Lucknow, UP, India, 226028

CONSTITUTIONAL PROTECTION REGARDING HEALTHCARE IN INDIA

sahina

INTRODUCTION

Every human being has specific essential, inalienable, necessary, and natural rights. The state must look out that human liberty must be preserved, and the human personality should be developed, and the effective social and democratic life should be promoted.

As the most crucial part, maintaining good health is a basic necessity. Every person must have the right to attain the highest standard of physical as well as mental health. There are some fundamental rights, DPSP provisions, and other articles related to the right to health, which ensures health care facilities and how the people of India can live with dignity and integrity.

DEFINITION OF HEALTHCARE

Healthcare includes maintenance as well as the improvement of the health of a person. This maintenance and improvement could be made by maintaining proper health hygiene, adequate treatment of any illness, injury, or disease or adoption of any kind of diagnosis. Healthcare is delivered by professionals who are in the healthcare and allied fields.

CONSTITUTIONAL PROTECTION CONCERNING HEALTHCARE

The Constitution of India provides for the health care of individuals and directs the state to take measures to enhance the condition of the healthcare of the people. We all know that the Constitution of India starts with a preamble. It is the key to the Indian Constitution. The preamble itself incorporates that political, economic, and social justice must be secured to India’s citizens.

ARTICLES RELATED TO RIGHT TO HEALTH

Fundamental Rights

 (A) Articles which are directly related to healthcare-

1. ARTICLE 21:

This Article is directly related to healthcare. Protection of life and personal liberty comes under the purview of Article 21 of the Indian Constitution. Within Article 21, it is derived from the DPSP that the right to life must mean the right to life with proper human dignity. Further, the government of India has a Constitutional obligation to provide health facilities.

Related case laws-

1. [Paschim Banga Khet Mazdoor Samity v. State of West Bengal][1]

2. [Sheela Barse v. Union of India][2]

3. [Bandua Mukti Morcha v. Union of India][3]

4. Right to health- [Vincent v. Union of India][4]

5. Right to medical care- [Parmanand Katara v. Union of India][5]

6. Right to livelihood under Article 21- [Olga Tellis v. Bombay Municipal Corporation][6]

(B) Articles which are indirectly related to healthcare-

1. Article 14: EQUALITY BEFORE LAW-

As per this Article, everyone has the right to primary health care for free without discrimination based on race, caste, age, religion, etc.

2. ARTICLE 23:

Article 23 has an indirect relationship with the healthcare of an individual. Prohibition of traffic in human beings and forced labor is stated under Article 23. Labors are very part of our country. As they are also the citizen of India, they have the same right to health, so this provision is indirectly related to the right to health.

Relevant Case Law

[Bandhua Mukti Morcha v. Union of India][7]

3. ARTICLE 24:               

This Article deals with the prohibition of employment of the children in the factories. Children are the national assets of India. The future of India is in the hands of the children. So, their healthcare is a matter of concern. Children whose ages are under 14 years; they must not be employed in hazardous mines or factories.

Related Case laws

  1. [M. C. Mehta v. State of Tamilnadu][8]

  • DIRECTIVE PRINCIPLES OF STATE POLICY:

Apart from the fundamental right, India’s Constitution provides for Directive principles to be followed by the state.

(A) Provisions which are directly related to healthcare:

1. ARTICLE 39:

This Article is very much related to the right to health care. Article 39(a) says about the right to livelihood.

The people are ensured with the right to life, and they must live with dignity, and there must be a standard of living. It also deals with essential health benefits like E. S. I Hospitals, medical benefits, etc. The health and strength of the working persons must not be abused. The health and strength of men and women and the workers and the tender age of children must not be harmed. 

Relevant Case Law

[Olga Tellis v. Bombay Municipal Corporation][9]

In this case, it was decided that the slum dwellers also have the right to proper health care.

2. ARTICLE 42:

The provision regarding the humane and just condition of work and the maternity relief is enshrined under Article 42 of DPSP. This Article has a direct relation to health. It also indicates proper cleaning, proper hygiene, adequate washroom facilities, etc.

3. ARTICLE 47:

The state must raise the nutrition level of human beings and also increase the living standards and to must uniform public health. All this is enshrined under Article 47. This Article of India’s Constitution mentions the relevance in the field of health law by directing the state to ensure that public health and level of nutrition must be improved. Everyone should enjoy the proper food, if anyone can not afford anything, they can get the appropriate foot or other essential elements regarding nutrition with subsidized money i.e., fare price.

