The Right To Health – Uneasy Silence

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 nature’s wrath to lack of proper hygiene. 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 hygiene, there are many factors over which an individual can have no control, which cause  unforeseen hardships.

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. These functions fall into the bandwagon of plenary powers of every sovereign state, which authorize the state to do all things to promote the health, peace, morals, education and good order of the people and thereby increase the wealth and prosperity of the State. Maintenance and improvement of health rank high among these functions as these are indispensable to the very physical existence of the community and on the betterment of these depends the building up of the society, which the Constitution makers envisaged[1].

How the state fulfils its obligation to take care of the individual’s health and ensure his physical and mental well-being will therefore be a measure of the individuals right to health in a welfare state.

The humongous tragedy of the death of 30 (or more)  children in  Gorakhpur   government hospital in the last two days, allegedly because of lack of oxygen cylinders and the death of    Murugan a migrant labourer who was injured in a road accident in Kerala   late on Sunday night after being denied treatment by several hospitals both  in public and private sector  have once again triggered   a lot of questions about the role of the state in the realisation of right to health .

HEALTH CARE SYSTEM IN INDIA AND THE PROBLEMS IT POSES

India’s health care system  consists of different types of providers who practice in different systems of medicine and use various forms of organization in delivering health care services. The system is so complex that it includes sub systems each contributing their share in providing health care services in the country. Each subsystem is different from the others in terms of the resources invested in  the health infrastructure, system of payments, technological sophistication health needs and demand perceptions about quality and utilization reach capabilities innovative strategies used geographic concentration and the role of the government.

The services provided by each component are different, yet interdependent and overlapping in nature. This makes it difficult to define precisely the boundaries of a particular segment of the health care system. However by using the ownership criterion, the health care system  can be divided into four broad categories.

1. First the public sector which includes government run hospitals, dispensaries clinics primary health care centres and sub centres and paramedics.


2. Second the not for profit sector which  includes voluntary health programs, charitable institutions missions churches and trusts.


3. Third the organised private sector which includes general practitioners private hospitals and dispensaries registered medical practitioners and other licentiates.


4. Fourth the private informal sector which consists of practitioners not having any formal qualification faith healers, tantriks herbalists, priests, hakims and vaids.

 This  health care system will become effective, efficient, optimal, accessible and equitable if the state fulfils all the core obligations that are imposed upon it by right to health.  The State as a regulator, protector and promoter of our health assesses our health care needs, ensures access to health care service, organizes and regulates the medical and allied professions, regulates medical institutions, ensures availability, affordability and quality of drugs, maintains efficacy and effectiveness of healthcare, reviews the causes of ill health, prescribes regulations for protection of health of the population and reduces the health risks posed by diseases. When these roles are reviewed through the touchstone of right to health it tries to incorporate into the role of the State the principles of equality and non-discrimination.

ADVANTAGES OF RIGHT TO HEALTH APPROACH

The primary advantage of viewing health care system from a right to health perspective is that   that it establishes that all human beings have an equal right to health and compels the State to devise measures to ensure the right. This means it is essential to specify adequate minimum standards of health care facilities, which should be made available to all people irrespective of their social, geographic and financial position.

Secondly it insists upon the State to safeguard and implement the core content of right to health. This implies that just as the State/Government are responsible for the suffering caused by arbitrary detention, they are equally responsible for the far more pervasive suffering caused by arbitrary cuts on health and welfare spending or framing discriminatory or negligent policies depriving a wide section of the population access to basic goods like health.

Thirdly it guarantees a proper health care system. The State will have to guarantee life saving care to all at a reasonable cost. In the long run this will help to build up a quality health care system accessible and affordable for all.

Fourthly the State will have to ensure essential drugs at affordable cost. This has two implications. Primarily the State has to ensure availability of all basic medications free of cost through the public health system. Secondly, that the State should ensure the products and availability of an entire range of essential drugs at affordable price.

Fifthly it assures that the rights of patients are not violated. That means the entire range of treatment and diagnosis related information should be made available to every patient in either public or private facility. Every patient should be entitled to information regarding staff qualifications, fees and facilitates of any medical center before they decide to take the treatment. Confidentiality, consent and protection of dignity of a patient should be ensured to every patient. Patient friendly grievance redressal mechanism needs to be made functional, with technical guidance and legal support being made available to all those who approach this system. This would provide an effective check on various forms of malpractices. The State therefore has to guarantee right to access to health care at least at basic or emergency levels, right to considerable care, access to essential drugs, and protection of health information.

Sixthly the approach also implies establishing rights and regulations related to private medical sector. It signifies that everyone has access to emergency medical care and care based on minimum standards from private medical service. That means in situations of emergency medical care no hospital or doctor, including those in the private sector can refuse minimum essential first aid and medial care, irrespective of the person’s ability to pay for it.

