Health Law and Human Right

2016 HEALTH AND HUMAN RIGHT
CHANAKYA NATIONAL LAW

UNIVERSITY
SUBJECT- SEMINAR PAPER ON HEALTH LAW

PROJECT WORK ON
HEALTH AND HUMAN RIGHT
SUBMITTED TO- MR. KUMAR GAURAV
SUBMITTED BY
ROHIT SINHA
ROLL NO. 601
10TH SEMESTER
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ACKNOWLEDGEMENT
At the outset, I would like to thank my Mentor & Faculty of Health Law, Mr.Kumar
Gaurav, for being a guiding force throughout the course of this submission and being
instrumental in the successful completion of this project report without which my efforts
would have been in vain. He has been kind enough to give me his precious time and all
the help which I needed. I am immensely thankful for the strength that he has endowed
me with.
I would also like to express my heartfelt gratitude to the other staff of Chanakya National
Law University, for being immeasurably accommodating to the requirements of this
humble endeavor.
Rohit Sinha
Chanakya National Law University
Patna
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TABLE OF CONTENT
AIMS AND OBJECTIVE- ............................................................................................................. 2

RESEARCH METHODOLOGY:- ................................................................................................. 5
SOURCES OF DATA:- .................................................................................................................. 5
SCOPES AND LIMITATIONS:- ................................................................................................... 5
HYPOTHESIS:- .............................................................................................................................. 5
THEME:- ........................................................................................................................................ 5
TABLE OF CONTENT .................................................................................................................. 3
INTRODUCTION .......................................................................................................................... 6
DEFINITION .................................................................................................................................. 7
Definition of Health .................................................................................................................... 7

Definition of Human Right ......................................................................................................... 8
Health as a Human Right ............................................................................................................ 8
Regional Standards ..................................................................................................................... 9
RIGHT TO HEALTH ................................................................................................................... 11
Development of the Concept of the Right to Health................................................................. 11

Key aspects of the right to health .............................................................................................. 13
The right to health contains freedoms ....................................................................................... 13
Health services, goods and facilities must be provided to all without any discrimination ....... 14
Common misconceptions about the right to health................................................................... 14
THE LINK BETWEEN THE RIGHT TO HEALTH AND OTHER HUMAN RIGHTS ........... 15
Links between the right to health and the right to water........................................................... 16

How does the principle of non-discrimination apply to the right to health? ............................ 16
Neglected diseases: a right-to-health issue with many faces .................................................... 18
EVOLUTUION OF THE HEALTH SYSTEM IN INDIA .......................................................... 19
Phase I (1947-83) ...................................................................................................................... 19

Phase II (1983-2000)................................................................................................................. 20
Phase III (post 2000) ................................................................................................................. 22
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REASONS FOR BAD HEALTH SITUATION IN INDIA ......................................................... 23
Poor goal setting and lack of formation of strategic interventions ........................................... 23

Goal-setting and Strategic Interventions ................................................................................... 24
Lack of Focus, Evidence and capacity...................................................................................... 26
Inadequate Capacity to Plan and Implement at the Centre, State and District levels ............... 28
RIGHT TO HEALTH TO SPECIFIC GRPOUPS ....................................................................... 30
WOMEN ................................................................................................................................... 31
Children and adolescents .......................................................................................................... 33
Convention on the Rights of the Child, art. 24 ......................................................................... 35
Persons with disabilities............................................................................................................ 36
Migrants .................................................................................................................................... 38
Persons living with HIV/AIDS ................................................................................................. 40
Women and HIV/AIDS............................................................................................................. 42
Health Right of Workmen ......................................................................................................... 42
Health Right of Mentally ill ...................................................................................................... 44
CONSTITUTIONAL MANDATE TO THE STATE .................................................................. 45
INDIVISIBILITY AND INTERDEPENDENCE ........................................................................ 46
Right to food ............................................................................................................................. 46

Right to a healthy environment ................................................................................................. 46
Health as right to life................................................................................................................. 47
STATES OBLIGATION TO PRESERVE LIFE ........................................................................ 48
Responsibilities of Municipalities and Panchayats ................................................................... 49

RIGHT TO HEALTH: JUDICIAL ACTIVISM .......................................................................... 49
COURT INFLUENCING NATIONAL AND STATE HEALTH LAW AND POLICY ............ 53
National Blood Policy and the Supreme Court ......................................................................... 53

Emergency care of victims of accident and the Supreme Court of India ................................. 54
Emergency medical care guidelines by Supreme Court ........................................................... 55
CONCLUSION ............................................................................................................................. 55
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AIMS AND OBJECTIVE-
The aim of researcher, in doing the research work is to give a broad outline of health and
human right. The project will further analyze the various aspect of right to health and health as
human right in contrast with the various judicial precedents which are relevant to the topic.
RESEARCH METHODOLOGY:-
As whole research work for this work is confined to the library and books and no field
work has been done hence researcher in his research work has opted the doctrinal methodology
of research. Researcher has also followed the uniform mode of citation throughout the project
work.
SOURCES OF DATA:-
For doing the research work various sources has been used. Researcher in the research
work has relied upon the sources like many books of International Law, Articles, and Journals.
The online materials have been remained as a trustworthy and helpful source for the research.
SCOPES AND LIMITATIONS:-

Though the researcher has tried his level best to not to left any stone unturned in doing
his research work to highlight the various aspects relating to the topic, but the topic being so vast
and dynamic field of law and whose horizon and ambit cannot be confined and narrowed down,
the research work has sought with some of the unavoidable limitations.
HYPOTHESIS:-
Researcher by reading and doing preliminary research researcher is of the opinion that
health and human rights are co related, but they dont have direct reference with each other in
any International Instruments or any national documents.
THEME:-
Researcher is basically dealing with the health and human rights in domestic
perspective. Very least observations have been made on International point.
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INTRODUCTION
What is the right to health? This preliminary issue is the subject of much debate. It stresses the
need for detailing meaningful definitions for health conditions. Most of the definitional issues
raised by researcher with regards to drowning apply to the definition of Health. Although
concerns with health and disease have been a major pre-occupation of humans since antiquity,
so, the use of the word health to describe human well being is relatively recent. The word
health was derived from the old English word hoelth, which meant a state of being sound, and
was generally used to infer a soundness of the body.1 Prior to enigmatic physician known as
Hippocrates (c 460-377 BCE, or more appropriately, from around 5 BCE), health was perceived
as a divine gift. Hippocrates was credited with the pioneering shift from divine notions of health,
and using observation as a basis for acquiring health knowledge.
Health is a fundamental human right and a worldwide social goal Health is necessary for the
realization of basic human needs and to attain the status of a better quality of life In 1977, the
30th World Health Assembly decided that the main social target of governments and World
Health Organization (WHO) in the coming decades should be " the attainment by all the citizens
of the world by the year 2000 of a level of health that will permit them to lead a socially and
economically productive life" (WHO 1979)
Such a declaration has led most of the governments in western countries to give much more
priority to their health care systems through higher allocation and better utilization of resources
in order to improve the quality of health care Less developed countries are in the process of
improving it and some among them are yet to start India also has been attempting towards this
end The major hindrances on its way could be attributed to inadequate allocation of resources for
the health sector, rapid population growth, inefficient use of the resources allocated and above all
lack of public consciousness about their own health status Health being a State subject in the
1
Dolfman, Michael L., The Concept of Health: An Historic and Analytic Examination, Journal of School Health,
Published by American School Health Association, Temple University, Philadelphia, Pennsylvania, 1973,
Vol. 43, Pp. 491-497
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Indian federal system, different states in the country have been trying to meet the WHO health
goal through mobilization of both internal and external resources including the funds from
foreign agencies Specifically, the state of Andhra Pradesh has been in the forefront in this regard
and somewhat successful in developing a better public health care delivery system.
However, the achievement of the goal of "health for all" for the state is perhaps still a distant
dream Here a major point that needs to be understood is that the country needs to give emphasis
on the rural health services where nearly 70% of total Indian Population still lives. Despite
repeated pronouncements by the policy makers about the need for rural emphasis, health services
provided to the people have continued to be urban oriented where a major chunk of the resources
allocated to the health sector are spent In this chapter we attempt to give an outline of the
functioning of the health care delivery system of India in general and Andhra Pradesh in
particular Before going into detailed debate on the issues involved it may be useful to clarify
certain baste concepts that are frequently used in health care research.
DEFINITION
Definition of Health
Different professional groups define the concept of health in different ways Medical
professionals define health in terms of illness, which, in turn is expressed in terms of mental or
physical disorders.
This concept of health is predominantly based on pathology and is concerned with the presence
or absence of disease and the stage of its invasiveness Some others define illness through giving
emphasis to the amount of pain suffered or the degree to which individuals are restricted in
undertaking their normal day to day activities For some, the maintenance of health is also linked
to social aspects such as unemployment and wealth. The broadest definition of health appears to
accept anything and everything that can affect health status the most widely accepted definition
of health given by World Health Organization is as follows
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"Health is a state of complete physical, mental and social well being and not merely an absence
of disease or infirmity"2
Definition of Human Right
The fundamental rights that humans have by the fact of being human, and that are neither created
nor can be abrogated by any government.3
Supreme Court and High Court judges at many time emphasized about importance of Human
Right.
In Maneka Gandhi V Union of India,4 all those rights which are essential for the protection and
maintenance of dignity of individuals and create conditions in which every human being can
develop his personality to the fullest extent may be termed Human Rights.
However, dignity has never been precisely defined on the basis of consensus, but it accords
roughly with justice and good society.5 The world conference on Human Rights held in 1993 in
Vienna stated in Declaration that all human rights derive from the dignity and worth inherent in
the human person, and that the human person is the central subject of the human rights and
fundamental freedoms.
Health as a Human Right
Article 25 of the UDHR emphasizes recognition of the right of all persons to an adequate
standard of living, including guarantees for health and well-being. It acknowledges the
relationship between health and well-being and its link with other rights, such as the right to food
and the right to housing, as well as medical and social services. It adopts a broad view of the
right to health as a human right, even though health is but one component of an adequate
standard of living.
2
FRCH 1987, World Health Organisation
3
UDHR,1948
4
AIR 1978 SC 597
5
David P Forsythe, The Internationalization of Human Rights, P 1
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In article 12 of the ICESCR, states parties recognize "the right of everyone to the enjoyment of
the highest attainable standard of physical and mental health." That article identifies some of the
measures the state should take "to achieve the full realization of this right."
Articles 23 and 24 of the CRC recognize the right to health for all children and identify several
steps for its realization. Similarly, CEDAW establishes the obligation to adopt adequate
measures to guarantee women access to health and medical care, with no discrimination
whatsoever, including access to family planning services. It also establishes the commitment to
guarantee adequate maternal and child health care (art. 12[2]).
It is important to clarify that reproductive rights and reproductive health are not the same.
Reproductive health is only a small component of reproductive rights. Further access to
reproductive health services is only one part of the right to reproductive health, just as access to
health services is only one aspect of the right to health. For women to have good reproductive
health they have to have good general health and the physical, economic and social conditions
that make possible good health overall Numerous other instruments also provide for the right to
health.
These are: the International Convention on the Elimination of All Forms of Racial
Discrimination, the Convention relating to the Status of Refugees, the International Convention
on the Protection of the Rights of All Migrant Workers and Members of Their Families, the
Geneva Conventions, the Declaration on the Protection of Women and Children in Emergency
and Armed Conflict, the Standard Minimum Rules for the Treatment of Prisoners, the
Declaration on the Rights of Mentally Retarded Persons, the Declaration on the Rights of
Disabled Persons, and the Declaration on the Rights of AIDS Patients.
Regional Standards
The Inter-American System
Article XI of the American Declaration on the Rights and Duties of Man establishes the right to
the preservation of health through sanitary and social measures (food, clothing, housing, and
medical care), while it conditions its implementation on the availability of public and community
resources.
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Article 34 of the Organization of American States Charter stipulates, as among the goals for
contributing to the integral development of the person, access to knowledge of modern medical
science and to adequate urban conditions. The American Convention on Human Rights alludes
indirectly to the right to health when it refers in article 26 to the commitment of states parties to
take measures to guarantee "the full realization of the rights implicit in the economic, social,
educational, scientific, and cultural standards set forth in the Charter."
The Additional Protocol of San Salvador in article 10 explicitly sets forth the "right to health" for
all individuals. It lists six measures that should be taken by states parties to guarantee this right,
including the development of universal primary care networks. In addition, article 11 guarantees
the right to a healthy environment. Nonetheless, the Protocol rules out the possibility of
submitting individual petitions before the supervisory organs of the Inter-American system with
respect to the right to health.
European System
Article 11 of the European Social Charter refers to the right to protection of health, for the
attainment of which it stipulates health promotion, education and disease prevention activities.
Paragraph 13 of the first Part guarantees access to social and medical assistance to those without
adequate resources. Similarly, article 3 of the Convention on Human Rights and Biomedicine
enshrines equal access to health care.
African System
Article 16 of the African Charter on Human and Peoples Rights enshrines the right to the
highest possible level of health, to which end "necessary measures" will be taken, while also
guaranteeing medical services in case of illness. The African Charter on the Rights and Welfare
of the Child also includes recognition of the right to health.
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RIGHT TO HEALTH
Development of the Concept of the Right to Health
Traditionally health was seen as falling within the private, rather than public, realm. Health was
also understood as the "absence of disease." The first laws containing health-related provisions
go back to the era of industrialization. The Moral Apprentices Act (1802) and Public Health Act
(1848) were adopted in the United Kingdom as a means of containing social pressure arising
from poor labor conditions. The 1843 Mexican Constitution included references to the states
responsibility for preserving public health.6
The evolution towards defining health as a social issue led to the founding of the World Health
Organization (WHO) in 1946. With the emergence of health as a public issue, the conception of
health changed. WHO developed and promulgated the understanding of health as "a state of
complete physical, mental and social well-being and not merely the absence of disease or
infirmity."7 It defined an integrated approach linking together all the factors related to human
well-being, including physical and social surroundings conducive to good health.
With the establishment of WHO, for the first time the right to health was recognized
internationally. The WHO Constitution affirms that "the enjoyment of the highest attainable
standard of health is one of the fundamental rights of every human being without distinction of
race, religion, political belief, economic or social condition." Over time, this recognition was
reiterated, in a wide array of formulations, in several international and regional human rights
instruments, which include:-
Universal Declaration of Human Rights (art. 25)

