BY:-Ms. Deepika Sood
India has been independent for 63 years but India has yet to provide its citizens the basic amenities like food security, health care, housing and good environment which are the basic amenities for a reasonable human existence. A highly inequitable health system has denied quality health care to all those who cannot afford it. Although the Directive Principles are asserted to be “fundamental in the governance of the country,” they are not legally enforceable. They are guidelines for creating a social order characterized by social, economic, and political justice, liberty, equality, and fraternity as enunciated in the Constitution’s Preamble. Both the Centre and the State have powers to legislate in the matter of social security and social insurance, medical profession and prevention of the extension from one State to another of infections or contagious diseases or pests affecting man, animals or plants1.
The obligation on the State to ensure the creation and the sustaining of conditions congenial to good health is cast by the Constitutional directives contained in Articles 39(e) (f), 42 and 47 in Part IV of the Constitution of India. Securing the health and strength of workers including men , women and the tender age children by ensuring that the right of individuals are not abused and that citizens are not forced by economic necessity to enter vocations unsuited to their age or strength (Article 39(e)) .The opportunities and facilities are maintained in a healthy manner and in conditions wherein the freedom and dignity and individual(s) are protected against exploitation , moral and material abandonment. (Article 39(f)). Right to a healthy environment safeguards human life itself under two aspects, namely, the physical existence and health of human beings and the dignity of that existence, the quality of life that renders it worth living2. The State is required to make provisions for just and humane conditions of work and for maternity benefit (Article 42).
The State should ensure the raising of the level of nutrition and standard of living of its people by improving the public health of its citizen’s. Protection of health of citizens and improvement in their healthy existence is an enshrined cardinal duty of the State 3. The State legislature is under Entry 6 of the State List contained in the Seventh Schedule to the Constitution, empowered to make laws with respect to Public Health and sanitation, hospitals and dispensaries. Article 21 embarks on the State the duty to safeguard the Right to Life of every person, preservation of human life being of paramount importance.
The Constitution (Forty Second Amendment) Act 1976 explicitly incorporated environmental protection and improvement as part of State policy through the insertion of Article 48A. Article 51A (g) imposed a similar responsibility on every citizen “to protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for all living creatures.”In addition to the Constitution, there are five main instruments in the Indian legal system that deal with regulation of health care and safeguarding individuals against medical negligence. These are: Law of Torts; Consumer Protection Act, 1986; Indian Penal Code,1860; Indian Medical Council Act, 1956; Indian Contract Act, 1872.
@Amity Law School, AUUP-Noida
1. Entries 23, 26 and 29 respectively contained in the Concurrent list of the Seventh Schedule.
2. See Ministerial Conference on Pollution and Climatic Change. The Noordwijk Declaration on
Climate Change, 4 (Nov. 1989)
3. Article 48 A
Various Municipal laws prescribe duties of such local authorities in the sphere of public health and sanitation which include establishment and maintenance of dispensaries, public vaccination, providing special medical aid and accommodation for the sick in the time of dangerous diseases, taking measures to prevent the outbreak of diseases etc. The State may endow the Municipalities with such powers and authorities which may be necessary to enable them to function as institutions of self government (Article 242 of the Constitution). State has provided with respect to the performance of functions and implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule to the Constitution which is included at item 6, ‘Public Health sanitation conservancy and solid waste management’. Similar provision is made for the Panchayats under Article 243-G read with the Eleventh Schedule (item 23), of the Constitution. There is, however, a significant difference between local government authorities and the State health authorities, the latter having enormous powers to make available financial resources and make key appointments. Healthy alliances between the two types of authorities are crucial, if health is to be effectively promoted.
