Evolution Of Jurisprudence
While India has made significant advancement in boosting economic growth and has lifted millions out of poverty, progress in improving health outcomes has been slow. There is a critical lack of access to affordable, quality healthcare. The high cost of healthcare often pushes the underprivileged into further impoverishment. For a significant portion of the population their health expenditure threatens the household's capacity to maintain a basic standard of living. The absence of adequate investments in preventive public health facilities such as sanitation and waste management in this densely populated country adds to the problem, as it leads to rampant spread of infectious diseases and raises health costs.1
In its recent assessment of the Indian economy, the Organisation for Economic Co-operation and Development (OECD) identified India's poor health outcomes as one of its major developmental challenges. In 2012, as per the OECD study, India witnessed 253 deaths per 100,000 persons due to communicable diseases alone, much higher than the global average of 178. This high disease burden saps the productivity of Indian workers and lowers their earnings. According to a 2010 World Bank estimate, India loses 6 per cent of its gross domestic product (GDP) annually because of premature deaths and preventable illnesses.2
Low Level of Public Investments
A key reason behind the poor health of the average Indian is the low level of public investments in medical care facilities such as primary health centres (PHCs) and health professionals. Even when public health facilities are available, they are often of poor quality. The lack of reliable public health services and the absence of health insurance compel the poor to spend heavily on private medical care. According to a 2011 research paper, out-of-pocket health expenditures account for nearly one-sixth of India's poverty burden.3 The high costs of healthcare also act as a deterrent for poor people in seeking treatment, leading to delays and aggravating health problems.
Thus the recognition of healthcare as a fundamental right, and its subsequent enforcement is crucial to developing India. Below, the evolving jurisprudence of this right in Indian courts is discussed.
International Recognition of Right to Health
Internationally, the right to health was first articulated in the 1946 Constitution of the World Health Organisation (WHO), whose preamble defines health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”. The preamble further states that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.” In 1948, Article 25 of the United Nations' Universal Declaration of Human Rights (UDHR) codified health as a human right as part of the right to an adequate standard of living. The Indian Constitution, adopted two years later, did not expressly recognise the fundamental right to health. However, the judiciary has, over the course of several decades, expanded the meaning of right to life (given in Article 21) to include right to health – including affordable care, immediate medical care, clean environment and workers' right to healthcare among others. By reading the fundamental right to life with several Directive Principles of State Policy, the Supreme Court has implied a fundamental right to health.
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In a series of cases dealing with the substantive content of the right to life, the court has found that the right to live with human dignity includes right to good health. Although several of these landmark cases are in the context of right to health of workmen, the right may be extended to include the general population given the language of the judgments.
Judicial Rulings on Right to Health in India
In 1981 in Francis Corallie Mullin4, the Apex Court for the first time declared that right to life meant more than mere animal existence and included the basic right to food, clothing and shelter. It was stated that right to life includes the right to live with human dignity and all that goes along with it. While noting that the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, the court asserted that it must, regardless, include the right to basic necessities of life. This judgment paved the way for future benches of the court to include several qualitative rights under right to life.
Three years later in Bandhua Mukti Morcha5, Justice PN Bhagwati observed that right to live with human dignity involves right to “protection of health”. The court declared that no government has the right to take any action which will deprive a person of the enjoyment of the basic essentials such as protection of health, just and humane conditions of work and education facilities. In this case, concerning the living and working conditions of stone quarry workers and whether these conditions deprived them of their right to life, the court held that humane working conditions are essential to the pursuit of right to life.
Vincent Panikulangara v. Union of India6 is considered an important step towards recognising the fundamental right to health by declaring that “a healthy body is the very foundation of all human activities”. The court invoked the adage “Sharirmadyam Khalu Dharma Sadhanam”, which means the body is the foremost instrument of doing good deeds. In a welfare state, it declared the obligation of the state to ensure the creation and sustenance of conditions congenial to good health. The court observed that maintenance and improvement of public health should be a top priority of the state.
The Supreme Court in the landmark medico-legal case of Paramanand Katara7 ruled that every doctor, whether at a government hospital or otherwise, has the professional obligation to extend his services for protecting life. It was held that no law or state action can delay the discharge of the paramount obligation that is cast upon members of the medical profession. The Apex Court thus established beyond doubt the utmost importance of preservation of life.
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In CESC Ltd v. Subhash Chandra Bose8 the court further expanded its interpretation of Article 21 regarding the right to health of workmen. It held that the health and strength of a worker is an integral facet of the right to life. It further observed that health is not merely absence of sickness. The court held that medical facilities to workmen are part of social security and would yield immediate returns in increased production.
