients and the duties of the public as well as private health
providers with standard setting, monitoring and controlling mechanism at grassroot
level.
The Preamble of People's Health Charter affirms that, health is a social, economic
and political issue and above all a fundamental human right. Inequality, poverty,
exploitation, violence and injustice are at the root of ill health and the deaths of poor
and marginalised people. Health for all means that, powerful interests have to be
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challenged, that globalisation has to be opposed, and that political and economic
priorities will have to be drastically changed. This Charter builds on perspectives of
people whose voices have rarely been heard before, if at all. It encourages people to
develop their own solutions and to hold accountable local authorities, national
governments, international organisations and corporations. Governments have a
fundamental responsibility to ensure universal access to quality health care, education
and other social services according to people's needs, not according to their ability to
pay.
This Charter calls on people of the world to: oppose international and national
policies that privatise health care and turn it into a commodity and demand that
Governments promote, finance and provide comprehensive primary health care as the
most effective way of addressing health problems and organising public health
services so as to ensure free and universal access.19
Suggestions by the Law Commission of India
The Law Commission of India in its 201st Report, has taken up the subject of
“Emergency Medical Care to Victims of Accidents and during Emergency Medical
Condition and Women under Labour”, considering the fact that there is no proper pre-
hospital medical care and that private hospitals and medical practitioners who are
nearest to the place of accident refuse to admit victims even for emergency medical
care, on the plea that the cases are medico-legal cases and they direct the victims to
go to government hospitals, howsoever far they may be. Some private hospitals refuse
purely on monetary grounds, if the victim is either poor or is not immediately in
possession of funds. The purpose of emergency medical care is to “stabilise” the
patient and this, unfortunately, is not done.
In Parmanand Katara v. Union of India20 the Supreme Court observed that:
1. … every injured citizen brought for [medical] treatment should instantaneously
be given medical aid to preserve life and thereafter the procedural criminal law
should be allowed to operate in order to avoid negligent death….
2. … It is further submitted that it is for the Government of India to take necessary
and immediate steps to amend various provisions of law which come in the way
of government doctors as well as other doctors in private hospitals or public
hospitals to attend to the injured/serious persons immediately without waiting
for the police report or completion of police formalities.
In Paschim Banga Khet Mazdoor Samity v. State of W.B.21 the Supreme Court
further took notice of the recent developments in this field in the United States. There
it was found that private hospitals were turning away uninsured, indigent persons in
need of urgent medical care and these patients were often transferred to, or dumped
on public hospitals and the resulting delay or denial of treatment had sometimes
disastrous consequences. To meet this situation the US Congress has enacted the
Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA) to prevent this
practice of dumping of patients by private hospitals. In addition, the individual who
suffers personal harm as a direct result of a participating hospital's violation can bring
a civil suit for damages against that hospital.
The National Consumer Disputes Redressal Commission in Pravat Kumar Mukherjee
v. Ruby General Hospital22 declared that a hospital is duty-bound to accept accident
victims and patients who are in critical condition and that it cannot refuse treatment
on the ground that the
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victim is not in a position to pay the fee or meet the expenses or on the ground that
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there is no close relation of the victim available who can give consent for medical
treatment. Recovery of fees can wait, but treatment cannot be denied.
The Supreme Court in Indian Medical Assn. v. V.P. Shantha23 observed that a
hospital has generally two categories of patients, those who pay and those who are
treated free, the free patients acquire the status of consumers because it is deemed
that the treatment to free patients is deemed to be met by the paying patients.
In the year 2004, the National Human Rights Commission constituted an expert
group to study the existing system for emergency medical care in India. It found that,
present Emergency Medical Support (EMS) in the country is functioning suboptimally
and requires upgradation.24
In view of the above judgments of the Supreme Court and the National Consumer
Disputes Redressal Commission and the fact that there is no appropriate legislation on
the subject, the Law Commission of India proposes to give recommendations and draft
Model Bill for the purpose of “emergency medical treatment” of victims of accidents
