N L I U - Striking the Right Balance

A healthy body is the very foundation of all human activities. That is why the adage “Sariramadyam Khalu Dharma Sadhanam”. The right to health has been recognised in the national constitutional and statutory laws as well as in International law^[1]. This paper is an attempt to investigate the extent to which this right can be stretched, especially in case of balancing the tragic choices^[2] of resources.

With 260 million Indian citizens still below the poverty line and without the fundamental assurance of healthcare, the right to health clearly acquires great importance in Indian scene. The World Health Organization (WHO) rankings place India as 112th on the list of 199 member countries with regard to the health care systems.^[3]

In India, the government’s concern for health and safety of its people is indicated by the legislations enacted for health care. Recently Article 21 of the Indian Constitution has been interpreted to incorporate the right to health in right to life and hence this right having now acquired a constitutional status through judicial activism, can be judicially enforced. The Directive Principles of State Policy provide against the exploitation of weaker sections of society, including children, and mandate the state to raise the levels of nutrition, the standard of living and improve public health. Protection and improvement of environment and safeguarding forests and wildlife is also an obligation of the state^[4]. These are contained in articles 39, 47 and 48A in Part IV of the Constitution. Numerous statutory enactments also safeguard the health of those employed in factories, large-scale industrial undertakings and mines, the health of women and children and also protect human environment. These statutory enactments cover a wide range^[5] of area including food safety legislations^[6], labour laws^[7] and environmental legislations^[8]and in fact, accord with the spirit of the Constitution.

The Role of Indian Courts in Gradation of Right to health

The Indian Supreme Court has interpreted Article 21 of the Indian Constitution in the Marshallian spirit^[9] and has broadened its scope repeatedly, relying on general legal doctrines, international conventions^[10] and fascinatingly, the Directive Principles of State Policy, thus making some of them enforceable. The Courts in India have shown keen interest in protecting the health of people in the society and have accepted it in clear-cut manner that administrative as well as judicial wings of the State are under a duty not to adopt an indifferent attitude in this respect^[11]. Right to health is one the various indivisible rights^[12]that have been recognised by the Supreme Court under Article 21.

The Workmen of State Pencil Manufacturing Industries of Madhya Pradesh Case^[13], a case concerning the death of workers at young age in the state pencil manufacturing industries, due to the accumulation of soot in their lungs, was one the first health related public interest litigation to be filed in the Supreme Court. The Court required the State to ensure installation of safety measures in the concerned factories, failing that it could close down the same. In Pt. Parmahand Katara v. Union of India & others,^[14] the Supreme Court held that whether the patient is innocent or a criminal liable to punishment under the law, it is obligation of a doctor at the governmental hospital positioned to meet the constitutional obligation directed on the state by virtue of Article 21 to preserve life. Justice Ranganath Mishra gave the opinion in the following words:

“No law or state action can intervene to avoid/ delay the discharge of the paramount obligation cast upon members of medical profession. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore give way.”^[15]

Similarly in Paschim Banga Khet Mazdoor Samiti v. State of West Bengal ^[16], the Supreme Court reasserted that failure on the part of the government hospital to provide timely medical treatment results in violation of the injured victim’s right to life guaranteed by Article 21. The court gave seven guidelines regarding the timely medical treatment and mentioned:

“ …it is the constitutional obligation of the state to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done.”^[17]

The increasing role of the Court from the recognition of right to health at the first level and then to managerial role could be understood by the gradual development from the Parmanand Case to Dr. Chandra Prakash Case^[18]. In Dr. Chandra Prakash Case Court took the managerial role by commenting on tapping the resources of revenue for free medical treatment to the victims of road accidents.

In A.S. Mittal v. State of Uttar Pradesh^[19], the Supreme Court ordered the state government of Uttar Pradesh to pay compensation, as it had not followed the norms prescribed for the eye-camp and caused serious injuries to 84 patients. In Vincent Panikurlangara v. Union of India^[20] the Supreme Court observed that in a welfare state it is the obligation of the state to ensure the creation and the sustaining of conditions congenial to good-health. Directions were sought from the Supreme Court for banning the import, manufacture, sale and distribution of drugs recommended for a ban by the Drugs Consultative Committee, and for cancellation of all licenses authorizing all such drugs. The importance of this judgment could be seen in the light of recent international agreement on TRIPS^[21]. Justice Ranganath Mishra’s observation regarding right to health vis- a-vis right to life in that case was as follows:

“Article 21 of the constitution guarantees right to life and this court has interpreted the guarantee to cover a life with normal amenities assuring good living which include medical attention, life free from diseases and longitivity up to normal expectations.”^[22]

The Supreme Court has also brought occupational health hazards to workers within the coverage of Article 21. The right to health and medical care to protect the health and vigour of a worker while in service or post-retirement has been held to be fundamental right under Article 21 read with the directive principles contained in Article 39(e), 41, 43 and 47 and all fundamental human rights to make the life of workers meaningful and purposeful, with dignity of person.^[23] In Kirloskar Brothers Ltd. v. Employee’s State Insurance Corporation^[24], Supreme Court held that Right to Health is the fundamental right of the workers and is available not only against the state and its instrumentalities but also against the private industries.

