20th Oct 2021
The right to health is the economic, social and, cultural right to a universal minimum standard of health to which all individuals are entitled. Everyone has the right to health. It relates to both the right of individuals to obtain a certain standard of health and health care, the state obligation to ensure a certain standard of public health with the community generally.
As human beings, our health and the health of our near and dear ones is our daily concern. Regardless of our age, gender, socio-economic and other ethnical backgrounds, we consider health to be our most basic asset. Ill health, on the other hand, can keep us from going to school or work, from attending to our family responsibility or from participating in social activities. By the same token, we are willing to make many sacrifices if only that would guarantee us and our families a healthier life. In short, if we talk of our well-being, health is a primary factor that will strike our minds.[i]
The right to health is a serious matter of concern in ensuring the right, to dignity for everyone. Without this Right, it is difficult to maintain a good quality of life.[ii] For this purpose, the Right to Health has been given wide consideration in both International as well as in various Domestic levels, because without proper health no society can prosper and, without prosperity cycle of the world can’t be continued which will lead to the destruction of humanity at last. So, the Right to Health is not only an important aspect of individual life but the life of society, as good health runs society in a good way.
Right to Health in International Context-
So, as we saw Right to health is very important for the cycle of society and so let’s come to the aspect of health in an international context. The aspect of the Right to health has been given wide consideration in International Context. [iii]
The World Health Organisation is the paramount health organization in the world that is dealing with the aspects of health care in modern times. The WHO Constitution, which is responsible for establishing governing statutes and laws, states its main objective of ensuring “the attainment by all peoples of the highest possible level of health.” WHO broadly mandates advocacy of universal healthcare, monitoring public health risk, coordinating in health emergencies, and promoting one’s well-being.
The concept of the right to health has been also enumerated in international agreements which include the Universal Declaration of Human Rights, the International Covenant on Economic, Social and, Cultural Rights, and the Convention on the Rights of Person with Disabilities. So, now let’s have a look at each of these agreements and treaties.
We will start with the Universal Declaration of Human Rights (1948)[iv]. Article 25 of the United Nations’ 1948 Universal Declaration of Human Rights states that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and, medical care and necessary social services.” [v] The declaration has an interrelated nature of the rights expressed in the Universal Declaration establishes a responsibility that extends beyond the provision of essential health services for tackling the determinants of health, which contains aspects like adequate education, housing, food, and favourable working conditions. It further states that these provisions are human rights themselves and are necessary for health. The declaration also talks about dignity, liberty, equality, right to life, prohibition of slavery and torture, fundamental legality of human rights, rights of the individual towards the community, constitutional liberties and, many other aspects related to health care.[vi]
Then we will come to the International Convention on the Elimination of All Forms of Racial Discrimination. The United Nations’ International Convention on the Elimination of All Forms of Racial Discrimination was adopted in 1965 and came into effect in 1969. The Convention calls upon States to prohibit and to eliminate racial discrimination in all its forms and guarantees everyone the right to equality before the law without distinction of race, caste, colour, ethnic origin.[vii]
Next comes International Covenant on Economic, Social and, Cultural Rights, 1966. The convention states that the States Parties should recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The steps to be taken by the State parties to the present Covenant to achieve the full realisation of this right shall include those necessary for the reduction of the stillbirth rate and of infant mortality and for the healthy development of the child, improvement in all aspects of environment and industrial hygiene, prevention, treatment and control of epidemic, creating better infrastructure to ensure the good quality medical treatment to everyone.[viii]
Now it comes for the Convention on the Rights of the Child. Article 3 of the convention calls upon parties to ensure that institutions and facilities for the care of children adhere to health standards. Article 17 ensures access to information to children that is beneficial for his or her mental and physical well-being. Article 23 ensures every child the right to rehabilitation, health services and, prevention. Article 24 outlines child health in detail, and states, “Parties recognize the right of the child to the enjoyment of the highest level of health facility and to facilitate the rehabilitation of such health infrastructure.[ix] It also states States shall strive to ensure that no child is deprived of his or her right of access to such health care services.