American Declaration on the Rights and Duties of Man (art. 33)
European Social Charter (art. 11)
International Covenant on Economic, Social and Cultural Rights (art. 12)
African Charter on Human and Peoples Rights (art. 16)
Universal recognition of the right to health was further confirmed in the 1978 Declaration of
Alma-Ata on Primary Health Care, in which states pledged to progressively develop
6
The first nation to formally incorporate guarantees for ESC rights was Mexico (1917 Constitution), though no
specific mention is made of the right to health.
7
Constitution of the World Health Organization, Basic Documents, Official Document No. 240 (Washington, 1991).
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comprehensive health care systems to ensure effective and equitable distribution of resources for
maintaining health. They reiterated their responsibility to provide for the health of their
populations, "which can be fulfilled only by the provision of adequate health and social
measures."8 The Declaration develops the bases for implementing primary health care systems,
which have implications for the observance of the right. While this instrument is not binding, it
does represent a further commitment on the part of states in respect of the right to health, and
establishes the framework for an integrated policy aimed at securing its enjoyment.
In the context of the Alma-Ata Conference, WHO designed the plan, Health for All by the Year
2000,9 which consists of a series of goals and programs to achieve minimum levels of health for
all. Nonetheless, in a context in which health problems associated with poverty and inequity
continue to pose the main obstacles to attaining minimal levels of well-being for most of the
worlds population, the failure to achieve these goals points to the need to rework strategies.
Promoting health, one of the fundamental aspects of primary health care, has been addressed
independently by four successive conferences, the first in Ottawa, Canada, in 198610 and the
most recent in Jakarta, Indonesia, in 1997. The Declaration of Jakarta includes an updated
conceptualization of health and identifies the requirements for its attainment as we head into the
next century. These include "peace, housing, education, social security, social relations, food,
income, womens empowerment, a stable ecosystem, the sustainable use of resources, social
justice, respect for human rights, and equity. Above all else, poverty is the greatest threat to
health."11
Other relevant international initiatives in recent years related to health are the Program of Action
of the International Conference on Population and Development (Cairo, 1994), which
encompassed three goals related to reducing infant and maternal mortality, and guaranteeing
universal access to reproductive health and family planning services; and the Platform of Action
of the Fourth World Conference on Women (Beijing, 1995), which adopted five strategic
objectives aimed at improving womens health worldwide.
8
WHO, Declaration of Alma-Ata, International Conference on Primary Health Care, Alma-Ata, USSR, 6-12
September 1978.
9
WHO, Global Strategy for Health for All by the Year 2000 (Geneva, 1981).
10
First International Conference on Promotion of Health, which issued the Declaration of Ottawa.
11
Jakarta Declaration on Health Promotion (1997).
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Key aspects of the right to health
The right to health is an inclusive right. We frequently associate the right to health with access to
health care and the building of hospitals. This is correct, but the right to health extends further. It
includes a wide range of factors that can help us lead a healthy life. The Committee on
Economic, Social and Cultural Rights, the body responsible for monitoring the International
Covenant on Economic, Social and Cultural Rights, calls these the underlying determinants of
health. They include:
Safe drinking water and adequate sanitation;

Safe food;
Adequate nutrition and housing;
Healthy working and environmental conditions;
Health-related education and information;
Gender equality
The right to health contains freedoms
These freedoms include the right to be free from non-consensual medical treatment, such as
medical experiments and research or forced sterilization, and to be free from torture and other
cruel, inhuman or degrading treatment or punishment.
The right to health contains entitlements. These entitlements include:
The right to a system of health protection providing equality of opportunity for everyone
to enjoy the highest attainable level of health;
The right to prevention, treatment and control of diseases;
Access to essential medicines;
Maternal, child and reproductive health;
Equal and timely access to basic health services;
The provision of health-related education and information;
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Participation of the population in health-related decision making at the national and
community levels.
Health services, goods and facilities must be provided to all without any
discrimination.
Non-discrimination is a key principle in human rights and is crucial to the enjoyment of the right
to the highest attainable standard of health (see section on non-discrimination below).
All services, goods and facilities must be available, accessible, acceptable and of good quality.
Functioning public health and health-care facilities, goods and services must be available
in sufficient quantity within a State.
They must be accessible physically (in safe reach for all sections of the population,
including children, adolescents, older persons, persons with disabilities and other
vulnerable groups) as well as financially and on the basis of non-discrimination.
Accessibility also implies the right to seek, receive and impart health-related information
in an accessible format (for all, including persons with disabilities), but does not impair
the right to have personal health data treated confidentially.
The facilities, goods and services should also respect medical ethics, and be gender-
sensitive and culturally appropriate. In other words, they should be medically and
culturally acceptable.
Finally, they must be scientifically and medically appropriate and of good quality. This
requires, in particular, trained health professionals, scientifically approved and unexpired
drugs and hospital equipment, adequate sanitation and safe drinking water.
Common misconceptions about the right to health
The right to health is NOT the same as the right to be healthy. A common misconception is that
the State has to guarantee us good health. However, good health is influenced by several factors
that are outside the direct control of States, such as an individuals biological make-up and socio-
economic conditions. Rather, the right to health refers to the right to the enjoyment of a variety
of goods, facilities, services and conditions necessary for its realization. This is why it is more
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accurate to describe it as the right to the highest attainable standard of physical and mental
health, rather than an unconditional right to be healthy.
The right to health is NOT only a programmatic goal to be attained in the long term. The fact that
the right to health should be a tangible programmatic goal does not mean that no immediate
obligations on States arise from it. In fact, States must make every possible effort, within
available resources, to realize the right to health and to take steps in that direction without delay.
Notwithstanding resource constraints, some obligations have an immediate effect, such as the
undertaking to guarantee the right to health in a non-discriminatory manner, to develop specific
legislation and plans of action, or other similar steps towards the full realization of this right, as
is the case with any other human right. States also have to ensure a minimum level of access to
the essential material components of the right to health, such as the provision of essential drugs
and maternal and child health services.
A countrys difficult financial situation does NOT absolve it from having to take action to realize
the right to health. It is often argued that States that cannot afford it are not obliged to take steps
to realize this right or may delay their obligations indefinitely. When considering the level of
implementation of this right in a particular State, the availability of resources at that time and the
development context are taken into account. Nonetheless, no State can justify a failure to respect
its obligations because of a lack of resources. States must guarantee the right to health to the
maximum of their available resources, even if these are tight. While steps may depend on the
specific context, all States must move towards meeting their obligations to respect, protect and
fulfill.
THE LINK BETWEEN THE RIGHT TO HEALTH AND OTHER HUMAN RIGHTS
Human rights are interdependent, indivisible and interrelated. This means that violating the right
to health may often impair the enjoyment of other human rights, such as the rights to education
or work, and vice versa.
The importance given to the underlying determinants of health, that is, the factors and
conditions which protect and promote the right to health beyond health services, goods and
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facilities, shows that the right to health is dependent on, and contributes to, the realization of
many other human rights. These include the rights to food, to water, to an adequate standard of
living, to adequate housing, to freedom from discrimination, to privacy, to access to information,
to participation, and the right to benefit from scientific progress and its applications.
Links between the right to health and the right to water
Health is associated with the ingestion of or contact with unsafe water, lack of clean water
(linked to inadequate hygiene), lack of sanitation, and poor management of water resources and
systems, including in agriculture. Most diarrhoeal disease in the world is attributable to unsafe
water, sanitation and hygiene. In 2002, diarrhoea attributable to these three factors caused
approximately 2.7 per cent of deaths (1.5 million) worldwide.
It is easy to see interdependence of rights in the context of poverty. For people living in poverty,
their health may be the only asset on which they can draw for the exercise of other economic and
social rights, such as the right to work or the right to education. Physical health and mental
health enable adults to work and children to learn, whereas ill health is a liability to the
individuals themselves and to those who must care for them. Conversely, individuals right to
health cannot be realized without realizing their other rights, the violations of which are at the
root of poverty, such as the rights to work, food, housing and education, and the principle of non-
discrimination.
How does the principle of non-discrimination apply to the right to health?
Discrimination means any distinction, exclusion or restriction made on the basis of various
grounds which has the effect or purpose of impairing or nullifying the recognition, enjoyment or
exercise of human rights and fundamental freedoms. It is linked to the marginalization of
specific population groups and is generally at the root of fundamental structural inequalities in
society. This, in turn, may make these groups more vulnerable to poverty and ill health. Not
surprisingly, traditionally discriminated and marginalized groups often bear a disproportionate
share of health problems.
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For example, studies have shown that, in some societies, ethnic minority groups and indigenous
peoples enjoy fewer health services, receive less health information and are less likely to have
adequate housing and safe drinking water, and their children have a higher mortality rate and
suffer more severe malnutrition than the general population.
The impact of discrimination is compounded when an individual suffers double or multiple

