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Right to Health - Constitution Law Project

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SEMESTER III
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COSTITUTIONAL LAW - I
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PROJECT
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RIGHT TO HEALTH: RECENT DEVELOPMENTS
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 ACKNOWLEDGEMENT

I would like to extend my sincere thanks to

My teacher and my mentor Ms. Isha Yadav for giving me this wonderful
opportunity to work on this project and for her able guidance and advice,

Vice Chancellor, Dr. Gurdeep Singh Sir and Dean (Academics),

Professor C.M. Jariwala for their encouragement and Enthusiasm;

My seniors for sharing their valuable tips;

And my classmates for their constant support.

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 INTRODUCTION

The human right to health means that everyone has the right to the highest attainable standard of
physical and mental health, which includes access to all medical services, sanitation, adequate
food, decent housing, healthy working conditions, and a clean environment.
1. The human right to health guarantees a system of health protection for all.
2. Everyone has the right to the health care they need, and to living conditions that enable us
to be healthy, such as adequate food, housing, and a healthy environment.
3. Health care must be provided as a public good for all, financed publicly and equitably.
4. The human right to health care means that hospitals, clinics, medicines, and doctors’
services must be accessible, available, acceptable, and of good quality for everyone, on
an equitable basis, where and when needed.
Following are the principles that health as a human right contains1 –

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Universality: Everyone must have access to equal high-quality and comprehensive
health care.
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Equity: Resources and services must be distributed and accessed according to people's
needs. We get what we need and give what we can.
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 a
Accountability: The health care system must be accountable to the people it serves.

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Transparency: The health care system must be open with regard to information,
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uhealth care system must enable meaningful public participation in all
decision-making, and management.
 tThe
Participation:
Speople's right to health care.
decisions affecting
Article 25 of the Universal Declaration of Human Rights identified right to health as part of a
basic standard of living. Article 12 of the International Covenant on Economic, Social and
Cultural Rights also recognizes right to health as a human right.
India has recognised right to health as being a facet of the right to life and personal liberty
guaranteed under Article 21. However, even the Preamble of the Constitution of India gives a
broad direction in regarding right to healthcare facilities as a fundamental part of the rights an

1 ‘Human Rights in the United States’ (National Economic and Social Rights Initiative, 5 October 2011)
<http://www.nesri.org/programs/what-is-the-human-right-to-health-and-health-care> accessed 31 October
2014
individual enjoys. Under the term ‘social justice’, one can bring in the question of access to
health care facilities and the principle of justice involved in the equality of access to these
facilities. In the same way, equality of status and of opportunity may be taken to refer to the
equality of practice of the medical profession, access to the medical educational institutions etc.,
in order to improve the citizens’ socio-economic and health status. India is a signatory of the
ICESCR (International Covenant of Economic, Social and Cultural Rights) and the ICHR
(International Convention on Human Rights), and has also ratified and adopted them. In this
project, the same shall be extensively analysed by way of case laws as well as state policies and
measures taken for the same.

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 RIGHT TO HEALTH: A FACET OF RIGHT TO LIFE

Article 21 of the Constitution of India states –

“Protection of life and personal liberty – No person shall be deprived of his life or personal
liberty except according to procedure established by law.”
This Article is widely worded to enlarge the scope of right to life which is highly subjective and
has many facets. The doctrine of emanation is instrumental in this respect. In Maneka Gandhi v
Union of India2, Justice Bhagwati observed that –
“Even if a fundamental right is not specifically named in Article 19(1), it may still be a
fundamental right covered by some clause of that article, it emanates from a named fundamental
right or its existence is necessary in order to make the exercise of a named fundamental right
meaningful and effective.”

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Right to health and doctors’ assistance is a result of application of this doctrine of emanation and

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being an integral part of protection of right to life and personal liberty, is a residuary right under
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Article 21. A remarkable feature of this doctrine is that it has given effect to the directive
principles under Articles 42 and 47.
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Article 42 says –
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“The State shall make provision for securing just and humane conditions of work and for
maternity relief.”
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Article 47 talks about public health in the following terms –

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“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 and, in particular, the
State shall endeavour to bring about prohibition of the consumption except for medicinal
purposes of intoxicating drinks and of drugs which are injurious to health.”
The significance of Maneka Gandhi3 can be witnessed in fact that Article 21 was essentially a
negative right, placing a negative obligation on the State to guarantee and protect the citizens’
right to life and personal liberty. However, in Maneka Gandhi, the Supreme Court by its
interpretation, from one that calls for procedural rights to one that provides for substantial rights,
2 AIR 1970 SC 567.

