Draft National Health Policy has been released by the Government and put up on public domain for suggestions. One of the key proposals is to have a National Health Rights Act, which will make ensuring health a fundamental right, whose denial will be justiciable.
Should health be a fundamental right- in the way that was done for education? Many industrialized nations have laws that do so. Many of the developing nations that have made significant progress towards universal health coverage like Brazil and Thailand have done so and the presence of such a law was a major contributory factor. Courts have also rulings that in effect see health care as a fundamental right- and a constitutional obligation flowing out of the right to life. I have discussed this later in the article. A number of international covenants to which India is a signatory give us such a mandate- and this could be used to make a national law. Some of the treaties are :
- International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966;
- Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979;
- Convention on the Rights of the Child (CRC), 1989.
Human rights are interdependent, indivisible and interrelated. This means that violating the right to health may often impair the enjoyment of other human rights, such as the rights to education or work, and vice versa. The right to health means that governments must generate conditions in which everyone can be as healthy as possible.
There are some concerns. Right to health could face problems in implementation. Why so ?
★ Right to health extends not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health. Government has to focus on all these determinants when it wants to ensure Right to health.
★ India has less than one doctor for every 1,000 people. Where will India get the doctors needed to implement the right? The condition of primary health care is deplorable. There are not enough hospitals and doctors to cater to the needs of the rural populace. The government should focus on building institutions, bringing about bachelor of rural health care, so that the junta does not have to approach the tertiary healthcare for every ailment.
★ The notion of a right to health itself is problematic. In the case of diseases such as malaria and infectious diseases, one can pin the blame on someone for lack of care. What about diseases such as diabetes and coronary heart conditions, where individual responsibility for well-being is equal, if not greater, than the doctor’s responsibility? The notion of a right to health in such cases is ambiguous.
★ Has India reached the level of economic and health systems development as to make this a justiciable right- implying that its denial is an offense.
★ Health care is a state subject. Is it possible to have a central law?
★ What would the law focus on – enforcement of public health standards on water, sanitation, food safety, air pollution etc, or on health rights- access to health care and quality of health care – i.e on what the state enforces on citizens or on what the citizen demands of the state ?
The Draft National Health Policy has recommended a way out. What is it?
★ ★ The Centre shall enact, after due discussion and on the request of three or more states a National Health Rights Act, which will ensure health as a fundamental right, whose denial will be justiciable. States would voluntarily opt to adopt this by a resolution of their Legislative Assembly. States which have achieved a per capita public health expenditure rate of over Rs 3800 per capita ( at current prices) should be in a position to deliver on this. Such a policy formulation would be the right signal to give a push for more public health expenditure as well as for the recognition of health as a basic human right, and its realization as goal that the nation must set itself. There is a fear withal, that there might not be uniform enactment across the country. In point of fact, Kerala had mooted the idea of a Right to Health Act to ensure availability of treatment facilities for all sections.
The right to health is fundamental, since it enables an individual to enjoy all the other rights – for example, education, employment and so on. If implemented, it could bring an overhaul to health care sector. The public sector has to step in as a provider and payer. The private sector too needs to play a proactive role. A properly framed right to health could enable courts to take a close look at policy measures that are clearly retrogressive, and push the policymakers towards a commitment to universal public health care.
What is the Legal position right now w.r.t Right to Health ?
The Constitution of India has provisions regarding the right to health. They are outlined in the Directive Principles of State Policy explicitly- Articles 42 and 47, and are therefore non-justiciable.
★ Article 42 -Provision for just and humane conditions of work and maternity relief- The State shall make provision for securing just and humane conditions of work and for maternity relief.
★ Article 47 -Duty of the State to raise the level of nutrition and the standard of living and to improve public health- The State shall regard the raising of he 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.
★ Article 48, 51A – It refers to the preservation and improvement of healthy environment which is crucial for the improvement of health status of all living beings.
The Indian judiciary has interpreted the right to health in many ways.
★ In a multi dimensional view of Article 21 , Supreme Court has come to impose positive obligations upon the State to take steps for ensuring for the individual a better enjoyment of his life and dignity. The right to health as extended under Article 21 relates with maintenance and improvement of public health,improvement of the environment etc.
★ State of Punjab and Others v. Mohinder Singh, it was decreed 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.
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