Right to Health

Right to HealthDefinition of health: – The widely acceptable definition of health is that given by the WHO in the preamble of its constitution, according to World Health Organization, “Health is a state of complete physical, mental and social wellbeing and not merely the absence of disease[1].” In recent years, this statement has been amplified to include the ability to lead a ‘socially and economically productive life’. Through this definition, WHO has helped to move health thinking beyond a limited, biomedical and pathology-based perspective to the more positive domain of “well being”. Also, by explicitly including the mental and social dimensions of well being, WHO has radically expanded the scope of health and by extension, the role and responsibility of health professionals and their relationship to the larger society.[2]

Right to health is not included directly in as a fundamental right in the Indian Constitution .The Constitution maker imposed this duty on state to ensure social and economic justice. Part four of Indian constitution which is DPSP imposed duty on States. If we only see those provisions then we find that some provisions of them has directly or indirectly related with public health. The Constitution of India not provides for the right to health as a fundamental right. The Constitution directs the state to take measures to improve the condition of health care of the people. Thus the preamble to the Constitution of India, inter alia, seeks to secure for all its citizens justice-social and economic. It provides a framework for the achievement of the objectives laid down in the preamble. The preamble has been amplified and elaborated in the Directive Principles of State policy. 

Directive Principle of State Policy and Health: – Article 38 of Indian Constitution impose liability on State that states will secure a social order for the promotion of welfare of the people but without public health we cannot achieve it. It means without public health welfare of people is impossible. Article 39(e) related with workers to protect their health. Article 41 imposed duty on State to public assistance basically for those who are sick and disable. Article 42 makes provision to protect the health of infant and mother by maternity benefit.

In the India the Directive Principle of State Policy under the Article 47 considers it the primary duty of the state to improve public health, securing of justice, human condition of works, extension of sickness, old age, disablement and maternity benefits and also contemplated. Further, State’s duty includes prohibition of consumption of intoxicating drinking and drugs are injurious to health. Article 48A ensures that State shall Endeavour to protect and impose the pollution free environment for good health.

Article 47 makes improvement of public health a primary duty of State. Hence, the court should enforce this duty against a defaulting authority on pain of penalty prescribe by law, regardless of the financial resources of such authority.[3]

Under Article 47, the State shall regard the raising of the level of nutrition and standard of living of its people and improvement of public health as among its primary duties. None of these lofty ideals can be achieved without controlling pollution inasmuch as our materialistic resources are limited and the claimants are many.[4]

The Food Corporation of India being an agency of the State must conform to the letter and spirit of Article 47to improve public health it should not allow sub-standard food grains to reach the public market. The State under Article 47 has to protect poverty stricken people who are consumer of sub-standard food from injurious effects.[5]

Public Interest Petition for maintenance of approved standards for drugs in general and for the banning of import, manufacturing, sale and distribution of injurious drugs is maintainable. A healthy body is the very foundation of all human activities. That is why the adage “Sariramadyam Khalu Dharma sadhanam”. In a welfare State, it is the obligation of the State to ensure the creation and sustaining of conditions congenial to good health.[6]

Some other provisions relating to health fall in DPSP. The State shall in particular, direct its policy towards securing health of workers.[7] State organised village panchayats and gave such powers and authority for to function as units of self-government.[8] This Directive Principle has now been translated into action through the 73rd Amendment Act 1992 whereby part IX of the constitution titled “The Panchayats” was inserted. The Panchayat system has significant implications for the health sector. There will be discussed in relation to relevant Articles 243-243A to 243O contained in Part IX.

Article 41 provides right to assistance in case of sickness and disablement. It deals with “The state shall within the limits of its economic capacity and development, make effective provisions for securing the right to work, to education and to public assistance in case of unemployment, Old age, sickness and disablement and in other cases of undeserved want”.[9] Their implications in relation to health are obvious. Article 42 give the power to State for make provision for securing just and humane conditions of work and for maternity relief and for the protection of environment same as given by Article 48A and same obligation impose to Indian citizen by Article 51A.(g).

Panchayat, Municipality and Health: – Not only the State also Panchayat, Municipalities liable to improve and protect public health.  Article 243G saysState that the legislature of a state may endow the panchayats with necessary power and authority in relation to matters listed in the eleventh Schedule”.[10] The entries in this schedule having direct relevance to health are as follows:

11 -Drinking

23 -Health and sanitation including hospitals, primary health centers and dispensaries.

