Health as Human Right - - - Role Of Courts In Realisation Of The Right
I. General
Mental and physical health is the very basis of human personality. Diseases and mishaps must have had their grip over humans ever since they came into existence. The disablement, disfigurement and loss of life caused due to illness has alarmed human race. The multiple sources causing such agonies are both external and internal ranging from natures’ wrath to lack of proper hygeine. If the human race is to survive and progress, preservation of good health is a must.
Though personal hygiene can to a large extent ward off ordinary ailments caused due to lack of hygienic, there are many factors, over which an individual can have no control, which cause health problems.
The state agencies are in such areas better equipped to prevent the causes and deal with the ailments in a more regulatory, effective and authoritative manner. The legal responsibility of the state agencies to take care of the individual’s health and ensure his physical and mental well-being will therefore be a measure of the individual’s right to health in a welfare state. Every sovereign state has plenary power to do all things which promote the health, peace, morals, education and good order of the people and tend to increase the wealth and prosperity of the State. Maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends the building of the society which the Constitution makers envisaged.
II. Constitutional mandate to the State
The obligation of the State to ensure the creation and the sustaining of conditions congenial to good health is cast by the Constitutional directives contained in Articles 39(e)(f), 42 and 47 in part IV of the Constitution of India. The has to direct its policy towards securing that 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 (Article 39(e)) and 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. (Article 39(f)). The State is required to make provision for just and humane conditions of work and for maternity benefit (Article 42). It is the primary duty of the State to endeavour the raising of the level of nutrition and standard of living of its people and improvement of public health and to bring about prohibition of the consumption, except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. (Article 47). Protection and improvement of environment is also made one of the cardinal duties of the State .Article 48 A). The State legislature is under entry 6 of the State List contained in the Seventh Schedule to the Constitution, empowered to make laws with respect to public health and sanitation, hospitals and dispensaries. Both the Centre and the States have power to legislate in the matters of social security and social insurance, medical professions, and, prevention of the extension from one State to another of infections or contagious diseases or pests affecting man, animals or plants, by entries 23, 26 and 29 respectively contained in the concurrent list of the Seventh Schedule.
III. Health as right to life
Article 21 of the Constitution guarantees protection of life and personal liberty by providing that no person shall be deprived of his life or personal liberty except according to the procedure established by law. As a result of liberal interpretation of the words ‘life’ and ‘liberty’, Article 21 has now come to be invoked almost as a residuary right. Public interest petitions have been founded on this provision for providing special treatment to children in jail; against health hazards due to pollution; against health hazards from harmful drugs; for redress against failure to provide immediate medical aid to injured persons; against starvation deaths; against inhuman conditions in after-care home and on scores of other aspects which make life meaningful and not a mere vegetative existence. A positive thrust is given to the nature and content of this right by the Apex Court imposing a p ositive obligation upon the State to take effective steps for ensuring to the individual a better enjoyment of his life. The Supreme Court has held that the right to live with human dignity enshrined in Article 21 derives its life and breath from the directive principles of State policy particularly Article 39(e) & (f), 41 and 42 and would therefore include protection of health as envisaged in the directives. The expanded meaning of right to life is wholly justified, for, without health of a person being protected and his well being being looked after, it would be impossible for him to enjoy other fundamental rights such as rights to freedom of speech and expression, to move freely throughout the territory of India, to practice any profession or carrying on any trade, occupation or business, to form associations. guaranteed by Article 19 in a positive manner. Without a guarantee of health and well being most of these freedoms cannot be exercised fully. To make other rights meaningful and ef fective right to a healthy life is the basis underlying the constitutional guarantees. All that the courts have done is to provide redressal by a meaningful and just interpretation to the right to life and commanding enforcement of the duties of a welfare State. The Court itself being an authority and therefore ‘State’ within the meaning of Article 12 which definition is made applicable by Article 36 to part IV containing the Directive Principles of State Policy, has to bear in mind these directives in its decision making process.
IV. State’s obligation to preserve life
Article 21 casts an obligation on the State to safeguard the right to life of every person, preservation of human life being of paramount importance. The Apex court has held that whether the patient be innocent person or be a criminal liable to punishment under the law, it is the obligation of those who are in charge of the health of the community to preserve life so that innocent may be protected and the guilty may be punished. A doctor at the government hospital positioned to meet this State obligation is, therefore duty bound to extend medical assistance for preserving life. Every doctor, whether at government
Hospital or otherwise, has a professional obligation to extend his services with due expertise and care for protecting life. It has been held that this obligation is total, absolute and paramount, and 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. A doctor does not contravene the law of the land by proceeding to treat the injured victim on his appearance before him either by himself or being carried by others .
