Author: Shefali Chitkara, 4th year student at Vivekananda Institute of Professional Studies, GGSIPU.
“Shift from ‘survival of the fittest’ to ‘survival of the weakest’ which is the basic human value today.” We have a lot of international as well as domestic laws addressing the problems and disparities in health care, trying to achieve equality in access to health care for different groups but the question is, “Are these laws actually capable of doing something for what they have been enacted?” The answer could be ‘yes’ for most of the children who have access to the same but is it in line for those who lack access and guidance to proper health care? These questions create confusion in our mind that must be addressed and this article will throw light upon such problems faced by children throughout the country, the ways in which we can cater to such problems to bring every child at par with others. Further, the article is covering the key aspects of Right to Health and also reflecting upon the principles enshrined in our Constitution regarding such rights and the approach of our judiciary towards providing and promoting access to health care to all children of our country. Furthermore, the article is also emphasising on the duties of the states and other people towards the Right to Health of fellow human beings. Only having laws in place will not suffice, proper implementation at ground level and availability of access to all without any differences will help bring a change, similarly this written article will not be enough unless steps are taken to actually make the world a happy and healthy place to live.
With the growing pandemic and diseases all around the world, it is the basic human right of the citizens including all children to have the Right to Health to survive and lead a healthy lifestyle. Children constitute a neglected and vulnerable group that has been denied adequate health care. Since they have no control over their adverse health conditions, proper nutrition, food and environment and they are dependent on adults for all their needs, the State is responsible for providing them with adequate facilities to meet health needs along with the parental care. The Supreme Court of India has already addressed several issues including bonded labour, employment of children in hazardous factories which has indeed created a positive impact on children and has proved to be a good step in promoting Right to Health of children. India has signed the Child Rights Convention and is under a duty to ensure efficient allocation of funds and interventions in addressing health problems of children.
Key Elements of Right To Health
- Inclusive right
Right to health is a wide term and is inclusive of various other factors that help us lead a healthy lifestyle. This includes health care access, hospitals in proportion to the population of the country, safe and healthy food, water, sanitation, gender equality, no discrimination, healthy working conditions, health-related education, adequate nutrition.
- Accessibility of good quality health services to everyone without discrimination
This is the key principle in attaining the appropriate standard of health. There must be equal and good quality of health services for everyone despite the differences in their financial background or affording capacity and the same should be a responsibility of the State. The availability of trained professionals is also a prerequisite at every corner of the nation. Quantity and quality must not be compromised whether it be for children in tribal areas or children with lack of such access to quality health services because of their poor financial capacity.
- Freedoms and entitlements
It is also inclusive of freedoms from non-consensual medical experiments or clinical trials and freedom from torture and inhumane treatment. Further, it also entitles the citizens to access to medicines and vaccines, equal access to services, treatment of diseases and participation in decision making in health sectors.
Indian Constitution and Right To Health
Right to health of children is protected under the Constitution through various provisions. We have the following Articles that are protecting the right to health:
- Article 21– Right to health is included in the right to life and personal liberty and is a fundamental right of people.
- Article 23– Right against forced labour, traffic and begging.
- Article 24– A child under fourteen years of age cannot be engaged or employed in any hazardous employment.
- Article 38– State has the duty to promote the welfare of citizens.
- Article 39(e)– State has a duty to safeguard the health workers and the tender age of children from abuse.
- Article 39(f)– The State has a duty to make sure that the children have opportunities so as to develop in a healthy way and protection against exploitation.
- Article 41– State has a duty to grant the right to education in cases of illness or any case of undeserved want.
- Article 47– The State is under an obligation to increase the nutrition level and to improve the living standard and the health of the public.
- 11th and 12th Schedule– Contains subjects such as health, sanitation, hospitals, primary health centres and dispensaries under the powers of Panchayats and Municipalities.
Judicial Approach towards Right to Health
Right to health is not expressly given as a fundamental right under the Constitution (Part III). However, it is never separated from Article 21 (which grants right to life and personal liberty) since Article 21 implies a “life with human dignity and not mere survival” as expressed in the judgement given in Francis Coralie Mullin v. The Administrator, Union Territory of Delhi.
Further, in the case of Bandhua Mukti Morcha v. Union of India, the Supreme Court has held that DPSP holds a persuasive value and has to be fully implemented by the State and that the health of an individual falls under the umbrella of life and liberty under Article 21. There is one more case of Parmanand Katara v. Union of India in which the Supreme Court stated that there is a professional obligation on every doctor of Governmental hospital to extend the health care services to every person in need for protecting his life.
Also, in Paschim Banga Khet Mazdoor Samity v. State of West Bengal, it was observed that it is a duty of the government to provide medical aid to everyone and protect and promote public welfare.
The ICESCR (International Covenant on Economic, Social and Cultural Rights), 1976, to which India has signed has also mandated the right to health through Article 9 and 12.
