Has the State failed to safeguard the basic right to life? | Health Sector in India
India being a welfare state is much concerned towards the benefits of the nation as a whole. By keeping in mind the ideologies enshrined in the Preamble and also by giving importance to fundamental rights, the directive principles and state policies are to be framed and formulated by every nation as per their law. Health is not only… Read More »
India being a welfare state is much concerned towards the benefits of the nation as a whole. By keeping in mind the ideologies enshrined in the Preamble and also by giving importance to fundamental rights, the directive principles and state policies are to be framed and formulated by every nation as per their law. Health is not only one of the basic Human Rights but a Fundamental right too, which is part of Article 21 of the Indian Constitution.
State has formulated ample policies and also became part of many International conventions related to health. Now the question arises how much we have achieved after the Independence of India and up to what extent we are executing the policies framed in this regard and also how much we are prepared or giving priority to human health in this worldly pandemic. So this article as a whole reveals the overall image of the health sector in India and also the position of the government, further deriving its solution for improvisation and also to fight the disease.
State: Modern & Welfare
A modern state is a particular form of political organization that constitutes a unitary public order which is different from and also is superior to both ruled and rulers, where principle of agency applies. Whereas a welfare state is that type of governing where the national government plays an expedient role in the protection and promotion of economic as well as social welfare of its citizens. Ample of parameters though not directly but up to some extent help in revealing the true identity of a state, whether the concerned state is modern or not. Some of the key parameters to be noted here are: The health sector, education, defence, space, cyber world, intellectual property rights and so on.
POSITION OF INDIA
In India, rule of law prevails. Every act must be done in pursuance of law. No doubt after independence India has achieved but it cannot set parameters for others especially regarding the modern state. An ample of factors contribute to this statement whether it is population, poverty, illiteracy rate, unemployment level, legal illiteracy, lack of awareness, poor health infrastructure, loopholes in the system and many more.
Inequalities still exist in a large amount within countries in terms of the right to health. The life expectancy rate at birth differs from almost 51 years in Chad (a Country in Central Africa) to 84 years in Japan. Even in India, within the Indian states also it varies from about 74 years in Kerala to 62 years in Assam. It pushes us to interrogate the causes of these systematic inequalities.
Health: Basic Human Rights in Law of Nations
Right to health a wider connotation – The right to health is a universal minimum standard of health[1] to which all individuals are entitled in terms of social, economic, and cultural right[2]. This universal standard has also been enshrined in various international agreements which includes :
1. Universal Declaration of Human Rights 1948 [3]
Article 25 of the UDHR: It grants the right to adequate health and living and also the well-being of all individual which includes –
- Food
- Clothing
- Housing
- Medical care and all necessary social services
- The right to security in the event of unemployment, disability, sickness, old age, widowhood, or other lack of livelihood in circumstances beyond human control.
- Motherhood and childhood are entitled to special care and assistance.
- All newborn, whether legitimate or illegitimate ones, should get the same social protection.
2. International Covenant on Economic, Social and Cultural Rights 1966 [4]
Article 12 of ICESCR: The state acknowledges that every person has a right to the best possible standard of mental and physical health at its extreme and the necessary steps must be taken to achieve the full realization of these rights. The present Covenant to attain the full accomplishment of this right shall include:
- The healthy development of the child and reduction of the stillbirth rate and infant mortality
- The enhancement of all aspects of environmental and industrial hygiene;
- The prevention, treatment and control of endemic, epidemic, occupational and other diseases;
- In the event of sickness, the creation of all conditions would assure all medical service and medical attention.
3. The Convention on the Rights of Persons with Disabilities 2008[5]
The CRPD is an international human rights treaty which aims to protect the rights and dignity of disabled persons.
Constitution of the World Health Organization (1946)- As per the constitutional preamble of the WHO means “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”.[6]
Constitutional Right to Healthcare | Health Sector in India
The right to health is being recognized by numerous constitutions. And in many cases, this right to health is also enforceable in the court of law. After having the right to health as a basic human right which in itself is recognised, even then in many developed countries like the US we see protests to get this mere basic right recognized.
Constitutional Provisions
The right to health is implicitly guaranteed by the Constitution of India. However, there are some provisions like Article 21 of the Indian Constitution, which implicitly encompass the right to health. The right to life as a fundamental right is being incorporated under Article 21. Right to life includes the right to live in a healthy environment.
