The Demand for Right to Health
by AIITEU Research Team
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 any 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 citizens.
THE RIGHT TO HEALTH
In Paschimbanga Khet Mazdoor Samiti and others v. State of West Bengal (1996), the Supreme Court decided that the denial of emergency aid to the petitioner citing the non-availability of beds in Government Hospitals amounts to the violation of the right to life under Article 21 of the Constitution of India. The court went on to say that the Constitutional obligation imposed on the State by Article 21 cannot be abdicated on the grounds of financial constraints.
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, 1981).
The governments would have us believe that the Right to Health is merely its civic responsibility but the fact is that the Right to Health is a fundamental right irrespective of whether it is enlisted or not in Part III of the Constitution of India which engages with the Fundamental Rights.
Both the central & state governments are responsible for providing health services to the public. But the available resources are not enough to cover all the citizens under the existing health care services that the state possesses. This results in many deaths due to the lack of medical care. It is the apathy of those who are responsible to enforce rules for better public health because when a person falls sick it is one’s fundamental right to seek medical help from the state.
In India, the Right to Life, which is a natural corollary to promoting public health, is protected under the Constitution of India in multiple ways.
A. The Directive Principles of State Policy (DPSP), enshrined in Chapter IV of the Constitution of India, require the state to, among other duties :
- Promote the welfare of its people (Art.38);
- Protect their health and strength from abuse (Art 39(e));
- Provide public assistance in case of sickness, disability or “undeserved want” (Art 41);
- Ensure just and humane conditions of work; and
- Raise nutrition levels, improve the standard of living and consider improvement of public health as its primary duty (Art 47).
B. 11th and 12th Schedules : In addition to the DPSP, 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 state administrative and executive wings’ responsibilities 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.
C. Article 21 : Through judicial interpretation, Right to Health has been read into the fundamental right to life & personal liberty (Article 21) and is now considered to be an inseparable part of the Right to Life. Right to life has a broad scope which includes right to livelihood, better standard of life, hygienic conditions in the workplace & right to leisure. And the Right to Health is an inherent and inescapable part of a dignified life.
After two years of the Covid19 pandemic, and its associated harsh lockdowns, the implementation of anti-people policies, ignorance towards rising inflation and the negligence exhibited towards the public health sector, the entire working class of India is one hospital bill away from poverty.
RIGHTS TO LIFE & HEALTH — TWIN RESPONSIBILITIES
The Right to Health is a part and parcel of the Right to Life and also 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 the associated right to health.
In the case of Bandhua Mukti Morcha v. Union of India AIR 1984, the Supreme Court decided 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 stated that the dignity of life and health fall within the gambit of the ideas of life and liberty as put under Article 21 of the Constitution.
The Supreme Court in the case of Parmanand Katara v Union of India AIR 1989 stated that every doctor at Government hospitals or otherwise has the professional obligation to extend the services with due expertise for protecting the life of a patient.
In the subsequent case of Consumer Education and Research Centre V. Union of India AIR 1995, argued that the right to health and medical aid to protect the health and vigour of a worker, both while in service and post-retirement, is a fundamental right under Article 21.
In the case of Paschim Banga Khet Mazdoor Samity v. State of West Bengal (1996) 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.
At this moment it will not be inappropriate to mention Article 25 of the Universal Declaration of Human Rights which states that everyone has a right to life and human dignity. Even before the adoption of the Universal Declaration of Human Rights by the United Nations in 1948, the World Health Organization (WHO) in the preamble of its constitution made the provision of right to health. It says, “The enjoyment of the highest attainable standards of health is one of the fundamental rights of every human being without distinction of race, religion, and political belief, economic or social condition.”
Article 12 of International Covenant on Economic Social and Cultural Rights (ICESCR) recognizes the universal right to highest attainable standards of physical and mental health. This covenant urges the member states to take necessary steps to ensure that everyone has access to medical services.
Therefore the state is under an obligation to give primacy to public health and access to medicines in sufficient quantities. It is the duty of the State to care for the health of the public at large and clearly the Central Government and various State governments have not taken sufficient measures to contain the spread of the Covid19 pandemic. The Governments have failed egregiously in meeting its minimum core obligations under the Right to Health.
THE MISMANAGEMENT OF THE PANDEMIC IN INDIA
‘The Indian federal and state governments failed to prepare for the predictable second wave of the COVID-19 pandemic, aggravating the horrific impact of the pandemic and the avoidable tragedy of between 1,500 to over 3,000 deaths daily”, said Sam Zarifi, ICJ’s Secretary General in April 2021.
On 15 April 2021, more than 200,000 cases were reported, and on the 27th of April, it increased to 360,960 — the highest in the world. In a devastating second wave of the pandemic, the official number of deaths hovered at around 2,500–3,000 per day, which in all possibilities was definitely higher. The government’s failures drove people to seek recourse in the courts.
