The WHO Constitution (1946) envisages “…the highest attainable standard of health as a fundamental right of every human being.”
Understanding health as a human right creates a legal obligation on states to ensure access to timely, acceptable, and affordable health care of appropriate quality as well as to providing for the underlying determinants of health, such as safe and potable water, sanitation, food, housing, health-related information and education, and gender equality.
How pandemic affected the Health of the public
- The pandemic has exposed the deep vulnerabilities of India’s healthcare system. Much of this is blamed on India’s low expenditure on public health –1.29% of the GDP (in 2019-20), lower than most other countries.
- There is a need to make the right to health a fundamental right – and implement it within the framework of legal devices and human rights principles of solidarity, proportionality, and transparency which will help India address the challenges posed by COVID19.
- Implementing the right to health within India’s framework of co-operative federalism will build capacities where they are most needed – at the grassroots.
Why it should be a constitutional right
- A constitutional ‘Right to Health’ will transform not only the health and well-being of our people but will act as a leap for the economic and developmental progress of the nation.
- Women bear a disproportionate burden of the gaps in our health-care system. The taboos and patriarchal expectations surrounding their health lead to immense avoidable suffering. In addition, social and economic challenges prevent them from freely and openly accessing the little care that is available. A ‘Right to Health’ would mean that services reach the woman where and when she needs them.
- A large number of children who belong to the poorest and most marginalised communities of our country grow up working in hazardous situations be it fields, mines, brick kilns or factories. They are either not enrolled in schools or are not able to attend it due to the pressing financial needs of the family — often because of unexpected out-of-pocket medical expenses.
- People have a right to health, which makes it necessary for the government to take efforts in that direction.
- Wide Access to Health Services: Allows anybody to use the services and assures that the services are of sufficient quality to promote the health of those who use them.
- Reduced Out-of-Pocket Expenditure: Protects people from the financial consequences of paying for health care out of their own pockets, lowering the risk of poverty.
- The constitutional right to health is critical to breaking discriminatory structures that will otherwise continue to perpetuate inequality in all spheres of life, including education, opportunity, wealth, and social mobility.
Provisions Related to Health for All:
- India is a signatory to Article 25 of the United Nations’ Universal Declaration of Human Rights (1948), which provides humans the right to a standard of living suitable for their health and well-being, including food, clothing, shelter, medical treatment, and other required social services.
- Article 21 of the Indian Constitution guarantees the fundamental rights to life and personal liberty. The right to health is fundamental to living a dignified life.
- Articles 38, 39, 42, 43, and 47 of the Directive Principles of State Policy (DPSP) make the state responsible for ensuring the effective realization of the right to health.
- Under the Paschim Bangal Khet Mazdoor Samity case (1996), the Supreme Court stated that in a welfare state, the government’s fundamental duty is to ensure the welfare of its citizens, and that it is also the government’s role to provide proper medical facilities for its citizens.
- The Supreme Court has also decided in Parmanand Katara Vs Union Of India (1989), that every doctor, whether working in a government institution or not, has a professional obligation to extend his services with due expertise to safeguard life.
- The Supreme Court of India in Bandhua Mukti Morcha v Union of India & Ors interpreted the right to health under Article 21 which guarantees the right to life. In State of Punjab & Ors v Mohinder Singh Chawla the apex court reaffirmed that the right to health is fundamental to the right to life and should be put on record that the government had a constitutional obligation to provide health services. In State of Punjab & Ors v Ram Lubhaya Bagga, the court went on to endorse the State’s responsibility to maintain health services.
- A 2019 NITI Aayog report highlighted that states in India had unequal public health systems. This imbalance was primarily due to restricted technical expertise and fiscal constraints. While fiscal dependence of states on the centre continues to be a major challenge, if the subject of health was moved to the Concurrent List, it would lead to excessive bureaucracy, red tape and institutional constraints.
- Lack of Primary Healthcare Services: The country’s current public primary health care paradigm is limited. Even in areas where there is a well-functioning public primary health care center, only prenatal care, limited daycare, and few services related to national health programs are available.
- Inadequate Funding: In India, public health spending has been continuously low (approximately 1.3 percent of GDP). According to the OECD, India’s total out-of-pocket spending accounts for roughly 2.3 percent of GDP.
- Sub-optimal Public Health System: As a result, combating Non-Communicable Diseases, which are all about prevention and early detection, is difficult. It reduces readiness and effective management for new and emerging dangers like the Covid-19 pandemic.
- Rajasthan Model of Public Health: As part of initiatives to strengthen health infrastructure and provide accessibility to all individuals, the Mukhya Mantri Chiranjeevi Yojana will be launched as a Universal Health Care scheme. Every family in the state is eligible for cashless health treatments worth up to Rs. 5 lakh under the scheme.
- The Indian Institute of Health Management Research (IIHMR) has proposed that standards be created in accordance with the state’s resources in order to align with patients’ and service providers’ rights. The Union government’s Indian Public Health Standards have also been updated to reflect the evolving procedures of existing programs.
- More financing: According to the National Health Policy of 2017, public health funding should be increased to at least 2.5 percent of GDP.
- Parliament may pass comprehensive public health legislation that includes the right to health.
- Creating a Nodal Health Agency: A designated and autonomous agency is required to perform disease surveillance, information gathering on the health impact of key non-health departments’ policies, maintenance of national health statistics, enforcement of public health regulations, and public dissemination of information.
- Health should be moved to the Constitution’s Concurrent List in the Seventh Schedule. ‘Health’ is currently listed under the State List.
- A Developmental Finance Institution (DFI) dedicated to healthcare investments is required.
- Disease surveillance, information gathering on the health impact of policies of key non-health departments, maintenance of national health statistics, enforcement of public health regulations, and dissemination of information to the public are all functions that need to be performed by a designated and autonomous agency.
It is time India declared the right to health a fundamental right. Strong health laws will help build societal resilience to future pandemics and public health emergencies. Emergency responses can’t come at the cost of neglect of human rights obligations. It is critical then that the right to health be implemented, using the principles of transparency, proportionality and solidarity. The COVID19 experience has also demonstrated the importance of a decentralized/polycentric response – India’s co-operative federalism, therefore, must be strengthened.
How to structure:
- Give a brief intro on Right to Health for all as a constitutional right
- Explain how the pandemic affected the public health
- Now, say whether Right to health for all must be a constitutional right or not, and support your argument.
- Mention the related schemes and write what more should be done to ensure the required Health infrastructure.