It also implies that State should make provisions to regulate qualifications of doctors, required infrastructure, investigation and treatment procedures especially in the private medical sector. Standard guidelines for investigations, therapy and surgical decision-making need to be adopted and followed combined with legal restrictions on common medical malpractices. Maintaining complete patient records, notification of specific diseases and observing a ceiling on fees also need to be observed by the private medical sector.It also necessitates the designing of adequate criteria for a better distribution of health care human resources and regulation of infrastructure and medical technology.

  Approaching health issues through a right to health perspective adds an important dimension to our health status. This is because it links health status to issues of dignity, justice, equality, non-discrimination and participation. At the same time it also exposes the obligations imposed upon the state.

NATURE OF OBLIGATION IMPOSED UPON THE STATE BY RIGHT TO HEALTH

The framers of the Indian Constitution recognized the mandate on the part of the state to improve the health. But rather than treating health as a fundamental right they treated it as a directive principle.  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, 42 and 47.[2]  As per these directives the State 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 and that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom of dignity and that childhood and youth are protected against exploitation and against moral and material abandoned.

The State is also required to make provision for just and human conditions of work and for maternity benefit.  Again it becomes the primary duty of the State to endeavor 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 Protection and improvement of environment is also made one of the cardinal duties of the state.

The State legislature is also empowered to make laws with respect to public health and sanitation, hospitals and dispensaries. Both the Centre[3] and the States[4] 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 of contagious diseases or pests affecting man, animals and plants. The Directive Principles of State Policy[5] represent the minimum national consensus on the basic socio-economic objectives at the time of framing the Constitution.  These directives are fundamental in the governance of the country. They can be stated as the rock bottom level of the socio –economic development that the state is obliged to secure and maintain.[6]

However Directive Principles of State Policy are non-justiciable and their status is only that of a directive to the government. This has caused to undermine the philosophy behind the inclusion of Directive Principles in the State Policy.[7] So it is often argued that if Directive Principles of State Policy were absent in the Constitution it would not have made any difference because economic justice and public welfare could have been realized through fundamental rights read together with restrictions.[8]

 But at the same time it must be admitted that a close reading of the Directive Principles enjoins the government to provide comprehensive, creative, preventive, promotional and rehabilitative health services and proper nutrition to all the people of India.[9] In tune with these a plethora of welfare legislations have been enacted by the state. These statutes do not come in a single neat legislative package marked Health Law. It consists of many different types of legislation, which have little in common except the benign purpose of advancing public health. However for convenience sake these legislations can be classified as follows 1.Health legislations prohibiting conduct injurious to health 2.Health legislations authorizing programmes and services to protect or promote health. 3. Health legislations establishing surveillance over the quality of care.4.Health legislations regulating ethical issues in health care.

Legislations to prevent the spread of disease by providing for environmental sanitations, waste disposal and conduct injurious to health,[10] regulating air and water quality controlling,[11] the purity and safety of food and drugs,[12] and assuring sound working conditions[13] comes under the category of health legislations prohibiting conduct injurious to health.

The State’s role in providing services for specific groups such as women,[14] children,[15] prisoners,[16] mentally,[17] and physically handicapped person,[18] often result in drafting health legislations. These legislations coupled with legislations dealing with providing specific services in case of communicable disease and emergency services[19] fall under the second category.

Legislations have also been enacted to ensure that physicians are qualified and the hospitals and nursing homes meet acceptable standards.[20] Such health legislations fall under the third category.

In the past medical ethics was concerned largely with personal behaviours and individual rights. But in recent years ethical issues affecting the health of population have become prominent because of health care inequities in allocation of resources, rationing of scarce health care services, individual rights of patients and social responsibility of doctors. In India though awareness to medical ethics is catching up, legislation in this area is scarce.[21]

These legislation cover a wide range of health issues. This implies that if legislations are properly enacted it becomes the essential basis of authority for all public health actions.[22] However having set the wheels in motion for an ambitious plan of state sponsored medicine we never paused to reevaluate the situation and the direction in which we were progressing in health. We forgot that for laws to be effective it is necessary to take into account the social process inherent in our society. Enactment of a statute does not mean that desired goal would be attained automatically.[23] But it has to be effectively implemented. And to assure quality, accessibility and affordability in health proper implementation must be the rule rather than an exception.

The Supreme Court, slowly through its innovative interpretation, tackled this precise issue. The Judiciary acknowledged that a vibrant constitutional synthesis exist between the concept of social justice and individual freedom.[24] Hence an attempt was made to elevate right to health to the status of a fundamental right. The judgments of the Supreme Court in the late 1970’s and early 1980’s did not explicitly state that Art.21 contained right to health. However a close examination of the facts and decisions of a few cases shows that the Court was heading towards declaring that the concept of right to life in Art.21 of the Constitution guarantees right to health.[25] The obligation of a welfare state to ensure the creation and sustaining of conditions congenial to good health was highlighted in emphatic terms in Vincent Panikulangara v Union of India.[26]

