Right to Health : A Constitutional Privilege in India

In the preamble of its Constitution, the World Health Organization writes: “Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.

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 belief, economic or social condition.”

 This is the most widely acceptable definition of health and, through this, WHO has amplified the inherent concept of health beyond materia medica by explicitly including the social dimension of well being to it. Thus, WHO has probably played the best supportive role in formulating health policies globally and at national levels by bringing the vision of health care. The vision is to attain the highest standards of health care to all the people around the world.

India is a founder member of the United Nations. It has ratified various international conventions which promise to secure health care right of its individual countrymen. Though, WHO Constitution mentions that “the highest attainable standard of health is one of the fundamental rights” for every human being to enjoy but right to health has not been enshrined in the Constitution of India directly as fundamental right. However, the right to health care and protection has been well recognized in India since early times. The Constitution of independent India has acknowledged the citizens as the right holders and the state as the duty-bound primary provider of health for all.

Article 21 of the Constitution reads as:    “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” Article 21 secures two rights ---

i) Right to life and ii) Right to personal liberty. The right to life is, undoubtedly, the most fundamental of all rights. The expression ‘life’ in this article is not just the physical act of breathing, mere survival or animal existence. It means a life with human dignity which includes right to livelihood, better standard of life, hygienic condition in workplace and leisure. Obviously, the right to health is inherent to a life with dignity. In the case of Kharak Singh vs State of Uttar Pradesh, the Supreme Court quoted and held that: By the term “life” as here used something more is meant than mere animal existence. In Sunil Batra vs Delhi Administration case, the Supreme Court reiterated that the “right to life” included the right to lead a healthy life. In the case of State of Punjab vs M. S. Chawla, it has been held that --- the right to life guaranteed under Article 21 encompasses the right to health and medical care.

So many rights have come under the coverage of Article 21. It is probably the only article in the Constitution that has received the widest possible interpretation. Though, the scope of Article 21 was a bit narrow until 1950s as it was held by the Apex Court in the case of A. K. Gopalan vs State of Madras. At that time, Gopalan’s case was the leading case in respect of Article 21 along with some other Articles of the Constitution.

Nevertheless, one has to conjointly read Article 21 with Articles 38, 39(e), 41, 42, 43, and 47; to understand the nature of the obligation of the state in order to ensure the effective realization of this right. The concept of democratic socialism embodied in various provisions of part IV of the Constitution (The Directive Principles of State Policy) aims to improve the condition of health care of the people. Article 38 of the Constitution directs that “the State shall strive to promote the welfare of the people”. Can we achieve it without public health? Article 39(e) mentions about “the health and strength of workers”. Article 41 imposes duties on the state to public assistance in case of sickness and disablement beside others. Article 42 directs the State to make provision for securing maternity relief which is a primary responsibility to protect the health of infant as well as mother. Article 43 anticipates the State’s endeavour to secure the living wage for workers ensuring a decent standard of life. Article 47 contemplates that “the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties”. 

Not only the state but the Panchayats and Municipalities are also liable to protect and improve “health and sanitation, including hospitals, primary health centres and dispensaries” for the citizens besides drinking water, family welfare, women and child development, social welfare including welfare of the handicapped and mentally retarded etc. as described in the Eleventh Schedule (Article 243 G) of the Constitution. Thus, the Constitution of India has provided its people with enough right to health.

Therefore, Modi government’s solemn declaration of making health a “fundamental right” under the Constitution might invoke “legal consequences” has very little or no truth. This very postulation of the government reflects the lack of its political will and the least desire to serve the public interest. Moreover, one has to remember that providing with secured health to all its citizens is one of the most sacrosanct and sacred obligations of the State. There can be official claim that by opening government hospitals and health centres; offering free medicines and health checkup etc. the subsequent governments at the Centre and in different states are rendering this obligation. But, to be meaningful, these facilities must be made within the reach of its people and of adequate quality. This goal can be achieved through sufficient public funding for the health sector and its related areas besides administrative ability.

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