Odisha Review ISSN 0970-8669

Right to Health, Constitutional Safeguards and

Role of Judiciary
Dr. Soumitra Kumar Chatterjee

INTRODUCTION the aspect of public health, and several

recommendations have been made by these
Health is wealth. “Everyone has the right to a committees to improve the health care system in
standard of living adequate for the health and well- India.
being of himself and of his family, including food,
clothing, housing and medical care and necessary So far as the Indian Constitution is
social services, and the right to security in the event concerned, nowhere the term ‘health’ or ‘right to
of unemployment, sickness, disability, health’ has been defined in it. Through Judicial
widowhood, old age or other lack of livelihood interpretations it has been observed that ‘right to
in circumstances beyond his control and life’ also includes ‘right to health’ and thus it is a
motherhood and childhood are entitled to special fundamental right. This article is a humble attempt
care and assistance.”1 Throughout the world health to focus on the constitutional provisions regarding
care has now been a matter of great concern. ‘right to health’ and to analyse various judicial
The United Nations has adopted various decisions relating to health care.
resolutions to safeguard the interest of patients.
The World Health Organisation has also played PROVISIONS UNDER PART-III OF THE
a pivotal role in guiding health policy development CONSTITUTION OF INDIA
and ensuring and attaining the highest standards
of health care to all the people around the globe. The Constitution of India not only
provides for the health care of the people but also
Right to health is an age-old phenomenon. directs the state to take necessary measures to
It may be traced back in the common law improve the condition of health of the people.
principles under the ‘Law of Torts’. Right to health Though the provisions enshrined under this part
care and protection has also been recognized in have no direct link with the healthcare, however
India since early times. As a founder member of from various judicial interpretations it has been
the United Nations, it has ratified various established that the intention of the legislature were
International Conventions promising to secure there to cover the health as a right of the citizens.
health care rights of individuals in society. In this
regard a number of committees have been set up Article 14 speaks about equality before
by the government at different times to look into law where the State shall not deny to any person

April - 2016 85
ISSN 0970-8669 Odisha Review

equality before the law or the equal protection of Article 38 in this regard provides that, “the
the laws within the territory of India. State shall strive to promote the welfare of the
people by securing and protecting, as effectively
Article 15 contains provisions for a as it may, a social order in which justice-- —
particular application of the general principle of social, economic and political, shall inform all the
‘equality of treatment’ embodied in Article 14. It institution of the national life”. Thus this is an
prohibits discrimination against citizens on the imposition of liability on state that the State will
grounds only of religion, race, caste, sex, place secure a social order for the promotion of welfare
of birth or any of them. Further no citizen shall of the people including public health because
also be subjected to any disability, liability, without public health welfare of people is
restriction or condition with regard to access to practically meaningless.
shops, public restaurants, hotels and places of
public entertainments; or the use of wells, tanks, Article 39 further speaks that “the State
bathing ghats, roads and places of public resort shall, in particular, directs its policy towards
maintained wholly or partly out of State funds or securing –
dedicated to the use of the general public. Even
(e) that the health and strength of workers,
nothing in this Article shall prevent the State from
men and women, and the tender age of children
making any special provision for women and
are not abused and that citizens are not forced by
children for their betterment of life.
economic necessity to enter avocations unsuited
Article 21 of the Indian Constitution to their age or strength;
ensures protection of life and personal liberty of (f) that children are given opportunities and
the individual, where no person shall be deprived facilities to develop in a healthy manner and in
of his life or personal liberty except according to conditions of freedom and dignity and that
procedure established by law. childhood and youth are protected against
exploitation and against moral and material
Article 23 prohibits traffic in human beings abandonment.”
and beggar and other similar forms of forced
labour and any contravention of this provision shall Article 41 deals with right to work,
be an offence punishable in accordance with law. education and public assistance in certain cases
and thus imposed duty on the State to public
Article 24 also prohibits the employment assistance basically for those who are old, sick
of children below the age of fourteen years in any and disable. This Article specifically says that “the
factory or mine or in any other hazardous state shall within the limits of its economic capacity
employment. and development, make effective provisions for
securing the right to work, to education and to
PROVISIONS UNDER PART-IV OF THE public assistance in case of unemployment, old
CONSTITUTION age, sickness and disablement, and in other cases
of undeserved want”. Their implications in relation
Apart from the above fundamental rights, to health are obvious.
the Constitution of India provides for the following
directive principles to be followed by the state Article 42 provides for just and humane
regarding health care of the citizens. conditions of work and maternity relief and gives

