On January 30, 2020, the coronavirus outbreak in India had brought the reality
of our health care systems into the limelight. The majority of people lost their
lives due to arched healthcare facilities, which has caused an everlasting dent
in the lives of every individual and their family.
When the country was in the
grip of the pandemic, reports of a lack of hospital beds and ventilators were
widespread. Especially during the second wave of the epidemic, when many people
died due to a lack of oxygen cylinders. Circumstances were such that the
government of India had to import oxygen from foreign countries for an adequate
oxygen supply to everyone in the hospital.
In such crucial times, almost every
institution of the society, including Hon'ble courts, interceded to ensure and
upheld the right to life and liberty enshrined under Article 21 of the Indian
constitution. Disregarding the fact, there were instances where people turn to
court adducing that their right to life has been violated.
The above-mentioned situation is the actual reality that forms the core of this
- Whether' Right to Health' forms an integral part of article 21?
- Whether the non-availability of hospital beds violates the Right to
- Whether the Shortage of oxygen cylinders violates the Right to Health?
present research delves into the jurisprudence behind the development of the
Right to Health as a fundamental right while drawing parallel to its modern-day
implications and the status of this right during the COVID-19 pandemic.
Part I of this paper deals with the introduction to the topic, research area and
research question, with part II elaborating the historical evolution of 'Right
to Health' and major changes thereof. Part III of the project highlights the
requirement of 'Health' being a fundamental right and what all changes have been
brought after its inclusion as a fundamental right. Part IV of the paper brings
about the state's obligation towards ensuring the Right to Health to all its
residents, and the author reviews 'Health' as a state subject. Part V and VI
deal with the judicial interventions during the covid crisis regarding oxygen
cylinders and conclusion, respectively.
'We recognize Health as an inalienable human right that every individual can
justly claim. so long as wide health inequalities exist in our country and
access to essential health care is not universally assured, we would fall short
in both economic planning and our moral obligation to all its
citizens." - Dr Manmohan Singh (Former
Human development is one of the major social and economic objectives of our
country, and human health forms the very basis of human development. Regardless
of the background, we consider Health to be an everyday concern. Despite this
fact, the people in India have been struggling to secure a better quality of
life since independence.
The pandemic exacerbated the problem by exploring the
deep vulnerabilities of India's health care system, and people, while struggling
to arrange for the hospital beds, were deprived of their basic human rights
Much of it can be blamed on the low expenditure on health infrastructure:
1.28 per cent of GDP (from 2017-2020). Another reason for the same is the
absence of any statutory framework on fundamental Right to health implementation
within the co-operative federalism could result in extensive development of
According to Article 25(1) of the Universal Declaration of human rights:
Everyone has a right to our standard of living Eddie quit for the health and
well-being of himself and his family, including food, clothing, housing, and
medical care and necessary social services…. beyond control .
The Preamble of
the World Health Organization defines Health "as a state of complete physical
mental and social well-being and not merely absence of disease or infirmity".
It further says that "the enjoyment of the highest attainable standard of Health
is one of the fundamental rights of every human being without distinction of
race, religion, political beliefs, economic, or social condition. This
announcement has since been expanded to include the ability to conduct a
'socially and economically productive life. Still, when we talk about India, one
of the critical reasons for weak health care system is the absence of a
statutory framework that guarantees explicitly and categorically Health as a
fundamental right- and implement it within the existing structure of legal
institutions that will help India to cope with serious health challenges posed
The constitution of India does not expressly guarantee the right to health as a
fundamental right in part III. However, there are multiple references where the
constitution alludes to public Health. Framers of our constitution had in their
mind the basis for the Right to Health, and the same is visible through the
constitutional directives contained in Article 38, Article 39 (e), 39
(f), Article 42, Article 47, and Article 48.
In fact, Article 47
imposes the duty on the state to raise the level of nutrition and the standard
of living and improve public health. Apart from Directive Principles of State
Policy, some other provisions related to Health can be found in Schedule
11th and Schedule 12th as a subject within the jurisdiction of Panchayats and Municipalities.