The crowning glory of this judgment is that health was seen as part and parcel of life.[27] It brushed aside the argument that Directive Principles are less important than fundamental rights or that they are not binding.[28] The expanded meaning of right to life is wholly justified, for without health of a person being protected and his well 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 carry on any trade, occupation or business, to form associations guaranteed by Art. 19 in a positive manner.[29]

Thus through this case Supreme Court have provided a meaningful and just interpretation to the right to life and have referred to the duties of a welfare state.[30]

Right to emergency care and resultant obligations:-

These ideas were emphasized in Paramand Katra v Union of India.[31] In this case a petition was filed under Art.32 of the Constitution seeking for the direction that every citizen should instantaneously be given medical treatment to preserve life and the procedural criminal law should not be allowed to operate or interfere with the discharge of this obligation in order to avoid negligent death.[32] The court examined the duty of the doctors to take all possible measures to preserve life and observed that preservation of human life is of paramount importance.  The Apex court held that whether the patient be innocent person or 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,[33]  so that innocent may be protected and guilty may be punished.

This means a doctor at the government hospital positioned to meet this State obligation is duty bound to extend medical assistance for preserving life. The Apex court also clarifies the fact that every doctor, whether at government hospital or other wise, has a professional obligation to extend his service with due expertise for protecting life.[34]

It was also 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 away.[35]

Thus in this case we can find that the court paying due respect to the concept of welfare state. Providing adequate facilities for the people thus became an essential part of the obligations undertaken by the government in a welfare state. Another noteworthy feature that is admitted by the apex court is that 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 guaranteed by Art.21.

In subsequent cases also one can find that the Court trying to develop a strong base for right to health.

Right to health care of workers  and resultant obligations

 For instance, in CESC Ltd v Subhas Chandra Bose[36] the Supreme Court surveyed various functions of the State to protect safety and health of the workmen and emphasized the need to provide medical care to workman to prevent disease and to improve general standards of health consistent with human dignity and right to personality.

The Court was very emphatic in its assertion that right to health is a fundamental human right to workmen.[37]  What is more important is the court’s opinion that medical facilities are part of social security and like gilt edged security it would yield immediate return in the increased production or at any rate reduce absenteeism on ground of sickness.[38]

Later in Consumer Education and Research Center v Union of India[39] one finds many revealing observations on right to health and the concomitant duty of the State to provide right to health.  It is important to note that the case was directly connected with the health hazards faced by workers engaged in mines and asbestos industries.[40]  Elevating the right to health to the status of fundamental right under Art.21 read with Arts. 39(e), 41 and 43 the Court held that the State is under a constitutional mandate to take all such action which will promote health, strength and vigour of the workman during the period of employment and even after retirement.[41]

Observing that the health and strength of the worker is an integral facet of right to life the Court held the denial thereof denudes the workman of the finer facets of life violating Art.21.[42]  What is more important is, the Court also highlighted of the benefits accrued to the State if it protects right to health.  The Court observed:

…Facilities for medical care and health against sickness ensures stable manpower for economic development and would generate devotion to duty and dedication to give the workers best physically as well as mentally in production of goods or services. Health of the worker enables him to enjoy the fruit of his labour, keeping him physically fit and mentally alert for leading a successful life, economically, socially and culturally. Medical facilities to protect the health of the workers are therefore the fundamental and human rights to the workmen…[43]

The reasoning employed in the case is laudable. More so when the obligation of the State in honoring right to health was neatly chalked out. Thus it was directed that the workers who suffered from asbestosis, should be paid compensation by the concerned establishment.[44] All the asbestos industries were directed firstly to continually maintain health records for every worker for a minimum period of 40 years, from the beginning of the employment, or 15 years after retirement or cessation or employment which ever is later.[45]

Again it was directed to adopt the membrane filter test in order to detect asbestos fiber, and to compulsorily insure health coverage for every worker.[46] The Union and State governments were directed to review the standards of permissible exposure limit value of fiber in accordance with international standards, reducing the permissible context.[47]

But it is interesting to note that in both Paramand Katra v Union of India[48] and in C.E.S.C. Limited v Subhas Chandra Bose [49] the Court recongnized the fact that maintenance of health is a most imperative constitutional goal. Though the facts and context of both cases differ, we can find the Court asserting the concomitant duty of the state to protect right to health of workers and in case of emergency medicine.

Right to access to  medical facilities and resultant obligation.

 The activist attitude of the court is further manifested in Pashimbanga Khet Mazdoor Samiti v State of west Bengal,[50] where the Court focuses on the lethargic attitude of the government in providing adequate medical facilities in government hospitals.  Here too the Court starts from the basic proposition that providing adequate medical facilities for the people is an essential part of the obligation undertaken by the government in a welfare State.  Then the Court tries to clarify the nature of this obligation.