24 -Family welfare

25 -Women and Child development

26 -Social welfare including welfare of the handicapped and mentally retarded.

Article 243-W finds place in part IXA of the constitution titled “The Municipalities:

5 -Water supply for domestic industrial and commercial purpose.

6 -Public health, sanitation conservancy and solid waste management.

9 -Safeguarding the interest of weaker sections of society, including the handicapped and mentally retarded.

16   -Vital statistics including registration of births and deaths

17- Regulation of slaughter – houses and tanneries.

Fundamental Rights and Health: – The DPSP are only the directives to the State. These are non-justifiable. No person can claim for non-fulfilling these directives. But the Supreme Court has brought the right to health under the preview of Article 21. The scope of this provision is very wide. It prescribes for the right of life and personal liberty. The concept of personal liberty comprehended many rights, related to indirectly to life or liberty of a person. And now a person can claim his right of health.[11] Thus, the right to health, along with numerous other civil, political and economic rights, is afforded protection under the Indian Constitution.

The debate surrounding the implementation of the human right to health is fresh and full of possibility for the developing world. In fact, Indian has been able to create a legal mechanism whereby right to health can be protect and enforced. The early of 1970s, witnessed a watershed in human rights litigation with the keshwanand bharti Vs State of kerla[12]  ushering in a unprecedented period of progressive jurisprudence following the recognition fundamental rights. At the same time standing rules were relaxed in order to promote PIL and access to justice. So there were two developments in 1980s, which led to a marked increase in health related litigation. First was the establishment of consumer courts that made it cheaper and speedier to sue doctors for medical negligence.  Second, the growth of PIL and one of this offshoots being recognition of health care as a fundamental right. Through PIL the Supreme Court has allowed individual citizen to approach the court directly for the protection of their Constitutional human rights.[13]

The Constitution guarantees the some fundamental rights having a bearing on health care. Article 21deal with “No person shall be deprived of his life or personal liberty except according to procedure established by law.”[14] Right to live means something more, than more animal existence and includes the right to live consistently with human dignity and decency.

In 1995, the Supreme Court held that right to health and medical care is a fundamental right covered by Article 21 since health is essential for making the life of workmen meaningful and purposeful and compatible with personal dignity. The state has an obligation under Article 21 to safeguard the right to life of every person, preservation of human life being of paramount importance. The Supreme Court has in the case of Parmanand Katra vs Union of India[15], held that whether the patient be an innocent person or be a criminal liable to punishment under the law, it is the obligation of those who are in charge of the health of the community to preserve life so that innocent may be protected and the guilty may be punished.[16]

Article 23 is indirectly related to health. Article 23(1) prohibits traffic in human beings. It is well known that traffic in women leads to prostitution, which in turn is to major factor in spread of AIDS. Article 24 is relating to child labor it deal withNo child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment.”[17] Thus this article is of direct relevance to child health.

In addition to constitutional remedies sensitizing of the relevant ordering law towards later health for all adds to the content of right to health. Legal prohibition of commercialized transplantation of human organ and effective application of consumer protection act to deal with deficient medical services have animated right to health[18].

Judicial Response: – with the recognition that both the Indian Constitution and the fundamental right of life emphasize human dignity, began to address the importance of health to Indian citizen. In the DPSP, Art.47 declares that the State shall regard the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties. Since DPSP are not enforceable by the court, implementation of the guarantee has remained illusory.[19] However, in a series of cases dealing with the substantive content of the right to life, the court has found that the right live with human dignity including right to good health.[20] In Consumer Education and Research Center v. UOI[21], the Court explicitly held that the right to health was an integral factor of a meaningful right to life. The court held that the right to health and medical care is a fundamental right under Article 21. The Supreme Court, while examining the issue of the constitutional right to health care under arts 21, 41 and 47 of the Constitution of India in State of Punjab v Ram Lubhaya Bagga,[22] 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 art 21 casts and obligation on the state. This obligation is further reinforced under art 47; it is for the state to secure health to its citizens as its primary duty. No doubt the government is rendering this obligation by opening government hospitals and health centers, but to be meaningful, they must be within the reach of its people, and of sufficient liquid quality. Since it is one of the most sacrosanct and valuable rights of a citizen, and an equally sacrosanct and sacred obligation of the state, every citizen of this welfare state looks towards the state to perform this obligation with top priority, including by way of allocation of sufficient funds. This in turn will not only secure the rights of its citizens to their satisfaction, but will benefit the state in achieving its social, political and economic goals.