India's devoted biomedical research centre, the Indian Council for Medical
Research (ICMR), has aided states and the federal government in dealing with
public health situations such as Covid-19 by giving high-quality technical
advice. While the ICMR can provide common technical guidance to respond to
pandemics like Covid-19, addressing state-specific public health emergencies
through a top-down strategy becomes difficult. However, the way the ICMR is
configured precludes governments from making proposals or participating.
deeper look at the structure of the ICMR reveals that there is minimal room for
state government regional objectives to garner the attention they deserve. The
ICMR committee is chaired by the Union Health Minister, even though there is no
It only comes as a surprise to us that in the absence of fundamental provisions,
the Right to Health has been given to the citizens of India only through
judicial pronouncements. The Hon'ble supreme court has carried the Right to
Health under Article 21, which endorses the Right to life and personal liberty.
The purpose of this research aims to study the interpretation of Article 21 in
the light of public health and morality. 'The present research delves into
understanding the Right to life and tries to analyse its current implications.
The study also aims to answer whether successive deprivation of hospital beds
and oxygen cylinders would amount to a violation of the Right to Health- whether
this Right could be enforced against the central government: If yes, then to
The primary sources relied upon are the Constitution of India and successive
Judicial pronouncements by Hon'ble courts of India. Secondary sources relied
upon are the legal commentaries, articles, websites, and newspaper articles.
Evolution and Jurisprudence
In the year 1993, the National Planning Committee was established by the Indian
National Congress under the chairmanship of S.S Sokhey. Another subcommittee was
formed to assess the health situation and healthcare system of the country. In
1943, the health survey and planning Committee (popularly known as the Bhore
Committee was appointed by the British under the chairmanship of Sir Bhore, an
officer from the Indian civil service.The Bhore committee reviewed the
health care system for three years. The same report was published in 1946 on the
eve of India's independence, and the Committee put forward numerous proposals.
The Bhore commission report of 1946 established the groundwork for India's
health policy. The study established primary health care as the cornerstone of
the national health care system and created the first patterns of primary health
care facilities and health workers in the public sector. The Bhore commission
was the first to declare that the Right to health care is each individual's
basic right, and one should not be deprived of this Right pertaining to their
inability to pay or for other socio-economic reasons. Over the period of time,
India grew to be a staunch backer of the Alma Ata Declaration of 1978, in
which it pledged to achieve the objectives of 'Health for all' based on a basic
health care approach.
The acknowledgement for the evolution of the Right to Health goes to the primary
global association, World Health Organization that declared in the year 1946
health terms like human rights. Apart from World Health Organization, a few
nations like Germany have a history of rendering Health as a central and basic
In the year 1962, the Mudaliar Committee was established by the Ministry of
Health, which further strengthened public Health by recommending:
schools of Public Health in every state to train medical officers and public
health nurses, maternity and child welfare, public health engineers and
sanitarians, dieticians, epidemiologists, nutrition workers, malariologists, and
The jurisprudence around the Right to Health has evolved in the opposite
direction. In the beginning, the Right to an unpolluted environment was
recognized as a right, followed by the Right to Public Health, Health and health
care. The core principle of jurisprudence in healthcare put down by India's apex
court indicate a further advancement of personhood at access to justice as
crucial today anality. They reaffirm the basic ideas of the Indian constitution,
namely, the concept of the welfare state and the concept of the state 'public
responsibility, which is sometimes defined as an absolute obligation with no
Health care jurisprudence is founded on principles laid down for environmental
rights, rights of workers, and movement of civil liberties. Like in the case of
Consumer Education and Research versus Union of India where petition against
the state was filed to seek the protection of workers against the occupational
health hazards and diseases associated with asbestos exposure, justice K.
The preamble and Article 38 of the constitution of India the
supreme law, envisions social justice as its arch to ensure life to be
meaningful and liveable with human dignity. The concept of 'social justice which
the constitution of India engrafted, consist of diverse principles essential for
the orderly growth and development of personality of every citizen.
further lays down "the jurisprudence off personhood or philosophy of the Right
to life envisaged under article 21, enlarges its sweeps to encompass human
personality in its full blossom with invigorated Health which is wealth do the
workman to earn his livelihood to sustain the dignity of person add to live a
life with dignity and equality. The expression 'life' assured in article 21 of
the constitution does not connote mere animal existence or continued drudgery
The Hon'ble Supreme Court has time and again expanded the scope of article 21,
and its role in protecting human health is noteworthy. In the case of Francis Coralie Mullin vs, The Administrator, Union Territory of Delhi
, the court
has observed that "the right to life enshrined in Article 21 cannot be
restricted to mere animal existence. It means something much more than just
physical survival". Thus, underlining that the Right to life has a very broad
scope in the Indian constitution and the Right to Health is an inherent and
unavoidable part of the Right to life.