This judgment cited the International Covenant on Economic, Social and Cultural Rights (ICESCR) 1976, to which India is a party. This multilateral treaty adopted by the UN General Assembly includes provisions on the right to health. The CESC case relied on Article 7, which recognises the right of everyone to just and favourable conditions of work which includes, among other things, safe and healthy working conditions. Article 12 of ICESCR outlines the responsibilities of state parties to ensure “right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.
Right to Health is Integral to Right to Life
In 1995, for the first time, the Apex Court explicitly held that the right to health is an integral fact of right to life in Consumer Education and Research Centre9. Here the court read Article 21 with the relevant Directive Principles of State Policy and held that the right to health and medical care is a fundamental right as it makes the life of the workman meaningful and purposeful. Article 21 was held to have a wider meaning which includes right to livelihood, better standards of life, hygienic conditions of workplace, and leisure.
The directive principles relied on to form this interpretation are those directing the state to secure the health and strength of workers, men, women and children (Article 39 (e)), to protect the right to work in cases of old age, sickness and disablement (Article 41) and a living wage and conditions of work to ensure a decent standard of life (Article 43). Other directive principles have been used by courts to uphold right to health – Article 38 directs the state to secure a social order in which social and economic justice promotes the welfare of the people, and to strive to eliminate inequalities in facilities; Article 39 (f) directs the state to give children facilities to develop in a healthy manner; and Article 42 bids for provisions for just and humane conditions of work and maternity. Most directly implying a right to health is Article 47 which enjoins the state to raise the level of nutrition, the standard of living and to improve public health.
In Kirloskar Brothers Ltd v. Employees' State Insurance Corpn.10 the Supreme Court held that the fundamental right to health of workmen is not only available against the state and its instrumentalities but even against private industries to ensure that workmen are provided facilities and opportunities for their health and vigour, as assured in the Constitution.
Violation of Right to Life under Article 21
The issue of adequacy of medical health services was addressed in Paschim Banga Khet Mazdoor Samity.11 The Supreme Court delineated the scope of Article 21 of the Constitution, and held that it is the fundamental right of everyone in this country, assured under the interpretation given to Article 21 in Francis Mullin's Case to live with human dignity, free from exploitation. The question before the court was whether the non-availability of services in the government health centres amount to a violation of Article 21. The court, while widening the scope of Article 21 and the government's responsibility to provide medical aid to every person in the country, held that in a welfare state, the primary duty of the government is to ensure that medical facilities are adequate and available to provide treatment. The government discharges this obligation by providing medical care to the persons seeking to avail of those facilities. Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21. The court recognised that substantial expenditure was needed to ensure that medical facilities were adequate. However, it held that a state could not avoid this constitutional obligation on account of financial constraints.
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The Supreme Court, while examining the issue of the constitutional right to health care under Articles 21, 41 and 47 of the Constitution of India in Ram Lubhaya Bagga,12 observed that the right of one person correlates to a duty upon another, individual, employer, government or authority. Hence, the right of a citizen to live under Article 21 casts an obligation on the state. This obligation is further reinforced under Article 47 which directs the state to secure health to its citizens as its primary duty. The court held this to be one of the most sacrosanct and valuable rights of a citizen, and urged the state to perform this obligation with top priority to secure the rights of its citizens to their satisfaction.
Denial of Maternal Healthcare is Violation of Constitutional Rights
The Delhi High Court issued a landmark ruling in the Consolidated Laxmi Mandal/Jaitun13 case in June 2010 holding that the denial of maternal health care is a violation of constitutional and human rights. Justice Dr. S. Muralidhar emphasised that the government is obligated to ensure maternal health services under the judicially recognised fundamental right to health. The court cited India's international legal commitments, including Universal Declaration of Human Rights (UDHR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and ICESCR. It was reiterated that the right to health and reproductive rights are part of the right to life under Article 21 of the Constitution. It was emphasised that the right to health includes access to and minimum standards of treatment and care in public health facilities.
More recently, in the case of Devika Biswas,14 the Supreme Court confirmed that the misconduct at sterilization camps, as a result of which several women underwent severe pain and anguish, was in gross violation of right to health and reproductive rights of the affected women. The court noted that it is well established that the right to life includes the right to lead a dignified and meaningful life, of which right to health is an integral facet.