Right to Health Care as a Fundamental Right: – The Supreme Court, in Paschim Banga Khet mazdoor Samity & ors v. State of West Bengal & ors,[23] while widening the scope of art 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 secure the welfare of the people. Providing adequate medical facilities for the people is an obligation undertaken by the government in a welfare state. The government discharges this obligation by providing medical care to the persons seeking to avail of those facilities. Article 21 imposes an obligation on the state to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The government hospitals run by the state are duty bound to extend medical assistance for preserving human life. 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 Article21. The Court made certain additional direction in respect of serious medical cases:

  1. a.      Adequate facilities be provided at the public health centers where the patient can be given basic treatment and his condition stabilized.
  2. b.      Hospitals at the district and sub divisional level should be upgraded so that serious cases be treated there.
  3. c.      Facilities for given specialist treatment should be increased and having regard to the growing needs, it must be made available at the district and sub divisional level hospitals.
  4. d.      In order to ensure availability of bed in any emergency at State level hospitals, there should be a centralized communication system so that the patient can be sent immediately to the hospital where bed is available in respect of the treatment, which is required.
  5. e.      Proper arrangement of ambulance should be made for transport of a patient from the public health center to the State hospital.
  6. f.       Ambulance should be adequately provided with necessary equipments and medical personnel.[24]

Professional obligation to Protect Life of Accident Victims: – The Supreme Court in its land mark judgment in Paramanand Katara v Union of India  [25] ruled that every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or state action can intervene to avoid delay, the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute, and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained, and must, therefore, give way. The Court laid down the following guidelines for doctors, when an injured person approaches them:

                               I.            Duty of a doctor when an injured person approaches him: Whenever, on such occasions, a man of the medical profession is approached by an injured person, and if he finds that whatever assistance he could give is not really sufficient to save the life of the person, but some better assistance is necessary, it is the duty of the man in the medical profession so approached to render all the help which he could, and also see that the person reaches the proper expert as early as possible.

II.            Legal protection to doctors treating injured persons: A doctor does not contravene the law of the land by proceeding to treat an injured victim on his appearance before him, either by himself or with others. Zonal regulations and classifications cannot operate as fetters in the discharge of the obligation, even if the victim is sent elsewhere under local rules, and regardless of the involvement of police. The 1985 decision of the Standing Committee on Forensic Medicine is the effective guideline.

III.            No legal bar on doctors from attending to the injured persons: There is no legal impediment for a medical professional, when he is called upon or requested to attend to an injured person needing his medical assistance immediately. The effort to save the person should be the top priority, not only of the medical professional, but even of the police or any other citizen who happens to be connected with the matter, or who happens to notice such an incident or a situation.

Workers right to health care facilities: – The Supreme Court has recognized the rights of the workers and their right to basic health facilities under the Constitution, as well as under the international conventions to which India is a party. In its path breaking judgment in Bandhua Mukti Morcha v Union of India, the court delineated the scope of art 21 of the Constitution, and held that it is the fundamental right of every one in this country, assured under the interpretation given to art 21 by this court in Francis Mullin’s Case to live with human dignity, free from exploitation. This right to live with human dignity enshrined in art 21 derives its life breath from the directive principles of state policy and particularly clause (e) and (f) of art 39 and arts 41 and 42. It must include protection of the health and strength of workers, men and women; and children of tender age against abuse; opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity; educational facilities; just and humane conditions of work and maternity relief. These are the minimum requirements, which must exist in order to enable a person to live with human dignity. No state, neither the central government nor any state government, has the right to take any action which will deprive a person of the enjoyment of these basic essentials.In CESE Ltd v Subhash Chandra Bose,[26] the court held that, the health and strength of a worker is an integral facet of the right to life. The aim of fundamental rights is to create an egalitarian society to free all citizens from coercion or restrictions by society and to make liberty available for all. The court, while reiterating its stand for providing health facilities in Vincent v Union of India[27], held that a healthy body is the very foundation for all human activities. That is why the adage ‘Sariramadyam khalu dharma sadhanam. In a welfare state, therefore, it is the obligation of the state to ensure the creation and the sustaining of conditions congenial to good health.