discrimination, such as discrimination on the basis of sex and race or national origin or age. For
example, in many places indigenous women receive fewer health and reproductive services and
information, and are more vulnerable to physical and sexual violence than the general
population.
Non-discrimination and equality are fundamental human rights principles and critical
components of the right to health. The International Covenant on Economic, Social and Cultural
Rights (Art. 2 (2)) and the Convention on the Rights of the Child (Art. 2 (1)) identify the
following non-exhaustive grounds of discrimination: race, colour, sex, language, religion,
political or other opinion, national or social origin, property, disability, birth or other status.
According to the Committee on Economic, Social and Cultural Rights, other status may
include health status (e.g., HIV/AIDS) or sexual orientation. States have an obligation to prohibit
and eliminate discrimination on all grounds and ensure equality to all in relation to access to
health care and the underlying determinants of health. The International Convention on the
Elimination of All Forms of Racial Discrimination (Art. 5) also stresses that States must prohibit
and eliminate racial discrimination and guarantee the right of everyone to public health and
medical care.
Non-discrimination and equality further imply that States must recognize and provide for the
differences and specific needs of groups that generally face particular health challenges, such as
higher mortality rates or vulnerability to specific diseases. The obligation to ensure
nondiscrimination requires specific health standards to be applied to particular population
groups, such as women, children or persons with disabilities
Positive measures of protection are particularly necessary when certain groups of persons have
continuously been discriminated against in the practice of States parties or by private actors.
Along the same lines, the Committee on Economic, Social and Cultural Rights has made it clear
17
that there is no justification for the lack of protection of vulnerable members of society from
health-related discrimination, be it in law or in fact. So even if times are hard, vulnerable
members of society must be protected, for instance through the adoption of relatively low cost
targeted programmes.
Neglected diseases: a right-to-health issue with many faces
Neglected diseases are those seriously disabling or life-threatening diseases for which treatment
options are inadequate or non-existent. They include leishmaniasis (kala-azar), onchocerciasis
(river blindness), Chagas disease, leprosy, schistosomiasis (bilharzia), lymphatic filariasis,
African trypanosomiasis (sleeping sickness) and dengue fever. Malaria and tuberculosis are also
often considered to be neglected diseases.
There are clear links between neglected diseases and human rights:
Neglected diseases almost exclusively affect poor and marginalized populations in low-
income countries, in rural areas and settings where poverty is widespread. Guaranteeing
the underlying determinants of the right to health is therefore key to reducing the
incidence of neglected diseases.
Discrimination is both a cause and a consequence of neglected diseases. For example,
discrimination may prevent persons affected by neglected diseases from seeking help and
treatment in the first place.
Essential drugs against neglected diseases are often unavailable or inadequate. (Where
they are available, they may be toxic.)
Health interventions and research and development have long been inadequate and
underfunded (although the picture has changed in recent years, with more drug
development projects under way). The obligation is on States to promote the
development of new drugs, vaccines and diagnostic tools through research and
development and through international cooperation.
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EVOLUTUION OF THE HEALTH SYSTEM IN INDIA
The evolution of India's health system can be categorized into three distinct phases:
i. Phase I (1947-83)-when the health policy was based on two principles: that none should
be denied care for want of ability to pay, and (ii) that it was the state's responsibility to
provide health care to the people.
ii. Phase II (1983-2000)-when the first National Health Policy of 1983 articulated the need
to encourage private initiative in health care service delivery, while at the same time
expanding access to publicly funded comprehensive primary health care.
iii. Phase III (post-2000)-which is witnessing a further shift that has the potential to
profoundly affect the health sector in three important ways: (i) the desire to utilize private
sector resources for addressing public health goals; (ii) liberalization of the insurance
sector to provide new avenues for health financing; and (iii) redefining the role of the
state from being only a provider to a financier of health services as well.
Phase I (1947-83)
At the time of Independence, malaria affected almost a quarter of India's population; virulent
diseases such as smallpox, plague and cholera were rampant, maternal mortality was over 2000
per 100,000 live-births and longevity of life was less than 32 years (Bhore 1946). While the
public sector consisted of a few city hospitals, the private sector consisted largely of individual
practitioners of Indian systems of medicine and licentiates practicing in villages, as family
doctors. With meagre resources, this period saw the effective containment of malaria, bringing
down the incidence from an estimated 750 lakh to less than 20 lakh, eradication of smallpox and
plague, halving of the maternal mortality rate (MMR), reduction of the infant mortality rate
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(IMR) from 160 per 1000 live-births to about 105, containing cholera and increasing longevity of
life to almost 54 years. Institutes of excellence such as the All India Institute of Medical Sciences
(AIIMS) were set up for research and quality training, making India an exporter of highly trained
medical doctors. These gains were in no small measure due to the strong foundation of public
health on which the health system was grounded and the highly professionalized cadre of public
health specialist who provided leadership from the front, camping in villages in hostile
environmental conditions, whether to eradicate smallpox or supervise the malaria worker.
However, under the overarching influence of modernization that characterized the post-colonial
phase of global development, the urge to be on par with the western norms of modern medicine
proved to be too strong to resist. India, unlike China, missed the opportunity to launch public
health campaigns to promote, at the community and individual household levels, healthy
lifestyles alongside expanding public investment to assure universal access to water, sanitation,
nutrition and education. Instead, and more particularly during the 1960s and 1970s, public health
campaigns were focused only on promotion of the small family norm and family planning. India
also failed to utilize the strengths of the traditionally used and accepted modes of medical
treatment and gave undue emphasis to allopathy, gradually laying the base for an expanded
market for western style curative services, which are urbanbased as well as costly.
Phase II (1983-2000)
The National Health Policy of 1983