In the case of Bandhua Mukti Morcha versus Union of India
where a PIL was
filed before the Supreme Court of India to direct that Uttar Pradesh state to
stop child labour in carpet industries. The Supreme Court observed that "the
right to live with human dignity, free from exploitation enshrined under article
21 derives its breadth from the Directives Principles of State Policy and
particularly clause (e) and (f) of Article 39 and Article 41 and Article 42, and
at the least, therefore it must include protection of the health".
This was the
first case in which the court ruled that decent working conditions are required
for the pursuit of a good life. It is stipulated that workers be given adequate
medical facilities, clean drinking water, and sanitation to live their lives
In Pt. Parmanand Katara versus Union of India
(1989) the apex court already
held that it is a professional obligation of doctors to attend and aid the
patient immediately to preserve life without waiting for legal formalities to be
complied with. But for the issue of the adequacy of medical Health, which is now
a fundamental right, one has to refer to the case of Paschim Banga Khet Mazdoor
Samiti versus the State of Bengal
In the question before the Hon'ble court,
whether the inadequacy of health services order non-availability of health
resources in the government health centres amounts to a violation of article 21?
The court clearly held that "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.
Failure on the part of the government to provide timely
medical treatment to a person in need of such treatment results in violation of
his right two a healthy life guaranteed under article 21". Furthermore, the
court ordered that primary health care centres established by the government
must be ready to cope with the medical crisis, and lack of adequate medical
resources cannot be used to excuse the state from fulfilling its constitutional
In yet another case, the State of Punjab and others versus Mohinder Singh
Chawla the Hon'ble Supreme Court has recognized the Right to help as a
fundamental right guaranteed under article 21 of the Indian constitution.
Article 21, in the light of the health care responsibilities of the state, has
been interpreted widely by the courts in India. Considering the healthcare
jurisprudence as a whole, its positive and liberal dimensions hypothetically
outweigh its positive constraints.
This has been one of the main reasons for its
advanced and liberal interpretations. In the heading above, the evolution of
healthcare jurisprudence has been considered, where one of the major issues that
courts have consistently raised over the years is that the state cannot avoid
its responsibility to provide medical services owing to the inadequacy of the
resources for that would be an ex-facie violation of Article 21.
despite having a progressive jurisprudence in hand, aggrieved patients are still
struggling within the boundaries of the unchanging health care system. This has
serious implications on the verbatim and the very essence of Right to Health,
jurisprudence for which has been prospering over the past four decades.
Why Right to Health?
The Constitution's preamble of World Health Organization (1946) defines Health
to be a state of complete physical, mental and social well-being and not merely
the absence of disease or infirmity. The World Health Organization's
constitution envisages "…. the highest attainable standard of health as a
fundamental right of every human being…".
It establishes a clear set of legal
obligations on the state to ensure Health to all the people without
- But why is the right to health so important?
- Is there Amy
positive implication of the fundamental Right to health care?
Article 25 of the Universal Declaration of Human Rights states that
'everyone has the right to our 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 service'. Right to Health is a set of
internationally agreed human rights standards that are indivisible, inalienable,
interrelated and should be undiscriminating.
This means that achieving the
universal Right to Health is fundamental to reach and realize other human rights
such as housing, clothing, work, education, information etc. Violation of the
Right to Health will have a derogatory impact on the enjoyment of other human
rights. This is quite visible in relation to poverty. The only asset on which a
poor person can enable the exercise of different social and economic rights is
the existence of sound mental and physical health.
Conversely, the Right to Health cannot be realized without the enforcement of
other basic human rights such as the Right to clothing, housing and sanitation.
Both these rights are interrelated, and violation of one will impair the
enjoyment of another right. Therefore, we conclude that a direct and
complementary relationship exists between the Right to Health and other human
The first notion of the Right to Health, however, comes from the Universal
Declaration of human rights, which was unanimously adopted by the United nation
as a basic standard of living guarantee to all humanity. Article 25 of the
Universal Declaration clearly states, "everyone has a right to a standard of
living adequate for the health and well-being of himself and of his family…"
The declaration of human rights was specifically established to reflect and
expand on customary international laws as mentioned in the basic freedoms and
human rights recognized by the United Nations charter, explicitly binding on
each member state. Thus, it becomes part of the customary international law and
is binding on all the member states.
