HEALTH LAW

SEMESTER VIII (2020)

Submitted by – Mohd Izaan Rizvi
Class Roll Number – 33 (REGULAR)
Exam Roll Number – 16BLW030

Q.1. Evaluate the protection of right to health and healthcare in India with
reference to national and international legal instruments and court judgements.
Answer) The Constitution of India has provisions regarding the right to health.
The obligation of the State to ensure the creation and the sustaining of
conditions congenial to good health is cast by the Directive Principles of State
Policy contained in Articles 38, 39 (e) (f), 42, 47 and 48 A in Part IV of the
Constitution of India.
The state has to direct its policy towards securing that 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 [Article 39 (e)] and that children are given opportunities
and facilities to develop in a healthy manner and in conditions of freedom and
dignity and that childhood and youth are protected against exploitation and
against moral and maternal abandonment [Article 39 (f)].
Article 42: “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”
Article 47: “Duty of the State to raise the level of nutrition and the standard of
living and to improve public health- 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 and, in particular, the State shall
endeavor to bring about prohibition of the consumption, except for medicinal
purposes, of intoxicating drinks and of drugs which are injurious to health”
Protection and improvement of environment is also made one of the cardinal
duties of the State (Article 48 A). This too is to promote healthier livig
conditions for everyone.
Article 25(1) of the Universal Declaration of Human Rights guarantees the
right to a standard of living adequate for health and well-being.
Article 7(b) of the International Covenant on Economic, Social and Cultural
Rights have been cited by the Supreme Court in ES C Ltd v Subhash
Chandra Bose while upholding the right to health by a worker.
The above articles act as guidelines that the State must pursue towards
achieving certain standards of living for its citizens’. It also shows clearly the
understanding of the State that nutrition, conditions of work and maternity
benefit as being integral to health.
Although the DPSP (Directive Principles of State Policy) quoted above are
compelling arguments for the right to health, this alone is not a guarantee. There
must be a clearly defined right to health so that individuals can have this right
enforced and violations can be redressed.
The Indian judiciary has interpreted the right to health in many ways through
public interest litigation as well as litigation arising out of claims that
individuals have made on the State, with respect to health services etc. As a
result there is substantial case law in India, which shows the gamut of issues
that are related to health.
Article 21 of the Constitution and right to health care:
The Fundamental Right to Life, as stated in Article 21 of the Indian
Constitution, guaranties to the individual her/his life which or personal liberty
except by a procedure established by law. The Supreme Court has widely
interpreted this fundamental right and has included in Article 21 the right to live
with dignity and “all the necessities of life such as adequate nutrition,
clothing….” It has also held that act which affects the dignity of an individual
will also violate her/his right to life. The Constitution incorporates provisions
guaranteeing everyone’s right to the highest attainable standard of physical and
mental health. Article 21 of the Constitution guarantees protection of life and
personal liberty to every citizen. The Supreme Court in Bandhua Mukti
Morcha vs. Union of India, has held that the right to live with human dignity,
enshrined in art 21, is derived from the directive principles of state policy and
therefore includes protection to health.
In a historic judgment in Consumer Education and Resource Centre Vs
Union of India, the Supreme Court has held that the right to health and Medical
care is a fundamental right under Article 21 of the constitution as it is essential
for making the life of the workman meaningful and purposeful with dignity of
person.
Medico-legal cases and Right to Health Care and Medical Assistance:
This has been explicitly held with regard to the provision of emergency
medical treatment in Pt. Parmananda Katara vs. Union of India. It has been
held that it is the professional obligation of all doctors, whether government or
private, to extend medical aid to the injured immediately to preserve life
without waiting legal formalities to be complied with by the police under
Cr.P.C. Article 21 of the Constitution casts the obligation on the State to
preserve life. No law or State action can intervene to delay the discharge of this
paramount obligation of the members of the medical profession.
Cases of HIV/AIDS and Right to health care:
In a case where the court had to decide whether an HIV positive man should
disclose his condition to the woman he was to marry, the court has held that
“the woman’s right to health to precedence over the man’s right to privacy”. It
found that the hospital did not error in disclosing his status to his fiancé.
Living and working conditions of workers and right to health care:
While the provision of health services is essential to ensure good health, there
are several others factors that influence a person’s health. The Supreme Court
has recognized this in a number of ways. This was first addressed in Bandhua
Mukti Morcha vs. Union of India a case concerning the living and working
conditions of stone quarry workers and whether these conditions deprived them
of their right to life. The court held that humane working conditions are
essential to the pursuit of the right life.
Pollution and Right to health Care:
In Santosh Kumar Gupta vs. Secretary, Ministry of Environment, New
Delhi, contended that the policy, controls / regulations and their
implementations are inadequate thereby causing health hazards. In its
judgments, the High Court of Madhya Pradesh has laid down that pollution
from cars poses a health hazard to people and that the State must ensure that
emission standards are implemented maintained.
In the land mark MC Mehta vs. Union of India, the Supreme Court has held
that environmental pollution causes several health hazards, and therefore
violates right to life.
Conclusion:
From the above discussion of cases it is evident that the judiciary has clearly
read into Article 21, Right to Life, the right to health. It in fact has gone deeper
into the meaning of health and has substantiated the meaning of the right to life.
The question that must be discussed more thoroughly is whether an amendment
to the Constitution, which will state the fundamental right to health, is
desirable? Enumerated rights have an edge over wider interpretations of existing
rights, as States can be held accountable for violations.

