HEALTHCARE LAWS ASSIGNMENT

CONSTITUTION AND RIGHT TO HEALTH

Submitted by,
Akshay Pramodh
BBA.LLB, 5
 Table of Contents
INTRODUCTION ............................................................................................................. 3
PROVISIONS UNDER PART-III OF THE CONSTITUTION OF INDIA................ 5
PROVISIONS UNDER PART-IV OF THE CONSTITUTION ................................... 7
PROVISIONS UNDER PART - IV-A ............................................................................. 9
CONCLUSION ................................................................................................................ 10
INTRODUCTION
The WHO Constitution (1946) envisages “…the highest attainable standard of health as a
fundamental right of every human being.” “The right to the highest attainable standard of
health” implies a clear set of legal obligations on states to ensure appropriate conditions for the
enjoyment of health for all people without discrimination. Acknowledging health as a human
right recognizes a legal obligation on states to ensure access to timely, acceptable, and
affordable health care.

A state's obligation to support the right to health – including through the allocation of
“maximum available resources” to progressively realize this goal - is reviewed through various
international human rights mechanisms.

The right to health is one of a set of internationally agreed human rights standards, and is
inseparable or ‘indivisible’ from these other rights. This means achieving the right to health is
both central to, and dependent upon, the realisation of other human rights, to food, housing,
work, education, information, and participation.

The right to health, as with other rights, includes both freedoms and entitlements:
 Freedoms include the right to control one’s health and body (for example, sexual and
reproductive rights) and to be free from interference (for example, free from torture and
non-consensual medical treatment and experimentation).
 Entitlements include the right to a system of health protection that gives everyone an
equal opportunity to enjoy the highest attainable level of health.
 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 care and protection has also been
recognized in India since early times. As a founder member of the United Nations, it
 has ratified various International Conventions promising to secure health care rights of
individuals in society. In this regard a number of committees have been set up by the
government at different times to look into

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 care and protection has also been recognized in India
since early times. As a founder member of the United Nations, it has ratified various
International Conventions promising to secure health care rights of individuals in society. In
this regard a number of committees have been set up by the government at different times to
look into the aspect of public health, and several recommendations have been made by these
committees to improve the health care system in India.

So far as the Indian Constitution is concerned, nowhere the term ‘health’ or ‘right to health’
has been defined in it. Through Judicial interpretations it has been observed that ‘right to life’
also includes ‘right to health’ and thus it is a fundamental right.
PROVISIONS UNDER PART-III OF THE CONSTITUTION OF
INDIA

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.

Article 14 speaks about equality before law where the State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India.

Article 15 contains provisions for a particular application of the general principle of ‘equality
of treatment’ embodied in Article 14. It prohibits discrimination against citizens on the grounds
only of religion, race, caste, sex, place of birth or any of them. Further no citizen shall also be
subjected to any disability, liability, restriction or condition with regard to access to shops,
public restaurants, hotels and places of public entertainments; or the use of wells, tanks, bathing
ghats, roads and places of public resort maintained wholly or partly out of State funds or
dedicated to the use of the general public. Even nothing in this Article shall prevent the State
from making any special provision for women and children for their betterment of life.

According to Article 19 (1) (g) all citizens shall have the right to practice any profession, or
carry on any occupation, trade or business subject to restrictions imposed in the interest of
general public under clause (6) of Article 19. In Municipal Corporation v. Jan Mohammed1,

1
1986 SCR (2) 700
the Court held that the expression in the interest of the general public in clause (6) of Article
19 is of wide import comprehending public order, public health, public security , morals,
economic welfare of the community and the objects 8 mentioned in Part IV of the Constitution.
Further, In Burrabazar Fire Works Dealers Association and Others v. Commissioner of Police,
Calcutta2, the Supreme Court has held that Article 19 (1) (g) does not guarantee the freedom
which takes away that community’s safety, health and peace.

It can be said that the reasonable restrictions as imposed on the freedoms are in wide in sense
that Court has the power to interpret the same in the interest of general public. One must
therefore consider Public health as pertinent while enjoying the freedoms under the
Constitution. Also in recent times on many occasions the Supreme Court has highlighted the
significance of public health while delivering many judgments.

Article 21 of the Indian Constitution ensures protection of life and personal liberty of the
individual, where no person shall be deprived of his life or personal liberty except according
to procedure established by law.

Article 23 prohibits traffic in human beings and beggar and other similar forms of forced labour
and any contravention of this provision shall be an offence punishable in accordance with law.

Article 24 also prohibits the employment of children below the age of fourteen years in any
factory or mine or in any other hazardous employment.