In Murali S. Deora v. Union of India^[25], the Supreme Court recognizing Right to health under Article 21 of the Constitution held that smoking is injurious to health and banned smoking at public places.^[26]In State of Punjab & Others v. Mohinder Singh Chawla^[27] a Government official was reimbursed the expenses incurred on his treatment. However, this extension of right to health constitutionally obliging the state to provide such facilities was moderated in State of Punjab v. Ram Lubhaya Bagga^[28]. Here the government had framed a policy allowing reimbursement to the extent of rate prior fixed. Upholding the policy- for no state can have boundless resources- the Court opined it did not violate Article 21 or Article 47 of the Suprema Lex.

Conclusion

The judgement of State of Punjab v. Lubhaya Bagga shows a clear change in trend in the policy of the court with regards to the right to health. The courts have bowed before the foreboding presence of the factor of paucity of resources. This bitter reality has been experienced by the legal systems of the many developing nations. For example in the case of Vietnam, the constitution of 1980, included the right to health care and the state guaranteed free medical examination and treatment but upon the country facing an economic crunch, this right was deleted and a narrower right which provides that '' the citizen is entitled to a regime of health population'' was accorded.^[29]

The tragic choice of resources seems to be a reality, which may be seriously contemplated while according the right to health. This is not only the case with developing nations like India but is also true for developed and resource laden countries like the U.K. and the U.S.^[30]. The choice that has to be made is between having a narrow, resource based, right to health accorded to the citizens or to having a wide and idealistic right of health, which has no connection with the amount of resources available. The argument in favour of having the former is that only through such a system can we accord rights, which can realistically availed. One can avoid a situation where there is ''loss of faith'' in the judiciary and the legal system as a whole. This would bring a great amount of certainty in the rights available to the citizens and would make them more concrete. While in favour of the latter, it can be argued that only when a wide right of health is granted, can the bounds of the rights that can be realistically be availed be increased. When one would consider the resources before considering the extent of rights available, one would not be able to increase the resources made available for such purposes^[31]. The other major argument in support of this is that the real problem is not one of ''lack of resources'' but of ''improper allocation of resources''. Corruption, undersized budgets allocated to the health sector, are some of the examples of such improper allocation. In the face of such a situation a resource-based system of rights would not be the correct solution.

Keeping in view the situation in India, where the courts have not followed a resource based system of rights for the last decade or so,it is submitted that the best solution would be to try out this system of rights (as the courts have already started doing) , while trying to tackle the problem of ''improper allocation of resources'' through other channels.

^* Adil Hasan Khan & Gaurav Kamal (IV Year).

^[1] The 1946 WHO Constitution states that: ‘The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.’Article 25 of Universal Declaration of Human Rights; Article 12 of 1966 International Covenant on Economic, Social, and Cultural Rights (ICESCR); Article 16(2) of the African Charter on Human and People’s Rights; Article XI of the American Declaration; Article 10 of the Protocol of San Salvador; Articles 22-24 of Draft Declaration on the Rights of Indigenous Peoples; Article 15 of Convention on Human Rights and Fundamental freedoms of the Commonwealth of Independent states; Article 17 (b) of Cairo Declaration on Human Rights in Islam; Article 24 (2) of United Nations Convention on the Rights of the Child; Articles 10, 12 and 14 of the Convention on the Elimination of all forms of discrimination against women; Article 5 of the Convention on the elimination of all form of racial discrimination and Articles 5, 8 and 9 of the 1994 draft Declaration of Principles on the Human Rights and Environment are few of the main International instruments to recognize Right to health. In international law debate regarding the right to health as obligation erga omnes on the state parties is still dominant, See ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8July, 1996(1996) ICJ Reps, Dissenting opinion of Judge Weramantry.The entire debate revolves around the Article 2 of ICESCR dealing with progressive realization of Socio-economic and cultural rights. The debate gains a multifaceted shape when the right to health goes into the sphere of Civil and political Rights field, See Henry and duglas v Jamaica, (1997) 4 IHRR 387, para 9.5; D v UK (1997) 24 EHRR 423; Z v Finland,(1997) 25 EHRR 371; McGinely and Egan v Uk (1998) 27 EHRR 1.

