The healthcare sector in India has undergone a tremendous change in the past few decades. India has a very complicated health care system as there is a wide variety of traditional and modern health practices. The health of the citizens is one of the indicators for a country’s development and right to health is recognised as the nucleus of all human rights. A denial or deficiency in providing this right to each and every citizen is considered as a nation’s failure.
The Gorakhpur tragedy which led to the death of more than 100 children in a government hospital in a span of two days due to lack of oxygen cylinders or the Jaipur case where a woman was forced to give birth to her child on a road outside the hospital as the authorities refused to admit her, have once again raised concern over implementation of health policies and rules.
The International Covenant on Economic, Social and Cultural Rights (ICESCR) identifies the ‘right of everyone to enjoy the highest attainable standard of physical and mental health.’ In India, right to health is not directly incorporated as a fundamental right in the Indian Constitution. It has been consolidated in the Directive Principles of State Policy (DPSPs) which adjures the State to provide health services which are preventive, promotional, rehabilitative, creative and comprehensive in nature, along with proper nutrition to all the people in India.
Fulfilling the right to health means that the government is required to take positive action to implement the right to health by adopting policies which allocate public resources to correct deficiencies in health facilities, goods and services. The right is not limited to providing health care facilities and building hospitals, but includes numerous aspects associated with the well-being of an individual viz. safe drinking water and food, adequate sanitation, nutrition and housing, healthy working and living conditions, health education, etc.
The Indian Constitution has contrived right to health under several provisions viz. Article 38 which places the liability on State to secure a social order for the promotion of welfare of the people, Article 39(e) relates to protection of workers’ health, Article 41 imposes duty on State to provide public assistance to the sick and disabled and Article 42 makes provision to protect the health of infant and mother through maternity benefit.
In addition to the role of State in protecting and promoting every person’s right to health, judicial activism has played a centric part in recognition of health as a fundamental right under Article 21 of the Constitution which provides right to life and liberty.
The Supreme Court has adopted the approach of consonance in fundamental rights and directive principles in several cases. In a landmark judgment on the issue of the right to health, the apex court held that the right to live with human dignity, enshrined in Article 21 is derived from DPSPs and therefore includes protection to health.
The Supreme Court has also held that the right to health and Medical care is a fundamental right under Article 21 as it is essential for making the life of the workman meaningful and purposeful with dignity of the person.
Right to health is a social-political right, often interpreted in a limited manner to the availability of healthcare services. However, healthcare schemes by the State and clarification by Indian Courts elucidates it as an inclusive right which has within its ambit, not just the existence of institutions of medical health, but also the extension of the concept of reasonable accommodation to include persons with disability.
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