The protection and promotion of the Right to Health as a human right positively
impact the healthcare system. It broadens the scope of health concerns beyond
clinical medicine and focuses on individual health care. Health is situated in
the context of social justice and linked with principles of equality and
non-discrimination in a human rights framework; thus, it cannot be contested as
violative. Identifying Health as a human right problem drastically redefines and
concentrates health concerns from a humanitarian approach.
When Health is
articulated in terms of needs and rights, governments find it even more
difficult to justify withholding essential goods and services due to purported
financial limitations or prejudiced preferences. Once Health is deemed a human
right, it imposes a legal obligation and Legal obligation is inextricably linked
to the concept of entitlement.
The legal acknowledgement of the Right to Health
enables the Right to be exercised in the courts of law, where the breach is
contested. As a result, it is critical for persons and those who provide health
care to understand that the Right to Health is legally protected. Individuals
have the right to receive or be shielded from certain services to reach the best
possible level of Health. It is the government's obligation to provide essential
services. Services and circumstances in order to achieve the greatest possible
level of Health.
Therefore, the right to health is both the moral and the legal duty of most
countries. It must support the individual to enforce other human rights and form
the basic fundamental human Right itself. Even though it is not categorically
guaranteed in the constitution of some countries (like India), it becomes
obligatory upon them by virtue of international laws and statutes.
Health as a State Subject
After the hue and cry over the Shortage of oxygen cylinders for COVID patients,
the central government finally defended the call by calling out states as
healthcare is a state subject. It is obligatory upon the state to ensure
basic health care amenities within its jurisdiction to all the patients.
Article 246, along with VII Schedule, provides for the 'Union List' wherein the
central government could make laws, 'State List' where state government could
make laws, and the 'Concurrent List' where both union and state could make laws.
Under the state list in the VII Schedule, there are direct references to the
health care provisions. Clause number 6 under the state list refers to 'Public
Health and sanitation, hospitals and dispensaries.
Clause No. 7 refers to the
'pilgrimages within India, ' in which case, the provision of health care will
again be considered as a state responsibility. Clause No. 10 refers to the
provision of 'Burial and Burial grounds; cremations and cremation grounds'
proper maintenance, which is a state responsibility. Whereas, in the union list,
there is not even a single provision relating to Public Health.
When the government of Haryana moved to the Punjab and Haryana high court
pleading that they ask the centre to augment Oxygen supply, the court answered
that "Health is a state subject, and we are all governed by the
Constitution....Open the book…We cannot add anything to the constitution".
When the 15th Finance Commission (FC) was constituted in 2017, one of the major
recommendations was that "Health should be shifted to the concurrent list under
the constitution". Interestingly, when the matter over public Health in VII
Schedule came up during the constituent assembly debates, Kamath attempted to
move public health from the state list to the concurrent list. Historically, he
argued, public Health was a "Cinderella of Portfolios"- an often-neglected
portfolio in the cabinet.
He believed that, given India's dismal public
health standards, making it a topic in the concurrent list would increase the
flexibility and better enable States and the central government to address
public health concerns. Brajeshwar Prasad went a step further, arguing that
"Public Health', along with fit all the items on the state list, should be moved
to the union list". He said, "if the nation is to be saved from the scourge of
disease and epidemics, all powers as far as this entry is concerned must be
vested in the hands of the centre".
However, there have also been initiatives to address concerns about the
centralization of public health research; for example, the National Health
Research Policy of 2011 advocated collaborating with state governments to
strengthen local public health capability by establishing a framework for
medical research. In pursuance of the same, The National Health Mission 2012-17
suggested creating a State Health Systems Resource Centre (SHRCH) to provide
technical support at the state level to continue the 2011 policy.
The tale of the coronavirus pandemic has finally succeeded in determining the
roles of the centre as a large state through judicial interventions, which has
been dealt with further in the paper. Due to fiscal, structural, and capability
restrictions, state governments in India have struggled to uphold their
constitutional obligation of public health management. The Covid-19 epidemic has
highlighted how overly reliant states are on the federal government for
technical and financial assistance.