To summarise, the Indian Supreme Court has in the course of the past three decades steadily expanded the meaning of right to life to imply a fundamental right to health under Article 21. This judicial approach has led to the spectacular result15 that many directive principles which, as such, are not enforceable, have been activated and have become enforceable. The Supreme Court has introduced a qualitative concept into Article 21 by holding that whatever promotes the quality of life falls within its parameters.
Promotion of Generic Drugs to Protect Right to Health
The well-established right to health encompasses the right to affordable healthcare when read with Articles 47 and 38, which bid the state to improve public health, secure a social order in which social and economic justice promotes the welfare of the people, and to strive to eliminate inequalities in facilities. Among the methods to provide affordable healthcare for all is for the government to provide and promote generic drugs, as these are low-cost versions of branded medicines.
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The Medical Council of India (MCI) in the Professional Conduct, Etiquette and Ethics Regulation 2002 (amended in 2016) has stipulated under Clause 1.5 that every physician should prescribe drugs with generic names, and ensure that there is a rational prescription and use of drugs. As per the Supreme Court ruling in Medical Council of India v. State of Karnataka & Ors16 regulations of the Medical Council of India are binding and mandatory. Therefore, the compulsory prescription of generic drugs by practitioners is enforceable.
The National Health Policy (NHP) 2017 of the Ministry of Health and Family Welfare has included provisions on drug regulation which encourages the streamlining of the system of procurement of drugs and facilitates the spread of low-cost pharmacy chains such as Jan Aushadhi stores linked with ensuring prescription of generic medicines. It further recommends education of public with regard to branded and non-branded generic drugs. NHP prescribes timely revision of National List of Essential Medicines (NLEM), along with appropriate price control mechanisms for generic drugs to decrease costs of care for all those patients seeking care in the private sector. NHP also encourages innovation in medical technology to make good quality, free essential and generic drugs available at public healthcare facilities.
The Rajasthan High Court in Vijay Mehta17 emphasised the statutory enforceability of the Regulations of 2002 framed by the MCI on the issue of doctors failing to prescribe generic names of medicines. In 2012 the same court in Wagar Seva Sansthan Trust18 reiterated the need for promoting the use of generic medicines despite repeated government failures in implementation. The court acknowledged that generic medicines are available at much lower rates than branded medicines. It was held that the right to obtain treatment is a fact of Article 21 of the Constitution of India and the right to obtain treatment at affordable prices of medicines is concomitant of the same. The court thus declared that not prescribing the medicines in generic names may tantamount to violation of Article 21of the Constitution of India.
The jurisprudence on 'right to health' as an extension of 'right to life' has evolved over the past three decades. It has moved from ensuring more than a mere animal existence to a fundamental right guaranteed under the Constitution. Recent cases have affirmed the responsibility of the state to uphold this right. However, as evidenced by the poor state of the Indian healthcare system, the state has violated this right of the people by failing in its duty to provide quality, affordable healthcare.
With the recent judicial rulings and government initiatives calling for compulsory prescription of generic drugs, India could well be moving towards providing low-cost medicines to all. Promotion of use of generic drugs could go a long way in the state discharging its duty to provide affordable healthcare and upholding the right to health.
Soumitra Ghosh, Catastrophic Payments and Impoverishment Due to Out-of-Pocket Health Spending: The Effects of Recent Health Sector Reforms in India (http://aparc.fsi.stanford.edu/sites/default/files/AHPPwp15.pdf)
Francis Corallie Mullin v Union Territory of Delhi 1981 (1) SCC 608
Bandhua Mukti Morcha & Ors v Union of India &Ors AIR 1984 SC 802
Vincent Panikulangara v Union of India AIR 1987 SC 990
Paramanand Katara v Union of India 1989 AIR 2039, 1989 SCR (3) 997
CESC Ltd v. Subhash Chandra Bose AIR 1992 SC 573
Consumer Education and Research Centre &Ors v Union of India AIR 1995 SC 42
Kirloskar Brothers Ltd v Employees' State Insurance CorpnJT 1996 (2), 159 1996 SCALE (2)1
Paschim Banga Khet Mazdoor Samity & Ors v. State of West Bengal &Ors AIR 1996 SC 2426
State of Punjab v Ram Lubhaya Bagga(1998) 4 SCC 117
Laxmi Mandal v Deen Dayal Harinagar Hospital &Ors WP 8853/2008 & Jaitun v Maternity Home MCD, Jangpura & Ors WP 10700/2009
Devika Biswas v Union of India &Ors WP © 95/2012
Pg. 1160, Indian Constitutional Law – 7th Edition, M.P. Jain
*Pragati Mitta was a legal apprentice at Common Cause