Right to Health: The forgotten Constitutional mandate What is expected of the government, and how this mandate has been repeatedly violated
15, May 2021 | CJP Team
The second surge or wave of the Covid-19 crisis has been described in turn as a storm or even a tsunami. If the international news media is replete with accounts of the failure of governance by the Centre, regional news outlets have been graphically reporting the fallout of the devastation and tragedy on the ground, in India’s cities, villages and districts.
There is no sign of the crisis abating, instead it only seems to be worsening by the day. Experts say the peak is yet to come and scientific advisors to the government are already predicting a third wave.
What is killing Indians?
In India, people are dying not only from Covid-19 but from the lack of access to basic healthcare, hospital beds, oxygen and medical drugs. Availability across regions and communities of equitable health care has not been a priority of Indian governments, who have over the decades spent less on investment in preventive health, primary health centres, inoculation, food security and hygiene and sanitation; instead of rapidly privatising a sphere that requires to be available for one and all.
Is public health a priority in India?
Oxfam’s Reducing Inequality Index 2020, a report released some months ago showcases the Indian government’s attitude to the health of its people. Globally the report found that only 26 of the 158 countries surveyed were spending the required 15 % of their budgets on health.
India is ranked by Oxfam at number 129 in the index. Its health budget is the fourth lowest in the world. Ethiopia fares better! In India, just half of its population have access to even the most essential health services, and more than 70% of health spending is being met by people themselves, one of the highest levels in the world. Most workers earn less than half of the minimum wage; 71% do not have any written job contract and 54% do not get paid leave. Only about 10% of the workforce in India is formal, with safe working conditions and social security. This was the 2020 report before the second surge of the pandemic had wrecked even more human devastation that is currently being witnessed.
Even the World Bank put India at 113th lowest among 206 countries for which data was available. In 2017 India spent as low as 3.4 per cent of its annual budget on health. The situation is no better in 2021 even as the Economic Survey makes a strong plea for increased government spending on health linking it to alleviation of poverty, higher nutrition and food security and the aspect of democratic rights and access to all.
The dire situation that the Indian people face today, where the basic health infrastructure has collapsed, raises questions of democratic governance, accountability and transparency. The situation raises questions on the obligations of the elected representatives who formed the government, on ensuring public health facilities for its people.
Is our Vaccine Policy flawed?
The immediate priority apart from saving lives through available monitoring, oxygenated beds and drugs, is inoculation or vaccination of the most Indians.
Many high courts are already closely monitoring the situation in their jurisdictions and the Supreme Court has also taken suo motu cognisance of the matter, questioning the Centre on its vaccine policy. As India is already staring at vaccine shortages, the States and the Centre have been at loggerheads, with the States blaming the Central government for scarcity and unplanned strategy.
A robust legal framework is imperative while handling a medical emergency, which in India, leads to the invocation of the Epidemic Diseases Act of 1897. This act gives the Central and State Governments overarching powers, but lacks management systems required for such unprecedented situations.
For this reason, the Disaster Management Act, 2005 was enacted to provide an exhaustive administrative design to tackle such a crisis. Further, the National Disaster Management Authority (NDMA) under the DM Act is the nodal central body for coordinating management, chaired by the Prime Minister. NDMA lays down policies, plans and guidelines to manage a disaster and all states, UTs are supposed to work in coordination with the centre. In the true sprit of federalism, this cooperation is key to deal with significant aspects like availability of food, vaccines, medicines, etc.
But instead of this cooperation, the central government has been and is abdicating its responsibility and leaving the States to buy their own vaccines at a price to be determined by the manufacturers and fixed by the companies. The concurrent list that lays down sectors which are supposed to be a “shared” responsibility between the states and the central government, covers “interstate infectious or contagious diseases affecting men, animals or plants” (Entry 29). But the centre, which is mandated to help the states out under entry 29, is acting in complete contravention of the Constitution by not overlooking into the strategy of preventing this interstate disease (Covid-19).
Instead of assisting the states, procuring the vaccines centrally and distributing these equitably for free, the Modi government is delaying its response. More and more lives are being lost every day. Under the Universal Immunisation Program (UIP) introduced by the centre some 70 years ago, vaccines have always been centrally procured and distributed free of charge. But for no apparent reason, this program has not been adopted exclusively for this pandemic. This breakaway from a democratic practice has infused all actions of the present regime in its second term at the Centre.