Despite the remarkable achievements in disease control, the failure to control the population, the
lack of access to basic health facilities in rural areas, and the international commitment to focus
on providing comprehensive primary care as envisioned by the Alma Ata Declaration in 1978,
led to the formulation of the National Health Policy of 1983. Limited resources to meet the
growing demand for health services led to the articulation for private sector to shoulder some
part of the burden. An estimated Rs 6500 crore worth of subsidy in terms of exemptions in
customs duty for import of equipment, subsidized inputs such as land, etc. were extended to
stimulate private investment in health. Alongside, the focus of state policy shifted to primary
health care to reduce the iniquitous urban-rural divide and expand access to the rural populations,
particularly the poor.
20
Lack of resources resulted in segmenting health into independent silos of disease control
programmes rather than visualizing health care as a continuum of service. Such segmentation led
to simplistic formulations of the role of state being confined to primary health care and a selected
list of diseases and health interventions, rather than being responsible for the well-being and
health of the people. This phase witnessed an expansion of health facilities for providing primary
health care in rural areas and the implementation of national health programmes (NHPs) for
disease control under vertically designed and centrally monitored structures.
The adoption of this twin strategy had its advantages. With less than Rs 200 per capita
investment (2000), prioritization of interventions that benefit the poor and entail wide
externalities, provided a moral and technical justification. Besides the establishment of health
facilities in accordance with a population norm, guinea worm was eradicated and the disease
load due to infectious diseases reduced and deaths averted. During the 1990s, with assistance
from the World Bank, NHPs were upscaled with impressive outcomes: the cure rate of
tuberculosis (TB) under the Directly Observed Treatment, Short-course (DOTS) programme
doubled and averted an estimated 50 lakh deaths, leprosy was eliminated except in 70 districts,
the incidence of cataract as a cause of blindness reduced from 80% to less than 50% and the
number of polio cases decreased drastically from 29,709 to about 100.
Fiscal stress gave rise to innovation; various States attempted to improve the overall performance
of public health facilities by a combination of policies-improved availability of inputs, greater
flexibility in spending; defining responsibilities and rationalizing performance outputs; widening
the scope for involvement of local bodies, non-governmental organizations (NGOs), etc. It gives
a broad idea of the policy areas, the direction and nature of such innovation and names of the
pioneer states. The initiatives taken and the outcomes are impressive when analyzed in reference
to wide disparities in income and socio cultural behavior, a fast-changing economic scenario,
comparatively unstable political environment in several States and a near stagnant average per
capita investment in primary health care of Rs 105.
Despite the reduced health spending as a result of fiscal pressures that States faced during this
period, most of them took advantage of available opportunities to achieve whatever they could,
21
underscoring the fact that a limited level of investment can only give a commensurate level of
outcome.
Notwithstanding the above, five serious omissions occurred in the public health policy:
(i) The private sector was encouraged without provisions for regulations, standards and
accreditation processes;
(ii) There was an absence of surveillance and epidemiological surveys to get a more accurate
understanding of the changing profile of disease prevalence and incidence, which is necessary
for measuring risk factors, designing interventions and launching information campaigns to
reduce risky behavior;
(iii) Advantage was not taken of the 73rd and 74th Constitutional Amendments for
decentralizing programme implementation to the local bodies/ community for increasing
accountability in the system;
(iv) Neglected of research and development to promote technological innovation; and
(v) Provided inadequate investment in developing the critical mass of required skills and human
resources.
In other words, the governments ran public health programmes that would have been more cost-
effective for the communities and local bodies and in the process neglected their more
fundamental responsibility of governance- of laying down a framework, defining the rules of the
game and monitoring systems to see that no player takes undue advantage in the health sector.
Phase III (post 2000)
National Health Policy II, 2002
By 2000, India had not achieved 13 out of the 17 goals laid down in the first National Health
Policy of 1983 (see Annexure IV). Analysis of the 52nd Round National Sample Survey (NSS)
on the utilization of health services showed that during 1986-96, there was a decrease in the
utilization of public facilities for outpatient care from 26% to 19%; a decrease in access to free
care from 19% to 10% and an increase in the number of persons not seeking care due to financial
incapacity. State-wise comparisons show that the poorest in the poorer States of UP and Bihar
22
had to pay substantial amounts for outpatient treatment and a low utilization of public facilities,
which indicates a virtual breakdown of the public health system.
On the other hand, in Assam and Orissa, a large proportion of persons did not avail of treatment
at all. Read along with the number of untreated ailments due to financial reasons, the picture is
dismal, as it further emphasizes the failure of the public health system in providing risk
protection, since the average cost of outpatient treatment for every episode of illness is
equivalent to three to five days' wage of one earning member of the family.
To reduce the disease burden affecting the poor and alarmed by the falling levels in the
utilization of public facilities, the government brought forth the National Population Policy
(2000), the National Health Policy (2002), and the AYUSH Policy (2000), reiterating its resolve
and commitment to achieve a set of goals by 2010. The goals envisaged are to increase public
investment in health from the current level of 0.9% to 2%-3%; to increase the utilization of
primary care facilities from less than 19% to over 75%; to reduce the MMR by three quarters
from the current level of over 540 per 1000; to reduce the IMR from 62 per 1000 live-births to
less than 30, eradicate polio, eliminate leprosy, reduce deaths on account of TB and malaria by
over 50%, etc. Many of these objectives are in consonance with the Millennium Development
Goals (MDGs) for 2015.
REASONS FOR BAD HEALTH SITUATION IN INDIA
Poor goal setting and lack of formation of strategic interventions
There has been a clear absence of any deliberate strategy to use the organizational tool for
achieving public health goals, except family planning, until the Sixth Five-year Plan when, under
the Minimum Needs Programme, concerted efforts were made to focus on expanding access to
primary care in rural areas. Thus, built over the years, the public health delivery system consists
of a large number of dispensaries, primary health care institutions, small hospitals providing
some specialist services, large hospitals providing tertiary care, medical colleges, paramedical
training institutions, laboratories, etc.
23
The failure to improve the health status, be accountable and responsive to people's needs or
protect them from financial risk has brought into focus the functioning of the public health
system, underscoring its failure in fulfilling such legitimate expectations. The focus of this
section is to understand the causal factors that have led to such a failure. These causal factors can
be divided into three broad groups:
1. Poor goal setting and lack of formulation of strategic interventions;
2. Management Failures;
3. Limited role of the State.
Goal-setting and Strategic Interventions
The public health system is inaccessible, disconnected to public health goals and inadequately
equipped to address people's expectations. For the majority of citizens, the public health system
is out of their reach due to distance, lack of money, lack of confidence in the system or the
availability of a cheaper alternative. The organizational structure requires a villager to travel an
average distance of 2.2 km to reach the first health post for getting a paracetamol; over 6 km for
a blood test and nearly 20 km for hospital care. Given the poor road connectivity, the
unreliability of finding the provider at the health centre, the indirect costs for transport and wages
foregone, the marginal cost of availing a public service outweighs that of getting some treatment
from the local quack.
Further, even when accessed, there is no continuity of care guaranteed. In other words, the
segmentation of the health system into primary, secondary and tertiary, administered and In 8
States, substantial investments were mobilized from the World Bank to upgrade, strengthen and
establish hospitals at the district, sub-district and block levels.
Under these projects, the comprehensive definition of the primary health infrastructure (Health
for All Report of 1980) got a further distortion with the community health centres (CHCs)
rechristened as first referral centres (FRUs), divorcing them from their contextual framework. In
Andhra Pradesh, Karnataka, Punjab, etc. the World Bank-funded CHCs were brought under the
administrative control of autonomous Directorates dealing with secondary level hospitals while
those CHCs not covered under the project are continued to be administered by the Director of
Health Services. An evaluation report of West Bengal, AP, Karnataka and Punjab showed that
while these projects were successful in improving the quality of care in urban and semi-urban
24
areas , an expected outcome, such as, for example, an increase in institutional deliveries was
monitored by different bodies, with none working in coordination, has resulted in the dilution of
the concept of the integral nature of health where curative services are a continuum of the
preventive and promotive health care not realized. Had the focus been on establishing the referral
system and linkages with the other World Bank-assisted disease control and Reproductive and
Child Health (RCH) projects, investments made for strengthening the health systems would have
had a measurable impact on reducing maternal, neonatal and infant deaths, or deaths due to
malaria, TB which require hospitalization. This experience clearly demonstrates that mere
increase in investments in infrastructure does not automatically translate into better public health
outcomes. It also underscores the urgent need for conceptual clarity on the expectations of the
organizational structures that have been established and the urgent need for standardization of
facilities across the country.
Shortage of funds has been primarily responsible for the non-availability of facilities in
accordance with the norms set by the government; and inadequate provisioning of critical inputs
such as drugs, equipment, facilities such as operation theatre, etc. Due to lack of budgets and the
pressure to achieve targets, several States upgraded the two-roomed subcentres to PHCs. With no
place for laboratory, examination, pharmacy, etc. most are non-functional. There are PHCs with
over 33 subcentres and there are subcentres which cover over 200 habitations. It is estimated that
25% of people in Madhya Pradesh and Orissa, and 11% in Uttar Pradesh could not access
medical care due to locational reasons (NSS-India Health Report, 2003). The question that then
arises is to what extent is infrastructure an important determinant in health outcomes? Is there
any association?
The mockery we have made of the health care service delivery system by having subcentres
function in non-standardized places denying dignity and privacy to women who visit the ANM
for treatment and care. It gives the levels of utilization of the PHC facilities.
What emerges from the data is that while in the poorer performing States, the ratio of facilities to
100,000 population are on par with the rest of the States, and even better than that in Andhra
Pradesh and West Bengal, the health outcomes are poor. This shows that it is not the mere
establishment of a physical facility but a combination of factors such as distance, availability and
quality of skills, adequacy of infrastructure and access to alternative sources of care that seem to
influence health-seeking behaviour and determine outcomes which have been captured by a set
25
of indicators such as complete immunization, percentage of those severely malnourished, full
antenatal coverage, safe and institutional deliveries and finally, the IMR and the under 5
mortality rate (U5MR).
While it is clear that infrastructure development had little linkage to goal setting, it is also seen
that policy interventions per se often lacked focus, were not based on hard evidence, and had
weak institutional capacity to translate policy into action.
Lack of Focus, Evidence and capacity
Lack of focus: Vertical versus horizontal programmes The NHP 1983 made a strong policy
commitment to establish a comprehensive primary health care, based on the active involvement
of the community and intersect orally linked to non-health determinants such as water,
sanitation, etc. Such an approach if implemented would have helped avert an additional 15 lakh
infant and 800,000 maternal deaths. Gains could have been impressive. The adoption of the
strategy of selective primary health care, running counter to the vision of a comprehensive
primary health care laid down in the NHP of 1983 was on account of resource constraints.
Compulsions to prioritize resulted in selecting interventions based on the criteria of the extent to
which the disease/condition affected the poor disproportionately more, was technically feasible
to implement and could be made available at comparatively low cost, and to be implemented
vertically from the centre.
Evidence from community-based experiments and surveys however tell another story They
conclusively show that people have other health needs and expectations from their health system
which make integrated approaches more effective, efficient and, in the long run, more
sustainable. The experiments also show that vertical programmes fail to integrate with the
provisioning of general health services, weaken the health system as a whole and, over a period
of time, get disconnected from local health problems, priorities and the community itself.
These observations find resonance in the experience gained so far. A range of health needs such
as treatment for debilitating fever that incur wage losses for the labourer, treatment for epilepsy,
uterine prolapse, infertility or menstrual problems affecting women's ability to work are concerns
26
that are ignored as public health systems narrowly focus on achieving programme targets:
sterilization, immunization, collection of blood smears in case of fever, providing drugs to
sputumpositive persons etc. In fact, even under a programme such as the RCH, which is expected
to be gender-sensitive, due to its vertical, target-oriented nature, the number of women receiving
postpartum care was very low (NFHS II). Given the large number of domiciliary deliveries, the
health workers visited an average of 5.1% mothers within one week of delivery and 16.5%
mothers within 2 months of delivery. In Madhya Pradesh, these figures were 1.8% and 10% and
in Uttar Pradesh 2% and 7.2%, respectively. This not only explains the reason for such high
neonatal mortality but also the unattended morbidity which in these two States was reported to
have affected nearly 17% women, while 10%-13% suffered heavy vaginal bleeding (NFHS-2,
1998-99). Such postpartum morbidities go unmonitored, as they are not part of the programme
targets to be achieved. Apart from such distortions, vertical programming with line item-wise
budgeting provides little flex ibility for front-line workers responsible for delivering care,
making integration difficult as seen in the case of HIV with Family Welfare or providing
treatment for malaria or TB to pregnant women.
Another example of a narrow, programmatic approach is TB. While there is no doubt about the
technical efficacy of DOTS for curing TB, there is some concern about the technomanagerial
approach to a disease that is embedded in the biosocial determinants of poverty, poor housing,
illiteracy, financial problems, migration, and low resilience to the initial side-effects of the drugs
affecting the ability to work. UK and other countries that achieved successes in TB reduction and
containment had no DOTS - indicating that addressing social determinants such as housing could
have manifold dividends as witnessed in post industrial UK. The DOTS programme is a highly
sophisticated one and very well designed, ensuring the availability of microscopes, trained
manpower and drugs etc. but has little effort or budgetary resources for tackling the root cause of
the disease, for spreading awareness about the programme, for social mobilization to see that
people in need get the treatment. Inattention to the social causes or community involvement can
result in dropouts or the very poor not being able to access or continue with the treatment, for
example migratory labour.
27
Besides, a legitimate concern expressed widely is the potential for increase in primary multidrug
resistant (MDR) TB, which is currently estimated to be 2.8% in North Arcot near Chennai. This
is largely on account of the existence of multidrug regimens being administered by doctors in the
private sector and the tendency of shopping that patients resort to, on an average about 6-9
providers, before finally reaching the DOTS center. Such frequent switching of doctors by the
patients is not only draining their financial base but also, with the irrational prescriptions given,
could well be contributing to drug resistance. In Russia, it is reported that during 1997-99, MDR
TB rose from 6% to 13% while among the chronic cases it was over 60%. Drug resistance
happens due to inadequate treatment, use of sub-standard drugs, use of inappropriate preparation
and non-compliance by the patient due to various reasons. MDR TB is not only far more
expensive to treat but may also not be treatable. Yet, India barely has a surveillance network to
closely monitor this aspect. The story of TB reiterates the need for social/community control on
the process and the need for adopting a public health approach to the disease (Atre and Mistry,
FRCH 2005).
Inadequate Capacity to Plan and Implement at the Centre, State and District levels
Failure to develop a public health cadre and widening the eligibility criteria to include clinicians,
without making public health training a mandatory requirement for working in posts that need
public health skills, have adversely affected the implementation of public health programmes.
Non-reservation of posts or the absence of a dedicated public health cadre have also reduced the
employability of persons trained in public health resulting in an accumulated shortage of the
critical mass of epidemiologists, biostatisticians and other personnel. With radiographers,
orthopaedicians, surgeons working as additional chief medical officers in charge of the RCH
programme or programmes for malaria or TB, or IAS officers as project officers of HIV/AIDS,
etc., the lack of technical capacity in providing the required level and quality of leadership at the
State/district-level has been a serious handicap. Mavlankar (Mavlankar 1999), persuasively
argues that one reason for the successful implementation of the maternal health strategies by Sri
Lanka and Malaysia is the availability of technical capacity to design and monitor at all levels,
from the village to the Central Government.
28
While Sri Lanka with its small population of 180 lakh has a Family Health Bureau (basically
dedicated to maternal care) and 3 technical officers and consultants exclusively for maternal
health (MH) at the Central level, India with a billion population has one Director- level officer
for MH in the Ministry of Health at the Centre. Besides the gross inadequacy of the number,
technical posts in the Central Government are manned by personnel drawn from the Central
Health Service with no fixed tenure nor any pre-qualifications. For example, a Director of MH
should have knowledge of public health, obstetrics and midwifery and related fields. While so,
unlike Thailand, the personnel of the Central Health Service have a distinct handicap of not only
not having these technical qualifications but also no experience of working in a PHC or a CHC,
made worse with no field training upon recruitment as is the case with IAS officers. Lack of
technical expertise and non-availability of the critical mass or a minimal number at the Central
and State levels are reasons for public health programmes lacking in focused designing,
development of national treatment protocols and standards, the non-integration with other related
sectors/programme such as TB with HIV, HIV with MH, MH with malaria, health with nutrition
or water, etc.; or absense of technical leadership in States and districts on the operationalization
of interventions based on technical norms; or assessing and building up of technical skills and
human resources required by the programme.
Most importantly, this absence of adequate technical skills have also been responsible for the
near absence of operational research for obtaining the evidence base for designing better targeted
programmes in keeping with the wide social and geographical disparities that characterize India.
Instead, at the Central and State levels, almost 40% of the time of these ill-equipped officers in
charge of complex programmes is spent in attending to administrative duties.
The situation in the States is no better. A survey conducted in 6 States to assess the technical
capacity of these States for maternal health (MH) programmes, (or for that matter malaria)
showed that except one Deputy Director-level officer in Kerala, in none of the other 5-States of
Tamil Nadu, Maharashtra, Rajasthan, Gujarat and Chhattisgarh was there even one officer
exclusively earmarked for monitoring the maternal health programme (Mavlankar 1999). The
situation in the districts is worse. The void in the unavailability of such capacity for surveillance
and monitoring at district levels has temporarily been addressed under the TB control and Polio
29
Pulse programmes by taking persons on a contract basis-many from the government itself, thus
further weakening the already fragile technical capacity required for implementing the large
number of government programmes. In addition is also the question of the State Governments
ability to sustain these programme-based consultants after withdrawal of external
support.
The collection and review of data is hardly given any importance, leave alone analysing it for
future planning. Monitoring is essentially confined to the bare minimum of NHP targets and
now, polio pulse immunization targets. In the absence of any system of surveillance or
epidemiological data gathering, planning interventions lack an evidence base and also make it
impossible for the system to be responsive to felt needs. A study conducted in Zenana Hospital
in Udaipur, Rajasthan found that during 1983-93 nothing had changed despite the improved road
network and awareness levels (Pendse 1993).
The report further observes the failure of the system to provide ambulance services, which
resulted in incurring expenditures on transport ranging between Rs 150 and 300, borrowed from
moneylenders leaving the people poorer both materially and emotionally when despite their
desperate efforts the woman's life could not be saved'. The study also showed that during this
period while there was a drop in eclampsia, there was a 6-fold increase of deaths on account of
malaria induced anaemia and abortions induced by unqualified practitioners.
RIGHT TO HEALTH TO SPECIFIC GRPOUPS
Some groups or individuals, such as children, women, persons with disabilities or persons living
with HIV/AIDS, face specific hurdles in relation to the right to health. These can result from
biological or socio-economic factors, discrimination and stigma, or, generally, a combination of
these. Considering health as a human right requires specific attention to different individuals and
groups of individuals in society, in particular those living in vulnerable situations. Similarly,
States should adopt positive measures to ensure that specific individuals and groups are not
discriminated against.
30
For instance, they should disaggregate their health laws and policies and tailor them to those
most in need of assistance rather than passively allowing seemingly neutral laws and policies to
benefit mainly the majority groups.
To illustrate what the standards related to the right to health mean in practice, this chapter
focuses on the following groups: women, children and adolescents, persons with disabilities,
migrants and persons living with HIV/AIDS.
WOMEN
Convention on the Elimination of All Forms of Discrimination against Women, art. 12