The State is under an obligation under Directive Principles of State Policy of the Indian Constitution to frame policies regarding the enhancement of the health of its citizens. The State is directed under Article 39 (E) to secure the health of workers. It is the duty of the State under Article 42 to provide just and humane conditions of work and maternity relief. The state must also work for the improvisation of the living standard of people and to raise the nutrition levels the State becomes obliged under Article 47 of the constitution of India but the question arises here how much of this legislation and policies framed by the executive to fulfil these obligations are being implemented in a truly practical manner?
In Bandhua Mukti Morcha v. Union of India & Ors[7], the apex court of India has not given any explicit recognition to the right to health or healthcare mentioned under the Indian Constitution. The apex court, in this case, laid down the interpretation of the right to health under Article 21 i.e. the right to life.
In State of Punjab & Ors v. Mohinder Singh Chawla[8], the supreme court made it obliged on the part of the state to ensure proper health services to protect the right to health enshrined in our constitution as implicit under the right to life. It was also laid down in this case that the right to health and clinical consideration are implicitly provided under Article 21 of the Indian Constitution.
In Vincent v. Union of India[9], the Supreme Court in this case laid down that human activities derive their base from a healthy body. Article 47 of the Indian constitution lays pressure on the improvement of overall health and also puts an obligation on the state to deny any medications which are harmful to health.
In Consumer Education and Research Center v. Association of India[10], the apex court held that “Social equity” is a mechanism to guarantee a significant and decent life to humans with the nobility that requires the State to give labourers offices. The court also mentioned that the health and quality of labourers was a significant feature of the right to life. Non-compliance of this would constitute a violation of the Right to life under Article 21 of the constitution of India.
Conclusion
- India is a federal state having a system of cooperative federalism that defines the relation between the federal and state governments. So in the midst of the outbreak of the COVID-19 pandemic, it is the duty of state and centre to work in harmony for the welfare of its citizens as the right to health is a fundamental right which has been stated in various judicial interpretations.
- Social Solidarity as mentioned under directive principles and state policy of the Indian Constitution must be given utmost importance irrespective of caste, creed, sex, religion etc.
- Special officers to be appointed to look after the allocation of covid19 resources and they must be checked by a higher authority regularly. This is not the time to shift the blame on each other departments. If we want to end this virus then every one of us has to join hands for a better cause.
- Persons who are black marketing in such a tragic situation should be punished with imprisonment & should be taught moral science lessons. The on-paper record of government scheme distribution of ration among the needy is done carefully whereas there is a lot of lacuna & loot in its implementation.
- Strong implementation of laws is required to protect the livelihood of Migrant workers who are dwelling back in their homes.
- The state should ensure and fulfil its duty to vaccinate every citizen without any delay. It needs to study the present data of covid-19 cases and plan the strategy to deal with it and end the pandemic beforehand, adopting adequate measures to prevent any further mutation of the virus. People should be educated to reduce vaccine hesitancy.
- Funds that are collected for covid19 relief should be used sustainably and their data of allocation should be available to the public in general.
- Having seen the economic conditions and unemployment level, crime rates are increasing. These factors are directly related to each other, which is a major concern that the state has to address.
- “Public Health and Sanitation; hospitals and dispensaries” is the matter of “state list” which is enlisted in the seventh schedule of the Indian Constitution and “ Economic and Social Planning” is part of “Concurrent list” of the seventh schedule of the constitution of India. Thus, both the union and state government are responsible to provide the vaccination to their citizens and must provide vaccination to all citizens. Until and unless the whole country & the whole world is free from the virus, no one is safe from pandemic as the virus may mutate again and again arising into many waves.
- The price of vaccines is too high and during this time when the whole economy is collapsing and there is unemployment, it is sarcastic for the government to expect a poor person to pay at a private centre when they can’t afford to pay for their regular meals. These must also be focussed upon.
Article Written by- Aishwarya Sinha & Tulsi (Advocates)
[1] https://en.wikipedia.org/wiki/Health
[2] https://en.wikipedia.org/wiki/Economic,_social_and_cultural_rights
[3] https://en.wikipedia.org/wiki/Universal_Declaration_of_Human_Rights
[4] https://en.wikipedia.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural_Rights
[5] https://en.wikipedia.org/wiki/Convention_on_the_Rights_of_Persons_with_Disabilities
[6] https://www.who.int/governance/eb/who_constitution_en.pdf
[7] 1984 AIR 802, 1984 SCR (2) 67
[8] (1997) 2 SCC 83
[9] 1987 AIR 990, 1987 SCR (2) 468
[10] 1995 AIR 922, 1995 SCC (3) 42