Few outbreaks in the past, such as the
Japanese Encephalitis in Uttar Pradesh and Bihar and Monkey Fever in the state
of Karnataka, has revealed not only flaws in the institutional framework for
public health management at the state level but also a shortage of technical
strength available to state governments from the centre to respond to such
outbreaks. Although public health is a state topic, the central government is
the primary actor in creating sustainable policies and programs. This is
primarily attributable to increased spending capacity and access to superior
Judicial Conundrums Around Oxygen Cylinders During Covid Pandemic
The chaos witnessed around during the peak of the second wave of coronavirus in
the country was caused not only by the disease's high rate of contagion but
also-and perhaps more importantly- by a scarcity of lifesaving resources. People
were seen dying on hospital beds and in parking lots as India is struggled to
meet adequate oxygen supplies. The exact numbers of Covid deaths due to the
Shortage of oxygen supply is still shady.
One can get a clear hold of the
situation when the Supreme Court has termed the COVID-19 situation as almost a
'National Emergency'. In such a grim situation, Hon'ble courts in India, was
the only hope left with the people. After the thing went off the control of the
government, courts had to intervene to ensure the fundamental Right to Health to
each individual. Hon'ble courts were seen arranging for hospital beds, oxygen
supplies, even asking the central governments to formulate plans to tackle the
oxygen shortage in Delhi. And finally, punishing those responsible for this
During the period, many hospitals invoked Article 21 as they struggled to get
oxygen for Covid patients. "A two-judge bench of Delhi High Court has been
holding almost daily video conferences to hear petitions from hospitals invoking
India's constitutional right to protection of life".
In another petition filed by the Max Healthcare Network before the Delhi High
Court- the court observed, "Beg, Borrow or Steal. It is a National Emergency. It
is not that it is artificial or being wrongly projected. It is there. We cannot
shut our eyes to it".
Some Indian states even adopted protectionist measures and blocked oxygen
supplies outside their respective states. For instance, Rajasthan, Uttar
Pradesh, and Haryana blocked the tankers from reaching Delhi, where several
hospitals ran out of oxygen. After the Delhi government moved to the court
against such practices, Delhi High Court ordered the company to honour its
contract and meet the local demand first. Moreover, taking a serious note of the
issue Delhi High Court on April 24, 2021, warned that it would "Hang any person
who tries to obstruct oxygen supplies to hospital".
When the reports of Ganga Ram Hospital in New Delhi surfaced, where doctors were
forced to reduce oxygen being given to COVID patients, the Delhi High Court,
taking Suo Motu cognizance of the matter, observed, "Shortage is now. You have
to do it (ban) now. Look into taking some oxygen from the steel and petroleum
industries. They have big pockets and big lobbies but tell them if they have to
cut production, then they can cut production. Lives have to be saved".
In the case of Uttar Pradesh Worker Front vs UOI and anr  where the suit was
brought against the May 8 state administration, which introduced changes to the
working hours of workers under Section 5 of the Factories Act. The government
already had rescinded the order at the second hearing, and indeed the petition
was rejected for being infructuous.
On May 15, the Uttar Pradesh government retracted its May 8 notice, which said
that daily work hours for manufacturing workers would be extended to 12 hours
and weekly hours would be extended from 48 to 72 hours. Furthermore, it had
reduced the period of rest to half an hour, which may be taken after 6 hours of
continuous labour, although the law requires a one-hour break after 5 hours of
constant work. After the court issued a notice to the government, the
administration withdrew the notification and notified the court on May 19.
In the case of Ritesh Srivastava and Anr vs the State of UP
 the petition,
brought by two court advocates, is about the wellbeing of migrant workers. The
Allahabad High Court, whilst issuing a notification to the state government, has
told the administration what steps it intends to take to rehabilitate labourers
who have repatriated to the state and what steps it intends to minimize
migration to other states.
The petition was filed by two lawyers, Gaurav
Tripathi and Ritesh Srivastava, who asserted that migrant workers are "travelling
on foot from hundreds of kilometres from their working place to their
hometown/village" because "neither the Central Government nor the State
Governments where the labourers were working made adequate arrangements for
their movement and their families." The petition further stated that those
migrants allowed to board trains were not given food, putting them at risk of
hunger throughout the long voyage.