1. States Parties shall take all appropriate measures to eliminate discrimination against women in
the field of health care in order to ensure, on a basis of equality of men and women, access to
health-care services, including those related to family planning.
2. Notwithstanding the provisions of paragraph 1 of this article, States Parties shall ensure to
women appropriate services in connection with pregnancy, confinement and the post-natal
period, granting free services where necessary, as well as adequate nutrition during pregnancy
and lactation.
International Covenant on Economic, Social and Cultural Rights, art. 10 (2)
Special protection should be accorded to mothers during a reasonable period before and after
childbirth. During such period working mothers should be accorded paid leave or leave with
adequate social security benefits.
Women are affected by many of the same health conditions as men, but women experience them
differently. The prevalence of poverty and economic dependence among women, their
experience of violence, gender bias in the health system and society at large, discrimination on
the grounds of race or other factors, the limited power many women have over their sexual and
reproductive lives and their lack of influence in decision-making are social realities which have
an adverse impact on their health. So women face particular health issues and particular forms of
discrimination, with some groups, including refugee or internally displaced women, women in
31
slums and suburban settings, indigenous and rural women, women with disabilities or women
living with HIV/AID facing multiple forms of discrimination, barriers and marginalization in
addition to gender discrimination.
Both the International Covenant on Economic, Social and Cultural Rights and the Convention on
the Elimination of All Forms of Discrimination against Women require the elimination of
discrimination against women in health care as well as guarantees of equal access for women and
men to health-care services. Redressing discrimination in all its forms, including in the provision
of health care, and ensuring equality between men and women are fundamental objectives of
treating health as a human right. In this respect, the Convention on the Elimination of All Forms
of Discrimination against Women (art. 14) specifically calls upon States to ensure that women
in rural areas participate in and benefit from rural development and have access to adequate
health-care facilities,counselling and services in family planning.
The Committee on the Elimination of Discrimination against Women further requires States
parties to ensure women have appropriate services in connection with pregnancy, childbirth and
the post-natal period, including family planning and emergency obstetric care. The requirement
for States to ensure safe motherhood and reduce maternal mortality and morbidity is implicit
here.
Sexual and reproductive health is also a key aspect of womens right to health. States should
enable women to have control over and decide freely and responsibly on matters related to their
sexuality, including their sexual and reproductive health, free from coercion, lack of information,
discrimination and violence. The Programme of Action of the International Conference on
Population and Development12 and the Beijing Platform for Action13 highlighted the right of men
and women to be informed and to have access to safe, effective, affordable and acceptable
methods of family planning of their choice, and the right of access to appropriate health-care
12
Report of the International Conference on Population and Development, Cairo, 513 September 1994 (United
Nations publication, Sales N E.95.XIII.18).
13
Beijing Declaration and Platform for Action, Report of the Fourth World Conference on Women, Beijing, 415
September 1995 (United Nations publication, Sales N E.96.IV.13), chap. I, resolution 1.
32
services that will enable women to go safely through pregnancy and childbirth and provide
couples with the best chance of having a healthy infant.
Violence against women: a womens rights and right-to-health issue
Violence against women is a widespread cause of physical and psychological harm or suffering
among women, as well as a violation of their right to health. The Committee on the Elimination
of Discrimination against Women requires States to, among other things, enact and enforce laws
and policies that protect women and girls from violence and abuse and provide for appropriate
physical and mental health services. Health-care workers should also be trained to detect and
manage the health consequences of violence against women, while female genital mutilation
should be prohibited.14 States must exercise due diligence to prevent, investigate and prosecute
such violence whether it is perpetrated by State actors or private persons. Survivors of any form
of violence against women have the right to adequate reparation and rehabilitation that cover
their physical and mental health.
Children and adolescents
Children face particular health challenges related to the stage of their physical and mental
development, which makes them especially vulnerable to malnutrition and infectious diseases,
and, when they reach adolescence, to sexual, reproductive and mental health problems. Most
childhood deaths can be attributed to a few major causesacute respiratory infections,
diarrhoea, measles, malaria and malnutritionor a combination of these. In this regard both the
International Covenant on Economic, Social and Cultural Rights and the Convention on the
Rights of the Child recognize the obligation on States to reduce infant and child mortality, and to
combat disease and malnutrition. In addition, a baby who has lost his or her mother to pregnancy
and childbirth complications has a higher risk of dying in early childhood. Infants health is so
closely linked to womens reproductive and sexual health that the Convention on the Rights of
the Child directs States to ensure access to essential health services for the child and his/her
family, including pre- and post-natal care for mothers.
14
Committee on the Elimination of Discrimination against Women, general recommendations N 19 (1992) on
violence against women and N 24 (1999) on women and health.
33
Children are also increasingly at risk because of HIV infections occurring mostly through
mother-to-child transmission (a baby born to an HIVpositive mother has a 25 to 35 per cent
chance of becoming infected during pregnancy, childbirth or breastfeeding). Accordingly, States
should take measures to prevent such transmission through, for instance: medical protocols for
HIV testing during pregnancy; information campaigns among women on these forms of
transmission; the provision of affordable drugs; and the provision of care and treatment to HIV-
infected women, their infants and families, including counselling and infant feeding options.
Governments and health professionals should treat all children and adolescents in a non-
discriminatory manner. This means that they should pay particular attention to the needs and
rights of specific groups, such as children belonging to minorities or indigenous communities,
intersex children15 and, generally, young girls and adolescent girls, who in many contexts are
prevented from accessing a wide range of services, including health care. More specifically, girls
should have equal access to adequate nutrition, safe environments, and physical and mental
health services. Appropriate measures should be taken to abolish harmful traditional practices
that affect mostly girls health, such as female genital mutilation, early marriage, and preferential
feeding and care of boys.
Children who have experienced neglect, exploitation, abuse, torture or any other form of cruel,
inhuman or degrading treatment or punishment also require specific protection by States. The
Convention on the Rights of the Child (art. 39) stresses the responsibility of the State for
promoting childrens physical and psychological recovery and social reintegration.
While adolescents are in general a healthy population group, they are prone to risky behaviour,
sexual violence and sexual exploitation. Adolescent girls are also vulnerable to early and/or
unwanted pregnancies. Adolescents right to health is therefore dependent on health care that
respects confidentiality and privacy and includes appropriate mental, sexual and reproductive
health services and information. Adolescents are, moreover, particularly vulnerable to sexually
15
Intersex children are born with internal and external sex organs that are neither exclusively male nor exclusively
female.
34
transmitted diseases, including HIV/AIDS. In many regions of the world, new HIV infections are
heavily concentrated among young people (1524 years of age).16 Effective prevention
programmes should address sexual health and ensure equal access to HIV-related information
and preventive measures such as voluntary counselling and testing, and affordable contraceptive
methods and services.
Convention on the Rights of the Child, art. 24
1. States Parties recognize the right of the child to the enjoyment of the highest attainable
standard of health and to facilities for the treatment of illness an rehabilitation of health. States
Parties shall strive to ensure that no child is deprived of his or her right of access to such health-
care services.
2. States Parties shall pursue full implementation of this right and, in particular, shall take
appropriate measures:
(a) To diminish infant and child mortality;
(b) To ensure the provision of necessary medical assistance and health care to all children with
emphasis on the development of primary health care;
(c) To combat disease and malnutrition, including within the framework of primary health care,
through, inter alia, the application of readily available technology and through the provision of
adequate nutritious foods and clean drinking water, taking into consideration the dangers and
risks of environmental pollution;
(d) To ensure appropriate prenatal and post-natal health care for mothers;
(e) To ensure that all segments of society, in particular parents and children, are informed, have
access to education and are supported in the use of basic knowledge of child health and nutrition,
the advantages of breastfeeding hygiene and environmental sanitation and the prevention of
accidents;
16
Joint United Nations Programme on HIV/AIDS and World Health Organization, AIDS epidemic update:
December 2006, p. 9.
35
(f) To develop preventive health care, guidance for parents and family planning education and
services.
3. States Parties shall take all effective and appropriate measures with a view to abolishing
traditional practices prejudicial to the health of children.
4. States Parties undertake to promote and encourage international cooperation with a view to
achieving progressively the full realization of the right recognized in the present article. In this
regard, particular account shall be taken of the needs of developing countries.
Persons with disabilities
Even though more than 650 million people worldwide have a disability of one form or another
(two thirds of whom live in developing countries), most have long been neglected and
marginalized by the State and society. It is only in recent years that persons with disabilities have
brought about a paradigm shift in attitudes towards them. This has seen a move away from
regarding them as objects of charity and medical interventions towards their empowerment as
subjects of human rights, including but not limited to the right to health.
The right to health of persons with disabilities cannot be achieved in isolation. It is closely linked
to non-discrimination and other principles of individual autonomy, participation and social
inclusion, respect for difference, accessibility, as well as equality of opportunity and respect for
the evolving capacities of children.17
Persons with disabilities face various challenges to the enjoyment of their right to health. For
example, persons with physical disabilities often have difficulties accessing health care,
especially in rural areas, slums and suburban settings; persons with psychosocial disabilities may
not have access to affordable treatment through the public health system; women with
disabilities may not receive gender-sensitive health services. Medical practitioners sometimes
treat persons with disabilities as objects of treatment rather than rights-holders and do not always
seek their free and informed consent when it comes to treatments. Such a situation is not only
17
These and other principles are reflected in art. 3 of the Convention on the Rights of Persons with Disabilities,
which was adopted by the United Nations General Assembly in its resolution 61/106 of 13 December 2006.
36
degrading, it is a violation of human rights under the Convention on the Rights of Persons with
Disabilities and unethical conduct on the part of the medical professional.
Persons with disabilities are also disproportionately susceptible to violence and abuse. They are
victims of physical, sexual, psychological and emotional abuse, neglect, and financial
exploitation, while women with disabilities are particularly exposed to forced sterilization and
sexual violence. Violence against persons with disabilities often occurs in a context of systemic
discrimination against them in which there is an imbalance of power. It is now acknowledged
that it is not the disability itself that may put people with disabilities at risk, but the social
conditions and barriers they face, such as stigma, dependency on others for care, gender, poverty
or financial dependency.
By way of illustration, one can note the neglect that persons with psychosocial or intellectual
disabilities suffer. In many cases, they are treated without their free and informed consenta
clear and serious violation of their right to health. They are, moreover, often locked up in
institutions simply on the basis of disability, which can have serious repercussions for their
enjoyment of the right to health and other rights.
In other cases, these disabilities are often neither diagnosed nor treated or accommodated for,
and their significance is generally overlooked. Adequate policies, programmes, laws and
resources are lackingfor instance, in 2001, most middle- and low-income countries devoted
less than 1 per cent of their health expenditures to mental health.18 As a result, mental health
care, including essential medication such as psychotropic drugs, is inaccessible or unaffordable
to many. Access to all types of health care for persons with psychosocial or intellectual
disabilities is complicated by the stigma and discrimination they suffer, contrary to the obligation
on States to provide access to health care on an equal basis.
The newly adopted Convention on the Rights of Persons with Disabilities requires States to
promote, protect and ensure the full and equal enjoyment of all human rights and fundamental
freedoms by persons with disabilities, including their right to health, and to promote respect for
their inherent dignity (art. 1). Article 25 further recognizes the right to the enjoyment of the
highest attainable standard of health without discrimination for persons with disabilities and
elaborates upon measures States should take to ensure this right.
37
These measures include ensuring that persons with disabilities have access to and benefit from
those medical and social services needed specifically because of their disabilities, including early
identification and intervention, services designed to minimize and prevent further disabilities as
well as orthopaedic and rehabilitation services, which enable them to become independent,
prevent further disabilities and support their social integration.18 Similarly, States must provide
health services and centres as close as possible to peoples own communities, including in rural
areas.
Furthermore, the non-discrimination principle requires that persons with disabilities should be
provided with the same range, quality and standard of free or affordable health care and
programmes as provided to other persons, and States should prevent discriminatory denial of
health care or health services or food or fluids on the basis of disability (see generally arts. 25
and 26 of the Convention).
Importantly, States must require health professionals to provide care of the same quality to
persons with disabilities as to others, including on the basis of free and informed consent. To this
end, States are required to train health professionals and to set ethical standards for public and
private health care. The Convention on the Rights of the Child (art. 23) recognizes the right of
children with disabilities to special care and to effective access to health-care and rehabilitation
services.
Migrants
Migration has become a major political, social and economic phenomenon, with significant
human rights consequences. The International Organization for Migration estimates that, today,
there are nearly 200 million international migrants worldwide. According to the International
Labour Organization, 90 million of them are migrant workers. Although migration has
implications for the right to health in both home and host countries, the focus here is on migrants
in host countries. Their enjoyment of the right to health is often limited merely because they are
migrants, as well as owing to other factors such as discrimination, language and cultural barriers,
or their legal status. While they all face particular problems linked to their specific status and
18
Committee on Economic, Social and Cultural Rights, general comment N 5 (1994) on people with disabilities,
and arts. 25 (b) and 26 of the Convention on the Rights of Persons with Disabilities.
38
situation (undocumented or irregular migrants and migrants held in detention being particularly
at risk),19 many migrants will face similar obstacles to realizing their human rights, including
their right to health.
States have explicitly stated before international human rights bodies or in national legislation
that they cannot or do not wish to provide the same level of protection to migrants as to their
own citizens. Accordingly, most countries have defined their health obligations towards non-
citizens in terms of essential care or emergency health care only. Since these concepts mean
different things in different countries, their interpretation is often left to individual health-care
staff. Practices and laws may therefore be discriminatory.
Major difficulties faced by migrantsparticularly undocumented migrantswith respect to