2
AIR 1998 Cal 121
PROVISIONS UNDER PART-IV OF THE CONSTITUTION

Apart from the above fundamental rights, the Constitution of India provides for the following
directive principles to be followed by the state regarding health care of the citizens. Article 38
in this regard provides that, “the State shall strive to promote the welfare of the people by
securing and protecting, as effectively as it may, a social order in which justice-- — social,
economic and political, shall inform all the institution of the national life”. Thus this is an
imposition of liability on state that the State will secure a social order for the promotion of
welfare of the people including public health because without public health welfare of people
is practically meaningless.

Article 39 further speaks that “the State shall, in particular, directs its policy towards securing
–

 (e) that the 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;
 (f) 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 material abandonment.”

This Article secures health and strength of the workers, men and women. It also mandates that
children be given the opportunities and facilities to develop in a healthy manner and in
condition of freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment. It is true to say that Article 39 (e)
and (f) indicates that the Constitution makers were rather anxious to protect and safeguard the
interests and welfare of workers and children.

It enunciates that the working class is important in nation building and therefore state
government shall provide protection to their health. In Lakshami Kant Pandey v. Union of
India,3 BHAGAWATI, J. while delivering the opinion of the court observed that:

“It is obvious that in civilised society the importance of child welfare cannot be
overemphasised because the welfare of the entire community, its growth and development
depends upon the health and well-being of its children. Children are a „supremely important
national asset and the future well-being of the nation depends on how its children grow and
develop.” Further, In Sheela Barse v. Union of India,4 Supreme Court has held that “A child is
a national asset and therefore, it is the duty of the State to look after the child with a view to
ensuring full development of its Personality.”

Article 41 deals with right to work, education and public assistance in certain cases and thus
imposed duty on the State to public assistance basically for those who are old, sick and disable.
This Article specifically says that “the state shall within the limits of its economic capacity and
development, make effective provisions for securing the right to work, to education and to
public assistance in case of unemployment, old age, sickness and disablement, and in other
cases of undeserved want”. Their implications in relation to health are obvious.

Article 42 provides for just and humane conditions of work and maternity relief and gives the
power to the State for making provisions in this regard, which implies that this Article is
intended to protect the health of infants and mothers by providing maternity benefit. In
U.P.S.C. Board v. Harishankar,5 Supreme Court has held that Article 42 provides the basis of
the larger body of labour law in India. Further referring to Article 42 and 43, the Supreme Court
has emphasised that the Constitution expresses a deep concern for the welfare of the workers.
The Court may not enforce the Directive Principles as such, but they must interpret law so as
to further and not hinder the goal set out in the Directive Principles. In Bandhua Mukti Morcha

3
1987 SCR (1) 383
4
1986 SCALE (2)230
5
1979 SCR (2) 355
v. Union of India,6BHAGWATI, J. observed: “This right to live with human dignity enshrined
in Article 21 derives its life breath from the Directive Principles of State Policy and Particularly
clauses (e) and (f) of Article 39 and Article 41 and 42.”

Since the Directive Principles of State Policy are not enforceable in a Court of law, it may not
be possible to compel the State through judicial process to make provision by statutory
enactment or executive fiat for ensuring these basic essentials which go on to ensure a life of
human dignity.

Article 47 imposes duty on the State to raise the level of nutrition and the standard of living
and to improve public health. It categorically provides that “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 endeavour to bring about
prohibition of the consumption except for medicinal purposes of intoxicating drinks and of
drugs which are injurious to health.”

Article 48A ensures that State shall endeavour to protect and impose the pollution free
environment for good health. This article was inserted by the 42nd amendment Act 1976. It
obligates the State to endeavour to protect and improve the environment and to safeguard the
forest and wild 7 life of the country. In M.C. Mehta V. Union of India, 14 it was held that, “Art
39 (a), 47 and 48-A by themselves and collectively cast a duty on the State to secure the health
of the people, improve public health and protect and improve the environment”

PROVISIONS UNDER PART - IV-A

Article 51 A (g) under Part IV – A of the Constitution says that “it shall be the duties of every
individual to protect and improve the natural environment including forests, lakes, rivers and
wild life, and to have compassion for living creatures.”

6
1984 SCR (2) 67
CONCLUSION
In India, the legal executive has assumed a significant job in perceiving the right to health as a
piece of Article 21 of Chapter III which manages the crucial rights ensured under the
Constitution of India. State has been coordinated to give the most noteworthy achievable health
gauges to its residents towards the satisfaction of International principles.

It is time India declared the right to health a fundamental right. Strong health laws will help
build societal resilience to future pandemics and public health emergencies. Emergency
responses can’t come at the cost of neglect of human rights obligations. It is critical then
that the right to health be implemented, using the principles of transparency, proportionality
and solidarity. The COVID19 experience has also demonstrated the importance of a
decentralized/polycentric response – India’s co-operative federalism, therefore, must be
strengthened.