Then comes the Convention on the Rights of Persons with Disabilities. Article 25 of the Convention specifies that “persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination based on disability.”[x] The sub-clauses of Article 25 state that States shall give the disabled the same “range, quality, and standard” of health care as it provides to other persons, as well as those services specifically required for the prevention, identification, and management of disability. Further provisions specify that health care of the disabled should be made available in local communities, with additional statements against the denial or unequal provision of health services including “food and fluids” and “life insurance” based on disability.
Right to Health in India-
So, all these were the provisions in the international context to deal with the issue of Health care. Now, let’s come to the Indian context to analyse the issue.
The Preamble to the Constitution of India refers to social, economic and, political justice and also the equal status of opportunity to everyone. The preamble of the Constitution of India strives to provide for the welfare state with socialistic patterns of society, which also includes health care services to a great extent.[xi]
Article 21 of the Indian Constitution gives “Right to life & personal liberty”. It says that no person shall be deprived of his life or personal liberty except according to procedure established by law[xii]. The right to live means not only mere action of breathing but also includes the right to live consistently with human dignity & decency. It is also stated in numerous Supreme Court and High Court Judgements that the Right to health and medical care is a fundamental right covered by Article 21 since health is essential for making a life of a meaningful and purposeful life[xiii]. In the case of P.B. Khet Mazdoor Samity v. State of West Bengal[xiv], the scope of Article 21 was further widened. Here the court held that it is the responsibility of the government to provide adequate medical aid to every person and to work in the welfare of the general public. It was also stated that the state is required to protect and safeguard the right of every person. In the case of Ram Lubhaya vs State of Punjab, while examining the issue of right, to health under Article 21, 41 and 47 of the Indian Constitution, where Court opined that the right to health correlates with the duty of another. [xv]Hence, the right entrusted under Article 21 imposes a parallel duty on the state which is further reinforced as under Article 47. So, here also much emphasis was given the wider aspect of Article 21. Another Article was Article 23, which is indirectly related to health. Article 23(1) prohibits traffic in human beings. It is a well-known fact that traffic with women leads to prostitution, which is a major reason for the spreading of AIDs. Article 24 is relating to child labour which says no child below 14 years of age is employed in any factory, mine or any hazardous working place. Thus, this article gives relevance to child health.[xvi]
Now let’s come to the Directive Principle of State policy. In it, Article 38 of the Indian Constitution imposes liability on State. It says that States will secure a social other order for the promotion of the welfare of the people but without public health, we cannot achieve it. Article 39(e) is related to the worker’s protection of health.[xvii] In the case of Consumer Education and Research Centre vs Union of India and Others[xviii], the Court considered the worker’s right to health to be an integral part of the right to life. Here, the court ordered industries to be bound to compensate employees for health hazards, they had suffered as a result of asbestos exposure, the maintenance of health records of every worker for a minimum time, provide compulsory health insurance coverage to those not covered by the existing schemes, the inspection of workers who may be suffering from asbestos-related health hazards to determine if they should be compensated to ensure good health of workers. Article 41 imposed a duty on the state to public assistance, basically for those who are sick & disable. Article 42 says it’s a primary responsibility of the state to protect the health of infants & mothers by maternity benefit. Article 47[xix] spells out the duty of the state to raise the level of nutrition & the standard of living of its people as the primary responsibility.
Various Acts deal with the aspect of health in India and works for the betterment of it. These Acts are The Pharmacy Act, 1948, The National Health Bill, 2009, The National Medical Commission Bill, 2019, The Human Immunodeficiency Virus and acquired deficiency syndrome (Prevention and Control) Act, 2019, The Epidemic Disease Act, 1897 and there are many more.
The frequent waves of the covid-19 pandemic are hitting the global front in a wider way. Each day the figure is reaching crores of counting, and affecting people in a hazardous way. The World Health Organisation, to ensure protection to everyone is providing guidelines and precautionary measures to every country. Every state to ensure its fight against Corona is implementing complete lockdown, social distancing, compulsory wearing of a mask, health beneficiary assistance, free treatment, vaccination programmes and many more. In India too currently vaccination drive is at its peak and we hope to complete it within a short period. In this difficult time, we all have to assist each other, to drive out Covid in full fledge. Governments and authorities complete support ensuring our right to health, both under WHO guidelines and Articles of the Indian Constitution. All we have to do is to coordinate with people and authorities, follow precautionary norms, support each other and, get fully vaccinated. Hope to see a healthier world soon.