^[2] The choices that a government has to make about the health care are revolving around the scarcity of resources in an economy. The choices have to be made keeping in view the best interest of the society. See Morgan,D.,Issues in Medical Law and Ethics, Health Rights, ethics and Justice: The opportunity costs of Rhetoric, pp. 47-61, Cavendish Publishing Limited.

^[3] India ranks 108th for the level of responsiveness of the healthcare system, 118th for performance in terms of overall health status to 133rd in per capita health expenditure and 153rd for health inequalities. See M V Lakhmi Devi, role of Indian judiciary in Health care, June 2000, From the Lawyer’s Collective, p. 15.

^[4] Apart from the Constitutional obligations, the definition of health in the Preamble of the WHO Constitution, which defines health as ‘a state of complete physical, mental and social well-being and not merely the absence of diseases or infirmity’, is also the major obligatory force.

^[5] The Juvenile justice Act, 1986; the Mental Health Act, 1987; the Epidemic Disease Act, 1948; the Consumer Protection Act, 1986; the vaccination Act, 1888 and other later Vaccination Acts are the few examples which cover wide range of health care activities in various fields.

^[6] Sections 269-277 of the Indian penal code; Drugs and Cosmetics Act, 1940; the Drugs Control Act, 1950; the Drugs and Magic-remedies (Objectionable advertisements) Act, 1954 and the Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation, Production, Supply and Distribution) Act, 1992 deal with food safety and related issues.

^[7] The Factories Act, 1948; Mines Act, 1952; Plantation Labour Act, 1951; Beddi and Cigar Workers Act, 1966; Dock Workers Act, 1986 and the Employees state Insurance Act, 1948 are few of the important legislations.

^[8] The Environment (Protection) Act, 1986 and the Wild Life (Protection) Act, 1972; Air (Prevention and Control of Pollution) Act, 1981; the National Environmental Tribunal Act, 1995.

^[9] Chief Justice Marshall said that the Constitution was “made for ages to come”, and consequently had to be adapted to the various crises of human affairs- McCullah v. Mayland, (1819) 4 Wheel 17 US 316.

^[10] Jolly George Varghese v. Bank of Cochine, (1980) 2 SCR 913; Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647; People’s Union of Civil Liberties v. Union of India, (1980) 2 SCR 913 and Vishaka v. State of Rajasthan, (1997) 3 LRC 361 are some of the cases in which Indian Courts have relied on the International Conventions.

^[11] Municipal Corporation of Delhi v. Suraj Ram (1995) 2 Cr. L.J. 571.

^[12] Right to food, Right to Shelter, Right to clean and decent environment, Right against corruption, Right to education, Right to livelihood, Right to education, Right to privacy and Right to have proper roads are few of the rights which have been incorporated into Article 21 of the Indian Constitution. These rights shifted the focus of Article 21 from negative to positive obligations of the State.

^[13] CWP No. 5143 of 1980.

^[14] AIR 1989 SC 2039.

^[15] Ibid.

^[16] AIR 1996 SC 2426.

^[17] Ibid.

^[18] Dr. Chandra Prakash v. Ministry of Health, AIR 2002 Delhi 188.

^[19] AIR 1989 SC 1570.

^[20] AIR 1987 SC 990.

^[21] Due to the agreement on TRIPS, After 31^st December 2004, the process patent system hitherto used in India would be replaced by a more restrictive product patent system. Foreign pharmaceutical companies (the primary manufacturers of drugs) would then monopolize the production, distribution, pricing and finally availability of new medicines. The Indian government needs to create legislation that would be favourable to its citizens’ right to health.

^[22] Supra no. 20

^[23]Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161; Consumer Education and Research Centre v. Union of India, (1995) 3 SCC 42

^[26] This decision once again shows the conflict between the right to health and problem of allocation of resources. Inspite of the Supreme Court verdict, smoking is continuing at the public places.

^[29] Maria,L., Vietnam, Human Rights in Developing Countries Yearbook 1997, Kluwer Law International Nordic Human Rights Publication.

^[30] R v. Secretary of State for Social Services ex p Hinks (1992) 1 BMLR 93; R v. Cambridgeshire HA ex p B (A Minor) (1995) 23 BMLR 1.

^[31] As Michael Freedman puts it '' The existence of the right to a good ensures that some of it will be available to any right bearer, Freedman , M., Rights, Buckingham: open UP, p. 192.