Guidelines For Holding Eye Care Camps:- In the case of A.S Mittal v State of Uttar Prsdesh [28]public interest litigation brought under article 32 of the constitutions and the allied negligence on the part of the doctors in a free eye care camp at Khurja. However laudable the intentions with which it might it have been launched. The operated eyes of the patient were irreversibly damaged owing to post-operative infection. The mishap was due to some common contaminated source. After an inquiry it was found that it was due to normal saline used in the eyes at the time of the operation. The vision of 84 persons could not be restored. The court held that a mistake by a medical practitioner, which no reasonably competent and careful practitioner would have committed, is a negligent one. The court further held that the highest standard of aseptic and sterile should be maintained. The govt. spends so much on public health but standard of cleanliness and hygiene are to be desired. The victims were given a compensation of Rs 5000 as interim relief. The state govt. was directed to pay a sum of Rs. 12,500 to each of the victims.

In a similar case Pushpaleela v. State of Karnataka a free eye camp was organized by lions club and some social service organizations on 28th and 29th January 1988. In this camp free eye treatment were given and 151 people were operated for cataract problem. Most people who got operated in this eye camp developed eye infection and severe eye pain. 72 of them lost the sight on one eye while 4 of them lost sight of both the eyes.

Right to Health is a Fundamental Right: In CESC Ltd. vs. Subash Chandra Bose[29], the Supreme Court relied on international instruments and concluded that right to health is a fundamental right. It went further and observed that health is not merely absence of sickness: “The term health implies more than an absence of sickness. Medical care and health facilities not only protect against sickness but also ensure stable manpower for economic development. Facilities of health and medical care generate devotion and dedication to give the workers’ best, physically as well as mentally, in productivity. It enables the worker to enjoy the fruit of his labour, to keep him physically fit and mentally alert for leading a successful economic, social and cultural life. The medical facilities are, therefore, part of social security and like gilt edged security, it would yield immediate return in the increased production or at any rate reduce absenteeism on grounds of sickness, etc.

Environment Pollution is linked to Health and is violation of right to life with dignity: In T. Ramakrishna Rao vs. Hyderabad Development Authority, the Andhra Pradesh High Court observed: Protection of the environment is not only the duty of the citizens but also the obligation of the State and it’s all other organs including the Courts. The enjoyment of life and its attainment and fulfillment guaranteed by Article 21 of the Constitution embraces the protection and preservation of nature’s gift without which life cannot be enjoyed fruitfully. The slow poisoning of the atmosphere caused by the environmental pollution and spoliation should be regarded as amounting to violation of Article 21 of the Constitution of India.[30]

It is therefore, as held by this Court speaking through P.A, Choudary, J., in T. Damodar Rao and others vs. Special Officer, Municipal Corporation of Hyderabad[31], the legitimate duty of the Courts as the enforcing organs of the constitutional objectives to forbid all actions of the State and the citizens from upsetting the ecological and environmental balance. In Virender Gaur vs. State of Haryana[32], the Supreme Court held that environmental, ecological, air and water pollution, etc., should be regarded as amounting to violation of right to health guaranteed by Article 21 of the Constitution. It is right to state that hygienic environment is an integral facet of the right to healthy life and it would not be possible to live with human dignity without a humane and healthy environment. In Consumer Education and Research Centre vs. Union of India[33], Kirloskar Brothers Ltd. vs. Employees’ State Insurance Corporation[34], the Supreme Court held that right to health and medical care is a fundamental fight under Article 21 read with Article 39(e), 41 and 43. In Subhash Kumar vs. State of Bihar,[35] the Supreme Court held that right to pollution-free water and air is an enforceable fundamental right guaranteed under Article 21. Similarly in Shantistar Builders v. Narayan Khimalal Totame,[36] the Supreme Court opined that the right to decent environment is covered by the right guaranteed under Article 21. Further, in M.C. Mehta vs. Union of India[37], Rural Litigation and Entitlement Kendra v. State of U.P.[38], Subhash Kumar vs. State of Bihar , the Supreme Court imposed a positive obligation upon the State to take steps for ensuring to the individual a better enjoyment of life and dignity and for elimination of water and air pollution. It is also relevant to notice as per the judgment of the Supreme Court in Vincent Panikurlangara vs. Union of India,[39] Unnikrishnan, JP vs. State of A.P[40]., the maintenance and improvement of public health is the duty of the State to fulfill its constitutional obligations cast on it under Article 21 of the Constitution.