So, the right to health is one of the very significant Rights that the whole sect of humanity needs. It has importance from a basic individual level to the societal context as well. For these various measures have been taken at both International and various domestic levels. In the international context WHO takes accordance with all health-related issues. Various other treaties have been also signed at the international level to deal with the aspect of healthcare issues. In India also, its Constitution gives a wider scope to the health care aspect. Many bills and Acts are also there in India to address this issue. All these laws are today helping us to fight Covid-19. Governments and social leaders are working reluctantly with vaccination drive, mask and, medicine distribution, working helpless and migrant labourers. We hope to fight the situation with full strength and get back to our normal life course.
 According to WHO, “The right to the highest attainable standard of health implies a clear set of legal obligations on states to ensure appropriate conditions for the enjoyment of health for all people without discrimination.”.
 According to Bhagwati, J.: – It is obvious that poverty is a curse inflicted on large masses of people by our malfunctioning socio-economic structure and it has the disastrous effect of corroding the soul and sapping the moral fibre of a human being by robbing him of all basic human dignity and destroying in him the higher values and the finer susceptibilities which go to make up this wonderful creation of God upon earth, namely, man.
 According to Section 2 of the Rights of Persons with Disabilities Act, 2016. “Person with disability” means a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others.
 Standard of living refers to the degree to which a person can afford necessities, comforts, and luxuries. Generally, the accepted measure for knowing the standard of living can be the GDP per capita. It is a nation’s gross domestic product as divided by its population
[i]Jatin Verma, Jatin Verma’s IAS Academy, Health Pillars https://www.jatinverma.org/right-to-health-pillars-of-healthcare/, August 05, 2021, 6:23 AM
[ii] Fact sheet no. 31, Office of the United Nations High Commissioner for Human Rights, The Right to Health, https://www.ohchr.org/Documents/Publications/Factsheet31.pdf, August 01, 2021, 6:00 PM
[iii] American Psychological Association, Mental health is a human right, https://www.who.int/gender-equity-rights/knowledge/right-to-health-factsheet31.pdf?ua=1, August 09, 2021, 7:26 AM
[iv] Universal Declaration of Human Rights (1948)
[v] Universal Declaration of Human Rights (1948), Art. 25.
[vi] Geneva Environment Network, World Health Organisation, https://www.genevaenvironmentnetwork.org/environment-geneva/organizations/world-health-organization/, August 07, 2021, 3:20 PM.
[vii]International Convention on the Elimination of All Forms of Racial Discrimination, UNHR (Office of High Commissioner), https://ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx, August 13, 2021, 2:09 PM
[viii] Brandy, University of Nairobi, ENVRONMENTAL LAW AND NATURAL RESOURCES LAW https://www.coursehero.com/file/102748342/GROUP-11-PRESENTATION-2pptx/, August 14, 2021, 5:46 PM
[ix] Convention on the Rights of the Child, Art. 17, 23, 24
[x] Convention on the Rights of Persons with Disabilities, Art. 25.
[xi] Constitution of India, 1950. Preamble.
[xii] Constitution of India, 1950. Art. 21
[xiii] DEEPU . P, RIGHT TO HEALTH AS A CONSTITUTIONAL MANDATE IN INDIA, ISSN 2321-4171, (2013)
[xiv] P.B. Khet Mazdoor Samity v. State of West Bengal, 1996, AIR SC 2426/ (1996) 4 SCC 37.
[xv] Pens of Law Students, Right To Health Under The Indian Constitution, https://nitimanthan.in/blog-posts/blog-niti-manthan/2020/04/25/right-health-under-indian-constitution/, August 13, 2021, 9:08 AM
[xvi] Constitution of India, 1950. Art. 23, 23(1), 24.
[xvii] Constitution of India, Art. 38 and 39.
[xviii] Research Centre vs Union of India and Others, 1995 AIR 922, 1995 SCC (3) 42
[xix] Constitution of India, Art. 41 and 47.