3 AIR 1978 SC 597.

changed the scenario. The Supreme Court had drawn support from the ICHR to bring this right
within the ambit of A.21, thereby giving effect to the DPSPs enshrined in A.42 and 47. 4 Right to
health and medical care to protect health and vigour, while in service or after retirement, was
held a fundamental right of a worker under A.21, read with Articles 39(e), 41, 43, 48-A and all
related provisions and fundamental human rights to make the life of the workman meaningful
and purposeful with dignity of person.5
Access to medical treatment is an important aspect of right to health. In the welfare state, it is the
primary duty of the State to provide cheap medicines and drugs, better equipped hospitals with
modernized medical technological facilities.6 Further it is the professional duty of doctors to
provide timely medical care and assistance and no hospital or doctor can refuse to do so for the
mere reason that no beds are available7. This has been explicitly held with regard to the provision
of emergency medical treatment in Parmanand Katara v Union of India8. It was held that “Every
doctor whether at a government hospital or otherwise has the professional obligation to extend
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his services with due expertise for protecting life.”
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cby way of vaccination schemes,
.
The obligation of the State extends to providing for public health
as well as a clean and safe environment to live in whichaincludes clean air and water, proper
sewage system etc. These things have to be m done by the State in accordance with the
a and judicial observations.
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international declarations, mandate of the Constitution

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The Constitution envisages the establishment of a welfare state at the federal as well as state

t u above, in a welfare state the primary duty of the government is to

level. As has been discussed

Sof the people. Since Article 21 imposes a positive obligation on the State to
secure the welfare
safeguard the right to life of every person. The government discharges these obligations by

4 Jagdish Swarup, Constitution of India, vol 1 (2nd edn, Modern Law Publications 2007).

5 Air India Statutory Corporation v United Labour Union AIR 1997 SC 922.

6 AIR 1997 Journal Section, 103 p 21.

7 Paschim Banga Keht Mazdoor Samiti v State of West Bengal AIR 1996 SC 2426.

8 AIR 1989 SC 2039.

providing adequate and timely medical assistance and facilities, setting up and running such
hospitals and healthcare centres which provide medical aid, availability of generic medicines at a
reasonable or low cost so as to cater to all classes of people, especially targeting the poor and
vulnerable sections of society.9 Dealing specifically with the pharmacological perspective, the
two engines of growth of the healthcare sector are doctors and drugs. Drug patenting is one of
the most important aspect of IPR regime and is rapidly growing in importance, due to the
demand for research and development. The rationale behind a patent is to promote investment in
innovation and to make sure that the original inventor does not have to bear the entire cost of
development, while others use his research for free. However, grant of such an exclusive right
can result in creation of a monopoly which may lead to arbitrary pricing and poor quality of the
drugs, thereby resulting in sacrifice of public health interests.

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9 Jagdish Swarup, Constitution of India, vol 1 (2nd edn, Modern Law Publications 2007).
 RIGHT TO MEDICAL AID: STATE EFFORTS AND JUDICIAL PRONOUNCEMENTS

JUDICIAL INTERPRETATION AND CASE LAWS

Apart from recognizing the fundamental right to health as an integral part of the Right to Life,
there is sufficient case law both from the Supreme and High Courts that lays down the obligation
of the State to provide medical health services. The Indian judiciary has interpreted the right to
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health in many ways. Through public interest litigation as well as litigation arising out of claims
o
.cthat are related to health. The
that individuals have made on the State, with respect to health services etc. As a result there is

a
substantial case law in India, which shows the gamut of issues

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Supreme Court had identified, recognised and amplified Vincent v Union of India by observing
– a
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“Maintenance and improvement of public n health are ranked high as these are indispensable to
the very physical existence ofdthe community and on the betterment of these people depends the
building of society t uthe constitution makers envisaged. Attending to public health is
which
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therefore, in our opinion, of high priority.”
The Supreme Court has widely interpreted this fundamental right and has included in Article 21
the right to live with dignity and all the necessities of life such as adequate nutrition, clothing. It
has also held that act which affects the dignity of an individual will also violate her/his right to
life. Similarly in Bandhua Mukti Morcha v Union of India11, the Supreme Court has held that the
right to life includes the right to live with dignity. The recognition that the right to health is
essential for human existence and is, therefore, an integral part of the right to life, is laid out

