Right To Health: A Fundamental Right
The dismal situation of the health infrastructure in India stands exposed
owing to the ongoing pandemic situation, it crumbled under the pressure.
Innumerable deaths in the pandemic due to the proper health care facilities
including lack of basic health infrastructure speaks of the sorry state of the
healthcare ecosystem in our country and the failure of the government to provide
people with the much-coveted right to health.
It also showed the remarkable prevalence of inequality within Indian society, on
one hand, the rich had access to a fair share of the medical care but on the
other hand the poor couldn't even manage to get themselves admitted to a private
hospital for their proper treatment, this demands for a legal statute, to help
end the discrimination.
This also served as a reality check of the promises and provisions made by the
governments. Much of the failure of the health infrastructure is to be blamed on
the chronic underinvestment in the healthcare and allied sectors.
In times of pandemic, people expected this trend of low investments in the
healthcare sector to break but even the last year's budget showed no significant
change in terms of budgetary allocations and was just a meager 1.8% of the GDP
of India, this is extremely low in comparison to the budgetary expenditure of
The target envisioned by the National Health Policy is to achieve a disbursement
of 2.5% of the nation's GDP on healthcare. Another cause might be the vacuum
generated due to the lack of a legally mandated statutory framework safeguarding
the fundamental right to health. The need of the hour is to make the right to
health a fundamental right and to implement it within the context of legal
instruments, which would be consistent with the basic human rights principles of
equality, solidarity, and transparency.
In a country like India which has huge socio-cultural and socio-economic
disparities which would otherwise continue to promote inequality if not for a
proper legal mandate, it's obvious to have such an implementation structure so
that the destitute have an equal share of what has been provided to them by the
virtue of their human nature. This could serve as a means to address the plight
of the poorest of the poor and uphold the propositions of justice and equality.
As acknowledged in the International Covenant on Economic, Social, and Cultural
Rights the right to health demands governmental intervention, "to prevent, treat
and control epidemic, endemic, occupational and other diseases" and to provide
health care and services. The right to health implies that healthcare is
accessible to all people in general on a non-discriminatory basis.
In addition, communities and states must take care of human life, health, and
dignity as these are their vital rights, all of which urgently require
prioritizing the public health. This includes essentials such as quality and
affordable health care, a safe work environment and conditions, adequate
housing, and nutritious food.
The 1948 Universal Declaration of Human Rights recognizes the right to health of
an individual as an intrinsic part of Article 25 of the 1948 Universal
Declaration of Human Rights (UDHR) states that "everyone has the right to a
standard of living adequate for the health and well-being of himself and his
family", including health care.
Right to health and its development in the Indian contextThough the citizens of India aren't provided with the constitutional right to
health, nonetheless the constitution makes several allusions to the public
health and the duty of the state in providing healthcare to the individuals.
Owing to the lack of any explicit recognition under the constitution, the
Supreme Court of India ruled in the Bandhua Mukti Morcha v. Union of India &
Ors that the right to health is derived from Article 21 which provides for
the right to life.
It is further reaffirmed in the State of Punjab & Ors v. Mohinder Singh
Chawla that the right to health finds implications through Article 21 which
provides for the right of life and that it is obligatory for the state to
provide for the same.
In a recent judgment of Insha Khan(minor) v. Union of India & Others the
Delhi High Court upheld this principle of the right to health and medical care.
In this case, the child Insha Khan suffered from a rare disease, treatment for
which was extremely high and too much for her father who is a daily wager to
pay. The bench thus held that it is the responsibility of the state to guarantee
proper medical care.
In the Virendra Gaur v. State of Haryana, the Supreme Court ruled that
the various prevailing forms of pollution should be classified as an
infringement of the right to health established by Article 21 of the
Constitution as they affect the welfare and the wellbeing of the citizens.
The right to health also finds mention in the Directive Principles of State
Policy which is in Part IV(Article 36-51) of the Indian constitution. It directs
the state to ensure proper health care for its people. Thus we can conclude that
the constitution in some way or the other makes the state responsible for the
healthcare and medical facilities.
The sole purpose of declaring the right to health as a fundamental right is to
make the health care facilities easily accessible to normal people irrespective
of their backgrounds or statuses. This would subsequently eliminate the
disparity in the availability of medical care.
We may thus infer from the preceding discussion that to meet the worldwide
mandate and objectives of numerous treaties, the strategy aimed at achieving
them must be reoriented. In India, health systems demand a new organizational
framework that mandates clear and straightforward accounting and liability based
Furthermore, decentralization may result in higher efficiency, allowing for
greater involvement. It is high time that India recognizes the right to health
as a fundamental right. Strong health legislation will aid in the development of
social resilience in the face of future pandemics and public health
Human rights duties must not be violated to respond to an emergency. It is also
vital that the right to health be applied by the principles of openness,
proportionality, and solidarity to end all forms of discrimination.
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