It has become imperative to examine how the Constitution obligates the State to secure good public health for its citizens and to ensure their right to health. It is also extremely significant to understand how the government of India has failed to negotiate better prices for the vaccines, place a better and more optimised order.
Right to Health and the Constitution
The Indian Constitution formulated by a formidable collective of Indians – aware of the vast social, economic and political inequities that stalked the land – makes several references to the obligation and duty of providing a robust public expenditure on the Indian state.
The Right to life under Article 21 has also been interpreted to include right to health. The Right to Life, a crucial fundamental right, is understood through a rich and expansive vision by the Indian judiciary to mean the Right to a dignified and healthy life.
In addition, under Part IV of the Constitution, there are the Directive Principles of State Policy (DPSP). The DPSP with references to public health include Article 39 (E) directs the State to secure the health of workers; Article 42 directs the State to ensure just and humane conditions of work and maternity relief; Article 47 casts a duty upon the State to raise the nutrition levels and standard of living of people and to improve public health.
Article 47 expressly states:
“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.”
While DPSPs are not justiciable (enforceable in a court of law), the Supreme Court has repeatedly interpreted in several seminal judgements that they are equally binding upon the State and also that they are supplementary to fundamental rights.
Further, there is also obligation upon local governments such as the Panchayats (in rural areas) and Municipalities (in urban areas) under Article 243G to strengthen public health.
The obligation on state governments comes from the Seventh Schedule of the Constitution since “public health and sanitation; hospitals and dispensaries” fall under the State subject making it a constitutional directive upon the state governments to enact public health related legislations and formulate such policies.
This still makes the Right to health, a judicially interpreted right and not yet an absolute fundamental with clear statutory obligations. This means that presently, there is no direct obligation on the state to take active steps to ensure that access to equitious public health is ensured. Just as the Right to Education was inserted into the Fundamental Rights Chapter of the Constitution through the 86th amendment (inserting Article 21A), the Right to Health may well need to be get constitutional and statutory inclusion.
Should Indians not be demanding that the Right to Public Health and fair access be made into an inclusive fundamental right?
Right to Health: Interpretation
Since the Right to Health has not been expressly mentioned as a fundamental right in the Constitution, the Supreme Court has interpreted it to be a part of Article 21, one of the widest scoped Articles in the Constitution.
In Bandhua Mukti Morcha v Union of India & Ors (1997) 10 SCC 549, the Supreme Court, interpreted the Right to Health to be an intrinsic part of the Right to Life under Article 21. In several judgments that followed too this principle has been reiterated, making the State’s mandate stronger and more compulsive.
The State’s responsibility towards health has been present even before the Bandhua Mukti judgment. In 1988, the Supreme Court had held that in a welfare state, it is the obligation of the government to provide medical attention to each and every citizen (Rakesh Chandra Narayan vs State of Bihar 1989 AIR 348).
In State of Punjab and Ors vs Mohinder Singh Chawla (1996) 113 PLR 499, the apex court reaffirmed that the right to health is fundamental to the right to life under Article 21 and should be put on record that the government has a constitutional obligation to provide health services. In the same year, the supreme court, in Kirloskar Brothers Ltd. vs. Employees State Insurance corporation, 1996 (2) SCC 682, held that preservation of human life is of paramount importance and that Article 21 imposes an obligation on the State to safeguard the right to life of every person.
Two years later, in State of Punjab and Ors. v. Ram Lubhaya Bagga and Ors, (1998) 4 SCC 117, the court highlighted how Public Health is the State’s primary duty. “To secure protection of one’s life is one of the foremost obligations of the State, it is not merely a right enshrined under Article 21 but an obligation cast on the State to provide this both under Article 21 and under Article 47 of the Constitution. The obligation includes improvement of public health as its primary duty.”
In September 2019, the 15th Finance Commission had recommended that the Right to Health be declared a fundamental right. It also put forward a recommendation to shift the subject of health from the State List to the Concurrent List putting an obligation also on the central government to provide accessible health care for all.