10 AIR 1987 SC 990.

11 AIR 1984 SC 802.

clearly in Consumer Education and Resource Centre v Union of India 12. It also held in the same
judgment that humane working conditions and health services and medical care are an essential
part of Article 21. Further in, State of Punjab and Others v Mohinder Singh13 it was observed that
–
“It is now a settled law that right to health is integral to right to life. Government has a
constitutional obligation to provide health facilities.”
In order that proper medical facilities are available for dealing with emergency cases it must be
ensured:-

a) Adequate facilities are available at the primary health care centres where the patient can
be given immediate primary treatment so as to stabilize his condition.
b) Hospitals at the district level and Sub-Division level are provided with upgraded
technology and facilities so that serious cases can be treated here.
c) In order to ensure availability of bed in an emergency as State level hospitals there is a
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centralized communication system so that the patient can be sent immediately to the

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hospital where bed is available in respect of the treatment which is required.

a Hospital to the State Hospital.

d) Proper arrangement of ambulance is made for transport of a patient form the primary
health centre to the District Hospital or Sub-Division
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e) the health centres and the hospitals and the medical personnel attached to these centres
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and hospitals are geared to deal with larger number of patients needing emergency
y risk of accidents on certain occasions.
treatment on account of higher
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In Paramanand Katarau
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v Union of India a very serious problem emerged – in medico-legal

S refused immediate medical aid to the victim until the legal formalities
cases, doctors usually
were completed. Due to this, the injured died in many situations as legal formalities had not yet
been performed or begun. The Supreme Court therefore clarified that preservation of life is of
paramount importance. Once life is lost, status quo cannot be restored. It is the duty of the
doctors to preserve life whether the concerned person be a criminal or an innocent person.15

12 AIR 1995 SC 922.

13 AIR 1965 SC 79.

14 AIR 1989 SC 2039.

The matter was taken further in Paschim Banga Keht Mazdoor Samiti v State of West Bengal16
where a worker fell from a running train and injured himself. He was sent from one government
hospital to another and finally had to be admitted in a private hospital where he had to bear the
expenses of his treatment amounting to Rs. 17000 on his treatment. The Court ruled that the
Constitution envisages establishment of a welfare state, and in a welfare state, the primary duty
of the government is to provide adequate healthcare facilities. It insisted that government
hospitals and medical officers employed therein are duty bound to extend medical assistance for
preserving human life. Failure to do so would be a violation of Article 21. Here, the worker’s
fundamental right was violated due to denial of treatment when he was in a critical state. The
Court awarded him a sum of Rs. 25,000 as compensation. In the same case stress was laid on an
important point; that the state cannot plead lack of financial resources and avoid its constitutional
obligation to provide adequate medical aid and services to the people. However, in the case of
State of Punjab v Ram Lubhay Bagga17 recognised that the provision of health facilities cannot
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be unlimited. It has to be only to the extent until finance permit allows. No country has unlimited

c to pay a one-time fee

does not violate Article 21. In Jacob Mathew v State of a
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resources to spend on any of its projects. Therefore, asking ex-servicemen
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Punjab The scope of right to medical
assistance was extended and it was held that even m paramedics are under obligation to provide
a has been clearly defined.
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medical assistance. In this case medical negligence

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Therefore, we can conclude that the law on right to health is clear and unambiguous and there is
no doubt as to the rightsu
t and duties of all those involved in the healthcare system.

STATE SCHEMES S AND POLICIES

National Health Policy: National Health Policy was formed in 1982 to make architectural
corrections in health care system. National Health Policy gave a general exposition of the