The Court observed that the government discharges this obligation by running hospitals and health centers, which provides medical care to the people seeking to avail those facilities.[51]  When this basic proposition was applied on the facts of the case the Court could easily derive the conclusion that there was a breach of right of the petitioner guaranteed under Art 21.  The Court went further.  It observed:

...In respect of deprivation of constitutional rights guaranteed under Part III of the Constitution the position is well settled that adequate compensation can be awarded by the Court for such violation by way of redress in proceedings under Art. 32 and therefore be suitably compensated for breach of his right guaranteed under Art. 21 of the Constitution…[52]

The activist approach of the Court did not stop with the making of the above observations but also extended to issuing many directions in order to effectively protect the public health. The Court through its judgment rendered by S.C.Agarwal J. ordered that for dealing with emergency cases the State must ensure that[53]

(i)       Adequate facilities are available at the Primary Health Centres where the patient can be given immediate primary treatment so as to stabilize his condition;

(ii)      Hospitals at the District level and Sub-Division level are upgraded so that serious cases can be treated there;

(iii)     Facilities for giving Specialist treatment are increased and are available at the hospitals at District level and Sub-Division level having regard to the growing needs;

(iv)     In order to ensure availability of bed in an emergency situation at State level hospitals there should be a centralized communication system so that the patient can be sent immediately to the hospital where bed is available in respect of the treatment, which is required;

(v)      Proper arrangement of ambulance is made for transport of a patient from Primary Health Center to the District hospital or Sub-Division Hospital and from the District hospital or Sub-Division hospital to the State hospital;

(vi)     The ambulance is adequately provided with necessary equipment and medical personnel;

(vii)    The Health Centers and the hospitals and the medical personnel attached to these Centers and hospitals are geared to deal with larger number of patients needing emergency treatment on account of higher risk of accidents on certain occasions and in certain seasons.

An evaluation of the judgment in terms of practical implications reveal certain weaknesses. For example even if we assume that right to adequate medical services is a fundamental right, then it must be available to all. Again how can State enforce fully this obligation that it has to provide adequate medical services to all people to preserve human life under the constitution?[54] Again how efficiently can these directions be enforced, for e.g.., denial of medical assistance by private as well as government hospitals on ground of non-availability of beds is a common phenomena.  Can all those persons deprived of access to medical services approach court for compensation?

These questions are not answered in any of the above judgments but it is enlightening to note that in Paschim Banga[55] the Supreme Court had taken into consideration the financial constraints of the state in fulfilling the right to health. The Court observed:

 …it is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this has to be done. The State cannot avoid its constitutional obligation on account of financial constraints. In matter of allocation of funds for medical services the said constitutional obligation of the State has to be kept in view.  It is necessary that a time bound plan for providing these services should be chalked out …[56]

In disposing of the matter, the Supreme Court noted that the State Government had itself appointed an Enquiry Committee under Shri Lilamoy Ghose[57], a retired Judge of the Calcutta High Court which found that the patient had been wrongly refused admission by  the concerned Medical College Hospital. The Committee also reported inter alia that the hospital maintained no records as to the condition of a patient and the steps taken with regard to his return and that even though no sanctioned beds were available, arrangements could be made and should not have been refused when the condition of the patient was so grave. The Supreme Court, in addition to affirming the recommendations of the Ltlamoy Ghosh Committee and the directives of the State Government, laid down that the State Government should ensure that :

"1. Adequate facilities are available at the Primary Health Centres where the patient can be given immediate primary treatment so as to stabllse his condition.

2. Hospitals at the district level and Sub-Division level are upgraded so that serious cases can be treated there.


3. Facilities for giving specialist treatment are increased and are available at the hospitals at district level and Sub-Division level having regard to the growing needs.


4. In order to ensure availability of bed in emergency at State level hospitals there is a centralised communication system so that the patient can be sent immediately to the hospital where bed is available in respect of the treatment which is required.


5. Proper arrangement of ambulance is made for transport of a patient from the Primary Health Centre to the District Hospital or Sub-Dlvlslon hospital and from the District Hospital or Sub-Division hospital to the State hospital.


6. The ambulance is adequately provided with necessary equipment and medical personal.


7. The Health Centres and the hospitals and the medical personnel attached to these centres and hospitals are geared to deal with larger number of patients needing emergency treatment on account of higher risk of accidents on certain occasions and in certain season

Any doubt regarding the scope and ambit of right to health was set at rest by the Supreme Court in State of Punjab v Mohinder Singh Chawla[58] wherein it was held that right to health is integral to right of life and that government has constitutional obligation to provide the health facilities. The Court opined:

…If the Government servant has suffered an ailment which requires treatment at a specialized approved hospital and on reference whereat the Government servant had undergone such treatment therein, it is but the duty of the State to bear the expenditure, thus, incurred requires to be reimbursed by the State to the employee...[59]

As a sequel to this case in State of Punjab v Ram Lubhaya[60] the question whether the right to health is absolute and that no financial constraints could be pleaded and if it could, to what extent was raised.

