Editorial : A Law Whose Time Has Come
Right to Health Naturally Flows Out of Article 21
Indian Constitution is a mystery box that holds new surprises for every new generation. It comes to our rescue every time we need direction to move forward, never mind occasional reverses! It has an infinite ability to respond to emerging situations through fresh interpretations or court verdicts. And that is why it is a living document.
We, the people of India, owe our new and evolving citizenship rights – such as the rights to food, information, privacy, or sexual orientation – to the transformative power of the Constitution. It has shown us time and again that the scope of expanding fundamental rights is indeed unlimited. And that is why we believe it is time that the right to health was specifically included in the Right to Life. By the right to health, we essentially mean the right to healthcare covering services of hospitals, medicines, and medical professionals. Healthcare is a means to an end culminating in the overall happiness and well-being of all.
We pin our hopes on the Right to Life under Article 21 because it is settled today that ‘life’ implies meaningful and dignified life and all that goes along with it. It is this Article that gave the hawkers and pavement dwellers of Mumbai the right to livelihoods with the assurance that they could not be removed arbitrarily (Olga Tellis, 1985). More recently, it gave us the right to privacy (Puttaswamy, 2017) and disallowed criminalisation of sexual acts between consenting adults (Navtej S Johar, 2018).
In a Common Cause PIL, Article 21 gave us the patients’ right to die with dignity through a Living Will or Advance Medical Directive in 2018. The Apex Court noted that keeping a person alive through artificial means can be a mere extension of a cruel and meaningless life. In yet another case, the Court held that a convict shall not be deprived of his life or liberty even while in prison except through lawful procedures (Sunil Batra, 1978).
The above examples establish that a substantive and truly purposeful right to health can flow from the expanded scope of Article 21 just as it happened with the Right to Food in the last decade. The National Food Security Act (NFSA) came into existence only in 2013 after the landmark court verdict in PUCL Vs Union of India (2001) praying for the enforcement of food security and the famine code given starvation deaths in parts of India. It dawns on us today that it should have come even earlier because starvation existed in India despite the Right to Life.
Unfortunately, the right to health, where it stands today, is an illusion despite the Apex Court validating it through words and India being a signatory to many global covenants and declarations. It is still a mirage, perhaps, because the Court has stopped short of declaring it a fundamental right with specific directions to the executive as it did with the right to food. Indian Parliament also failed to bring legislation as was done in the case of the Right to Education through a Constitutional Amendment in 2002, followed by legislation in 2009.
We, at Common Cause, believe that it is only a matter of time before the Constitution shows us the direction once again. We hope that the Apex Court will rise to the occasion if the better sense continues to evade our political class. It must also be admitted, in all fairness, that successive governments have launched well-intentioned healthcare schemes in the past, but these will never be as effective as a Constitutional guarantee. We have discussed some of these issues in more detail in the following pages of your journal. Do let us know what you think. As always, your comments and suggestions are welcome at commoncauseindia@gmail.com
With best wishes for a happy and meaningful 2024,
Vipul Mudgal
Editor
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