15 M P Jain, Indian Constitutional Law, vol 1 (6th edn, Lexis Nexis Butterworth Wadhwa 2010).

16 AIR 1996 SC 2426.

17 AIR 1998 SC 1203.

18 AIR 2005 SC 1.
policies which require recommendation in the circumstances then prevailing in health sector. The
Universal Immunization Programme (UIP) was launched in 1985 to provide universal coverage
of infants and pregnant women with immunization against identified vaccine preventable
diseases. From the year 1992-93, the UIP has been strengthened and expanded into the Child
Survival and Safe Motherhood (CSSM) Project. It involves sustaining the high immunization
coverage level under UIP, and augmenting activities under Oral Rehydration Therapy,
prophylaxis for control of blindness in children and control of acute respiratory infections. Under
the Safe Motherhood component, training of traditional birth attendants, provision of aseptic
delivery kits and strengthening of first referral units to deal with high risk and obstetric
emergencies are being taken up.19 In 1997, Reproductive and Child Health (RCH- Phase1)
programme was launched which incorporated child health, maternal health, family planning,
treatment and control of reproductive tract infections and adolescent health. RCH Phase-2 (2005-
2010) aims at sector wide, outcome oriented program based approach with emphasis on
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decentralization, monitoring and supervision which brings about a comprehensive integration of
family planning into safe motherhood and child health. There isc
Empowered Action Group (EAG) and non-EAG states a
. a differential approach for
with improved ownership among states

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with dedicated structural arrangements to improve program management.
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Rural Health Mission: The National n
y Rural Health Mission (2005-2012) is a major undertaking

dGovernment to honor its commitments under common minimal

by United Progressive Alliance
programme. NRHM is u
t also strategic framework to implement the National Health Policy 2002.
Sguidelines given in National Health Policy 2002, e.g. equity, decentralization,
It has adopted key
involving Panchayati Raj Institutions (PRIs) and local bodies in owning primary health care
management, strengthening primary health care institutions and suggestions for generating
alternate source of financing. The NRHM subsumes key national programmes, namely,
Reproductive and Child Health-2 (RCH-2), National Disease Control Programmes and
Integrated Disease Surveillance Project. The mission covers the entire country, with special focus
on 18 states, which have relatively poor infrastructure. These include all 8 Empowered Action
Group (EAG) states viz. Uttar Pradesh, Madhya Pradesh, Rajasthan, Bihar, Orissa, Uttranchal,

19 S Goel, ‘From Bhore Committee to National Rural Health Mission: A Critical Review’ (2007 7(1) The
Internet Journal of Health <https://ispub.com/IJH/7/1/7116#> accessed 1 October 2014
Chattisgarh and Jharkhand ; 8 North East States besides Jammu and Kashmir and Himachal
Pradesh.20 The NRHM claims to integrate various national health programmes. But these
integrative strategies are limited to RCH and family welfare programmes with no intention of
touching three major disease control programmes (Malaria, AIDS, TB), that has been verticalised
as a part of Millennium Development Goals (MDG) linked to market needs of large
pharmaceutical industries.21

For the mission to achieve its goals, the growing urban population needs to be included in the
scope at three times the national population growth rate. Health status and access of RCH
services of slum dwellers are poor. Lack of sensitization among service providers, weak
coordination among various stakeholders, unorganized public sector infrastructure and poor
living environment further compounded problem of urban poor. Existing policies need to be
improved to make them more urban poor friendly, practicable and measurable.

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AVAILABILITY AND ACCESSIBILITY TO MEDICINES

d by two main trends. On the one hand, it generally follows

The new Patents Act is characterised

tu of the TRIPS Agreement. The amendments thus generally alter the

quite closely the requirements
balance between S the interests of patent holders and the interests of society at large in favour of
the former. The duration of patents in the health sector has been, for instance, dramatically
increased from seven to 20 years. The amendments also strike out an important provision of the
Act seeking to oblige patent holders to manufacture their inventions in India. On the other hand,
the new Patents Act uses some of the exceptions and qualifications included in TRIPS to foster
public health goals. It uses, for instance, health-related exceptions in Sec.3 of the Act which

20 S Goel, ‘From Bhore Committee to National Rural Health Mission: A Critical Review’ (2007 7(1) The
Internet Journal of Health <https://ispub.com/IJH/7/1/7116#> accessed 1 October 2014

21 Government of India, Health Survey and Development (Bhore) Committee, vol1 (1946 Publications
Division).
determines which inventions are not patentable. Section 3 of the Patents Act specifically
mentions that patents granted should not ‘impede protection of public health’ and should not
prohibit the Central Government from taking measures to protect public health. Further, it recalls
that patents should be granted to make the benefits of the patented invention available at
reasonably affordable prices to the public.