It was again affirmed by the Supreme Court that since right to life  is protected under Art.21, refusing to pay the amount spent to save one’s life amounts to the curtailment of such right and hence violative of Art.21.  It was also emphasized that the pith and substance of life is the health, which is the nucleus of all activities of life including that of an employee or other viz. the physical, social, spiritual or any conceivable human activities. If this is denied it is said everything crumbles.[61] In both of the above cases Judiciary address health care financing. But a reading of the judgements projects an attempt on the part of the Judiciary to limit right to health to government servants only. The Judiciary  does not address the need to strengthen the health insurance schemes for the poor nor does it make a realistic assessment of the paying capacity of the poor.

At the same time it was also acknowledged by the Supreme Court that any State endeavor for giving best possible health facility has direct co-relation with finances. It observed that

…No State of any country can have unlimited resources to spend on any of its project. That is why it only approves its projects to the extent it is feasible. The same holds good for providing medical facilities to its citizens including its employees. Provision of facilities cannot be unlimited. It has to be to the extent finance permit…[62]

Thus it is interesting to note that the judiciary has affirmed that health is a fundamental right. For this it excessively relied   upon the fact that preservation of human life is of paramount importance and timely medical treatment is essential for preserving life.  It also tried to evolve a framework for right to health.  It was also assured that the duties of the state and municipal authorities could be enforced through the courts whenever a breach occurs. The health rights of persons in workplaces, mental asylums and prisons, was also chalked out by the court. The Court also gave adequate directions in medico legal cases requiring emergency treatment. The Court has also shown activist approach in issues that had close connection with health. It has rightly interpreted that attending to public health is of high priority, perhaps the one at the top and the state has to provide health facilities according to its financial constraints as a shield against implementation of right to health.

The Supreme Court has also shown the same activist approach in issues that had close connection with health. For instance in State of A.P. v Mc Dowell and Co.,[63] it affirmed that intoxicated drinks and drugs are injurious to health and therefore State can bring out prohibition of the consumption of intoxicating drinks. It thus reiterated the stand taken in Khoday Distillers Ltd v State of Karnataka[64] and held that Art. 47 is one of the directive principles, which is fundamental in the governance of the country. The state therefore has the power to completely prohibit the manufacture, sale, possession, distribution and consumption of potable liquor as beverage, because it is inherently a dangerous article of consumption. The same rationale was used in prohibition of tobacco usage.[65]

Right to safe blood

The same zeal of enthusiasm was shown by the higher judiciary to ensure that blood that is available with the blood banks is healthy and freed from infection. Thus in Common Cause v Union of India,[66] the Supreme Court issued the direction to the mal practices, malfunctioning and inadequacies of the blood banks.

Right of mentally challenged patients and resultant obligations

The Court[67] also issued directives to the state in the wake of the gruesome tragedy in which more than 25 mentally challenged patients housed in a mental asylum at Ervadi, Ramanathapuram district in Tamil Nadu. were charred to death, the directions[68] among others include a district wise survey of all registered/unregistered psychiatric / mental health care institutions to ascertain whether minimum prescribed standards mentioned in the Mental  Health Act is complied with. If it is found that the requirements are not complied with then steps should be taken to stop the functioning of such bodies. It was also directed that this process of survey, granting or rejection of license must be completed within 2 months. The Court also affirmed that in those states / union territory which do not have even one full-fledged state government run mental hospital steps must be taken to establish the same. A close reading of the directives shows that the genuine interest was taken by the court on the mental patients and sincerely drafted fruitful directives so as to enable mental patients to be sent to doctors and not to religious places such as temples or dargahs.

  The effects of noise pollution on health were analyzed by the Supreme Court in, Church of God (Full Gospel) in India v K.K.R. Majestic Colony Welfare Asson,[69] where it was observed:

…In these days the problem of noise pollution has become more serious with the increasing trend towards industrialization urbanization and modernisations and is having many evil effects including danger to health. It may cause interruption of sleep, affect communication, loss of efficiency of hearing loss or deafness, high blood pressure, depression irritability, fatigue, gastro-intestinal problems, allergy, distraction, mental stress, and annoyance etc., This also affects animals alike.. The extent of damage depends upon the duration and intensity of noise…[70]

At the same time the Court affirmed that rights under Arts.25 or 26 of the Constitution are subject to public order, morality and health, no religion prescribes or preaches that prayers are required to be performed through voice amplifiers or
by beating drums. In any case, if there is a practice, it should not adversely affect the rights of others including that of being disturbed in their activities.[71] Further it was noted that reasonable restrictions must be imposed for the use of loud speakers and voice amplifiers.[72]

Right to emergency care and resultant obligations 

Later in the case of Labnoya Moyee Chandra V State Of West Bengal [73]the Supreme Court affirmed the decision in  Paschim Banga and directed to the state government to take follow up action on the implementation of the recommendations under the  Paschim Banga case. The court also  observed that there is duty up on the doctor to accommodate an emergency patient in any of the department if there is no bed available in the concerned department and later   when bed becomes free he can be  shifted to the concerned department .