The petition also raised the issue of
migration, stating that "due to the lack of basic infrastructure for employment
in the State of Uttar Pradesh, lakhs of people migrate to these other states in
search of employment," and that "although India is a Union, not a federal
structure, it is necessary for the State of Uttar Pradesh to strengthen its
edifice for local employment". The court finally issued notice and called
upon the state to explain the policy and the norms so that they can avail the
medical treatment so that, ultimately, further spread of the virus could be
In yet another case, In-re Inhuman Condition at Quarantine Centers and For
Providing Better Treatment to Corona Positive Vs State of Uttar Pradesh,
Allahabad High Court directed the government that:
Despite rules and regulations
framed for transporting and disposal of industrial oxygen, it should be
immediately diverted to the use of people making it medical oxygen.
assigning the government the responsibility, the court held that "the government
must ensure that every death in all Covid hospitals and assigned private
hospitals and other Covid centres in every district is reported to a judicial
officer to be appointed by a district judge the end of the day".
Apart from judicial adjudications, a serious question is put upon the face of
the Doctrine of Proportionality. The principle contends that there should be
reasonability between the measures adopted to reach the actual result. That the
restrictions imposed by the state as a measure should be in proportion to the
prohibited laws. During the pandemic, the government of India imposed a complete
nationwide lockdown to curb the virus. There were restrictions on the movement,
and people were asked to observe mandatory quarantines.
actions were taken against those who went against the guidelines issued by the
centre. As a result of these measures, there were anomalous restrictions on
Civil Liberties and Human Rights. The centre is constitutionally entitled to
make decisions for the welfare of the people. However, those decisions should
conform to the test of proportionality. A harsh decision doesn't necessarily
lead to success. For example, a country like Sweden fought the virus without
implementing a full-scale lockdown.
Among all the other states and Union Territories in India, it is an undisputed
fact that the Union Territory of Delhi was the worst hit by the coronavirus.
When the second wave of the virus was at its peak in Delhi, there was an
estimated 29% of oxygen shortage with respect to the daily demand. In such a
moment of crisis, the Hon'ble Delhi High Court again came to the rescue of
people and delivered what is now termed as one of the landmark observations
Due to the catastrophe in Delhi, the central government allotted the oxygen
quota of 590 metric tons (MT) of oxygen to be given to Delhi. However, when
things took its course, Delhi was in need of another 700 MT of oxygen. In
addition, to meet the shortage Delhi government arranged for four tankers
suppliers, which were again taken under control by the central government.
The division bench of Justice Vipin Sanghi and Rekha Palli took over the matter
and took strong exception to the central government. A submission was made from
the side of the central government, which state that 'Oxygen reaching Delhi was
not the job off the central government'.
Delhi High Coof observed that it was
the responsibility of both the central government and state government. While
hearing the Suo Motu matter, the bench presided by Justice D.Y Chandrachud told
solicitor Tushar Mehta, 'forget about someone (Delhi) could not lift the oxygen,
you have to push through since you have it save lives. You have a special
responsibility as a centre'. Holding that 'Delhi is a special responsibility
of the centre'.
In light of the crisis, the Madhya Pradesh High Court held down the
responsibility of the central government for a hindrance free supply of oxygen
to the states. The bench of Justice Md. Rafiq and Justice Atul Sreedharan stated
that "In the opinion of this court, it is the responsibility of the central
government which is allocating the quota of oxygen to various states, to get its
directives complied and ensure seamless and hindrance free supply of oxygen to
the destined places involving inter-state movement".
In almost all the observations mentioned above, there is one thing that stands
out. The court held that the centre is responsible for ensuring the medical and
Health resources to all the individuals. Thus, the courts underlined the
principle that the Right to Heath, to some extent, is a responsibility of the
central government as well. When the centre's vaccination policy was brought
into the limelight, the Supreme Court on May 02, 2021, asked the centre to
revisit and review its vaccination policy, stating very clearly that 'It would
Prima Facie be a detriment to the Right to Public Health which is an integral
element of Article 21 of the constitution".
Thus, both central and state governments are responsible for ensuring the Right
to Health to each and every individual guaranteed under the constitution.
However, the courts in India have not clearly enunciated the analytical
structure of the Right that can be theoretically comprehended. Nevertheless, as
evident above, there are principles emerging from the historical jurisprudence
on the Right to Health that is playing a significant role in determining how the
union and the state government should respond to the current situation.