The citizens can approach the High Court under Article 226 of the Constitution for seeking a Mandamus to get the duties enforced whenever there is failure of these statutory obligations of the local authorities. A wide dimension of the Right to Life and the right to a healthy environment entails the consequent wider characterization of attempts or threats against those rights, what in turn calls for a higher degree of their protection. The importance of health promotion at the work place is increasingly recognized particularly in large organizations. Health promotion of workmen reduces absenteeism thereby leading to gain in the productivity. In Consumer Education and Resource Centre Vs Union of India4 it was held that the Right to Health is essential for human existence and is, therefore an integral part of the Right to Life. Fundamental Right under Article 21 read with Articles 39(c), 41 and 43 of the Constitution and makes the life of the workman meaningful and purposeful with dignity of person. Right to life includes protection of the health and strength of the worker and is a minimum requirement to enable a person to live with human dignity. Similarly in Bandhua Mukti Morcha Vs Union of India5, the Supreme Court has held that the Right to Life includes the right to live with dignity. The Supreme Court held that the right to health includes the health care and right to determinants of health such as food security, water supply, housing and sanitation etc. It reflected the importance of health as a prerequisite for Right to Life whereby it can be inferred that Right to Health is an important human right and its denial can be detrimental to the existence of human life. The Apex court held in Paschim Baga Khet Mazoor Samiti Vs State of West Bengal6 that that Article 21 imposes an obligation on the State to safeguard the right to life of every person therefore 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. Further, the Court ordered that Primary health care centers be equipped to deal with medical emergencies. It has also been held in this judgment that the lack of financial resources cannot be a reason for the State to shy away from its constitutional obligation.
Medical practitioners do not enjoy any immunity from an action in tort, and they can be sued on the ground that they have failed to exercise reasonable skill and care. The Supreme Court has held that medical practitioners are governed by the Indian Medical Council Act and are subject to the disciplinary control of the Medical Councils. Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a
- AIR 1955 SC 636
- AIR 1984 SC 802
- AIR 1996 SC 426
Contract of personal service), by way of consultation, diagnosis and treatment, both medical and surgical, was held to fall in the case of within the ambit of ‘Service’ as defined in Section 2(1) (O) of the Consumer Protection Act, 1986.In Parmanand Katara v. Union of India7, the Supreme Court said that whether the patient was innocent or a criminal, it is an obligation of those in charge of community health to preserve the life of the patient. Every doctor has a professional obligation to extend his services with due expertise and care for protecting life. The Right to Health is integral to Right to Life as held in State of Punjab and Others Vs Mohinder Singh8. Government has a constitutional obligation to provide health facilities. In Mahendra Pratap Singh Vs State of Orissa9, a case pertaining to the failure of the government in opening a primary health care centre in a village, the court had held that the government is required to assist people get treatment and lead a healthy life. Primary concern should be the primary health centre and technical fetters cannot be introduced as subterfuges to cause hindrances in the establishment of health centre. It also stated that, great achievements and accomplishments in life are possible if one is permitted to lead an acceptably healthy life. Thereby, there is an implication that the enforcing of the right to life is a duty of the state and that this duty covers the providing of right to primary health care implying that the right to life includes the right to primary health care.
The Right to Life has been given a wider perceptive to include environment pollution affecting health of the citizens in the land mark case of M.C Mehta Vs Union of India10 the Supreme Court has held that environmental pollution causes several health hazards, and therefore violates Right to Life. Specifically, the case dealt with the pollution discharged by industries into the Ganges. It was held that victims, affected by the pollution caused, were liable to be compensated. Similarly, in Subhash Kumar Vs State of Bihar11, the Court observed that ‘right to life guaranteed by Article 21 includes the right of enjoyment of pollution-free water and air for full enjoyment of life.’ Through this case, the Court recognised the right to a wholesome environment as part of the fundamental Right to Life. This case also indicated that the municipalities and a large number of other concerned governmental agencies could no longer rest content with unimplemented measures for the abatement and prevention of pollution. They may be compelled to take positive measures to improve the environment. The Supreme Court has used the right to life as a basis for emphasizing the need to take drastic steps to combat air and water pollution.12 It has directed the closure or relocation of industries and ordered that evacuated land be used for the needs of the community.13The first health related Public Interest Litigation was filed in the Supreme Court in the Workmen of State Pencil Manufacturing Industries of Madhya Pradesh Case 14 concerning the death of workers at young age in the slate pencil manufacturing industries, due to the accumulation of soot in their lungs. The Court required the State to ensure installation of safety measures in the concerned factories, failing that it could close down the industries.