Right to health facilities in train

Again   in  Ram Dutt Sharma V Union Of India [74]the court held that state should provide medical treatment in train while person is travelling in train and stated that  emergency can happen to anyone at any time to preserve life of persons who travels in train a medical facility is needed in train the court issues following order in public interest. The following directions were also issued

• Instructions shall be issued by Railway Board to Zonal Railway to keep reserve a Coupe' of four births in long distance train that shall carry sign board 'MEDICAL FACILITIES' with symbol of Red Cross. Visible symbol of Red-cross shall also be displayed outside the compartment. Team of one Medical Officer, one made nurse and one attendant shall board train and travel in it after a distance of 500 Kms. or as directed by the Railway Board the team already travelled shall be replaced by another team. The Coupe' shall be equipped with Oxygen Cylinder, lifesaving drugs and injections.


• In every compartment of train, it shall be prominently notified that Medical Compartment is attached with the train to provide medical assistance to the passengers free of cost by a competent doctor and complaint book is available with the Train- GUARD.


• Due publicity that Medical facilities are available to the passengers in all the long distance trains, shall be given on all the Platforms. This information shall also be displayed on national Television and broadcast on All India Radio. People of Country shall also be made aware through the newspapers.


• Chemist facilities shall be provided on the station premises keeping in mind the quantum of passenger’s traffic.

The responsibility of police officers have also been neatly chalked out by the Indian judiciary In  Supreme Court Legal Aid Committee V State Of Bihar[75] and in Poonam Sharma V Union Of India[76] supreme court states that   the police authorities also have the responsibility to provide immediate medical treatment to an injured person .

Right of health of accident victims and resultant obligations

Finally  in  S Rajashekhran v Union of India[77] the court fully looked in to emergency medical care system prevailing in India and made following observations.

• In so far as emergency is concerned there is perhaps no denial of the fact that many deaths and loss of limbs and serious disfiguration of victims can be saved by timely Medical attention.


• Lack of adequate number of good Samaritans; squabbles between police stations and Administrative authorities over jurisdiction.


• Lack of quick response in removing the victims to hospitals and centers of medical care due to lack of necessary infrastructure like ambulances absence of adequate and well spread out number of hospitals and medical centers.


• The poor condition and lack of adequate infrastructure in government run hospitals and health centers and the prohibitive costs of health care facilities in the more advanced centers of medical care besides insistence of large deposit of money by such advanced health care centers.


• In the private sectors  there are some of the problems that have seriously plagued post trauma/accident care in the country.


• As already noted, limited attempts have been made on experimental basis and that too on national highways alone to provide better amenities and also to take care of the fund requirements for the first 48 hours following the accident.


• The experiment needs to be extended by the Central Government to more stretches of the National Highways besides introduction and under their control and jurisdiction.

Thereafter the  court appointed a committee under the chairmanship of Justice K S Radakrishanan for monitoring the process.

Again  in  Save Life Foundation V. Union Of India   [78] the court passed an order to appoint a committee headed by Shri K Skandan about the issues faced by Good Samaritans and the court directed the ministries of  road transport and  highways and ministry of law and justice  to issue directions with regard to the protection of Good Samaritans until appropriate legislation made by the union legislature in furtherance of this ministry of road transport and highways issued notification on 12^th may 2015.

As per the   recommendations by the Skandan committee to the Supreme Court any doctor refusing to attend or treat a road accident victim must face disciplinary actions  as per the norms laid down under the Medical Council of India Guidelines. The  committee also suggested that the hospitals must admit such victims and the person  who bought the injured to the hospital should not be   not be detained by the hospital authorities and authorities should   not ask them for registrations or for any other formalities.

The committee recommended that guidelines should be issued by the health ministry and that all hospitals including   private hospitals  should comply with the  guidelines. The committee also talks about  setting  trauma care centers across the state and also insists upon  disciplinary action against the police officials who harassed the good Samaritans .

Right to health of acid victims and resultant obligations.

The benevolent caress of the supreme court also fell upon the acid victims wherein   in 2016 in Laxmi V Union Of India [79]wherein it stated that every acid victim has the right to first  aid. The court observed

• No hospital or clinic should refuse treatment by citing lack of specialized facilities.


• First aid must be administrated to the victim and after stabilization the victims could be shifted to a specialized facility for further treatment if it is required.


• Action may be taken against the hospitals who refuse treatment to the victims.


• Free medical treatment to the acid attack victim is not only provision for physical. Treatment but it also includes availability of medicines bed and food in the concerned hospitals.


• Private hospitals also brought under the purview that private hospital also required to provide free medical treatment to the acid attack victims.

In Parivartan Kendra v. Union of India[80] and others the plight of the acid attack victims and the inadequacy of the compensation payable to the victims as per the order in Laxmi’s[81] case was    highlighted .  The petition pointed that inspite the directions of the Court in Laxmi, acid is still readily available to most of the population in India and the acid attackers are living with impunity, and the victims are not in a position to afford basic care or services.After discussing the enormous cost involved in the treatment of acid attack victims, Court observed:

It is pertinent to mention here that the mandate given by this Court in  Laxmi’s case  nowhere restricts the Court from giving more compensation to the victim of acid attack, especially when the victim has suffered serious injuries on her body which is required to be taken into consideration by this court. In peculiar facts, this court can grant even more compensation to the victim than Rs 3,00,000/- Court also observed that When we consider the instant case of the victims, the very sight of the victim is traumatizing for us. If we could be traumatized by the mere sight of injuries caused to the victim by the inhumane acid attack on her, what would be the situation of the victim be, perhaps, we cannot judge. Nonetheless we cannot be oblivious of the fact of her trauma.