(B) Provisions which are indirectly related to healthcare-

1. ARTICLE 41:

Right to education, right to work, and right to public assistance is incorporated under Article 41. To know the proper healthcare system and health benefits and health care related to hygiene, education is critical. And in the workplace, a proper work environment is needed. This Article mentions the word ‘sickness’ and that a person shall be entitled to public assistance in sickness matters and by this Article is associated with the health laws. And to provide proper food and nutrition, using schemes like mid-day- meal system is essential.

2. ARTICLE 43:

This Article is indirectly related to health care. If a person gets an adequate wage, he will be able to lead a healthy better life, and he would be able to maintain if his and his family’s health. And the medical benefits may also be attached to the wages. The employer may give extra medical allowances with wages or cut down money from wages for health insurance or gratuity. Thus is this way, Article 43 has an interest in health care.

3. ARTICLE 48-A:

Protection of the environment directly affects every individual’s health; in this way, this Article is connected with the health law.

FUNDAMENTAL DUTIES

ARTICLE 51-A                      

 Article 51-A (g), (h) & (j) deals with the healthcare. Article 51-A (g) mentions a person’s duty to protect the environment. It is the duty of us to protect and save our health as a whole, protect the environment, the nation’s nature, rivers, etc. Because only by enjoying the rights we cannot lead a healthy and nutritious life, we also have to abide by certain duties i.e., the fundamental duties.

PROCESS AND REMEDIES

The Constitution of India under Article 32, 136, 226, and 227 provides the right to move to the Supreme Court and High Court by appropriate proceedings to enforce the rights conferred and guaranteed under the Constitution.

a) Breach of Right to Health:

Under Article 32, any person is entitled to get remedy if their health right is infringed.

b) Right to Move the Supreme Court:

Any person whose rights have been infringed can move to the Supreme Court under Article 32 of India’s Constitution. The Apex Court ruled that only a person who has suffered an injury because of violence of his legal right or interest is entitled to seek judicial redress. The Court in Nilabati Behera’s Case[10] entertained a letter as a petition and awarded compensation.

Under clause 2 of Article 32 of the Constitution, the Supreme Court shall have the power to issue directions or orders or writs whichever is appropriate, for the enforcement of any of the rights conferred by this part. And the procedure of enforcement of it is written under Article 136.

c) Right to Move the High Court:

The Constitution of India under Article 226 provides the right to move the High Court by appropriate proceedings for the enforcement of the rights conferred and guaranteed under the Constitution and other laws. And the procedure of it is described under Article 227.

CONCLUSION

Thus the healthcare system is, directly and indirectly, related to various Articles of the Constitution of India. Rather than the Central Government, it is the state governments’ main responsibility to make the provisions that are beneficial for the healthcare of citizens of India, and it is embodied under the Constitution. Parliament approved the National Health Policy in 1986 and that updated in 2002 and again updated in the year 2017. The policy of 2017 gave more updates upon the following four matters which need to give focus on the growing burden of the non- communicable diseases, on the growing incidents of unsustainable expenditure due to the health care costs, on the emergence of the robust healthcare industry and the rising of economic growth enabling enhanced fiscal capacity. Though, practically it is seen that the major portion of healthcare in India is under the private healthcare system’s responsibility. And most of the patients and their families are bound to bear the Health expenses directly by their pockets, not through any Health Insurances. A Government-funded Health Insurance project named Ayushman Bharat was launched in 2018 by the Government of India.

Author(s) Name: Sahina Mallick (S. K. Acharya Institute of Law)

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[1] (1996) AIR SC 2426/ (1996) 4 SCC 37

[2] 1986 SCALE (2) 230

[3] (1997) 10 SCC 549

[4] 1987 AIR 990, 1987 SCR (2)

[5] AIR 1989 SC 2039

[6] (2000) 10 SCC 664

[7] (1997) 10 SCC 549

[8] AIR 1997 SC 699; 6 SCC 756; 1996 (9) SCALE 42; JT 1996 (11) SC 685

[9] (2000) 10 SCC 664

[10] AIR 1993 SC 1960