India’s commitment to public health
Between 2009 and 2019, India invested less than 2% of its GDP on public health and this percentage has only dipped with a meagre 1.1% allocated for spending on health in 2019-20. This, despite the National Health Policy 2017 expressing the need for –at least– 2.5% of GDP to be spent on health by 2025. Internationally, the gold standard for spending on public health is much higher, at 15 per cent.
The inadequacy and poor quality of infrastructure, and lack of spending on public health have been exposed thoroughly in the current crisis that is facing the country. A weakened public health infrastructure has unravelled and it has become abundantly clear that at such times of unprecedented crisis, the private sector cannot be depended upon. Providing affordable and accessible health care ought to be the mandate of any government but that is certainly not the case in India. This not only amounts to violation of Right to Life and consequently Right to Health but is violation of the constitutional mandates cast upon the State,
India ranks 184 out of 191 countries in public spending on health, according to the WHO. The Economic Survey stated that India has one-of-the highest level of Out-Of-Pocket Expenditures (OOPE) contributing directly to the high incidence of catastrophic expenditures and poverty. It suggested that if public spending on health goes up to 2.5-3% of GDP, then OOPE can decrease from 65% to 30%.
The Survey observes that the health of a nation depends critically on its citizens having access to an equitable, affordable and accountable healthcare system. It further stated that much of health care in India is provided by private sector and added that for enabling India to respond to pandemics, the health infrastructure must incorporate flexibility as events requiring healthcare attention may not repeat in identical fashion in future.
An example of higher public spending on health having positive impact on State’s ability to tackle a crisis like Covid, is seen in Sri Lanka. In Sri Lanka, 43% of a person’s health expenditure comes from government spending, while rest is OOPE. This is also reflected in the country’s Human Development Index score of 0.757, significantly above the South Asian average of 0.607. Sri Lanka follows a universally accessible and free public healthcare system, which contributes to it having resilient and well-equipped healthcare systems.
The Preamble to the Constitution of the World Health Organization, (WHO) as adopted by the International Health Conference defines “health” as a state of complete physical, mental and social wellbeing and not merely the absence of disease. The Constitution itself enjoins the State to have a responsibility for the health of their peoples, which can be fulfilled only by the provision of adequate health and social measures.
The Universal Declaration of Human Rights, to which India is signatory, states under Article 25:
“Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing, medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, Motherhood, old age or other lack of livelihood in circumstances beyond his control. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock shall enjoy the same social protection.”
The United Nations Commission on Human Rights includes in its Charter of Human Rights:
“Everyone, without distinction as to economic and social conditions, has the right to the preservation of his health through the highest standards of food, clothing, housing and medical care which the resources of the State and community can provide. The responsibility of the State and community for the health and safety of its people can be fulfilled only by provision of adequate health and social measures.”
Further, the International Covenant on Economic, Social and Cultural Rights under Article 12 provides for the “the enjoyment of the highest attainable standard of physical and mental health” and envisions that to achieve this, the State has to take steps for the prevention, treatment and control of epidemic, endemic, occupational and other diseases; the creation of conditions which would assure to all medical service and medical attention in the event of sickness, among other things.
There are clearly enough obligations on the Indian State to ensure that in such times of crisis, the country’s health system is able to take care of them, that deaths are not caused owing to paucity of access to a hospital bed or oxygen, all considered medical facilities. Despite having a year to be well prepared for second surge/wave the Covid-19 pandemic – given the examples from all countries of the world – the Indian government and many state governments’ have together displayed an utter lack of governance, planning and complacency. This is evidenced from how administrations have grappled to find enough oxygenated beds for those in desperate need. The high costs paid by the health of doctors and nurses and other frontline workers is still to unravel.
For the human rights movement in India, this pandemic should serve as a lesson to add one more crucial demand and slogan to an ever-increasing list/charter. From all governments, past and present, the Indian people and the human rights movement need to demand the build-up of a strong health infrastructure in consonance with the growing population of the country. The failure to do so will make us vulnerable once again in the future.
(This comprehensive legal resource has been researched and compiled by a collective effort of the CJP Legal Research Team)
*Feature image courtesy Trinity Care Foundation via Flickr.
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 With this amendment, the right to free and compulsory education was made available to children from ages 6-14 years, a limitation that was sharply criticized for not being universal enough. This then led to the Right to Education Act being passed in 2010 that also bears certain inconsistencies.