their right to health:21
Migrants are generally inadequately covered by State health systems and are often unable to
afford health insurance. Migrant sex workers and undocumented migrants in particular have little
access to health and social services;
Migrants have difficulties accessing information on health matters and available services. Often
the information is not provided adequately by the State;
Undocumented migrants dare not access health care for fear that health providers may
denounce them to immigration authorities;
Female domestic workers are particularly vulnerable to sexual abuse and violence;
Migrant workers often work in unsafe and unhealthy conditions;
Migrant workers may be more prone to risky sexual behaviour owing to their vulnerable
situation, far away from their families and their exclusion from major prevention and care
programmes on sexually transmitted diseases and HIV/AIDS. Their situation is therefore
conducive to the rapid spread of these diseases;
19
Persons granted refugee status or internally displaced persons do not fall into the category of migrants. See Specific groups and
individuals: migrant workers (E/CN.4/2005/85).
39
Conditions in the centres where undocumented migrants are detained may also be conducive to
the spread of diseases;
Trafficked persons are subject to physical violence and abuse, and face formidable hurdles
related to their right to reproductive health (sexually transmitted diseases, including infection
with HIV/AIDS, unwanted pregnancies, unsafe abortions).
The International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families (art. 28) stipulates that all migrant workers and their families have
the right to emergency medical care for the preservation of their life or the avoidance of
irreparable harm to their health. Such care should be provided regardless of any irregularity in
their stay or employment. The Convention further protects migrant workers in the workplace and
stipulates that they shall enjoy treatment not less favourable than that which applies to nationals
of the State of employment in respect of conditions of work, including safety and health (art. 25).
The Committee on the Elimination of Racial Discrimination, in its general recommendation N