Challenges in achieving Equity in Health Care
One of the major barriers is physical access. This can be inferred from the fact that the government hospital beds are more than double the beds in rural areas. Due to this, there is an unequal geographical distribution of services and this is a crucial factor affecting equity in health care. Lack of human resources for health poses another major problem as in rural areas where children need more attention towards their health, untrained, less qualified and unlicensed practitioners are present in more numbers.
Apart from these, financial constraints as mentioned above is another hurdle to equity as poor families are not much likely to seek care for their children when they are ill as compared to rich people since they are more price sensitive. Expenditure on drugs and other out-of-pocket expenditures are creating burden and are a factor creating problems in achieving equity. These will further include certain additional costs related to seeking care like transportation, loss of earnings, etc. There are certain behavioural factors which are affecting demand for health care like lack of availability of health care education and knowledge and as a result of the same they feel that they do not need such services. They are unaware about its necessity.
The legislators and judiciary have already taken major steps to counter the discrimination as seen in the health care sector but there are still so many stones untouched. The concern is not only what needs to be done but how to implement such equity policies for health care in India so as to ensure equal access to such services for both children with financial and parental support and those with no support.
Duties on States towards the Right to Health
As mentioned in the Indian Constitution, States and parents have the primary responsibility to protect the rights of the children. Out of several rights granted by the Constitution, Right to health is one such right that the State has its duty to grant to its citizens. Since India has signed the UNCRC, the same has created a binding obligation on our State to give effect to rights of the children.
The Committee on Economic, Social and Cultural Rights has already highlighted that the States should ensure access to health services without any discrimination, access to adequate food, shelter, water, sanitation and essential drugs. The State has the obligation to respect as in it should refrain from interfering with the access to services, marketing of unsafe drugs and imposing discriminatory practices. Second is the obligation to protect wherein it prevents other people from interfering with the right to health of a person. The third and final one is the obligation to fulfil by adopting and implementing various measures to fully realise the right to health. State is under a duty to adopt various equity principles, policies and health plans so as to ensure access to health care to all.
Duties of other Organisations
Apart from States, individuals, non-governmental and intergovernmental organisations too have a responsibility with respect to Right to health. One of the aims of the United Nations as mentioned in its Charter is to promote respect for human rights and its agencies like the United Nations Children’s Fund (UNICEF) are created for such specific purposes so as to cooperate effectively with the state parties to implement these rights in a nation. We have the World Health Organization (WHO) which affirms that enjoyment of the right to health is the fundamental human right of every person. It also clarifies that it is the state’s legal duty to ensure uniform access to healthcare to everyone. Thus, the States along with other organisations are bound to safeguard the right to health of people, specifically children and cannot by any means do away with their duties.
Right to health must be the unsaid duty of the State but in a society where discrimination still prevails, it is not shocking to say that discrimination exists even in healthcare. There is a need to bring a change in the working system of our nation because if it keeps on working in the same tone then nothing more can be expected out of it. Government must take precautionary measures for the enhancement of Healthcare facilities of children and health must be considered as the topmost priority in the decision makings. The government should aim of making a considerable amount of changes in its National Policy as far as this right is concerned and must mend its ways to implement Right to health in the National Policy as we have not been seeing any change in the Right to health Policy since 1983 when the first draft of National health policy was laid down. Therefore, we should all join our hands for making India a better place to live in and to provide for healthy conditions for our future generation. The government and the judiciary should also follow strict measures for enforcing Right to health as a fundamental right.
 RN Shrivastava, Right to Health for Children, India Pediatrics (Jan., 2015), https://www.indianpediatrics.net/jan2015/jan-15-18.htm.
 WHO, The Right to Health, Fact Sheet 31, OHCHR (Jun., 2008), https://www.ohchr.org/sites/default/files/Documents/Publications/Factsheet31.pdf.
 JSA Advocates and Solicitors, Right to Health as a Fundamental Right Guaranteed under the Indian Constitution, JSA Law (Mar. 22, 2020), https://www.jsalaw.com/covid-19/right-to-health-as-a-fundamental-right-guaranteed-by-the-constitution-of-india.
 Fransis Coralie Mulin v. The Administrator, Delhi, (1981) 1 SCC 608.
 Bandhua Mukti Morcha v. UOI, (1984) 3 SCC 161.
 Parmanand Katara v. UOI, (1995) 3 SCC 248.
 Paschim Bangal Khet Mazdur Samity v. State of West Bengal, (1996) 4 SCC 37.
 Yarlni Balarajan, S Selvaraj and SV Subramania, Healthcare and equity in India, 377 Lancet 505, 505-515 (2011).
 Supra note 2.
 Supra note 2.
 Lawrence O Gostin et al., Legal Determinant of health: harnessing the power of law for global health and sustainable development, 393 Lancet 1857, 1857-1910 (2019).