and persons in emergency medical condition and women in labour. The Draft Model Bill
prepared under the chairmanship of Justice M. Jagannadha Rao on 31-8-2006, covers
medical treatment to victims of all types of emergencies requiring immediate medical
help, including motor, fire and other accidents, which take place during earthquakes,
floods, etc. It can also be in respect of a woman under labour. It also states that, the
State Government must frame a scheme for reimbursement to hospitals, medical
practitioners, ambulances and those who provide vehicles for transport. The State
must notify an authority which will deal with reimbursement and must set apart
substantial amount of money for purpose of reimbursement. The scheme must provide
for the procedure for reimbursement.
The model law defines “emergency medical treatment” as the action that is required
to be taken, after screening of a person injured in an accident or who is in an
emergency medical condition, as to the stabilisation of the person and the rendering of
such further treatment as may, in the opinion of the hospital or medical practitioner be
necessary for the purpose of preventing aggravation of the medical condition of the
person or his death and in the case of a pregnant woman, for the purpose of a safe
delivery and safeguarding the life of the woman and the child.
Screening of the person whenever such a person referred to in Section 3, comes or
is brought to the hospital or medical practitioner, it shall be their duty to provide an
appropriate medical screening examination within the capability of the hospital or the
medical practitioner, as the case may be, for the purpose of determining whether or
not an emergency medical condition exists. Provided that if such hospital or medical
practitioner, as the case may be, is not having capability for conducting appropriate
medical screening examination, it shall be their duty to arrange for the transfer of the
person to a hospital or to another medical practitioner which or who in their opinion
has the necessary capabilities for such medical screening examination.
The model law also makes provisions regarding stabilising the person and transfer,
restricting transfer till the person is stabilised, appropriate transfer, maintenance of
records and scheme of the State Government for reimbursement of expenses.
Initiative taken by the State of Assam, in providing for emergency medical
care
Responding to an appeal from the Centre for legislating on health rights, the Assam
State Government passed the landmark Assam Public Health Bill, 2010, in the
Assembly on 31-3-2010, proposing path-breaking provisions for health equity and
justice to achieve the goal of health for all.25
Assam Health Minister Himanta Biswa Sarma said,
“Health does not mean just doctors and hospitals, but everything that influences
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the well-being of a human being. This is a historic Bill and we are the pioneers in
the country after the Centre requested all the States to bring a law on the right to
health.”
This is a commendable step taken by the State of Assam by becoming the first
State in the country to introduce a bill guaranteeing the right to health and well-being.
During discussion of the Bill, the Health Minister further said that the Centre had
assured the Government of providing required corpus funds for emergency treatment
with private sector health care establishments having to bear only 10% of the total
fund. The Minister announced that children with holes in hearts would be flown to and
from Bangalore for surgery at Narayan Hrudayalaya Hospital with the Government
bearing the entire expenditure of Rs. 2.5 lakhs per child.26
The Minister added:
“Persisting inequities and denials in the matter of health care in the State is a
concern, and hence this Bill… We hear of people afraid to take a patient to a private
nursing home in case of an emergency, because of financial reasons. Now this Bill
makes it mandatory for all concerned to treat free of charge.”
“This Bill is a revolutionary step towards better health care in Assam. The idea of
free treatment for the first 24 hours in all private hospitals is a very bold step.”27
During discussions on the Bill, the Government also announced the setting up of 50
model hospitals across the State. Since 2006, Assam has already launched various
schemes with an aim to make health care facilities affordable for all sections of the
people. Schemes like providing free cancer drugs and chemotherapy and free coronary
artery bypass grafting, launched by the Government, have won accolades from various
quarters.28
The significant features of the Assam Public Health Bill, 2010
1. The State Health and Family Welfare Department in coordination with other
departments concerned will be under obligation of providing people with
minimum nutritionally adequate essential food, adequate supply of safe drinking
water, sanitation through appropriate and effective sewage and drainage systems
and access to basic housing facilities.
2. The Health and Family Welfare Department is to take appropriate legal steps for
fixing responsibility and accountability of departments and agencies concerned in
case of
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repeated outbreaks or recurrence of communicable, viral and water-borne diseases,