30 (2004) on non-citizens, and the Committee on Economic, Social and Cultural Rights, in its
general comment N 14 (2000) on the right to the highest attainable standard of health, both
stress that States parties should respect the right of non-citizens to an adequate standard of
physical and mental health by, inter alia, refraining from denying or limiting their access to
preventive, curative and palliative health services. The Special Rapporteur on Health has also
stressed that sick asylum-seekers or undocumented persons, as some of the most vulnerable
persons within a population, should not be denied their human right to medical care.
Finally, migrants right to health is closely related to and dependent on their working and living
conditions and legal status. In order to comprehensively address migrants health issues, States
should also take steps to realize their rights to, among other things, adequate housing, safe and
healthy working conditions, an adequate standard of living, food, information, liberty and
security of person, due process, and freedom from slavery and compulsory labour.
Persons living with HIV/AIDS
40
More than 25 million people have died of AIDS in the past 25 years, making it one of the most
destructive pandemics in recent times. There are now about 33 million people living with
HIV/AIDS. Since emerging as a major health emergency, the epidemic has had a serious and, in
many places, devastating effect on human rights and development.
It is generally recognized that HIV/AIDS raises many human rights issues. Conversely,
protecting and promoting human rights are essential for preventing the transmission of HIV and
reducing the impact of AIDS on peoples lives. Many human rights are relevant to HIV/AIDS,
such as the right to freedom from discrimination, the right to life, equality before the law, the
right to privacy and the right to the highest attainable standard of health.
The links between the HIV/AIDS pandemic and poverty, stigma and discrimination, including
that based on gender and sexual orientation, are widely acknowledged. The incidence and spread
of HIV/AIDS are disproportionately high among certain populations, including women,20
children, those living in poverty, indigenous peoples, migrants, men having sex with men, male
and female sex workers, refugees and internally displaced people, and in certain regions, such as
sub-Saharan Africa. The discrimination they suffer makes them (more) vulnerable to HIV
infection..
At the same time, the right to health of persons living with HIV/AIDS is undermined by
discrimination and stigma. For example, fear of being identified with HIV/AIDS may stop
people who suffer discrimination, such as sex workers or intravenous drug users, from
voluntarily seeking counselling, testing or treatment.
Halting and reversing global epidemics relies heavily on addressing discrimination and stigma.
Importantly, States should prohibit discrimination on the grounds of health status, including
actual or presumed HIV/AIDS status, and protect persons living with HIV/AIDS from
discrimination. State legislation, policies and programmes should include positive measures to
address factors that hinder the equal access of these vulnerable populations to prevention,
treatment and care, such as their economic status.
20
Women are today more vulnerable to infection than men. See Joint United Nations Programme on HIV/AIDS, Report on the
global AIDS epidemic (Geneva, 2006).
41
Universal access to care and treatment is also an important component of the right to health for
persons living with HIV/AIDS. Equally, it is important to ensure the availability of medicines
and strengthen HIV prevention by, for instance, providing condoms and HIV-related information
and education, and preventing mother-to-child transmission. The International Guidelines on
HIV/AIDS and Human Rights provide further guidance on ensuring the rights of persons living
with HIV/AIDS.21
Women and HIV/AIDS
Gender inequality and failure to respect the rights of women and girls are significant factors in
the HIV/AIDS pandemic in many regions of the world. For example, womens subordination to
men in private and public life may prevent women and girls from negotiating safe sex practices.
Women young women in particularare disproportionately vulnerable to infection.
In addition, women have generally less access to available treatments and adequate information.
They are also disproportionately affected by the burden of caregiving. States should put in place
laws and policies that challenge gender inequality and social norms that contribute to HIV/AIDS
expansion. They should also provide equal access to HIV-related information, education, means
of prevention and health services. Significantly, they should ensure womens sexual and
reproductive rights, which are key to HIV prevention. In this respect preventing HIV
transmission in pregnant women, mothers and their children is crucial (see also box on
Treatment Action Campaign below). States should also protect women against sexual violence,
which makes them more vulnerable to HIV infection and other sexually transmitted infections.
Health Right of Workmen
The importance of health promotion at the work place is increasingly recognized particularly in
larger organisations. Health promotion at workplace 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
21
Joint United Nations Programme on HIV/AIDS and Office on the United Nations High Commissioner for
Human Rights, International Guidelines on HIV/AIDS and Human Rights: 2006 Consolidated Version
(United Nations publication, Sales N E.06.XIV.4), General Assembly resolution 60/1 of 16 September
2005 on the 2005 World Summit Outcome and General Assembly resolution 60/224 of 23 December
2005.
42
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, to 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 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 of workman meaningful, held the Supreme Court in C E & R C V. Union of
India.22 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 record 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
22
AIR 1992 SC 2213
43
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.23
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 States
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 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
23
Op.cit.
44
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. Sometimes patients also take advantages to
use hospital for long time after they get proper treatment from the hospital. The following points
would provide a base for clear understanding of the court direction and medico legal cases.
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.24 State has to direct its policy towards securing that health
and strength of workers, men and women, and the children are not put to health hazards 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 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 for raising of the level of nutrition and standard
ofliving 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
24
Part III, Constitution of India 1950
45
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.
INDIVISIBILITY AND INTERDEPENDENCE
Right to food
Nutrition programs and provision of food are substantial components of pri-mary health care
strategies. In article 24(2)(c) of the CRC and article 12(2) of CEDAW re-spectively, the right to
food is considered to be part of the right to health of both children and women. According to the
CESCRs General Comment 12, national strategies on the right to food need be developed in
coordination with the development of health measures, among others (para. 25). (See Module 12
on the right to food.)
Right to a healthy environment
Article 12(2)(b) of the ICESCR specifies the environment as one of the areas for state
intervention in the realization of the right to health. This provision has traditionally been
interpreted as relating simply to occupational health, but in state reporting to the CESCR, it is
increasingly being considered as relating to all environmental issues that affect human health.
Primary health care strategies include access to clean drinking water and sewage services, and
preventive health programs should include control over human activities that may expose people
to environmental hazards detrimental to their health.
Right to adequate housing
General Comment 4 on the right to adequate housing links the availability of basic services,
such as drinking water, housing conditions that protect individuals from health hazards, the
46
availability of health care services and freedom from health-related environmental risks as core
elements of the right (para. 8). WHO has identified housing conditions as the environmental
factor having the most relevant impact on the prevalence of epidemiological diseases.
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; from harmful drugs; for redress against failure to provide immediate
medical aid to injured persons; against starvation deaths; 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
positive 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 effective 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
47
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.
STATES 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 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 to higher standards. 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 victims right to life guaranteed by Article 21.
48
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 harmful 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. This continues to be one of the areas of tension between
these two levels of the authority.
RIGHT TO HEALTH: JUDICIAL ACTIVISM
Health as stated earlier 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 significant role in realization of the right to health by recognising the
49
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.25
In this context the theory of the inter-relatedness between rights was famously articulated in the
Maneka Gandhi26 decision. This became the basis for the subsequent expansion of the
understanding of the protection of life and liberty under Article 21 of the Constitution of India.
The Supreme Court of India further went on to adopt an approach of harmonization between
fundamental rights and directive principles in several cases. With regard to health, a prominent
decision was delivered in Parmanand Katara v. Union of India27. In that case, the court was
confronted with a situation where hospitals were refusing to admit accident victims and were
directing them to specific hospitals designated to admit medico-legal cases. The court ruled that
while the medical authorities were free to draw up administrative rules to tackle cases based on
practical considerations, no medical authority could refuse immediate medical attention to a
patient in need. The court relied on various medical sources to conclude that such a refusal
amounted to a violation of universally accepted notions of medical ethics. It observed that such
measures violated the protection of life and liberty guaranteed under Article 21 and hence
created a right to emergency medical treatment28.
Another significant decision which strengthened the recognition of the right to health was that
in Indian Medical Association v. V.P. Shantha29. In that case, it was ruled that the provision of a
medical service (whether diagnosis or treatment) in return for monetary consideration amounted
to a service for the purpose of the Consumer Protection Act, 1986. The consequence of the
same was that medical practitioners could be held liable under the act for deficiency in service in
addition to negligence. This ruling has gone a long way towards protecting the interests of
patients. However, medical services offered free of cost were considered to be beyond the
purview of the said Act. With regard to the access and availability of medical facilities, the
25
Justice R. K., Abichandani, High Court of Gujurat Report, Ahmedabad, 2004
26
AIR 1978 SC 597
27
AIR 1989 SC 2039
28
Commentary cited from: Arun Thiruvengadam, The Global Dialogue Among Courts: Social Rights
Jurisprudence Of The Supreme Court Of India from a Comparative Perspective in C. Raj Kumar & K.
29
AIR 1996 SC 550
50
leading decision of the Supreme Court was given in Paschim Banga Khet Mazdoor Samiti v.
26
State of West Bengal .
The facts that led to the case were that a train accident victim was turned away from a number of
government-run hospitals in Calcutta, on the ground that they did not have adequate facilities to
treat him. The said accident victim was ultimately treated in a private hospital but the delay in
treatment had aggravated his injuries. The Court realized that such situations routinely occurred
all over the country on account of inadequate primary health facilities. The Court issued notices
to all State governments and directed them to undertake measures to ensure the provision of
minimal primary health facilities. When confronted with the argument that the same was not
possible on account of financial constraints and limited personnel, the Court declared that lack of
resources could not be cited as an excuse for non-performance of a constitutionally mandated
obligation. The Court set up an expert committee to investigate the matter and endorsed the final
report of the said committee. This report contained a seven-point agenda addressing several
issues such as the upgrading of facilities all over the country and the establishment of a
centralized communications system amongst hospitals to ensure the adequacy and prompt
availability of ambulance equipment and personnel. Some commentators have argued that by
recognizing a governmental obligation to provide medical facilities, the Court has created a
justiciable right to health.
The judgment of the Supreme Court in Nilbati Behra State of Orissa30 case holds that in view of
the fundamental right to life (Article 21 of the Constitution)31 the Government cannot claim
sovereign immunity for liability for the negligence of its employees.
The right to health and health care is protected under Article 21 of the Constitution of India, as a
right to life and reach of which can move the Supreme Court on High Court through writ
petition. Practice of medicine is capable of rendering great service to the society provided due
care, sincerity, efficiency and skill are observed by doctors. When doctors performed their duties
towards the patient negligently in a Government hospital, the servants of the state violated the
fundamental right of the patient, guaranteed under Article 21 of the Constitution.
30
AIR 1993 SC 1960
31
Bakshi, P.M., Right to Life and Personal Liberty, The Constitution of India, Universal Law Publishing Co. Pvt.
Ltd., New Delhi, 2003
51
Medical profession has its own ethical parameters and code of conduct. Services of medical
establishments are more of purchasable commodities and the business altitude has given an
impetus to more and more malpractices and instances of neglect. But the question is, whether, on
the whole, branding the entire medical community as a delinquent community would serve any
purpose or will it cause damage to the patients. The answer is, no doubt, the later. It is not that
measures to check such dereliction are absent. Victims of medical negligence, considering action
against an erring doctor, have three options.
Compensatory mode - Seek financial compensation before the Consumer Disputes Redressal
Forum or before Civil Courts,
Punitive/Deterrent mode - Lodge a criminal complaint against the doctor,
Corrective/Deterrent mode - Complaint to the State Medical Council demanding that the doctors
license be revoked.
Jurisdiction of Civil Court was never disputed but its scope was limited for damages only. In the
recent times, professions are developing a tenancy to forget that the self-regulation which is at
the heart of their profession is a privilege and not a right and a profession obtains this privilege in
return for an implicit contract with society to provide good competent and accountable service to
the public. The self-regulator standards in the profession have shown a decline and this can be
attributed to the overwhelming impact of commercialization of the sector. There are reports
against doctors of exploitative medical practices, misuse of diagnostic procedures, brokering
deals for sale of human organs, etc.
It cannot be denied that black sheep have entered the profession and that the profession has been
unable to isolate them effectively. Two basic propositions laid down in law regarding liability for
negligence are: firstly, Breach of Duty to care and secondly, standard of care, i.e. the
practitioner must bring to his task a reasonable degree of skill, knowledge and exercise a
reasonable degree of care with caution. Supreme Court has made necessary guidelines for
protection in order to secure life and health of individuals which are elaborated in the case
presented in this study.
52
COURT INFLUENCING NATIONAL AND STATE HEALTH LAW AND POLICY
Judicial pronouncements of the Supreme Court and the High Courts to see how these decisions
are honoured at the implementation level by the respective Governments both at the Centre and
at the State.
Importance of health as a subject of policy and law lay in its decentralized approach of
Governance. Constitution of India recognizes this and has placed health in the state list giving
predominance to the state governments in policy and legal formulation. But as noted earlier, it
does not mean that the central government does not have any role to play. The central
government has framed a number of health schemes which are implemented by the state
governments. So an attempt has been made here in evaluating the policy responses of both the
central government and the state governments in certain fields of healthcare, where the judiciary
has been actively involved. The present study does not dwell into the effectiveness of such
judicial decisions. What is attempted here is pointing out the linkages between the judicial
decisions and policy formulation.
National Blood Policy and the Supreme Court
In the case of Common Cause Vs Union of India, a writ petition (Writ Petition (civil) 91 of
1992) which was filed in the Supreme Court of India, the petitioner has high-lighted the serious
deficiencies and short-comings in the matter of collection, storage and supply of blood through
the various blood centres operating in the country. The petition requested that an appropriate writ
order or direction be issued directing the Union of India and the States and the Union Territories,
to ensure that proper positive and concrete steps in a time bound programme are immediately
initiated for obviating the malpractices, malfunctioning and inadequacies of the blood banks all
over the country.
The Court after hearing the dismal state of management and administration of blood banks and
also taking up the cause of blood transfusion in the Country has given a landmark ruling in 1996.
53
Emergency care of victims of accident and the Supreme Court of India
In Parmand Katra v. Union of India32 Supreme Court held that every injured citizen brought for
medical treatment should instantaneously be given medical aid to preserve life and thereafter the
procedural criminal law should be allowed to operate in order to avoid negligent death. There is
no legal impediment for a medical professional when he is called upon or requested to attend to
an injured person needing his medical assistance immediately.
The Supreme Court further held that it is for the Government of India to take necessary and
immediate steps to amend various provisions of law which come in the way of government
doctors as well as other doctors in private hospitals or public hospitals to attend to the
injured/serious persons immediately without waiting for the police report as completion of police
formality. It is further submitted that a doctor should not feel himself handicapped in extending
immediate help in such cases fearing that he would be harassed by the police or dragged to court
in such a case.
Road Safety Cell of the Department of Road Transport & Highways, Ministry of Shipping, Road
Transport & Highways Government of India issued a letter1 addressing all the states urging to
take steps to put in place mechanisms towards the need to build confidence in public for helping
road accident victims. Citing the Supreme Court decision in Parmand Katra case, the letter
clearly describes the information contained in the judgment regarding emergency medical care
which is a paramount duty of any doctor/hospital without any fear of procedural laws. A brief
paper on the subject Need to build confidence in public for helping road accident victims was
also annexed by the Ministry with a request to the State Government to widely publicize the
judgment. Also importantly, following the Supreme Court order in 1989, the Motor Vehicles Act
was amended in 1994, to make it mandatory on both the driver/owner of the vehicle to take the
accident victim to the nearest doctor, and the doctor to treat the victim without waiting for any
formalities.
32
1989 AIR 2039
54
Emergency medical care guidelines by Supreme Court
In Paschim Banga Khet Mazdoor Samiti v. State of West Bengal, 33 Paschim Banga Khet
Mazdoor Samiti along with Hakim Seikh have filed the writ petition in Supreme Court feeling
aggrieved by the indifferent and callous attitude on the part of the medical authorities at the
various State run hospitals in Calcutta in providing treatment for the serious injuries sustained.
It is very interesting to note that during the pendency of the writ petition the State Government
decided to make a complete and thorough investigation of the incident and take suitable
departmental action against the persons responsible for the same and to take suitable remedial
measures in order to prevent recurrence of similar incidents. The said committee submitted the
report and recommended various measures to deal with such emergencies in future.
In concluding the decision, the Supreme Court held that lack of financial resources couldn't be a
reason to deny treatment. It is every patient's right to get emergency treatment. The Court
directed that a copy of this judgment be sent for taking necessary action to the Secretary,
Medical and Health Department, of the States.
CONCLUSION
The main conclusions that can be drawn from the study are as follows:
1. Even though right to health is not specifically mentioned as a Fundamental right in the Indian
Constitution, the judiciary has read this right into Article 21 of the Constitution dealing with
right to life and personal liberty.
It means that certain components of the right to health are enforceable in the Indian context.
Coming specifically to accessibility, the Indian courts have dealt with this issue in all its
dimensions viz., Non discrimination, Physical accessibility, Economic accessibility and
Information accessibility.
33
1996 SCC (4) 37
55
2. In interpreting right to health, the courts have blurred the distinction between judicial
functions and administrative functions. In a traditional framework, an adjudicating body is not
expected to go into the measures adopted by the executive branch. Its function is confined to see
whether the measure adopted is a reasonable one and whether it is taken in good spirit. In the
select cases analyzed above, the Courts have gone into the micro management issues
3. The role of court as a facilitator in addressing issues of health is dynamic and timely. But
many a time the governments find it difficult to implement such decisions. Most of the time what
is prescribed as guidelines by the judiciary are in a way directions tending towards policy
making which is and should be confined to the powers of the State. Moreover, some of the
judicial decisions are reactions to some unfortunate extreme events and in their enthusiasm to do
justice, judiciary comes out with a number of policy prescriptions without adequately knowing
the ability of the state to implement such directions. Since this is the case, the respective State
Government may not be proactive in carrying forward the decision in to implementation plans
4. The study of some of the cases clearly brings out the other extreme nature of governance. In
the pendency of some of the case which are studied, it is noted that the Governments (Central
and States) brings in policy changes and legal amendments and also appoints commissions and
notify such changes to the satisfaction of the Court.
5. Health being a State subject in the Constitution, the decision of the Supreme Court and the
respective High Court adds to multitude of other issues. Invariably what is being pleaded by
many states is the lack of financial and manpower resources to undertake massive health
schemes. To be fair most of the health schemes involves high expenditure and requires
competent people. The direction of the Supreme Court or in some cases respective High Courts
are very difficult to implement owing to the above factors.
56
BIBILIOGRAPHY
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2016 HEALTH AND HUMAN RIGHT

