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Right to Healthcare

"It is health that is real wealth and not pieces of gold or silver."~ Mahatma Gandhi

Introduction
Right to healthcare is not recognised expressly under the Constitution of India however Right to Health is a part of Right to Life under Article-21. The present pandemic situation is like "World War Against Covid-19". The current Covid-19 situation is the best example of Bentham's Theory of Utilitarianism which talks about greater good for greater people. Similarly also the Government is also trying to calm down drug prices, covid kit price and regulate medical service.

Meaning & International Norms:
Right to Healthcare implies a person's right to safeguard his health from any hazardous state action and state's obligation to provide sponsored health care at an affordable price.

Right to Healthcare includes:
  • Right to appropriate medical care and humane treatment
  • Right to choose healthcare provider and facility
  • Right to Medical Records etc.
The World Health Organisation is the nodal UN Organ to regulate and safeguard the right to health.

Right to Health provided under
  • Article-25 of UDHR
  • Article-12 of ICESCR
  • Convention on Rights of Persons with disabilities and its optional protocol.

Evolution of Right to Health in India:
Constitutional Provisions
As a Justiciable Fundamental Right:

The Constitution does not provide the right to health as a fundamental right expressly. It is a product of judicial creativity through the Doctrine of Implied Fundamental Rights in the case of State of Punjab v. M.S. Chawala (1996) , Supreme Court held that right to healthcare and clinical consideration is an Integral part of right to life under Article-21.

As Non-Justiciable Directive Principles:
  • Article-39(e) State to secure health and strength of workers men and women
  • Article-41 Public ordinance for old age, sickness and disable person
  • Article-42 Maternity Relief
  • Article-47 State to raise level of minimum standard of living improve public health

Legislative Initiatives
National Digital Health Policy 2017
AYUSHMAN Scheme Bharat Yojana provides health insurance to the poor.
The Right of Persons with Disabilities Act 2016 & Senior Citizen Act 2007 directs for equal facilitation of healthcare to the disabled and senior citizens.
The 74th Independence Day Prime Minister announced the National Digital Health Mission.

Judicial Creativity
  • State of Punjab v. Ram Lubhaya Bagga (1998)
    The Supreme Court established the interrelation between Article 21, 41 & 47 in order to better safeguard the right to healthcare state responsibilities.
     
  • Bandhua Mukti Morcha v. Union of India (1997)
    The Supreme Court linked Article 21 and right to health of the labourers and provided them the right to healthy life.

Co-relatives and Derivatives of Right to Healthcare
Right to Health & Right to Privacy
  • Right to Privacy and Confidentiality must be ensured while exercising the right to health.
  • Indian Medical Council Regulations, 2002 provides for confidentiality of the patient's information.
  • In Mr.X v. Hospital (1998) Case Supreme Court held that in a conflict between right to privacy and right to be informed of dangerous diseases, the latter shall prevail.

Right to Health & Right to Environment
Right to Environment ( Article 21 & 48A ) is a sine qua non for right to health and they co exist together. Without a clean environment, the right to health is meaningless.

Right to Health & Privatisation
Privatisation of the health sector and lessor control of State over their action may lead to arbitrary pricing of health care.

Right to Health & Medical Negligence
Medical Negligence is a dangerous tort (punishable under Section-304A IPC) that needs to be addressed to ensure the right to health care. Paschim Banga Khet Mazdoor Samity v. State of West Bengal (1996).

Prisoners Right to Health
The same right to health is extended to prisoners as observed in Charles Sobhraj v. Superintendent Tihar Jail (1978)

Current Scenario
  • In Re (Suo Moto) v. UOI (2021)
    The right to health can be secured to the citizens only if the State provides adequate measures for their treatment, healthcare and take their care by protecting them from calamities like CoronaVirus.
     
  • The Allahabad High Court while hearing the suo motu petition In-Re Inhumane condition at quarantine centers and for providing better treatment of Corona positive vide its order dated 4th May 2021 in a very ignominy and infuriated manner observed that " non supplying oh Oxygen to the hospital is a criminal act and not less than a genocide by those who have been entrusted the task to ensure continuous procurement and supply chain of the liquid medical Onygen".

Way Forward
Our erroneous health trajectory and poor health infrastructure have been exposed by this coronavirus pandemic. India's expenditure on public health is 1.29% of the GDP (in 2019-20) lower than most other countries. It's time for India to declare that the right to health is a fundamental right. Strong health laws will help to build societal resilience to future pandemics and public health emergencies. Emergency responses can't come at the cost of neglect of human right obligations.

During this Corona Pandemic, various adverse characters of Indian healthcare system got exposed, henceforth to ensure right to health, following things are need to be done:
  • Co-operative federalism
  • Creating a nodal health agency
  • Making right to health more justiciable
  • Enabling preventive care system
Written by Shashwata Sahu, Advocate

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