which are found in a particular area and proved to have taken place because of the
failure to improve sanitation and safe drinking water facilities.
3. In case government hospitals fail to provide medical care because of absence of

doctors, the patient will be entitled to remedial measures to be prescribed by the
Department.
4. This Bill makes it mandatory for all government and private hospitals and nursing
homes to provide free health care services for the first 24 hours to any patient
seeking emergency, side by side maintaining proper procedure for treatments
ensuring the people of Assam the right to basic health care.
5. Patients who cannot afford treatment at private hospitals or nursing homes may
be shifted to government hospitals after 24 hours. The Act makes it mandatory
for all hospitals and nursing homes, government or private, to maintain
appropriate protocol of treatment for the first 24 hours to an emergency patient
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of any kind.
6. The Act guarantees people the right to appropriate medicines and right to
effective measures for prevention, treatment and control of epidemic and
endemic diseases.
7. It empowers the State Health Department to delegate responsibilities and
accountabilities of department and agencies involved in repeated outbreak of
communicable, viral and water-borne diseases.
8. The law makes it mandatory for all new development projects in the State to
pass a health impact assessment (HIA) test.
9. A duty is cast on the Government to locate that whether health care providers
are implementing this right or are contradicting this right. The Government is
responsible for providing health care services to the citizens of the State.
10. If emergency patients are not given full free standard treatment for the first 24
hours in both government and private hospitals, the patient may claim
compensation including transportation cost to the private hospitals which would
be borne by the State Health Department in case of non-availability of service at
government hospitals.
11. The Assam Public Health Bill, 2010, which was passed unanimously in the
Assembly, will come into effect from January 2011.
Issues to be considered for effective implementation
(i) The impact of economic burden on the private hospitals, towards the cost of
medicines, investigations and other procedures besides the manpower involved
in managing such a single case. To provide such care “free” by private hospitals
is ridiculous unless the Government or an insurance company bears it.
(ii) Process of reimbursement must be clearly defined considering the suggestions
by private health providers. As the reimbursement from the Government or the
insurance company may be lengthy and corruption-laden.
(iii) Provision of adequate manpower and resources must be ensured. The doctors in
the government service are already overburdened with numerous government
schemes for which they are doing overwork at the cost of their family and social
lives. The Government should ensure posting of required number of excess
doctors and paramedics before enacting such a bill. The Act needs some
revisions to remove some oppressing preconditions especially to the small and
rural practitioners. 13-3-2010.29
(iv) All possible repercussions should be considered before implementing the bill.
Implementing the right to health care: From rhetoric to reality
Health and human rights are interconnected and their promotion fundamentally and
inextricably intertwined. The effects of violations of dignity and physical integrity on
health (mental or otherwise) are as crucial as the effects of poor health on dignity.
The key ingredient to achieve health for all is real political commitment to reach the
poor and involve them in the process of change. Without this, no major change is
possible; with this, no change is impossible.30
The health status is in large measure determined by the degree to which human
rights are enjoyed. Poor health and inadequate health care are often related to human
rights violations. And violation and under-fulfilment of human rights are often due to
poor health and lack of access to health care. Health is the sum of empowering
education, adequate nutrition, safe environment, social support, and community
cohesion. The language of rights makes people conscious of both their oppression and
the possibility of change.
The State of Assam has taken a commendable lead in legislating on public right to
emergency health care. However it must be noted that the real challenge lies ahead in
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implementing the law in true spirit for well-being of all!