Expressing its anguish over the continuing acid attacks, Court observed:

These attacks have been rampant for the simple reason that there has been no proper implementation of the regulations or control for the supply and distribution of acid. There have been many cases where the victims of acid attack are made to sit at home owing to their difficulty to work. These instances unveil that the State has failed to check the distribution of acid falling into the wrong hands even after giving many directions by this Court in this regard. Henceforth, a stringent action be taken against those erring persons supplying acid without proper authorization and also the concerned authorities be made responsible for failure to keep a check on the distribution of the acid.

The court also observed that  the  order dated 06.02.2013 directing the Union of India and States to implement compensation payable to acid attack victims by creation of a separate fund, only 17 States have been notified of the Victim Compensation Schemes (VSC). Out of which 7 states and 4 Union territories have not initiated the VSC. Even in those States where the Scheme has been implemented a meager compensation ranging between Rs.25,000/- toRs.2 lakhs is provided for medical care. And many States have not provided any compensation for rehabilitation at all. In the present case, the Govt. of Bihar has fixed a pitiable amount of rs.25,000/- for the victims of acid attack .

Court observed:

We cannot be oblivious of the fact that the victim of acid attack requires permanent treatment for the damaged skin. The mere amount of Rs. 3 lakhs will not be of any help to such a victim. We are conscious of the fact that enhancement of the compensation amount will be an additional burden on the State. But prevention of such a crime is the responsibility of the State and the liability to pay the enhanced compensation will be of the State. The enhancement of the Compensation will  firstly,   help the victim in rehabilitation; and secondly  make the State to implement the guidelines properly as the State will try to comply with it in its true sprit so that the crime of acid attack can be prevented in future.Court ordered to Implement guidelines in Laxmi, include victims in disability list.Further more the Court ordered that the State shall upon itself take full responsibility for the treatment and rehabilitation of the victims of acid attack as per the Guidelines provided in  Laxmi’s case.

CONCLUSION

Thus it  is beyond doubt that ensuring  right to health and access to health care services thus is  fundamental task of a  State.   if the State exists to safeguard the rights of its citizens to the fundamental pre- requisites of survival, it must also own up its responsibility to protect them from illness and premature mortality[82]. This implies that health is a basic human value, that the good health of the population is a requisite for a country’s economic health and that State therefore have a positive responsibility to assure equitable access to essential health care services and to protect individuals against unhealthy circumstances that could jeopardize their physical and mental integrity and affect their private lives and well-being.Health care services  must always be accessible to all . Right to health care implies that governments, within the limits of existing possibilities, should assure sufficient availability of necessary facilities and services should be of good quality and accessible to everyone without undue financial burden to the individual. This latter aspect may be termed as the facilitative part of the right to access to health care.The steps to be taken to achieve the realization of right to health must include    both protective elements ie reduction of the still birth-rate and the prevention, treatment, and control of epidemic, endemic, occupational and other diseases as well as facilitative elements the creation of conditions which would assure to all medical service and medical attention in the event of sickness.

[1]R.K.Abichandan, “Human Right: Role of Courts in Realization of the Rights,” in Law Shop On Doctor Patient and The Law (TILEM) p.64.

[2] Thus Art 47 reads: “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 primary duties and, in particular, the state shall endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and ways which are injuries to health”. Art 39 reads: “The State shall in particular direct 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”. Art 41 reads: “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 incases of unemployment, old age, sickness and disablement, and in other cases of underserved want”. Art.42 reads: “The State shall make provision for securing just and humane condition of work and maternity relief”.

[3] List I Entry 28 reads “Port quarantine, including hospitals connected therewith; Seamen’s and marine hospitals.
List I Entry 47 reads “Insurance”
List III Entry 19 reads “Drugs and Poisons”; Entry 26 reads “Medical Profession”
List III Entry 29 reads “Prevention of the extension from one state to another of infections or contagious diseases or pests affecting men, animals or plants.

[4]  List II Entry 6 reads “Public health, and sanitation; hospitals and dispensaries.
List II Entry 9 reads “Relief of the disabled and unemployable”
List II Entry 15 reads “Preservation, protection and improvement of stock and prevention of animal diseases, veterinary training and practice”

[5]  The framers of our Constitution borrowed the idea of enacting Directive Principles from the Irish Constitution.

[6] S.S.GiriShankar, “ Constitution and Regulation Of Economy,” (1998) XXII  Ac.L.Rev, 23 at 48.

