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Right to Health and Medical Care as a Fundamental Right

Dr. Manoj Kumar Sharma
Indian Constitution guarantees right to life in Article 21 which lays down that no person shall be deprived of his life or personal liberty except according to procedure established by law. Right to life would be meaningless unless medical care is assured to a sick person. It has, however, not been guaranteed specifically in the Constitution of India.1 Of late, right to health and medical care has been interpreted to be part of right to life under Article 21 of Indian Constitution. While including right to health and medical care in Article 21, the Supreme Court has drawn support from International Conventions on Human Rights, Universal declaration of Human Rights and the Directive Principles of State Policy enshrined to Part-IV of the Constitution.2
The Apex Court has, by harmonious construction of Part-Ill and Part-IV of the Constitution, prescribed the modality of access to medical treatment.
In Vincent Pani Kurlangara v. Union of India, AIR 1987 SC 990. It was contended that matter of public health is incorporated only in Directive Principles and they are not enforceable before the Court of law, the Supreme Court observed :
“.............As pointed out by us, maintenance and improvement of public health have to rank high as these are indispensable to the very existence of the community and on the betterment of these depends the building of the society which the Constitution-makers envisaged. Attending to public health in our opinion, therefore, is of high priority — perhaps the one at the top.” (AIR 1987 SC 990 at p. 995) 
For the have-nots and weaker sections of society, the right to health and medical care, as a part of right of life, has been accepted as more deep-set and intense. Emphasizing the need to provide medical facilities for improving the general standard of health of workmen consistent with human dignity and right to life and personality, the Supreme Court, in C.E.S.C. Limited v. Subash Chandra Bose, AIR 1992 SC 573, observed that the right to health is fundamental human right to workmen. Health is thus a state of complete physical, mental and social well being. Health is wealth and strength of a workmen which is an integral facet of right to life enshrined in Article 21.
Right to health and medical care thus being the facet of most fundamental right of Indian citizens, its guaranteed enforcement has also been assured. It is towards this end ‘that the attitude of the hospitals, both Government and private, was found grossly unsatisfactory as they refused to attend medico-legal cases especially accident victims. Historical decision of the Supreme Court in Paramanand Katara v. Union of India, AIR 1989 SC 2039 dwelt on this point. In this case a petition was filed under Article 32 on the refusal of a doctor at a private hospital to treat an accident patient for non-compliance of procedural formalities. The Court expressed deep concern on the plight of accident cases where medical facilities are not provided until the procedural formalities are completed which sometimes results in deadly consequences leading to the death of the accident victim. It directed the medical institutions to provide medical aid and treatment immediately irrespective of whether the procedural formalities have been complied with or not. by imposing an obligation on the medical institutions, the Court has conferred a positive right on the citizens. The Court observed :
“There can be no second opinion that preservation of human life is of paramount importance that is on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man. The patient whether he be an innocent person or a criminal liable to punishment under the laws of the society, it is the obligation of those incharge of health of the community to preserve life so that the innocent may be protected and guilty may be punished........ Article 21 of the Constitution casts an obligation on the State to preserve life. The doctors at the Government hospitals positioned to meet the State obligation are, therefore, duty bound to extend medical assistance for preserving life. Every doctor whether at a Government hospital or otherwise has the professional obligation to extend services with due expertise for protecting life.” (AIR 1989 SC 2039 at p. 2043)
The above stand has been affirmed by the Apex Court in Consumer Education and Research Centre v. Union of India, AIR 1995 SC 922. In this case Supreme Court went a step further by holding right to health and medical care a fundamental right under Article 21 read with Articles 39(c), 41 and 47 of the Constitution so as to make the life of the workmen meaningful and purposeful. The right to life which includes protection of health and strength of workers is minimum requirement to enable a person to live with dignity.
Again in Surjit Singh v. State of Punjab, AIR 1996 SC 1388, the Supreme Court held that self preservation of one’s life is necessary concomitant of right to life enshrined in Article 21, fundamental in nature, sacred, precious and inviolable.
Now, the question arises as to whether the meagre resources of the State can help it run away from this obligation towards a billion people of this country? This question was addressed by the Apex Court of the land in Paschim Banga Khet Mazdoor Samiti v. State of West Bengal, AIR 1996 SC 2426, where it further nourished this right. In this case, one person met with an accident and suffered serious injuries. He was denied admission in the Government hospital on account of lack of beds. Therefore, he approached private hospital for his treatment. Consequently huge amount was spent on his treatment. He filed a writ petition claiming compensation on the contention that his right to access to medical treatment, which is an essential element of health, has been denied to him and thus his right to life has been deprived by the State. The Supreme Court awarded a compensation of Rs. 25000. The Supreme Court observed :
“The Constitution envisages the establishment of a welfare State at the federal level as well as at the State level. In a welfare State the primary duty of Govt. is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of obligation undertaken by the Govt. in a welfare State. The Govt. dischages his obligation by running hospitals and health centres which provide medical care to the persons seeking to avail these facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Govt. hospitals run by the State are duty bound to extend medical assistance for preserving human life. Failure on the part of Govt, hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21.”
