Right to health

Health is defined as physical, mental and social well-being of a person; it is not merely limited to an absence of disease. In today's environment where the pollution is increasing the health of person is now becoming a first priority. Health life of the citizens of the country is an indicator of country's development. The development of any country is directly depending upon the people health. Health is the primary concern of every individual life; everyone wants to live a life free of any disease. The Constitution of India provides has also the provisions or right related to health. Constitution provide us right to lead a healthy life. Health has been regarded as the most fundamental and basic right in the present scenario. There are various Constitutional provision which give right to live in a healthy environment and pollution free environment. Right to health is not directly incorporated as a fundamental right in the constitution of India. Constitution has certain provisions under the part four of directive principal of state policy which directs the central government and state government to improve the condition of health of public.

The constitution maker in the preamble of Constitutional imposed the duty on the state to insure social and economic justice. Article 38 of the Indian Constitution impose duty on the state that will secure a social order which includes social, economic, political, justice for the promotion of welfare of the citizens but without the health of people it cannot be achieved. Article 39(e) states that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength, it talks about the health of the worker. The duty is imposed on the state to public assistance for those who are disabled and sick in Article 41 of the Indian Constitution. Article 42 states that Provision for just and humane conditions of work and maternity relief The State shall make provision for securing just and humane conditions of work and for maternity relief, which protect the health of infant and mother. Under Article 47 of the Indian Constitution the duty is imposed upon the state to improve human condition of works, public health, securing justice extension of sickness, old age, disablement and maternity benefits are included, state's duty include prohibition of consumption of drugs and intoxicating drinking water as injurious to health. Article 48A states provide Protection and improvement of environment and safeguarding of forests and wild life The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country, for good health. In case of Javed v State of Haryana {AIR 2003 SC 3057} it was held that state shall consider its primary duties to raise the level of nutrition and standard of living of its people and improvement of public health. In MC Mehta V. Union of India {2002 (2) SCR 963} it was held that Article 39(e), 47 and 48-A by themselves and collectively cast a duty on the state to secure the health of the people, improve public health and protect and improve the environment. In Tapan Kumar V FCI {(1996) 6 SCC 101} in this case it was held that Food Corporation of India is an agency of the state, it should maintain the quality of the food and in accordance with Article 47 should not allow sub-standard food to reach in the market or consumed by the people. The state should protect the poverty-stricken people to consume this sub-standard food under Article 47.

Through the 73rd Constitutional amendment Act 1992 in the part IX of the constitution the word 'panchayats' was inserted. These local body systems are also imposed with the task to improve public health. Article 243G says that the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule which have direct relevance to state like drinking water, family welfare, women and child development, public health and sanitation, solid waste management, safeguarding the interest of weaker sections of society, health and sanitation including dispensaries, primary health care, hospitals etc.

The directive principal of state policy is not enforceable by the court. If the government is not following the guidance given under part four of directive principal of state policy, one cannot go to the court for its implementation. Government is not bound to implement all the guidelines given under the directive principal of state policy, but nowadays days when the health of a citizen is becoming the primary concern in the growing pollution or diseases, the Supreme Court through its various judgements put the right to health as a fundamental right. The Supreme Court has brought the right to health under Article 21 of part III of the Constitution of India. Article 21 talks about Right to life and personal liberty. The scope of Article 21 is very wide, now a citizen can right to health as a fundamental right. The concept of personal liberty is gives many right indirectly related to life and liberty of a person. Right to health now protected under the constitution of India, in case of violation of right to health one can go to the court for its enforcement. The constitution of India guarantees its citizens certain fundamental right bearing on health care. Article 21 states that” No person shall be deprived of his life and personal liberty except according to the procedure established by the law”. Right to live is something more than the animal existence, it guarantees right to live with human dignity and decency, it provides right to live in a healthy environment. The initiation of progressive jurisprudence following the recognition of this fundamental right started in case of Keshwanand Bharti v union of India {(1973) 4 SCC 225} as litigation pertaining to human rights which further led to rise in health related issues and litigation. After this there is establishment of consumer court and recognition of health care as a fundamental right which can be enforced by the court. These two developments made the Right to health as a fundamental right in the constitution of India.

In the case of Parmanad Karta v Union of India ( AIR 1989 SC 2039) it was held that those who are indulged in medical are in charge of public health and have an inherent obligation to protect the same so that those who are guilty can be punished and those who are innocent can be saved. In Paschim Banga khet mazdoor samity and others v State of West Bengal and others {(1996) 4 SCC 37} the supreme court widen the scope of Article 21 and the Government responsibility to provide medical facilities to every citizen, provide adequate medical aid is a responsibility taken by the government in welfare state. The government is bound to provide these facilities under Article 21, which guarantees right to health. The preservation of human life is this paramount responsibility of the government. Hospital run by the government is bound to provide medical aid the citizens of India, if they are not providing the medical health to the citizens it is the violation of the fundamental right under Article 21. In CESC Ltd. V Subash Chandra Bose (AIR 1992 SC 573,585) the Supreme Court concluded that right to health is a fundamental right by relied upon international instruments. It further observed that health is not merely absence of sickness: “The term health implies more than an absence of sickness. Health care and Medical facilities not only protect sickness but also empower citizens to lead a healthy life. The health care and Medical facilities generates give workers the dedication and devotion to work in productivity. It empowers the works to enjoy their working hours, make their social mad Economic development and led a successful life. The health care and medical facilities would result in more production and reduce the rate absenteeism on ground of illness.

Article 23(1) of the Indian Constitution states that Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law, it is indirectly related to health of citizens as it is well-known that traffic of females means prostitution which becomes the major factor in spread of Aids or any other kind of venerable disease. Article 24 of the Indian Constitution states that “No child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment”, which is in direct relevance of child health. Children are the future of any country if the children of any country are not healthier than there will be no development. In State of Punjab v Ram Lubhaya Bagga (AIR 1998 SC 1703) the Supreme Court held that right of one depend upon duty of another. The issue of right to health under Article 21, 41 and 47 is raised, the right issued under article 21 imposed duty on the government to fulfil. The states are bound by the duty to provide health care and medical facilities to the public. It is one of the most valuable right provided by the constitution of India, the person should not be discriminated on the basis of caste, colour, race, creed, gender while ensuring this right. Citizens as well as non citizens all are eligible to confer this right to health provided by the constitution of Indian under Article 21 part three. In Virendra Gaur v State of Haryana (1995 3 SCC 577) the supreme court held that environmental , air, water, ecological pollution etc should be regarded as the violation of right to health under the Article 21 of constitution of India. The right to health provide the right to live in healthy and disease free environment with human dignity.

Health rights are one of the basic right provided by the Indian Constitution as this allow the citizens to live in a healthy environment and can go to the court in case violation of these right to Supreme court under Article 32 or High court under Article 226. Courts are bound to entertain the petition regarding health rights. The constitution also guides the government to implement health related measures in the country and in their respective states to improve the health as well as to protect the citizens from various diseases. Judiciary has widely interpret the scope of Article 21 and has made right to health as a fundamental right, not only Article 21 but many other fundamental right provided by the constitution in part three is linked directly or indirectly to health of citizens. The constitution maker initially put the right to health in directive principal of state policy which imposed duty on the government to implement health related measures in the country as well as in their respective state, and it is also not enforceable in the court in case of its violation. But after some year when the health is becoming the major issues in the world, the judiciary through its various judgement and directions made right to health a fundamental right in the constitution of India. The people should know about their fundamental rights and be aware of environmental conditions in which they are living.







Aadya Dipti student of B.A.LL.B 3rd year (April Batch)

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