86 April - 2016
Odisha Review ISSN 0970-8669

the power to the State for making provisions in Some of the important pronouncements on this
this regard, which implies that this Article is issue are given hereunder.
intended to protect the health of infants and
mothers by providing maternity benefit. The Supreme Court, while interpreting
Article 21 of the Constitution ruled that the
Article 47 imposes duty on the State to expression ‘life’ does not connote mere animal
raise the level of nutrition and the standard of living existence or continued drudgery through life but
and to improve public health. It categorically includes, inter alia, the opportunities to eliminate
provides that “the State shall regard the raising of sickness and physical disability. In Francis
the level of nutrition and the standard of living of Coralie Mullin v. Union Territory of Delhi,3 it
its people and the improvement of public health was held that, right to life guaranteed in Article
as among its primary duties and, in particular, the 21 of the Constitution in its true meaning includes
State shall endeavour to bring about prohibition the basic right to food, clothing and shelter.
of the consumption except for medicinal purposes
of intoxicating drinks and of drugs which are The Apex Court, in Paschim Banga Khet
injurious to health.” Mazdoor Samity v. State of West Bengal,4 while
widening the scope of Article 21 and the
Article 48A ensures that State shall government’s responsibility to provide medical aid
endeavour to protect and impose the pollution to every person in the country, held that in a
free environment for good health. welfare state, the primary duty of the government
is to secure the welfare of the people. Providing
PROVISIONS UNDER PART - IV-A adequate medical facilities for the people is an
Article 51 A (g) under Part IV – A of the obligation undertaken by the government in a
Constitution says that “it shall be the duties of welfare state. The government discharges this
every individual to protect and improve the natural obligation by providing medical care to the persons
environment including forests, lakes, rivers and seeking to avail of those facilities.
wild life, and to have compassion for living In Unnikrishnan, J.P. v. State of Andhra
creatures.” Pradesh,5 it was held that the maintenance and
ROLE OF JUDICIARY improvement of public health is the duty of the
State to fulfill its constitutional obligations cast on
Several human rights instruments, it under Article 21 of the Constitution.
throughout the globe, have recognized ‘right to
health’ as a basic human right. In India, though In Consumer Education and Research
‘right to health’ is not recognized as a fundamental Centre v. Union of India,6 the Supreme Court
right expressly, the judiciary by its expounded role explicitly held that the right to health and medical
has recognized it as a fundamental right under care is a fundamental right under Article 21 of the
Article 21 of the Constitution as an adjunct to the Constitution and this right to health and medical
‘right to life’. The responsibility to respect, protect care, to protect health and vigour are some of the
and fulfill the ‘right to health’ lies not only with the integral factors of a meaningful right to life.
medical profession but also with public In Bandhua Mukti Morcha v. Union of
functionaries such as administrators and judges.2 7
India the Apex Court addressed the types of

April - 2016 87
ISSN 0970-8669 Odisha Review

conditions necessary for enjoyment of health and of health and medical care generate devotion and
said that right to live with human dignity also dedication to give the workers’ best, physically
involves right to ‘protection of health’. No State, as well as mentally, in productivity. It enables the
neither the central government nor any state worker to enjoy the fruit of his labour, to keep
government, has the right to take any action which him physically fit and mentally alert for leading a
will deprive a person the enjoyment of this basic successful economic, social and cultural life. The
essential. medical facilities are, therefore, part of social
security and like gilt edged security, it would yield
In Virender Gaur v. State of Haryana,8 immediate return in the increased production or
the Supreme Court held that environmental, at any rate reduce absenteeism on grounds of
ecological, air and water pollution, etc., should sickness, etc. Health is thus a state of complete
be regarded as amounting to violation of right to physical, mental and social well-being and not
health guaranteed by Article 21 of the Constitution. merely the absence of disease or infirmity.”
In Vincent v. Union of India,9 it was held In Mahendra Pratap Singh v. State of
that a healthy body is the very foundation for all 12
Orissa, the Court had held “in a country like
human activities. In a welfare state, therefore, it is ours, it may not be possible to have sophisticated
the obligation of the state to ensure the creation hospitals but definitely villagers within their
and the sustaining of conditions congenial to good limitations can aspire to have a Primary Health
health. Centre. The government is required to assist
The Apex Court, in its landmark judgment people, get treatment and lead a healthy life.
in Pt.Parmanand Katara v. Union of India,10 Thereby, there is an implication that the enforcing
ruled that every doctor whether at a government of the right to life is a duty of the state and that
hospital or otherwise has the professional this duty covers the providing of right to primary
obligation to extend his service with due expertise health care.”
for protecting life, whether the patient be an For Protection of health of workers and
innocent person or be a criminal liable to humane conditions of work the Supreme Court
punishment under the law. No law or state action in Occupational Health and Safety Association
can intervene to avoid/delay, the discharge of the v. Union of India and others,13 held that when
paramount obligation cast upon members of the workers are engaged in hazardous and risky jobs/
medical profession. occupations, the responsibility and duty on the
In CESC Ltd. v. Subash Chandra state becomes double fold.
Bose,11 the Supreme Court relied on international CONCLUSION
instruments and concluded that right to health is a
fundamental right. It went further and observed From the foregoing discussion, it is evident
that health is not merely absence of sickness: “The that right to life also includes right to health and
term health implies more than an absence of therefore the state and its instruments, are duty
sickness. Medical care and health facilities not bound to provide health care facilities and services
only protect against sickness but also ensure stable to all its citizens without any discrimination. The
manpower for economic development. Facilities Constitution also stipulates certain duties for the

88 April - 2016
Odisha Review ISSN 0970-8669

citizens towards contributing to the promotion of 3. 1981(1) SCC 608.

health in the country. But till date it has not been
4. (1996) 4 SCC 37.
given due recognition for which public interest
litigations have been filed frequently on health 5. AIR 1993 SC 2178 , (1993) 1 SCC 645.
issues involving fundamental right to health, rights
6. AIR 1995 SC 636: (1995) 3 SCC 42.
of workers to occupational health and safety, right
to clean environment, right to adequate drugs, 7. AIR 1984 SC 802.
medical negligence, right against medical
8. 1995 (2) SCC 577.
malpractice, right to emergency health care, public
health care etc. It is high time, let us be united and 9. AIR 1987 SC 994.
do the needful to achieve this goal and to live
10. AIR 1989 SC 2039.
healthy.
11. AIR 1992 SC 573,585 : (1992) 1 SCC 461.
References :
12. AIR 1997 Ori 37.
1. See Article 25 of the Universal Declaration of
Human Rights, 1948. 13. AIR 2014 SC 1469.

2. Address by Justice K.G. Balakrishnan in the

National Seminar on the ‘Human right to health’
organized by the Madhya Pradesh State Human
Rights Commission (At Bhopal) on September Dr. Soumitra Kumar Chatterjee, Lecturer, Madhusudan
14, 2008. Law College (Utkal University), Cuttack – 753003.

April - 2016 89