In a welfare State the primary duty of the government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the government in a welfare state. The government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail of those facilities. The government hospitals run by the State and Medical Officers engaged therein are duty bound to extend medical assistance for preserving human life. Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in violation of the injured victim’s right to life guaranteed by Article 21.
V. Responsibilities of Municipalities and Panchayats
Article 242 of the constitution provides that the legislature of a State may by law, endow the municipalities with such powers and authority as may be necessary to enable them to function as institutions of self government and provide with respect to the performance of functions and implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule to the Constitution which include at item 6, ‘Public health, sanitation conservancy and solid waste management’. Similar provision is made for the panchayats under Article 243-G read with the Eleventh Schedule (item 23), of the Constitution. Various municipal laws prescribe duties of such local authorities in the sphere of public health and sanitation which include establishment and maintenance of dispensaries, expansion of health services, regulating or abating offensive or dangerous trades or practices, providing a supply of water proper and sufficient for preventing danger to the health of the inhabitants from the insufficiency or unwholesomeness of the existing supply, public vaccination, cleansing public places and removing noxious substances, disposal of night soil and rubbish, providing special medical aid and accommodation for the sick in the time of dangerous diseases, taking measures to prevent the outbreak of diseases etc. Therefore whenever there is failure of these statutory obligations of the local authorities the citizens can approach the High Court under Article 226 of the Constitution for seeking a mandamus to get the duties enforced.
There is, however, a significant difference between local government authorities and the State health authorities, the latter having enormous powers to make available financial resources and make key appointments. Healthy alliances between the two types of authorities are crucial, if health is to be effectively promoted.
VI. Role of courts in realisation of right to health
Health is a state of complete physical, mental and social well being. The term ‘health’ implies more than mere absence of sickness as held by the Supreme Court. The Apex Court in India has played a decisive role in realization of the right to health by recognising the right as a part of the fundamental right to life and issuing suitable directions to the State authorities for the discharge of their duties.
The Court has recognised that maintenance of health is a most imperative constitutional goal whose realisation requires interaction of many social and economic factors.
( A ) Health right of workmen:
The importance of health promotion at the work place is increasingly recognized particularly in larger organisations . Workplace health promotion reduces absenteeism and can lead to gain in productivity. The Supreme Court surveyed in CESC case various functions of the State to protect safety and health of the workmen and emphasized the need to provide medical care to the workmen to prevent disease and to improve general standards of health consistent with human dignity and right to personality. It was held that medical care and health facilities not only protect against sickness but also ensure stable manpower for economic development. Facilities of health and medical care generate devotion and dedication among the workers to give their best physically as well as mentally, in productivity. It was held that the medical facilities are, therefore, part of social security and like gilt-edged security, it would yield immediate returns to the employer in the form of increased production and would reduce absenteeism. Just and favourable conditions of work imply ensuring safe and healthy working conditions to the workmen. The periodic medical treatment invigorates the health of
Workmen and harnesses their energy resources. Prevention of occupational disabilities enthuses them to render efficient service which is a valuable asset for greater productivity to the employer and national production to the State. Medical facilities, therefore, is a fundamental and human right to protect his health. It was held that health insurance, while in service or after retirement was a fundamental right and even private industries are enjoined to provide health insurance to workmen.
The expression ‘life’ as held by the Supreme Court does not connote mere animal existence or continued drudgery through life but has a much wider meaning which includes right to livelihood, better standard of life, hygienic conditions in work place and leisure. Continued treatment, while in service or after retirement is considered to be a moral, legal and constitutional concomitant duty of the employer and the State. Right to health and medical care is a fundamental right under Article 21 read with Articles 39( c ), 41 and 43 of the Constitution to make the life or workman meaningful, held the Supreme Court in C E & R C V. Union of India. The Court directed that the workers who suffered from asbestosis - an occupational health hazard, should be paid compensation by the concerned establishments. All the asbestos industries were directed to maintain and keep maintaining healthy recor d of every worker upto a minimum period of 40 years from the beginning of the employment or 15 years after retirement or cessation of employment whichever is later, to adopt the Membrane Filter test to detect asbestos fibre, and to compulsorily insure health coverage to every worker. The Union and the State governments were directed to review the standards of permissible exposure limit value of fibre /cc in tune with the international standards reducing the permissible content.