[7]In the Constituent Assembly no discussion took place regarding human right aspect of health. Debates were restricted to general issues of public health ie prohibition of intoxicating drinks.

[8]   See, H.M.Seervai, Constitutional Law of India  VolII (4th ed., 1993), pp.1932-45

[9]  D. Banerji, “Back to Black Death,” (1994 )XXIV EPW, 2568.

[10]  S.11 of Environment Protection Act 1980,s.7, 20 of Cigarettes and Other Tobacco Products (Prohibition Of Advertisement And Regulation Of Trade And Commerce, Production, Supply And Distribution) Act, 2003

[11]S.20 of Water Prevention and Control of Pollution Act 1974; s.3, 16,17 of Air (Prevention and Control of Pollution) Act 1981

[12]  s.2,4,5,7,15, of Prevention of Food Adulteration Act,1954, See also, Agriculture Produce (Grading and Marketing ) Act 1937
S.8, 5,18 of Drugs and Cosmetics Act, 1940; S.3 of Drugs and Magic Remedies (Objectionable Advertisement) Act 1954

[13] S.8, 9 of Plantation Labour Act 1951; See also Plantation Labour Amendment Act 2010, Dangerous Machines Regulation Act 1983

[14] Medical Termination of Pregnancy Act 1971, Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act 1994, The Pre-Natal Diagnostic techniques (Regulation And Prevention ofMisuse)AmendmentAct2002,The Maternity Benefit (Amendment) Act, 2017

[15]         Infant Milk Substitutes Amendment Act 2002

[16]         S.20(1) Prisoners Act 1900

[17]         The Mental Health Act, 2017

[18]         Rights of Persons with Disability Act 2016.

[19]         Epidemic Diseases Act.1897.

[20]         The Indian Medical Council Act, 1956,The  Indian Medical Council (Amendment )Act 2016, Indian Medical Council Regulations 2002,The Dentist Act 1948, The Nursing Council Act 1947, The Clinical Establishments (Registration and Regulation )Act 2010 ,the Pharmacy Act 1948

[21]         See S.3, 4,7,19 of The Transplantation Of Human Organs Act 1994 provides regulatory machinery for the removal, storage and transplantation of organs for therapeutic needs.

[22]         See, Ruth Roemer, ‘ ‘Health Legislation As a tool for Public Health and Health Policy,” (1998) 49(1) Int.Dig.Hlth.Leg .89, 90. See also, Helen Leenen, “Health Law and Health Legislations-Possibilities and Limits,” (1998)49(1) Int.Dig.Hlth.Leg,77,77,Bobbie Jackson, ‘‘Health Legislation,”(1998)316 BMJ 164,164

[23]         Source; Report No. 29374-IN International Bank for Reconstruction and Development International Development Association and International Finance Corporation. Country Strategy for India, September 15, 2004. Annex B5.

[24]         G.P.Verma, “The new dimension of Indian Constitution, Achievement of Justice through abracadabra of social economic engineering,” (1978) II SCJ p.15 See also Upendra Baxi, “The Little Done, The Vast Undone: Some Reflections on Reading Granville Austin, (1967) 9 JILI, 323; Jagat Narain,“ Judicial Law making and the Place of Directive Principle in Indian Constitution”, (1985)27 JILI ,198.

[25]         In Ratlam Municipality v Vardichand AIR 1980 SC 1622 residents of a locality within limits of Ratlan Municipality tormented by stench and stink caused by open drains and public excretion by slum dwellers moved the Supreme Court for a direction to require municipality to do its duty towards the members of the public. It was observed that responsible Municipal Council constituted for the purpose of preserving health and providing better finance cannot run away from its principal duty by pleading financial insatiability. Again in Bandhua Mukti Morcha v Union of India (1984) 3 SCC 161 it was observed that it is the fundamental right of everyone in the country, assured under the interpretation given to Art.21 by the Court in Francis Coralie Mullin v Administrator, Union territory of Delhi (1981) 1 SCC 608 to live with human dignity free from exploitation. This right to live with human dignity enshrined in Art.21 derives its life breath from Directive Principles of State Policy and particularly clasuses (e) and (f) of Art.39 and 41 and 42 and at least therefore it must include protection of the health and strength of workers, men and women of tender age against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of work and maternity relief.

[26]         AIR 1987 SC 990. In the writ petition the petitioner asked for directions in public interest, banning import, manufacture, sale and distribution of such drugs, which have been recommended for banning by the Drugs Consultative Committee, and also asked for cancellation of all licenses authorizing import, manufacture, sale and distribution in respect of such drugs.

[27]         AIR 1987 SC 990 at 995

[28]         Ibid.

[29]         Supra n. 45 at 995.

[30]         R.K Sbi Chandani, “ Human Right : Role of Courts in Realisation of the Rights,” in Law Shop on Doctor, Patient and The Law (TILEM) p.65

[31]         AIR 1989 SC 2039. The facts of the case show that a person riding a scooter was knocked down by a speeding car. A Samaritan carried the victim to the n