Module 1:

Indian constitutional provisions in relation right to health & Case laws

Right to health is an age-old phenomenon. It may be traced back in the common law
principles under the ‘Law of Torts’. Right to Health refers to and mean the most attainable
levels of health that every human being is entitled to. Health has been regarded as the basic
and fundamental human right by the international community under international human
rights law. In contrast to all other human rights, the right to health creates an obligation upon
the states to ensure that the right to health is respected, protected and fulfilled, and is duly
entitled to all its citizens. According to Salmond, every right has a corresponding duty to be
fulfilled and there can be no right without a parallel element of duty.

The World Health Organization (WHO) defines health as a comprehensive state of physical,
mental, and social well-being, not merely the absence of disease. The WHO emphasizes that
governments have a legal obligation to ensure equal access to timely, acceptable, and
affordable healthcare of suitable quality, along with addressing underlying health
determinants like safe water, sanitation, food, housing, health education, and gender equality.

The Constitution of India not only provides for the health care of the people but also directs
the state to take necessary measures to improve the condition of health of the people. Though
the provisions enshrined under this part have no direct link with the healthcare, however from
various judicial interpretations it has been established that the intention of the legislature
were there to cover the health as a right of the citizens.

The Directive Principles of State Policy (DPSP) in Chapter IV of the Indian Constitution
oblige the state to:

 Article 38 says that the state will secure a social order for the promotion of welfare of the
people. Providing affordable healthcare is one of the ways to promote welfare.

 Article 39(e) calls the state to make sure that health and strength of workers, men and
women, and the tender age of children are not abused.

 Article 41 imposes duty on state to provide public assistance in cases of unemployment, old
age, sickness and disablement etc.

 Article 42 makes provision to protect the health of infant and mother by maternity benefit.
 Article 47 make it duty of the state to improve public health, securing of justice, human
condition of works, extension of sickness, old age, disablement and maternity benefits and
also contemplated. Further, State’s duty includes prohibition of consumption of intoxicating
drinking and drugs are injurious to health.

 Article 48A ensures that State shall Endeavour to protect and impose the pollution free
environment for good health.

Also Article 51A dealing with Fundamental duties says that: It shall be the duty of every
citizen of India-

(g) to protect and improve the natural environment including forests, lakes, rivers and wild
life, and to have compassion for living creatures;
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;
(i) to strive towards excellence in all spheres of individual and collective activity so that the
nation constantly rises to higher levels of endeavour and achievement.

Additionally, health-related provisions are found in the 11th and 12th Schedules, concerning
Panchayats and Municipalities, respectively. These encompass the duty to provide clean
drinking water, adequate healthcare, sanitation facilities (including hospitals, primary
healthcare centers, and dispensaries), family welfare promotion, women and children's
development, and social welfare promotion.

Although the Indian Constitution doesn't explicitly recognize the Right to Health as a
fundamental right under Part III (Fundamental Rights), judicial interpretation has assimilated
it into the fundamental right to life and personal liberty under Article 21, making it an
inseparable part of the Right to Life.

According to Article 21 of the Constitution – “No person shall be deprived of his/her life or
personal liberty except according to the procedure established by law. ‘Life’ in Article 21 of
the Constitution isn’t just the physical demonstration of breathing. It has a lot more extensive
importance which incorporates the right to live with human nobility, the right to livelihood,
right to health, right to pollution free air, and so forth.
Not only article 21 but also other articles under Part-III have been linked to Right to Health.
For example, Article 23(1) prohibits traffic in human beings. Since trafficking of women
leads to prostitution, which in turn is to major factor in spread of AIDS, this article has been
linked to Right to Health. Similarly, Article 24 says 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. It is directly related to Child health.

Also Article 14 says that the State shall not deny to any person equality before the law or
equal protection of the laws within the territory of India which also includes within its scope
equal access to right to health.

The Court has affirmed that "life" in Article 21 entails a life with human dignity, extending
beyond mere survival (Francis Coralie Mullin vs The Administrator, Union Territory of
Delhi AIR 1981). The Right to Health is an inherent and unavoidable aspect of a dignified
life, encompassing livelihood, improved living standards, hygienic workplaces, and leisure.
Article 21 should be interpreted in conjunction with the directive principles of state policy to
comprehend the state's obligations in this regard.

In Bandhua Mukti Morcha v. Union of India AIR 1984, the Supreme Court held that
although the DPSP are not binding obligations and hold only persuasive value, yet they
should be duly implemented by the State. Further, the Court held that dignity and health fall
within the ambit of life and liberty under Article 21.

In Paschim Banga Khet Mazoor Samity v. State of West Bengal (1996), the scope of
Article 21 was further widened, as the court held that it is the responsibility of the
Government to provide adequate medical aid to every person and to strive for the welfare of
the public at large.

Furthermore, the Supreme Court, in Parmanand Katara v Union of India AIR 1989, held
that every doctor at Government hospital or otherwise has the professional obligation to
extend his services with due expertise for protecting life of a patient.

In the subsequent case of Consumer Education and Research Centre vs. Union of India
AIR 1995 SC 922, held that right to health and medical aid to protect the health and vigor of
a worker, both while in service and post-retirement, is a fundamental right under Article 21.

In CESC vs Subhash Chandra Bose (1992), the SC stated that health isn’t merely absence
of sickness. Health is something more than sickness. Access to health care facilities for
economic man power to get the workers most; attainable, a complete well being.

In Murli Deora vs Union of India and Ors 2001, the Supreme Court held that smoking in
public places deprives the Right to life of the passive smokers. Upon Realizing the gravity of
the situation and considering the adverse effect of smoking on smokers and passive smokers,
the Supreme Court directed and prohibited smoking in public places. And it also issued
directions to the Union of India, State Governments as well as the Union Territories to take
effective steps to ensure prohibiting smoking in public places, namely: Auditoriums, Hospital
Buildings, Health Institutions, Educational Institutions, Libraries.

Further, according to Article 19 (1) (g) of the Indian Constitution, the fundamental right of
all citizens to practice any profession, or carry on any occupation, trade or business is subject
to restrictions imposed in the interest of the general public under Article 19(6). The Hon’ble
Supreme Court in the case of Burrabazar Fire Works Dealers Association and Others v.
Commissioner of Police, Calcutta AIR 1998, held that Article 19 (1) (g) does not guarantee
any freedom which is at the cost of the community’s safety, health and peace.

Right to Health is a part and parcel of Right to Life and therefore right to health is a
fundamental right guaranteed to every citizen of India under Article 21 of the Constitution of
India. We owe the recognition of this right to the fact that the Supreme Court of India,
through a series of judicial precedents, logically extended its interpretation of the right to life
to include right to health.

Therefore, it is the duty of the State to care for the health of the public at large and the
Central Government and various State governments have, rightfully and proactively, taken
various measures to contain the entry and spread of the COVID-19 pandemic.