( B ) Health right of mentally ill :
Ranchi Mansik Arogyashala a mental hospital located at Kanke near Ranchi once upon a time enjoyed international reputation and patients from outside India used to come for treatment there. But the complaints that the Supreme Court received about the institution were of a serious nature. During the pendency of the matter the Supreme Court therefore gave interim directions for -
1. increased daily allocation for diet to patients,
2. Supply of pure drinking water to the hospital,
3. restoration of proper sanitary conditions in the bathrooms and toilets of the hospital,
4. supply of mattresses and blankets to the patients,
5. immediate removal of ceiling limit which was in vogue in respect of costs of medicines allowable for each patient and for providing them medicines as prescribed by the doctors irrespective of the costs, and
6. appointing a qualified psychiatrist and a medical superintendent for the hospital.
The Supreme Court held that running of the mental hospital was in the discharge of the State’s obligation to the citizens and the fact that a huge amount was required to be spent by the public exchequer was not of any consequence. The State has to realise its obligation and the government of the day has got to perform its duties by running the hospital in a perfect standard and serving the patients in an appropriate way. When the directions given by the Court were not complied in an effective way by the governmental authorities the Supreme Court found that the institution cannot be run as a mental hospital of that magnitude unless there was a change in the administrative set up and a new, service to patient oriented thrust was to be given to the institution. A Committee was therefore constituted for the management of the mental hospital and directions were given to the State of Bihar to provide for a basic fund of Rs. 50 lakhs to be spent for the improvement of the hospital in a manner approved by the Committee. It was directed that the quality of the hospital should improve and the patients should have the benefit of modern scientific treatment having regard to the fact that the method of care and attention for the mentally ill had undergone a sea change.
Noticing that even patients who had cured were kept as inmates for prolonged periods it was held that hospital is not a place where cured people should be allowed to stay. It was found necessary that there should be a rehabilitation centre for those who after getting cured are not in a position to return to their families or on their own seek useful employment. Thus a rehabilitation programme was also treated as a part of health care.
( C ) Court directives in Medico legal cases requiring emergent treatment:
There was a reluctance on the part of the doctors to treat medico-legal cases until clearance was given by the police authorities. There was also an instinct to avoid attending legal proceedings due to the inconvenience involved.
A scooterist was knocked down by a speeding car. Seeing the profusely bleeding scooterist a person who was on the road picked him up and took him to the nearest hospital. The doctors refused to attend on the injured and told the man that he should take the patient to a named different hospital located 20 kms away, which was authorized to handle medicolegal cases. The samaritan, without losing time, carried the victim to approach the other hospital, but before he could reach there, the victim succumbed to his injuries. The Court held that every doctor has a professional obligation to treat the injured victim and extend his services with due expertise for protecting life and the doctor does not contravene the law by proceeding to treat the injured victim. The court directed wide publicity to its decision to ensure that every doctor wherever he be in the ter ritory of India should forthwith be aware of this position.
One Hakim Seikh fell off a train at Mathurapur station in west Bengal on 8-7-1992 at 7.45 pm and suffered severe head injuries. When brought to the Primary Health Centre Mathurapur, he was referred to the Diamond Harbour sub-divisional Hospital or any other State hospital, as necessary facilities for treatment were not available at the Primary Health Centre. Then he was taken to as many as seven State hospitals, but was not given treatment on the ground of non-availability of bed though it was an emergency case. Ultimately he was admitted in a private hospital on 9-7-1992 and treated till 22-7-1992. Feeling aggrieved by the indifferent and callous attitude of the medical authorities at the various State run hospitals in Calcutta in providing treatment for the serious injuries sustained by Hakim Seikh, the petition was fil ed in the Supreme Court for compensation and appropriate directions. The Court held that failure to provide medical treatment to Hakim Seikh by the government hospitals had resulted in violation of his right under Article 21 to get adequate and timely medical treatment. Article 21 imposes an obligation on the State to safeguard the right to life of every person. It was held that in such cases adequate compensation can be awarded by the Supreme Court under Article 32 and the High Courts under Article 226, of the Constitution. The Court awarded compensation of Rs. 25000/- to the injured from the government.
( D ) Rights of patients undergoing ophthalmic treatment at Eye Camps:
The problems of the ophthalmic health status of the Indian citizen are of a dimension causing an understandable concern. The very large number of cases of impairment of visual acuity in the country needs the purposeful involvement of voluntary social organisations so asto provide an augmented, broad-based, participatory medicare for the general improvement of the tone of ophthalmic health in the country. The government of India have evolved a comprehensive policy and programme for control of blindness which amongst other things, envisaged a programme for the promotion of eye care through ‘eye camps’ organised by social and voluntary organisations and to provide financial assistance.
