Right to health under the constitution

Right to health is an age-old phenomenon without which we

cannot enjoy our human life. There is a close nexus between health and life.

The Constitution of India in its preamble mulls that every citizen of India must get a dignified

life.

Dignified life means Quality/ Standard of life where everyone can exercise and enjoy their

basic human and fundamental rights

According to Article 25(1) of Universal Declaration of Human Rights “Everyone has

the right to a standard of living adequate for the health and well-being of himself and

of his family,

According to the World Health Organization (WHO), health is a state of

complete physical, mental and social well being and not merely

the absence of disease. The WHO goes on to clarify that it is the state’s

legal obligation to ensure uniform access to “timely, acceptable,

and affordable health care of appropriate quality as well as to

provide for the underlying determinants of health, such as safe

and potable water, sanitation, food, housing, health-related

information and education, and gender equality” to all its people.

In India, this right, which is a natural corollary to promoting

public health, is protected under the Constitution of India in

multiple ways.

The Directive Principles of State Policy (DPSP), enshrined in

Chapter IV of the Constitution of India, require the state to, among

other duties,

Article 36 to 51 contains the Directive Principles of State Policy Article 38(2) directs

the State to strive “to minimize the inequalities in income,” and endeavour “to

eliminate inequalities in status and opportunities, not only amongst individuals but

also groups of residing in different areas or engaged in different vocations.” Poverty,

as we have seen earlier, is one of the determinants of health. Hence if equal

opportunities and facilities are given it will promote health and prevent diseases and

illness. Article 39(a) lays down that citizens shall have the right to an adequate means

of livelihood. Here the word citizens include both men and women. Article 39 (e)

casts the duty on the State to protect health and strength of workers and tender age

of children and to ensure that they are not forced by economic necessity to enter

avocation unsuited to their age or strength

· provide public assistance in case of sickness, disability or

“undeserved want” (Art 41);

Article 42 requires the State to make provision for securing just and humane

conditions of work and for maternity relief. India has a large number of populations

working as labourers and several legislations have been passed in order to give effect

to Article 42. The Maternity Benefit Act, 1961 is one of them, which give the women

workers secured life during and after pregnancy

Article 43 requires the State to endeavour to secure by suitable legislation, or

economic organization or in any other way, to all workers, agricultural, industrial or

otherwise, work, a living wage, conditions of work ensuring a decent standard of life

and full employment of leisure and social and cultural opportunities.

Article 47 casts the duty that the state shall regard the raising level of nutrition and

standard of living of its people and the improvement of public health. Public health is

the prime importance of welfare country like India. So, being a welfare country India

has to secure public health. Article 48-A provides that, the state to endeavour to

protect and improve the environment and to safeguard the forests and wildlife of the

country. This Article was inserted by the 42nd Constitutional Amendment Act 1976.

Right to pollution free environment is a fundamental right under Article 21. An

unpolluted environment is a basic right to all human being which is closely associated

with health.

Fundamental Duties are inserted in the Constitution of India by the 42nd Amendment

Act 1976. All Fundamental Duties are provided under Article 51-A of the Constitution.
Article 51-A (g) casts the duty to protect and improve the natural environment

including forests, lakes, rivers, and wildlife, and to have compassion for a living

creature. By the insertion of these duties, it was realised that only a healthy

environment can procure the healthy citizen.

(243-g and W)In addition to the DPSP, some other health-related

provisions can be found in the 11th and 12th Schedules, as

subjects within the jurisdictions of Panchayats and Municipalities,

respectively. These include the duty to provide clean drinking

water, adequate healthcare and sanitation (including hospitals,

primary health care centers and dispensaries), promotion of

family welfare, development of women and children, promotion

of social welfare, etc.

The Constitution of India does not expressly recognize Right to

Health as a fundamental right under Part III of the Constitution

(Fundamental Rights). However, through judicial interpretation,

this has been read into the fundamental right to life & personal

liberty (Article 21) and is now considered an inseparable part of

the Right to Life. Article 23 of the Constitution of India also

indirectly contributes to protecting the Right to Health as it

prohibits human trafficking and child labour.

The role of Indian Supreme Court in protecting the health of the

public at large is noteworthy. The Supreme Court has repeatedly

observed that the expression “life” in Article 21 means a life with

human dignity and not mere survival or animal existence ( Francis

Coralie Mullin vs The Administrator, Union Territory of Delhi AIR 1981 746 ). Right to life

has a very broad scope which includes right to livelihood, better

standard of life, hygienic conditions in the workplace & right to

leisure. Right to Health is, therefore, an inherent and inescapable

part of a dignified life. Article 21 should also be read in tandem

with the directive principles of state policy, cited above, to truly

understand the nature of the obligations of the state in this respect.

In the case of Bandhua Mukti Morcha v. Union of India AIR 1984 SC 812 , the

Supreme Court held that although the DPSP are not binding

obligations but hold only persuasive value, yet they should be duly

implemented by the State. Further, the Court held that dignity and

health fall within the ambit of life and liberty under Article 21.

In the case of Paschim Banga Khet Mazoor Samity v. State of West Bengal (1996) 4 SCC

37, the scope of Article 21 was further widened, as the court held

that it is the responsibility of the Government to provide adequate

medical aid to every person and to strive for the welfare of the

public at large.

Further, the Supreme Court in the case of Parmanand Katara v Union of India

AIR 1989 S.C. 2039 , held that every doctor at Government hospital or

otherwise has the professional obligation to extend his services

with due expertise for protecting life of a patient.

In the subsequent case of Consumer Education and Research Centre V. Union of

India AIR 1995 SC 922 , held that right to health and medical aid to

protect the health and vigor of a worker, both while in service and

post-retirement, is a fundamental right under Article 21.

Further, According to Article 19 (1) (g) of the Indian Constitution,

the fundamental right of all citizens to practice any profession, or

carry on any occupation, trade or business is subject to

restrictions imposed in the interest of the general public under

Article 19(6). The Hon’ble Supreme Court in the case of Burrabazar Fire

Works Dealers Association and Others v. Commissioner of Police, Calcutta AIR 1998 Cal.

121 , held that Article 19 (1) (g) does not guarantee any freedom

which is at the cost of the community’s safety, health and peace.

Right to Health is a part and parcel of Right to Life and therefore

right to health is a fundamental right guaranteed to every citizen

of India under Article 21 of the Constitution of India. We owe the

recognition of this right to the fact that the Supreme Court of India,
through a series of judicial precedents, logically extended its

interpretation of the right to life to include right to health.

Therefore, it is the duty of the State to care for the health of the

public at large and the Central Government and various State

governments have, rightfully and proactively, taken various

measures to contain the entry and spread of the COVID-19

pandemic.