———
* Assistant Professor, Ismailsaheb Mulla Law College, Satara, Maharashtra State.
1
Similar provisions are made in the International Conference on Population and Development in Principle 8, Cairo
Programme of Action, Habitat Agenda; Bali Declaration on Population and Sustainable Development, 1992; Beijing
Declaration and Platform for Action, September, 1995; UN Convention on the Rights of Persons with Disabilities,
2008 and World Summit for Social Development in Copenhagen.
2 Advocate Kamayani Bali Mahabal, Health and Human Rights are inextricably intertwined, retrieved from
<www.cehat.org/humanrights/>.
3
Speech of Hon'ble Chairperson, NHRC, Dr. Justice A.S. Anand at the Valedictory Session of the National Public
Hearing on the Right to Health Care at New Delhi on 17-12-2004.
4
Dr. Abhay Shukla, A brief report on the Hunger Watch Meet 22-2-2003 and 23-2-2003, Mumbai,
<http://www.cehat.org/humanrights/hrcampaign.html>.
5 Paschim Banga Khet Mazdoor Samity v. State of W.B., (1996) 4 SCC 37 at p. 43, para 9.
6Vincent Panikurlangara v. Union of India, (1987) 2 SCC 165 : 1987 SCC (Cri) 329; Paschim Banga, Ibid; Murli S.
Deora v. Union of India, (2001) 8 SCC 765; Consumer Education and Research Centre v. Union of India, (1995) 3
SCC 42 : 1995 SCC (L&S) 604; M.C. Mehta v. Union of India, (1999) 6 SCC 9; “X” v. Hospital “Z”, (2003) 1 SCC
500; Parmanand Katara v. Union of India, (1989) 4 SCC 286 : 1989 SCC (Cri) 721.
7
Jayna Kothari, “Social Rights And The Constitution”, (2004) 6 SCC J-31.
8 Vincent, supra, n. 6 at p. 173, para 16.
9 Consumer Education, supra, n. 6.
10
(1992) 1 SCC 441 : 1992 SCC (L&S) 313.
11 Supra, n. 5.
12 (1996) 2 SCC 682 : 1996 SCC (L&S) 533 : (1996) 33 ATC 231.
13
(1980) 4 SCC 162 at p. 171, para 15 : 1980 SCC (Cri) 933 and Mahendra Pratap Singh v. State of Orissa, AIR
1997 Ori 37.
14 AIR 2002 AP 164 and Noorunissa Begum v. District Collector, Khammam, 2001 Cri LJ 3857.
15
AIR 1969 SC 128.
16
Dr. Dilip Ukey, et al, Human Rights, Health Care and Curative Regimen — An Ignored Illness, I.B.R. Vol. 27 (2)
2000 pp. 71-91.
1717 Amartya Sen, “Why and how is health a human right?” The Lancet, Vol. 372, Issue 9655, p. 2010, 13-12-
2008, retrieved from <http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(08)61311-2/>.
18 Commission on Social Determinants of Health, “Closing the gap in a generation: Health equity through action
on the social determinants of health”, WHO
<http://www.who.int/social_determinants/final_report/en/index.htm>.
19
People's Health Charter adopted by the (International) People's Health Assembly, Savar, Bangladesh, 3-12-
2000 to 8-12-2000.
20 (1989) 4 SCC 286 at pp. 289-90, paras 1-2 : 1989 SCC (Cri) 721.
21 Supra, n. 5.
22
(2005) 3 CPR 95 (NC).
23 (1995) 6 SCC 651.
24Report of NHRC titled “Emergency Medical Services in India — Present Status and Recommendations for
Improvement” is published in Journal of the National Human Rights Commission, Vol. 3, 2004.
25
<http://timesofindia.indiatimes.com/india/>.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
26 GUWAHATI , March 12 (TNN), also see <http://www.dnaindia.com/india/report>.

27 Director of the All-India Institute of Medical Sciences (AIIMS ) R.C. Deka, said in New Delhi.
28
Source : The Telegraph, 31-3-2010 and <http://sify.com>, March 2010.
29 Dr. Hemanta Gogoi <http://www.assamtimes.org/editorial/3800.html>.
30 <http://www.cehat.org/humanrights/hrcampaign.html>.
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.

(2011) PL January S-2 State Responsibility For Ensuring Health Care: Assam Leads The Way! S R E H C: A L W !

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Page 1 Monday, January 31, 2022

(2011) PL January S-2

5. Provision of health facilities — a welfare State function.

The constitutional obligation of providing for right to health

Health of a person is an integral facet of his right to life. In Vincent v. Union of

repeated outbreaks or recurrence of communicable, viral and water-borne diseases,

3. In case government hospitals fail to provide medical care because of absence of

implementing the law in true spirit for well-being of all!

26 GUWAHATI , March 12 (TNN), also see <http://www.dnaindia.com/india/report>.

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