CHANAKYA NATIONAL LAW

SUBJECT- SEMINAR PAPER ON HEALTH LAW

AIMS AND OBJECTIVE- ............................................................................................................. 2

Definition of Health .................................................................................................................... 7

Development of the Concept of the Right to Health................................................................. 11

Links between the right to health and the right to water........................................................... 16

Phase I (1947-83) ...................................................................................................................... 19

Poor goal setting and lack of formation of strategic interventions ........................................... 23

INDIVISIBILITY AND INTERDEPENDENCE ........................................................................ 46

Right to food ............................................................................................................................. 46

Responsibilities of Municipalities and Panchayats ................................................................... 49

National Blood Policy and the Supreme Court ......................................................................... 53

SCOPES AND LIMITATIONS:-

Definition of Human Right

Health as a Human Right

The Inter-American System

Development of the Concept of the Right to Health

Universal Declaration of Human Rights (art. 25)

Safe drinking water and adequate sanitation;

The right to health contains freedoms

The right to health contains entitlements. These entitlements include:

Common misconceptions about the right to health

Links between the right to health and the right to water

How does the principle of non-discrimination apply to the right to health?

The impact of discrimination is compounded when an individual suffers double or multiple

Neglected diseases: a right-to-health issue with many faces

EVOLUTUION OF THE HEALTH SYSTEM IN INDIA

The National Health Policy of 1983

Phase III (post 2000)

National Health Policy II, 2002

REASONS FOR BAD HEALTH SITUATION IN INDIA

Poor goal setting and lack of formation of strategic interventions

Goal-setting and Strategic Interventions

Lack of Focus, Evidence and capacity

RIGHT TO HEALTH TO SPECIFIC GRPOUPS

Convention on the Elimination of All Forms of Discrimination against Women, art. 12

International Covenant on Economic, Social and Cultural Rights, art. 10 (2)

Violence against women: a womens rights and right-to-health issue

Children and adolescents

Convention on the Rights of the Child, art. 24

(a) To diminish infant and child mortality;

Persons with disabilities

Major difficulties faced by migrantsparticularly undocumented migrantswith respect to

Migrant workers often work in unsafe and unhealthy conditions;

The Committee on the Elimination of Racial Discrimination, in its general recommendation N

Persons living with HIV/AIDS

Women and HIV/AIDS

Health Right of Workmen

Health Right of Mentally ill

1. Increased daily allocation for diet to patients.

CONSTITUTIONAL MANDATE TO THE STATE

INDIVISIBILITY AND INTERDEPENDENCE

Right to a healthy environment

Right to adequate housing

Health as right to life

STATES OBLIGATION TO PRESERVE LIFE

RIGHT TO HEALTH: JUDICIAL ACTIVISM

National Blood Policy and the Supreme Court

Emergency medical care guidelines by Supreme Court

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