Conclusion:- Our constitution makers was much aware about the public health or right to health that’s why they imposed liability on Stat by some provision (Article 38, 39(e) 41, 42, 47, 48A ) of DPSP.

Constitution makers included public health inform of DPSP because they were well-known about it that only inclusion of right to health as F.R. will hive only right but it will not ensure medical facilities. If right to health included as a F.R. then what happened it is clean that State can protect himself to say that who is going to take away your right for example if any person effected by T.B. defended for his right to health as a F.R., then State can protect to say that go and be healthy T.B. is not caused to you by State. Thus right to health as F.R. cannot be give remedy for ill person. For treatment of T.B. there are so many component are requirement i.e. Hospital, doctor, medicine. So constitution makers included it in DPSP for to impose duty to State so that State will protect and improve public health.

Due to this duty state are taking steps in this regard and hospitals are running in control of State to give free health service to public at large. There is no need of of right to health for a person to be healthy. A person should have health entitlements, medical aid, medical assistance which provided by States.

Right to health and right to education are similar. Right to education was not fundamental right at the time of Constitution rafting. It was also inform of DPSP because for education there is a need of schools and it will made by States itself. How in the State of Kerla before right to education there was 100% literacy, because State government of Kerla provides entitlements for education and realized its duty and achieved it by taking necessary steps in this regards.

[1] Preamble to the Constitution of the World Health Organization as adopted by the International Health Conference, New York, 19–22 June 1946; signed on 22 July 1947 by the representatives of 61 States (Official Records of the World Health Organization, no. 2, p. 100); and entered into force on 7 April 1948

[2] Kumar Avanish, “Human Right to Health”, satyam law international 2007 at 21

[3] Ratlam Municipal Council Vs Vardichand, AIR 1980 SC 1622

[4] Javed Vs State of Hryana, AIR 2003 SC 3057

[5] Tapan KumarVs FCI, (1996) 6 SSC 101

[6] Vicent Vs UOI, AIR 1987, SC 990

[7] Article 39(e) of the Constitution of India

[8] Article 40 of the Constitution of India

[9] Article 41 of the Indian Constitution

[10] Article 243 G of Indian Constitution

[11] Sheeraj Latif Ahmad Khan, “right to health”. (1995) 2 SCJ 29-34, at 30.

[12] (1973) 4 SCC 225.

[13] Kumar Avanish “Human Right to Health” satyam law pub. 2007 at 171

[14] Constitution of India.

[15] AIR 1989 SC 2039

[16] Ibid

[17] Constitution of India

[18] Spring Meadow Hospital Vs Harijol Ahluwaliya, AIR 1998 SC180

[19] Bandhua Mukti Morcha AIR 1984 SC 812

[20] Ibid at-811

[21] AIR 1995 SC 636

[22] 1998) 4 SCC 177: AIR 1998 SC 1703.

[23] (1996)  4 SCC 37.

[24] Ibidem, at 47-48

[25] AIR 1989 SC 2039.

[26] AIR 1992 SC 573: 1991 (2) SCALE 996.

[27] AIR 1987 SC 990.

[28] (1989) 3 SCC 233: AIR SC 1570.

[29] AIR 1992 SC 573,585

[30]  Health Care Case Law in India A Reader, Editors,  Adv. Mihir Desai, Adv. Kamayani Bali Mahabal, Centre for Enquiry into Health and Allied Themes (CEHAT) And India Centre for Human Rights & Law (ICHRL) Published in August 2007, Pp.08 Website : www.hrln.org

[31] AIR 1987 AP 171

[32] 1995 (2) SCC 577.

[33] (1995) 3 SCC 42.

[34] (1996) 2 SCC 682, AIR 1996 SC 3261,

[35] AIR 1991 SC 420 , (1991) I SCC 598,

[36] (1990) 2 SCJ 10,  AIR 1990 SC 630,  (1990) 1 SCC 520

[37] (1987) 4 SCC 463,  AIR 1988 SC 1037.

[38] AIR 1987 SC 359

[39] AIR 1987 SC 990,  (1987) 2 SCC 165.

[40] AIR 1993 SC 2178 , (1993) 1 SCC 645.

Indian Perspective of Right to Health

     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

  1. AIR 1955 SC 636
  2. AIR 1984 SC 802
  3. 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.