Indian constitution is the most detailed and most elaborate constitution
governing any existing democratic republic state globally. The overtly board
interpretations that its provisions are capable of have time and again raised
concerns over its integrity and flexibility. Article 21 of the constitution is
hardcore evidence of its flexibility.
Over 72 years, it is probably the most
interpreted provision of the constitution. Article 21 of the constitution does
not explicitly mention the Right to Health, but it has been included through
judicial pronouncements over the years. Historically, the Right to Health was
included in the State List under Seven Schedule, which means that State
governments are under the obligation to ensure the Right. Comparing it with
other countries where 'Health' is the obligation of the central government or
the union, the healthcare infrastructure of India is bleak.
This is because the
central government regulates healthcare resources to a large extent. And when a
crisis like a coronavirus arises, there is no clear division of roles between
the union and the states, which further leads to confusion, and the general
masses have to bear the brunt of the situation. However, the Indian Judiciary
has intervened and attempted to rectify the situation and tried establishing
respective functions to union and the states.
Though it is commendable that
Judiciary has taken up the issue, it is highly debatable whether they have
succeeded. For the people in India who is still dubious of growing health
infrastructure, pandemics like COVID amplifies the situation to a great extent
and exposes the everyday reality of the Indian healthcare system, which seems
more like a privilege than a right.
Thus, in the present case, even if we have
seen how the central government has disposed of the responsibility of Right to
Health in the moment of crisis pertaining to the non-availability of an
exclusive fundamental right to Health, we still have the international covenants
and organization of which India is part of that assure the Right to Health as a
basic human right.
In pursuit of the same when we started on with this research
paper, we had some serious questions:
- Whether successive deprivation of hospital beds and oxygen cylinders
would amount to a violation of the Right to Health?
- Whether Right to Health can be enforced against the Union government?
- Up to what extent can the Union government be responsible in the absence
of proper legislation?
After the due analysis of the cases and various legislation, we have tried to
answer all these questions satisfactorily. Starting with the first question, we
believe that the chaos around the shortage of hospital beds and oxygen cylinders
during the COVID pandemic has resulted in the gross violation of the Fundamental
Right to Health.
This ultimately means that there is a fundamental Right to
Health guaranteed to the citizen of India by the constitution. The same Right
has been included after the thorough and liberal interpretation of Article 21,
which provides for the Right to Live and Liberty. Hence, the Right to Health is
included under the Right to life, and the answer to the first question is
without a speck of doubt affirmative in nature.
Over the years, Health has been silently considered to be the responsibility of
the union government. Constitutionally, the subject of Health comes under the
ambit of the state list under the seventh schedule. It has been up for
discussion lately whether the union government is responsible for ensuring the
Right to Health.
The answer to this question is also affirmative, and it is
based upon two shreds of evidence. First, the Right to Health has been adjudged
as a centre responsibility by the Hon'ble Supreme Court of India through
Judicial Pronouncements. And second, India has been a member of various
International Covenants and organizations that have determined the Right to
Health as a Basic Human Right.
India has ratified the United Nation's charter of
1945 and the Universal Declaration of Human Rights 1948, which imposes a legal
obligation upon India to ensure healthcare rights to its citizens. Therefore,
twice obligatory upon the union government than the states to provide the Right
to Health even though it does not fall within the ambit of the Union List.
However, in the absence of codified legislation, it is very difficult to carve
out responsibilities for states and the union government, especially during
pandemics. And even after 70 years of the constitution, the roles of respective
governments in ensuring the Right to Health is still hazy. There is a contrast
that exists between the law and its interpretation.
There is no clear set of rules that can help the individual hold the union
liable for the violation of Right to Health through precedents can help in
managing the plea, the government can always argue that Health
does not fall under their purview until the
parliament legislates the same. The subject of Health falls under the state
list, and one can hold the state responsible for violation of this Right, but to
the union government, it becomes difficult.
However, this does not mean that the
union government is not responsible at all. It can be held accountable but only
in the gross misconduct of its duty, like in the pandemic where an entire class
was deprived of this Right and not just an individual. In such a case, it is
expected that the government will consider the overall welfare of people over a
simple question of Law. Therefore, the answer to the third question can neither
be affirmative nor it can be completely negated.
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