7. 1989(4) SCC 286
8. AIR 1997 SC 1225
9. AIR 1997 Ori 37
10. AIR 1987 SC 1086
11. AIR 1991 SC 420
12 V. Mathur v. Union of India, (1996) 1 SCC 119
13 M.C. Mehta v. Union of India, (1996) 4 SCC 351
14. CWP No. 5143 of 1980
In a Public Interest Litigation serious deficiencies and shortcomings in the matter of collection, storage and supply of blood through various blood centers were highlighted before the Supreme Court and directions were sought on the Union of India and State to take steps for obviating the malpractices, malfunctioning and inadequacies of the blood banks. 15 The issue of the working of commercial blood banks while recognizing that blood donation is considered as a great life saving service to humanity the court enforces a duty on the blood banks to ensure that the blood that is available with the blood banks for use is healthy and free from infection. The Supreme Court in this case laid down a system of licensing of blood banks. It may be inferred from the above reasoning that the State is entrusted with the responsibility in matters of health, to ensure efficient functioning all centers relating to health care.
In M.C. Mehta Vs Kamal Nath and Others,16the court added that ‘[it] would be equally appropriate in controversies involving air pollution, the dissemination of pesticides, the location of rights of ways for utilities, and strip mining of wetland filling on private lands in a state where governmental permits are required.’ In both M.I. Builders Pvt. Ltd17 and Th. Majra Singh, 18 the court reconfirmed that the public trust doctrine ‘has grown from Article 21 of the Constitution and has become part of the Indian legal thought process for quite a long time.’
In Sheela Barse Vs Union of India and Another 19 a case pertaining to the admitting of non-criminal mentally ill persons to prisons in West Bengal, the Supreme Court has held that “(1) Admission of non-criminal mentally ill persons to jails is illegal and unconstitutional…. The Judicial Magistrate will, upon a mentally ill person being produced, have him or her examined by a Mental Health Professional/Psychiatrist and if advised by such MHP/Psychiatrist sends the mentally ill person to the nearest place of treatment and care.” It has further directed the state to improve mental health institutions and integrate mental health into primary health care, among others.
More recently the Supreme Court has addressed the epidemic of HIV/ AIDS. In a case where the court had to decide whether an HIV positive man should disclose his condition to the woman he was to marry, the court has held that “the woman’s right to good health to precedence over the man’s right to privacy” 20 There is sufficient case law on the issue of health in State run institutions such as remand homes for children and “care homes”.
With the onward march of science and complexities of living processes, hitherto unknown diseases are notified. New and emerging diseases, combined with the rapid spread of pathogens resistant to antibiotics and of disease carrying insects resistant to insecticides, are daunting challenges to human health. The gap between the ability of microbes to mutate into drug-resistant strains and man’s ability to counter them is widening fast. To meet the new challenges new drugs have to be found. The Central Government is by Section 26A of the Drugs and Cosmetics Act,
15 AIR 1996 SC 83
16(1997) 1 SCC 388
17 M.I. Builders Pvt. Ltd v. Radhey Shyam Sahu AIR 1999 SC 2468
18 Th. Majra Singh v. Indian Oil Corporation AIR 1999 J&K 81
19 1993(3) SCALE 417
20 AIR 1999 SC 495
1940 empowered to prohibit in public interest, manufacture, sale or distribution of any drug which is likely to involve any risk to human beings or animals or if does not have the therapeutic value claimed21.
