The government should clarify its position on the health rights of its people.

India's poor health indices are cause for concern. The country does not seem to be on track to meet health targets set for the Millennium Development Goals and the 11th Five Year Plan. The persistence of poor indices of health raises many questions and mandates review.

The High Level Expert Group constituted by the Planning Commission and chaired by Professor Srinath Reddy recently proposed Universal Health Coverage for all citizens. The challenge for the nation is to translate into reality this vision of accessible, affordable and equitable health care for all. Even many current government initiatives, such as the National Rural Health Mission are not effectively implemented in practice. Many standard norms are exercised in the breach. Non-functioning health facilities, sub-standard treatment, denial of care and medical negligence are not uncommon. However, the law can also be employed to deliver health justice to all of India's peoples, especially its most vulnerable population.

Constitutional guarantees

The Constitution guarantees fundamental rights to its people. Article 21 gives the citizens the Right to Life. As with all fundamental rights, the Right to Life is justiciable. Many other obligations, required to produce an egalitarian society, are enshrined in the Constitution and are listed under Directive Principles of State Policy. These include Article 47, 39 and 38, which argue for the need to raise the level of nutrition, enhance standards of living and improve public health. They also make a case for social justice and sustainable livelihoods.

The Supreme Court has, on many occasions, cited the Constitution having read many of these principles into the fundamental rights guaranteed to all its citizens. For example, such reading of Directive Principles, which deal with improving the health, into Article 21, adds a completely new dimension to the ideal. Such a reading makes them justiciable. It uses general constitutional guarantees, applies them in particular situations and innovates to ensure that the ideals prescribed in the Constitution can be legally implemented.

Such enlightened readings of the Constitution can and should expand the existing justiciable rights to include international principles and conventions, which the country has signed. Such progressive reading of the Constitution can even fill the gaps in existing legislation by citing the fundamental rights. While the judiciary has been incorrectly accused of activism and overreach, the Supreme Court has consistently employed juristic principles to reframe constitutional issues.

Successful legal initiatives

Social activists and human rights groups have successfully employed public interest litigation to ensure that rights guaranteed in the Constitution and in international law are delivered to people. For example, the Centre for Reproductive Rights and the Human Rights Law Network, in collaboration with grass-root development and social movements, have been fighting for rights of the poor and marginalised. They use the law to advance the position that health is a fundamental right that all governments are legally obliged to protect, respect and fulfil. They cite the Constitution and the Universal Declaration of Human Rights as the legal basis for such a mandate. Such organisations work to provide free legal services and initiate public interest litigation. They also engage in advocacy, conduct legal awareness programmes and investigate violations of rights. They campaign to promote accountability under national and international law. The cases they have spearheaded have awakened a justice system that had been a passive spectator to the suffering endured by India's people.

The Delhi High Court issued a landmark ruling in the Consolidated Laxmi Mandal/Jaitun case in June 2010 holding that the denial of maternal health care is a violation of fundamental constitutional and human rights. Justice S. Muralidhar emphasised that the government is obligated to ensure maternal health services under the judicially recognised constitutional rights to health and reproductive rights. He also cited India's international legal commitments, including the Universal Declaration of Human Rights, the Convention on the Elimination of All Forms of Discrimination against Women and the International Covenant on Economic, Social and Cultural Rights. He reiterated that the right to health and the reproductive rights are part of the Right to Life under Article 21 of the Constitution. He emphasised that the right to health includes access to and minimum standards of treatment and care in public health facilities.

Many PILs have been successful in restoring benefits to people unjustly deprived of their entitlements. The Delhi High Court in January 2011 ordered the establishment of shelters for destitute women and the provision of medical assistance, food and professional help to them. In May 2011, the Court noted that the denial of a ration card to a person living below the poverty line is a denial of the right to food and thereby the Right to Life under the Constitution. The landmark People's Union for Civil Liberties versus the Union of India case established the right to food and prompted the government to propose the Food Security Bill.

The Supreme Court, in response to a PIL, has also ruled that private hospitals, which received land at highly subsidised rates from the government, should provide free treatment to the poor. Similarly, many other PILs in different High Courts have helped in obtaining compensation for denial of health care, provision of water supply to health facilities, establishment of blood banks in district hospitals, construction of shelters for the destitute and camps to provide food rations for the poor.

Moving forward

The government needs to clarify its position on the health rights of its people. It needs to clearly delineate its obligations and establish legal consequences for non-compliance. A constitutional amendment in relation to the Right to Health, similar to the Right to Education Act, should be considered.

The government needs to increase its public spending on health to at least 3 per cent of GDP, in keeping with its improved economic status. It needs to revitalise its public health systems, which have been systematically under-funded and neglected over the past decades. It also needs to focus on social determinants of health with renewed emphasis on the provision of clean water, sanitation, nutrition, housing, education and employment.

While the government subscribes to many ideals and has evolved numerous schemes to put them into action, their implementation leaves much to be desired. The failure of implementation mandates urgent mechanisms for institutional correction of processes and systems to deliver effective health care.Workers in the public health system need to change their work culture to improve the delivery of care. Accountability has to be a core feature of this new system. Social and health activists need to work with the legal fraternity to highlight issues through PILs, when required. Political, corporate, and financial pressures can sometimes be only overcome through law.

The judiciary should recognise that the right to health is constitutionally guaranteed and justiciable. It should fast track PILs related to health and should accept the persuasive value of decisions made in the High Courts. Judges may opt to close off the call of justice and renew the rule of the law in relation to the new question that is presented. On the other hand, they may take up the challenge and rethink, remake and cite the law as best as they can in a way that measures up to the call of justice.

(Professor K.S. Jacob is on the faculty of the Christian Medical College, Vellore. The issues raised in this article were the subject of a recent conference “Using the law for public health” organised by the Centre for Social Medicine and Community Health, JNU; Initiative for Health and Equity in Society, LOCOST, SAMA, Human Rights Law Network and Shaheed Hospital, Dalli Rajhara, at New Delhi.)

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