The Court ordered the State to equip the Primary Health Centres with adequate medical facilities and to upgrade the hospitals at the District and sub-Divisional level. It further directed to make proper arrangement of ambulances for transport of patients; and to modernize the hospitals to deal with the large number of patients in need of emergency treatment on account of high risk of accidents.
Right to health and medical care being necessary concomitant of right to life enshrined in Article 21 of the Constitution, judiciary played a commendable role in effectuating and safeguarding this precious right of the people. Judiciary has not only directed the hospitals to provide health services without waiting for the compliance of legal formalities but have also directed the State to modernize and improve health services at State run hospitals. Over the years Judiciary has developed compensatory jurisprudence and has awarded compensation in appropriate cases where right to health and medical care has been violated. Judiciary has gone a step further by laying down that the State can recover the compensation so awarded from its guilty officers.
Now a question which invites our attention is what are the reasons that the public in general is still not able to realize the fruits of this valuable right in spite of the judiciary being alive and proactive towards this valuable right of the people? The ground reality still remains the same and the people continue to die due to non-provision of medical aid for numerous reasons including non-compliance of legal formalities, lack of facilities at State run hospitals and private hospitals, indifferent and apathetic attitude of the doctors especially in the Government hospitals, poverty and financial constraints of the people in availing specialized treatment in private sector, ignorance of the masses regarding their right to health and medical care and last but not the least, indifferent attitude of the executive in enforcing the directions of the Apex Court regarding right to health and medical care.3 It is pertinent to mention here that as a matter of fact around 75% of the health facilities are provided by the private sector4. However, private hospitals are generally hesitant to provide medical care in medico-legal cases due to legal complexities. Therefore, it is all the more important that private hospitals be channelised properly to effectuate right to health and medical care of the people. Specialized treatment which is generally not available in Government hospitals even at district level is far too expensive in private sector and the poor people die due to their inability to pay for it. As such it not only deprives poor of his right to life but also introduces a class bias.
From the above discussion following propositions emerge 
Health and medical care is fundamental human right of every person and is an Integral facet of right to life. State is under an obligation to safeguard and preserve the right to life of every citizen.
It is the duty of the Government hospitals to provide medical assistance to a person in need and denial of such medical facilities by the State run hospitals amounts to violation of right to life guaranteed in the Constitution.
The aggrieved person can approach the High Court or Supreme Court for remedying the violation of right to life by way of compensation.
That the State after paying the compensation can recover the same from the wrong-doer officer. In other words, State is entitled to be indemnified by the wrongdoer.5
The private hospitals are also under an obligation to provide emergency medical care without waiting for compliance of legal formalities.
Private hospital are generally hesitant to provide medical care in medico legal cases.
Specialised treatment is generally not available in state run hospitals even at district level and it is far too expensive in private hospital as such many people lose their lives due to financial constraints.
To regulate and mobilize private hospitals towards achieving the motto of providing health & medical care as a fundamental right, the registration of private nursing homes should be made compulsory and it should be laid down that they should at least, possess minimum of facilities to cope up with emergencies viz. Ventilator, Cardiac Difiblator, fully equipped operation theatre and ICU etc.
To help improve the situation further private hospitals and nursing homes should be brought under the ambit of writ jurisdiction. In case of denial of emergency medical assistance, they should be subject not only to severe monetary compensation but also to cancellation of registration.
It is proposed that Government should tap financial resources for the purpose of providing this basic amenity. A scheme can be launched to generate revenue from various sources e.g. tax in the form of cess for health care may be levied on vehicles and part of insurance amount of vehicles may be utilized for this purpose. Similarly surcharge may be levied on income-tax for health insurance of the countrymen. The hospital bills of persons having income below Rs. 30000/- per annum may be paid out of this fund. Further, specialised treatment which is far too expensive should be provided out of this reserve in case of persons having income below Rs. 150000/- p.a.
Modernised techniques should be used to Interconnect different hospitals with the health department and an arrangement should be made to make direct payments to the hospitals, in appropriate cases, out of the said reserve since reimbursement procedures are cumbersome and time consuming.
These suggestions may impose some financial burdens on the State but that should not be an excuse for the state to avoid its basic responsibility which has been imposed by Article 21 of the Constitution of India. Even otherwise only the healthy citizens can make healthy India.

Dr. Manoj Kumar Sharma