In A.S.Mittal V. State of UP, the Supreme Court was confronted with a case where the eyes of 84 out to 108 patients who were operated (88 for cataract), in an ‘eye camp’ were irreversibly damaged owing to a post-operative E-coli infection of the intra-occular cavities of the operated eyes, which mishap was undisputedly due to a common contaminating source being the ‘normal saline’ used in the eyes at the time of surgery. The Court examined whether the existing guidelines prescribing norms and conditions for conducting ‘eye camps’ laid down by the government were sufficiently comprehensive to ensure the protection of patients , who were generally drawn in such eye camps from the poorer and the less effluent section of the society and issued directions to the government to incorporate the following suggestions made by a sub-committee of the Indian Medical Council in the revised guidelines :-
1. The operations should only be performed by qualified experienced ophthalmic surgeons and an ‘eye camp’ should not be used as a training ground for post-graduate medical students.
2. There should be available a pathologist to examine urine, blood etc.
3. Preferably, a dentist should also be present to check teeth for sepsis.
4. A physician for general medical check up of the patients should also be there.
5. All medicines to be used must be of standard quality duly verified by the doctor in charge of the camp.
( E ) On Medical negligence :
The patient has a right to be treated with a reasonable degree of care, skill and knowledge. A mistake by a medical practitioner which no reasonably competent and careful practitioner would have committed is nothing short of negligence. But the law recognizes the dangers which are inherent in surgical operations, where the operations is a race against time, the court will make greater allowance taking into account the ‘risk-benefit’ test.
In Dr. L.B.Joshi V. Dr. T.B. Godbole the Supreme Court held that a person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. He owes a duty of care to the patient in deciding whether to undertake the case and what treatment to give. A breach of such duty gives a right of action to the patient for negligence of the doctor.
Medical practitioners do not enjoy any immunity from an action in tort, and they can be sued on the ground that they have failed to exercise reasonable skill and care. The Supreme Court has held that the fact that they are governed by the Indian Medical Council Act and are subject to the disciplinary control of the Medical Councils is no solace to a person who has suffered due to their negligence and the right of such person to seek redress is not affected. Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medical and surgical, was held to fall within the ambit of ‘service’ as defined in Section 2(1) (O) of the Consumer Protection Act, 1986.
( F ) On quality of blood for transfusion:
While transfusion of blood can save life of a needy patient, it can take away life if contaminated. In part XII-B of the Drugs and Cosmetics Rules, 1945 provisions are made to regulate blood collection and storage by prescribing the equipment and supplies required for a blood bank.
In a Public Interest Litigation serious deficiencies and shortcomings in the matter of collection, storage and supply of blood through various blood centres were highlighted before the Supreme Court and directions were sought on the Union of India and State to take steps for obviating the malpractices, malfunctioning and inadequacies of the blood banks. The Supreme Court constituted a Committee to examine the draft schemes suggested by the Petitioner and the Union of India. The Committee made a report proposing an action plan. Keeping in view the report of the Court Committee, the report of the Experts Committee set up by the Indian Red Cross Society and the programme that was being implemented by the National Aids Control Organisation, the Court held that the government should take suitable action as per the immediate implementation and long t erm implementation plans suggested by the court committee and gave the following directions :
1. The Union of India should take steps to establish a representative body to be known as National Council of Blood Transfusion as a registered society to be funded by the government of India with empowerment to raise its own funds from trade, industry and individuals.
2. The State governments should establish State Councils in consultation with the National Council and they should be funded by the Government of India and the State Government, with empowerment to raise its own funds.
3. The programmes and activities of the National and State Councils shall cover the entire range of services related to the operation and requirements of blood banks including:
( a ) launching of effective motivating campaigns for stimulating voluntary blood donations.
( b ) launching programmes of blood donations in educational institutions, among the labour, industry and trade establishment and organisations of various services including civic bodies.
( c ) training of personnel in relation to all operations of blood collection-storage and utilization, separation of blood groups, proper labeling, proper transport, quality control and archiving system, cross-matching of blood, separation and storage of blood components and all the basic essentials of the operations of blood banking.
4. The National Council should undertake training programmes, establish institution for research in collection, processing, storage, distribution and transfusion of human blood and its components.
5. The National Council should take steps for starting Special Post graduate courses in medical colleges in blood collection, storage, transfusion etc.
