Framework of Challenging The Right To Health Legislation on Legal Grounds.

The Right To Health Legislation passed by the Rajasthan Assembly on March 21, 2023 violates so
many Articles and Rights enshrined in The Constitution of India that it will not stand even a moment
scrutiny by the Hon’ble Courts of India. It's time the appropriate authorities realise their mistake
and take the legislation back. Here’s a list of Articles that the Right To Health Legislation violates.

This document was prepared by me with the help of my friends in the field of law and
jurisprudence. You may discuss this document with your friends, relatives or acquiantences in the
legal sector.

Violation of Article 19:

Private hospital owners have the right to run hospitals as a business & charge reasonable fees. If
the state compels a private hospital to provide free services without fair compensation, it would be
considered a violation of Article 19(1)(g) of the Constitution of India.

Violation of Article 21:

(a) The Supreme Court of India has interpreted the right to life and personal liberty under Article
21. Under the RTH legislation rules, doctors would be required to be available in their hospitals
throughout 24 hours, and on all 365 days of a year, otherwise the patient can lodge a
complaint that emergency healthcare was not provided. This prevents the doctor from living a
life with reasonable freedom and amounts to infringing on the personal liberty of a doctor as a
Citizen of India, as guaranteed by Article 21 of the Indian Constitution.
(b) In the Maneka Gandhi v Union of India (1978) case, the Hon’ble Supreme Court of India
observed that the right to life and personal liberty under Article 21 includes the right to travel.
The Right to Health legislation requires doctors to stay in hospitals 24x7 to treat emergencies.
This violates the right to personal liberty under Article 21.
(c) Article 21 of the Constitution guarantees that no person can be deprived of their right to work
or forced to work without just and fair remuneration. If the state fails to guarantee just and fair
compensation to private healthcare providers for availing their services under a state
mandated law, this is a violation of Article 21.

Violation of Article 23:

Article 23 of the Constitution of India prohibits forced labour. If the Right to Health Legislation
mandates private healthcare providers to provide free healthcare services, it may be seen as
forcing them to work without adequate compensation, which could be considered a form of forced
labour. Forced labour is a violation of human rights, and the Constitution of India prohibits any form
of forced labour. Private healthcare providers have the right to carry on their business or profession
without being forced to provide services without adequate compensation.
Violation of Article 38:
Article 38 of the Directive Principles of State Policy states 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 institutions of the national life.
(a) The RTH Legislation undermines the working economics of private healthcare providers (who
employ lakhs of medical, paramedical and support staff) thereby instigating economic injustice.
It also does not address the underlying factors that lead to health inequalities.
(b) The Legislation may be seen as violating Article 38 if it places an undue burden on private
healthcare providers by mandating them to provide free healthcare services without adequate
compensation. This could lead to financial strain on these providers, which may ultimately
affect the quality of healthcare services they provide to patients.

Violation of Article 39(e):

Article 39(e) of the Directive Principles of State Policy states that the State shall, in particular, direct
its policy towards securing that the health and strength of workers, men, women, and children, 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.
(a) The Right to Health Legislation potentially threatens to abuse of the health and strength of
healthcare workers (doctors, nurses, paramedics, pharmacists, support staff) who may be
overworked (forced to attend to ‘emergencies’ even if inadequately equipped or staffed) and
underpaid (pending dues from the government) by working under the proposed law.
(b) The RTH Legislation does not provide protections for healthcare workers who are exposed to
health hazards in the course of their work, thereby violating Article 39(e).
(c) The RTH Legislation may be seen as violating Article 39(e) if it places an undue burden on
private healthcare providers, especially those who may be small-scale or economically
disadvantaged. If these providers are forced to provide free healthcare services without
adequate compensation, they may not be able to sustain their businesses, which could lead to
job losses and economic hardship.

Violation of Article 41:

Article 41 of the Directive Principles of State Policy in the Constitution of India states that "the State
shall, within the limits of its economic capacity and development, make effective provision for
securing the right to work, to education, and to public assistance in cases of unemployment, old
age, sickness and disablement, and in other cases of undeserved want.”
(a) The Right to Health Legislation may be seen as violating Article 41 if it places an undue burden
on the State to provide free healthcare services without adequate funding or resources. If the
State is unable to make effective provisions for securing the right to public assistance in cases
of sickness, it may be seen as a violation of Article 41.
(b) For not planning the legislation in a manner that makes effective provision for securing the right
to healthcare services for those in need and without the provision of allocating resources for
'emergency' hospitalisations, the RTH Legislation violates Article 41 of the Constitution.
Violation of Article 43:
(a) The Right To Health Legislation may cause financial losses to private healthcare providers,
resulting in private healthcare providers reducing wages and benefits of their staff, which would
be a violation of the right to work and decent working conditions as enshrined in Article 43.
(b) This Legislation places a disproportionate burden on the private healthcare sector, leading to a
situation where the sector is unable to operate sustainably. This may lead to job losses and
impact the livelihoods of workers in the sector, which goes against the principles of Article 43.

Violation of Article 47:

Article 47 of the Constitution of India states that it is the duty of the state to improve public health
and to promote the welfare of the people by securing and protecting their health, especially by
prohibiting the consumption of intoxicating drinks and drugs that are injurious to health.
(a) The Right to Health Legislation violates Article 47 because it fails to address the issue of
harmful substances, such as tobacco and alcohol, that can have a detrimental impact on public
health.
(b) Any ‘emergency’ arising out of tobacco or alcohol consumption will be seen as failing to fulfill
the state's duty to protect and promote public health by allowing sale of tobacco and alcohol,
and which in itself is a violation of Article 47.

Violation of the provisions of the Minimum Wages Act, 1948:

Forcing a private worker (doctor, nurses, paramedics, pharmacists, support staff) to work for free or
without guarantee of just and fair compensation would also be a violation of the provisions of the
Minimum Wages Act, 1948.

The Right To Health Legislation is a biased, ill thought and blatently subversive attempt to
undermine the private healthcare sector in the state of Rajasthan. It must be vehemently
challenged in every forum of law, business, society and politics until the legislation is taken back.

Dr. Sudipto Chakravarty

Jaipur