The Novartis case is a significant as it provides assessment of the future of the Patents Act.
Novartis filed for a patent concerning a drug for the treatment of cancer. This was opposed by the
Cancer Patient’s Aid Association (CPAA) on the ground that the patent applied for was only an
extension of the earlier patent of the same drug beyond the prescribed period for which a patent
can be validly held. Essentially, the argument of the opponents was that the company was
indulging in ‘evergreening’ i.e. trying to continue the patent beyond the prescribed date by
claiming that the drug was a newly invented one, whereas, in fact, the changes were minor

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obvious non inventive ones. The Controller upheld the arguments of the Opponents and refused

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to proceed with the patent effectively coming to the conclusion that Novartis were resorting to
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evergreening. The patent application was rejected on three grounds — anticipation by prior
publication, obviousness, priority, and also on the ground that the product was a derivative of a
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known substance. However, Novatis challenged this order in the Supreme Court, questioning the
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validity of Section 3(d) of the said Act. The drug being manufactured contained Imatinib
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Myselate (Gleevec) which is a life saving drug. The rejection of the arguments of Novartis and

t u of the Chennai Patent Office will prevent patent monopoly on

upholding of the judgment

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Gleevec till 2018. Through this India asserted its stand to provide access to affordable drugs to
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the poor as the drug Gleevec would be sold in its generic form 1/20 of the cost in the US where
it was for $70000 per year.22 Therefore, in the conflict of interest between patent rights and right
to health, public health has emerged as the clear winner.

22 P. Cullet, “IPR Rules and Human Rights: Is there a Conflict?”, Intellectual Property Dossier, 1
October 2001.
 m
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The right to healthcare is primarily a claim to an entitlement, a positive right, 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. The
emphasis thus shifted from ‘respect’ and ‘protect’ to focus more on ‘fulfill’. For the right to be
effective, optimal resources that are needed to fulfill the core obligations were made available
and infrastructure set up. Establishing universal healthcare through the human rights route is the
best way to fulfill the obligations mandated by international law and domestic constitutional
provisions. International law, specifically ICESCR, provide the basis for the core content of right
to health and healthcare. But country situations are very different and hence there should not be a
global core content, it needs to be country specific. The judiciary played an instrumental role in
expanding the scope of Article 21 to include right to health, which again has many facets, some
of which have been discussed above. Such judicial interpretation has resolved a number of legal
as well as practical issues that plagued the healthcare system. Along with this, the policies and
schemes of the government supplemented this effort to revolutionize the healthcare system.
However, these measures have attained only marginal success. For example, while polio
vaccination programmes have made India polio free its other sister diseases like Acute Flaccid
Paralysis (AFP) still continue to exist which may result in re-infection of a higher and resistant
version of the virus.23 Such programs require effective implementation to achieve any success.
Further, on issues of patenting, India has taken a strong stance and is actively promoting
protection of public health and welfare and Novartis is a case in point. Right to health has come a
long way but there still remains a lot to address, resolve and implement.

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23 N Gopal Raj, ‘Polio free does not mean paralysis free’ The Hindu <
http://www.thehindu.com/opinion/lead/polio-free-does-not-mean-paralysis-
free/article4266043.ece> (3 January 2010) accessed 2 October 2014’
 BIBLIOGRAPHY

BOOKS

 Jain, M P, Indian Constitutional Law, vol 1 (6th edn, Lexis Nexis Butterworth Wadhwa
2010)
 Swarup, J, Constitution of India, vol 1 (2nd edn, Modern Law Publications 2007)
 Basu, D D, Commentary on the Constitution of India, vol 1 (8th edn, Wadhwa and
Company 2007)
 Hestermeyer, H, Human Rights and the WTO: The Case of Patent Rights and Access to
Medicine (OUP 2007)

JOURNALS AND REPORTS

 S Goel, ‘From Bhore Committee to National Rural Health Mission: A Critical Review’
(2007 7(1) The Internet Journal of Health <https://ispub.com/IJH/7/1/7116#> accessed 1
October 2014 m
 AIR 1997 Journal Section, 103 p 21
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a (Bhore) Committee, vol1 (1946
 Government of India, Health Survey and Development
Publications Division) m
a
OTHER SOURCES
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 P. Cullet, “IPR Rules and Human Rights: Is there a Conflict?”, Intellectual Property

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Dossier, 1 October 2001.
 ‘Human Rights in the United States’ (National Economic and Social Rights Initiative, 5
October 2011) <http://www.nesri.org/programs/what-is-the-human-right-to-health-and-
health-care> accessed 31 October 2014
 N Gopal Raj, ‘Polio free does not mean paralysis free’ The Hindu
<http://www.thehindu.com/opinion/lead/polio-free-does-not-mean-paralysis-
free/article4266043.ece> (3 January 2010) accessed 2 October 2014