Q.2. Critically explain the legal regime that exists in India to deal with
emergencies or epidemics. Suppose you are a health law activist, then what kind
of changes in law would you like to suggest with such situations? Refer to
appropriate court judgements, bills, in support of your answer.
Answer) India has witnessed many large outbreaks of emerging and re-
emerging infectious diseases in the recent past. The outbreak of a cholera
epidemic due to the O139 strain in 1992, that of plague in Surat in 1994, the
large-scale spread of chikungunya and dengue fever, and that of avian influenza
(H5N1) and pandemic H1N1 influenza were some which caused widespread
havoc. Same has been the case with the 2020 Novel Corona Virus (Covid-19).
Legal frameworks are important during emergency situations as they can
delineate the scope of the government’s responses to public health emergencies
and also, the duties and rights of citizens.
Description of the Epidemic Diseases Act, 1897
The Epidemic Diseases Act was passed in 1897 with the aim of better
preventing the spread of “dangerous epidemic diseases” . It evolved to tackle
the epidemic of bubonic plague that broke out in the then Bombay state at the
time. The Governor General of colonial India conferred special powers upon the
local authorities to implement the measures necessary for the control of
epidemics.
The Epidemic Diseases Act is one of the shortest Acts in India, comprising just
four sections. The first section explains the title and the extent, while the second
gives powers to the state and Central governments to take special measures and
formulate regulations that are to be observed by the people to contain the spread
of disease. The third section describes penalties for violating the regulations, in
accordance with Section 188 of the Indian Penal Code. The fourth deals with
legal protection to the implementing officers acting under the Act .
According to the provisions of Section 2 of the Act, which describes the powers
of the government, “When the state government is satisfied that the state or any
part thereof is visited by or threatened with an outbreak of any dangerous
epidemic disease; and if it thinks that the ordinary provisions of the law are
insufficient for the purpose, then the state may take, or require or empower any
person to take some measures and by public notice prescribe such temporary
regulations to be observed by the public. The state government may prescribe
regulations for inspection of persons travelling by railway or otherwise, and the
segregation, in hospital, temporary accommodation or otherwise, of persons
suspected by the inspecting officer of being infected with any such disease.” (5:
p 2). Section 2A empowers the Central government to inspect any ship leaving
or arriving at any port and for detention thereof, or of any person intending to
sail therein, or arriving thereby. Section 3 states, “Six months’ imprisonment or
1,000 rupees fine or both could be charged out to the person who disobeys this
Act.”

Limitations of the Epidemic Diseases Act in the changed context

The Act was formulated about 118 years ago and thus has major limitations in
this era of changing priorities in public health emergency management. The
factors leading to the emergence and spread of communicable diseases have
also changed over the years. Some of the factors that need to be addressed now
are the increasing rates of international travel, more extensive use of air travel
compared to sea travel, greater migration within states for the sake of earning a
livelihood, the transition from agrarian to industrial societies, increased
urbanisation, grossly increased density of populations in certain areas,
increasing intensity of contact with animals and birds, man-made ecological
changes, changing climatic conditions, technologies of mass food production,
breakdown of public health measures and biosafety lapses. The Epidemic
Diseases Act needs modifications in the changing scenario. For example, it is
too oriented towards travel by ship and silent on “air travel”, which was
uncommon at that time. The Epidemic Diseases Act is not in line with the
contemporary scientific understanding of outbreak prevention and response, but
only reflects the scientific and legal standards that prevailed at the time when it
was framed. To cite an example, the Act places too much emphasis on isolation
or quarantine measures, but is silent on the other scientific methods of outbreak
prevention and control, such as vaccination, surveillance and organised public
health response. The political scenario in the country and Centre-state
relationships have changed. The Act of 1897, as such, is not sufficient to deal
with the prevention and control of communicable disease in the current
situation.
Definition of “dangerous epidemic disease”
The definition or description of a “dangerous epidemic disease” is not
provided in the Act. There is no clear definition of whether an epidemic is
“dangerous” on the basis of the magnitude of the problem, the severity of the
problem, the age of the population affected or its potential to spread
internationally. It is essential to know who decides on what a “dangerously
epidemic disease” is and what criteria the definition is based on, if we are to
prevent misuse of the Act and also for transparency.