The Supreme court in M.C. Mehta Vs Union Of India 22 held that there are dicta that life, public health and ecology have priority over unemployment and loss of revenue. The “precautionary principle” requires the State to anticipate, prevent and attack the causes of environment degradation 23. Right to pollution free air falls within Article 21 24, thereby there is no reason to compel a non-smokers to be helpless victims of air pollution25. Right to enjoyment of pollution free water26.
In Citizens and Inhabitants of Municipal Ward Vs Municipal Corporation, Gwalior the court deliberated on the question- Is the State machinery bound to assure adequate conditions necessary for health? The case involved the maintaining of sanitation and drainage facilities by municipal corporations. It was held that the State and its machineries (in the instant case, the Municipal Corporation) are bound to assure hygienic conditions of living and therefore, health. The Karnataka High Court has deliberated on the right of an individual to have access to drinking water.
In Puttappa Honnappa Talavar v. Deputy Commissioner, Dharwad27, the High Court has held that the right to dig bore wells therefore can be restricted or regulated only by an Act of legislature and that the right to life includes the right to have access to clean drinking water. The High Court of Rajasthan has held that stray animals in urban areas pose a danger to people and also cause nuisance to the public. 28
The question before the Court was, does the negligence of restraining the number of these animals violate Art 21 of the public at large? The Court found that stray animals on the road interfere with transportation, polluted the city and therefore posed a health risk to people. It was held that public nuisance caused by these stray animals was a violation of Art. 21, of the public at large. Thus, in light of above cases a wide dimension of the Right to Life embedding the right to a healthy environment. An example of the threats is provided by, e.g., the effects of global warming on human health: skin cancer, retinal eye damage, cataracts and eventual blindness, neurological damage, lowered resistance to infection, alteration of the immunological system (through damaged immune cells); in sum, depletion of the ozone layer may result in substantial injury to human health as well as to the environment (harm to terrestrial plants, destruction of the zooplankton, a key link in the food chain), thus disclosing the needed convergence of human health protection and environmental protection. 29
The right to health is an individual right imbedded in the Right to Life which requires the protection of the physical and mental integrity and dignity of the individual; and it is also a social right in that it imposes on the State and society the collective responsibility for the protection of the health of the citizens and the prevention and treatment of diseases. 30
21 Vicent Parikulangara Vs Union of India, AIR 1987 SC 1990
22. AIR 1987 SC 1086
23. M.C. Mehta Vs Union of India (1997) 3 SCC 715
24. Subhash Vs State of Bihar, AIR 1991 SC 420
25. Murli S.Deora Vs Union of India AIR 2002 SC 40
26. B.L Wadhera Vs Union of India AIR 1996 SC 2969
27. AIR 1998 Kar 10
28. Sanjay Phophaliya Vs State of Rajasthan, AIR 1998 Raj 96
29. Ct. A.A. Cançado Trindade, “Co-existence and Co-ordination of Mechanisms of International
Protection of Human Rights (At Global and Regional Levels),” 202 Recueil des cours de l’Académie
de droit international, 21-435 (1987) at 98-100.
30. R. Roemer, “El Derecho a la Atención de la Salud,” in OMS, El Derecho a la Salud en ids Americas
16 (H. L. Fuenzalida-Puelma and S.S. Connor, eds., OPAS, publ. no 509).
From the above discussion of cases it is evident that the Judiciary has held that Article 21, Right to Life embeds in it the Right to Health also .An effective system of people’s monitoring of public health services if organized at the village, block and district levels with powers conferred in Panchayati Raj system would involve community in health services whereby significantly increasing the accountability of these services. The citizens have a right to quality health care, treatment and medication regardless of race, religion, social status and ability to pay. The duties of the State and Municipal authorities can be enforced through the Courts whenever a breach occurs. It is in the enforcement of these obligations of the State and local authorities that the Courts can play an effective role in safeguarding the right to health of the citizens.