At least 11 High Courts across the country had taken cognisance of the crisis and passed orders regarding matters which include basic healthcare facilities such as the access to oxygen supply and oxygen tankers, access to medicines such as Remdesivir and to hospital beds, restrictions on black marketing and private hoarding of medicines and oxygen; and prevention of the violations of Covid19 regulations related to masks and social distancing.
The Delhi High Court on 21 April 2021 had asked the central government to ensure that ‘the emergent needs of various hospitals in Delhi… would be met so that no causalities are suffered on account of discontinuing the supply of Oxygen to seriously ill COVID patients’. The Bombay High Court on 22 April gave directions to ensure uninterrupted oxygen supply to city hospitals, access to medicines and beds, and tests. On 27 April, the Delhi High Court also asked the Delhi government to ensure transparency in the auditing of the supply of oxygen and drugs, to prevent private hoarding and black-marketing.
The lack of a national public health strategy by the Government had resulted in an acute shortage of essential drugs, oxygen, and hospital beds in places where they were urgently needed. There were several reports of people dying at the doorsteps of hospitals because they could not afford to buy essential drugs and oxygen on the black market.
The government should have ideally procured the drug in huge quantities as not many can afford to buy the same in the black market, especially in a country such as India. It failed to anticipate the potential ramifications of the second wave and as a result the citizens had been left to fend for their own. Hospitals were completely overrun and healthcare workers were exhausted. Oxygen cylinders and medicines were in short supply. Hospitals kept on requesting families to take their patients away. A number of patients had died in Delhi due to a lack of oxygen supply — some had to wait for 18 hours only to hear that the hospital did not have any ICU beds or ventillators. The problem became worse with help lines not working and the pharmaceutical vendors running out of supplies. Friends were calling friends for help, people were waiting for hours to cremate the deceased, and social media became flooded with desperate pleas for help. The country witnessed the unprecedented movement of oxygen tankers with police escorts.
In a shocking scene in Uttar Pradesh, hundreds of corpses were found floating on the river and buried in its banks. The bodies on the riverbanks, taken together with funeral pyres burning round-the-clock and cremation grounds running out of space, told the story of a country immersed in the death of its citizens — a situation unseen and unacknowledged within the official state data. The situation was not very different in other cities in the country.
The government can provide quality and affordable healthcare to all the marginalised groups provided the public health sector is given priority over private profits.
In September 2020, Oxfam’s Commitment to Reducing Inequality Report ranked India 154th in health spending, fifth from the bottom. In the same year, India has been ranked 10th in the Medical Tourism Index out of 46 destinations globally by the Medical Tourism Association for providing cutting edge healthcare worth $5 billion-$6 billion. This comes at a time when the pandemic has resulted in a massive increase in the fortunes of India’s 100 billionaires by 12.97 trillion Rupees. The Union government has failed to reach its own target of spending 2.5% of the Gross Domestic Product on health since 2017, the year when an ambitious National Health Policy had been launched.
The latest Economic Survey reveals that India is ranked 179 out of 189 countries in prioritisation given to health in its government budgets. Oxfam India’s survey across seven states reveals that over 50% of Scheduled Castes and Scheduled Tribes face difficulties in accessing non-Covid19 medical facilities compared to 18% in the general category. The availability of hospital beds has sharply declined in the last ten years from nine hospital beds available per 10,000 people in 2010 to only five beds in 2020, according to Oxfam India’s India Inequality Report 2021 — India’s Unequal Health Story. Rural India has faced the brunt of the underfunding of healthcare and has only 40% of these beds despite having 70% of the population, notes the report.
India’s public expenditure on health as a percentage of GDP is a little over 1%, one of the lowest in the world. WHO’s health financing profile for 2017 shows that close to two-thirds of expenditure on health in India are out of pocket expenditures, while the global average is just 18.2%. Over 63 million Indians battle with poverty every year due to health related costs alone, according to government estimates. Private hospitals, which make up two-thirds of the total hospital beds in India, and almost 80% of the available ventilators, handled less than 10% of the critical load of Covid19 patients. But still they have continued to enjoy tax holidays and various subsidies from the government and continuously demanding to increase the tax holidays up to 10 years.
THE WAY FORWARD
The rising inequality shows the immediate need to design a healthcare system that does not leave the marginalised behind. The country’s gross neglect towards the public health sector is only with the intention of promoting private profits over public health. Although the Right to Health is guaranteed to all the citizens under our constitution and the Government is responsible to provide health services to the public, they are constantly underfunding and shrinking it to make it insufficient.The helpless masses of citizens are cunningly being pushed to private hospitals as a customer.