6. Donations to the National and State Councils may be made tax free by the Government of India.
7. The government should ensure that the blood banks operating in the country are duly licenced in a year.
8. Professional donor system should be eliminated in 2 years by the governments.
( G ) Protection against injurious drugs :
With the onward march of science and complexities of living processes, hitherto unknown diseases are notified. New and emerging diseases, combined with the rapid spread of pathogens resistant to antibiotics and of disease carrying insects resistant to insecticides, are daunting challenges to human health. The gap between the ability of microbes to mutate into drug-resistant strains and man’s ability to counter them is widening fast. To meet the new challenges new drugs have to be found. The Central Government is by Section 26A of the Drugs and Cosmetics Act, 1940 empowered to prohibit in public interest, manufacture, sale or distribution of any drug which is likely to involve any risk to human beings or animals or if does not have the therapeutic value claimed.
In Vincent Panikurlangara V. Union of India , directions were sought from the Supreme Court for banning import, manufacture, sale and distribution of the drugs which were recommended for banning by the Drugs Consultative Committee and for cancellation of all the licences authorising such drugs. Taking note of the fact that the WHO on the basis of expert advice, was of the view that human ailments can be treated effectively with 285 basic drugs, the Supreme Court observed that the Central Government on the basis of expert advice can indeed adopt an approved national policy and prescribe an adequate number of formulations which would on the whole meet the requirement of the people at large. While laying down guidelines, injurious drugs must be totally eliminated from the market, and great care in this regard has to be taken. Drugs as are found ne cessary should be manufactured in abundance and their availability to satisfy every demand should be ensured. The State’s obligations to enforce production of qualitative drugs and elimination of injurious ones from the market must take within its sweep an obligation to make useful drugs available at a reasonable price so asto be within the reach of a common man, which would involve regulating the price. It may be that on account of the cost of a particular medicine of improved quality it will have to sell at a higher price, but, for every illness which can be cured by treatment, the patient must be in a position to get its medicine. It was held that this is an obligation on the State in view of the fundamental directives of State policy enshrined in Part IV of the Constitution. The Supreme Court gave a direction to the Central Government to examine the objections raised in the petition against the drugs or refer them to the consultative Comm ittee for examination and take a decision within six months.
One disturbing trend noticed by the Court was that there was no adequate response from the bodies like Medical Council of India, the Indian Medical Association and the Drugs Medical Council of India despite notices by the Court.
It was held that these bodies are not litigants and do not have a choice of keeping away from the Court like private parties in ordinary litigations opting to go ex-parte. It was observed that, when the Court invited them to come forward and place their views on the relevant aspects, an attitude of callous indifference could not be appreciated.
( H ) Welfare of children :
In Sheela Barse (II) V. Union of India, the Supreme Court held that the nation’s children are a supremely important asset. Their nurture and
Solicitude are our responsibility. Children’s programmes should find a prominent part in our national plans for the development of human resources, so that our children grow up to become robust citizens, physically fit, mentally alert and morally healthy, endowed with skill and motivations needed by the society.
VII. Conclusion
Health as a basic human right should be viewed holistically and its positive aspect, that is, well being should be acknowledged which would lead to achievement of a socially and economically productive life. The right to equality encompasses within itself the right of a poor patient to get adequate treatment and medicines from the State irrespective of their costs. The citizens have a right to quality health care, treatment and medication regardless of race, religion, social status and ability to pay. The duties of the State and Municipal authorities can be enforced through the Courts whenever a breach occurs. It is in the enforcement of these obligations of the State and local authorities that the Courts can play an effective role in safeguarding the rights of the citizens to prevent and cure diseases. The standards of cleanliness a nd hygiene in public hospitals leave greatly to be desired. The maintenance of sterile aseptic conditions in hospitals to prevent cross-infections should be ordinary, routine and minimal incidents of maintenance of hospitals. Purity of the drugs and medicines intended for man-use would have to be ensured by prior tests and inspection. However, "owing to a general air of cynical irreverence towards values that has, unfortunately developed and to the mood of complacence with the continuing deterioration of standards, the very concept of standards and the imperatives of their observations tend to be impaired" , laments the Apex Court. The remedy lies in the awareness and enforcement of the Health rights of the citizens through Courts, but it more lies in the cure of improper and corrupt approaches in the seemingly healthy ones whose obligation is to provide for adequate health care.
At the end of the 19th century the industrial revolution saw the rise of the world of consumers. Not only did the air get more and more polluted but the earth itself became more polluted with the generation of nonbiodegradable solid waste. The increase in population and urbanization was also largely responsible for the increase in solid waste.
ound:
