RIGHT TO HEALTH FROM

CONSTITUTIONAL PERSPECTIVE

AUTHOR: HINA ILIYAS

FACULTY OF LAW
JAMIA MILLIA ISLAMIA
NEW DELHI.

1|Page

Electronic copy available at: http://ssrn.com/abstract=2675009

 LIST OF CASES
Lakshami Kant Pandey v. Union of India.8

Sheela Barse v. Union of India.8

U.P.S.C. Board v. Harishankar8

Bandhua Mukti Morcha v. Union of India....9

P Sivaswamy v. State of Andhra Pradesh.....9

Vincent Panikurlangara v. Union of India... 10

Municipal Corporation v. Jan Mohammed..13

Burrabazar Fire Works Dealers Association and Others v. Commissioner of Police,

Calcutta...13

C.E.R.C. v. Union of India....14

Mr. X. v. Hospital Z.14

Parmanand Katara v. Union of India15

Paschim Banga Khet Mazoor Samity v. State of W.B..15

Consumer Education and Resource Centre Vs Union of

India..21

Bandhua Mukti Morcha Vs Union of

India.21

2|Page

Electronic copy available at: http://ssrn.com/abstract=2675009

Paschim Baga Khet Mazoor Samiti Vs State of West

Bengal.21

Parmanand Katara v. Union of

India..22

State of Punjab and Others Vs Mohinder

Singh...22

Mahendra Pratap Singh Vs State of

Orissa.22

M.C Mehta Vs Union of India..22

Subhash Kumar Vs State of

Bihar..23

Workmen of State Pencil Manufacturing Industries of Madhya Pradesh

Case..23

M.C. Mehta Vs Kamal Nath and

Others.....24

M.I. Builders Pvt. Ltd....24

Th. Majra Singh24

Sheela Barse Vs Union of India and

Another.25

M.C. Mehta Vs Union Of India..27

3|Page
Puttappa Honnappa Talavar v. Deputy Commissioner,

Dharwad27

4|Page
 CONTENTS

ABSTRACT

IMPORTANT PROVISION IN CONSTITUTION OF INDIA FOR

PROTECTION OF HEALTH

(i) RIGHT TO HEALTH UNDER DPSP

(ii) RIGHT TO HEALTH UNDER FUNDAMENTAL DUTIES

(iii) RIGHT TO HEALTH UNDER FUNDAMENTAL RIGHTS

(iv) RESPONSIBILITIES OF INSTITUTION OF LOCAL SELF

GOVERNMENT.

DUTY OF STATES

CONCLUSION

BIBLIOGRAPHY

5|Page
 ABSTRACT
Health is one of the basic requirements of human being. Nowadays India is facing problem of

degradation of health. The Constitution of India is supreme law to govern the whole Nation.

The condition of health is worsening day by day in spite of various health schemes and

policies. The Supreme Court is performing Nobel function of interpretation of provisions of

Constitution. The framers of Indian Constitution have rightly inserted various provisions

regarding health of public. Further the role of Indian Supreme Court is significant in

protecting health of people at large with the help of various decisions. The effective

implementation of Laws enacted based on Constitutional provisions will control the present

problem.

Every State in the modern era has its own Constitution to operate its organs according to

some fundamental rules. The Constitution of India is the law of the land. The fundamental

rule governs the relationship between State and its citizens. The very purpose behind

Constitutional framework is to achieve goals set out in its Preamble. The Preamble to the

Constitution of India confers rights on citizens, imposes duties on them and issues directives

to State to protect the rights of its citizens. The Constitution of India is the basic law of India;

it aims to secure social, economic and political justice. Among the various rights under Indian

Constitution, Right to Health is an important one. Development of the nation depends upon

the healthy population. The basic law of the State safeguards individual rights and promotes

national wellbeing. It is the duty of the State to provide an effective mechanism for the

welfare of the public at large.

Health is the most important factor in national development. It is a condition of a persons

physical and mental state and signifies freedom from any disease or pain. Right to health is a

vital right without which none can exercise ones basic human rights. The Government is

6|Page
under obligation to protect the health of the people because there is close nexus between

Health and the quality of life of a person. There are various provisions under the Constitution

of India which deal with the Health of the Public at large. The founding fathers of the Indian

Constitution rightly inserted Directive principles of State Policy (DPSP) with a view to

protect the health of the public at large. Health is the most precious prerequisite for

happiness1.

1
Chouri, Dnyneshwar, Constitutional Perspective of Right to Health in India, The

IUP Law Review, Vol. II No. 1, Jan, 2012, p. 46

7|Page
 IMPORTANT PROVISIONS IN THE CONSTITUTION OF

INDIA FOR THE PROTECTION OF HEALTH

a) Right to Health as understood under Directive Principles of State

Policies (DPSP):

Part IV of the Indian Constitution deals with certain principles known as Directive Principles

of State Policy. Although the Directive Principles are asserted to be fundamental in the

governance of the country, they are not legally enforceable. They are guidelines for creating a

social order characterized by social, economic, and political justice, liberty, equality, and

fraternity as enunciated in the Preamble.2 These principles are fundamental in the governance

of the country and the State is under the duty to apply these principles while exercising its

law making power. The following directives are of relevance perspective of Right to Health.

1. Article 39: Certain principles of policy to be followed by the State:

This Article secures health and strength of the workers, men and women. It also mandates

that children be given the opportunities and facilities to develop in a healthy manner and in

condition of freedom and dignity and that childhood and youth are protected against

exploitation and against moral and material abandonment. It is true to say that Article 39 (e)

and (f) indicates that the Constitution makers were rather anxious to protect and safeguard the

interests and welfare of workers and children. It enunciates that the working class is

important in nation building and therefore state government shall provide protection to their

2
Article 21 of the constitution of India No person shall be deprived of his life and

personal liberty except procedure established by law

8|Page
health. In Lakshami Kant Pandey v. Union of India3, BHAGAWATI, J. while delivering the

opinion of the court observed that:

It is obvious that in civilised society the importance of child welfare cannot be

overemphasised because the welfare of the entire community, its growth and development

depends upon the health and well being of its children. Children are a supremely important

national asset and the future well being of the nation depends on how its children grow and

develop.

Further, In Sheela Barse v. Union of India,4 Supreme Court has held that A child is a

national asset and therefore, it is the duty of the State to look after the child with a view to

ensuring full development of its Personality.

Clause (f) was modified by the Constitution 42nd Amendment Act, 1976 with a view to

emphasising the constructive role of the State with regard to children.5

2. Article 42: Provision for just and humane conditions of work and maternity relief:

This Article necessitates that the State shall make provision for securing just and humane

conditions of work and maternity relief.6 In U.P.S.C. Board v. Harishankar,7 Supreme Court

3
AIR 1984 SC 469

4
AIR 1986 SC 1786: (1986) 3 SCC 596

5
Pandey, Dr. J. N., Constitutional law of India, Central Law Agency, Allahabad, 44 th

Ed. 2007, p. 380

6
Jain, Prof. M. P., Indian Constitutional law, Lexis Nexis Butterworths Wadhwa,

Nagpur, 6 th Ed. 2010, p. 1383

7
AIR 1979 SC 65: (1978) 4 SC 16

9|Page
has held that Article 42 provides the basis of the larger body of labour law in India. Further

referring to Article 42 and 43, the Supreme Court has emphasised that the Constitution

expresses a deep concern for the welfare of the workers. The Court may not enforce the

Directive Principles as such, but they must interpret law so as to further and not hinder the

goal set out in the Directive Principles. In Bandhua Mukti Morcha v. Union of India8,

BHAGWATI, J. observed: This right to live with human dignity enshrined in Article 21

derives its life breath from the Directive Principles of State Policy and Particularly clauses (e)

and (f) of Article 39 and Article 41 and 42. Since the Directive Principles of State Policy are

not enforceable in a Court of law, it may not be possible to compel the State through judicial

process to make provision by statutory enactment or executive fiat for ensuring these basic

essentials which go on to ensure a life of human dignity.

In P Sivaswamy v. State of Andhra Pradesh,9 the Supreme Court has held that Article 42 of

the Constitution makes it the obligation of the State to make provisions for securing just and

humane conditions of work. There are several Articles in Part IV of the Constitution which

indicate that it is the States obligation to create a social atmosphere befitting human dignity

for citizens to live in.

The gist of Article 42 is that it stands as the basis of the body of labour law and welfare of the

workers. The Court must interpret law to achieve the goals set out in the DPSP.

3. Article 47: Duty of the State to raise the level of nutrition and the standard of living and to

improve public health:

8
AIR 1984 SC 802

9
AIR 1988 SC 1863

10 | P a g e
Article 47 enumerates that the State shall regard the raising of the level of nutrition and the

standard of living of its people and the improvement of public health as among its primary

duties and, in particular, the State shall endeavour to bring about prohibition of the

consumption except for medical purposes of intoxicating drinks and of drugs which are

injurious to health.10

Art 47 is helpful for imposing stringent conditions on liquor trade with reference to Article

19(6). In Vincent Panikurlangara v. Union of India11 the Court stated that maintenance

and improvement of public health have to rank high as these are indispensable to the very

physical existence of the community and on the betterment of these depends, the building of

the society of which the Constitution makers envisaged. Attending to public health, in our

opinion, therefore is of high priority perhaps the one at the top.

The Supreme Court while interpreting Article 47 has rightly stated that public health is to be

protected for the betterment of the society. Further it has been held that, in this welfare era

raising the level of nutrition and improvement in standard of living of the people are primary

duties of the State.

4. Article 48-A: Protection and improvement of environment and safeguarding of forests and

wildlife:

Article 48-A requires that, the State shall endeavour to protect and improve the environment

and to safeguard the forests and wildlife of the country12. This article was inserted by the

10
Bakshi, P. M., The Constitution of India, Universal Law Publishing Co. Pvt. Ltd.,

New Delhi, 9 th Ed, 2009, p. 90

11
AIR 1987 SC 990: (1987) 2 SCC 165

12
Seervai, H. M., Constitutional Law of India, 4th Edition, Universal Law Publication, New Delhi, 2006

11 | P a g e
42nd amendment Act 1976. It obligates the State to endeavour to protect and improve the

environment and to safeguard the forest and wildlife of the country. In M.C. Mehta V. Union

of India13, it was held that, Art 39 (a), 47 and 48-A by themselves and collectively cast a

duty on the State to secure the health of the people, improve public health and protect and

improve the environment

13
JT 2002 (3) SC 527

12 | P a g e
 b) Right To Health and Fundamental Duties:
PART- IV-A of Indian Constitution deals with fundamental duties of citizens.

Article 51- A: Fundamental duties:

It shall be the duty of every citizen of India-

(g) To protect and improve the natural environment including forests, lakes, rivers and wild

life, and to have compassion for living creatures.

It shows that every citizen is under the fundamental duty to protect and improve natural

environment since it is closely related to public health.

13 | P a g e
 c) Right to Health under Fundamental Rights:
Part III of the Indian Constitution deals with fundamental rights. The fundamental rights are

not absolute; they are subject to reasonable restrictions. The prime function of the Supreme

Court is to interpret the law. The Constitution of India has not included right to health i. e.

right to enjoy the highest attainable standard of physical and mental health under a specific

provision. But it is the Indian judiciary who treat right to health an integral part of right to life

which is fundamental for all human beings under Article 21 of the Constitution. The Supreme

Court has given recognition to right to health vide different techniques of interpretation. The

government is under Constitutional obligation to provide health facilities.14

Right to health is also one of the rights, which is implied under right to life and personal

liberty as guaranteed by the Constitution of India.

1. Article 19 (1) (g):

According to Article 19 (1) (g) all citizens shall have the right to practice any profession, or

carry on any occupation, trade or business subject to restrictions imposed in the interest of

general public under clause (6) of Article 19. In Municipal Corporation v. Jan

Mohammed15, the Court held that the expression in the interest of the general public in clause

(6) of Article 19 is of wide import comprehending public order, public health, public security

, morals, economic welfare of the community and the objects mentioned in Part IV of the

Constitution. Further, In Burrabazar Fire Works Dealers Association and Others v.

14
State of Punjab v. Mahinder Singh Chawla AIR 1997 SC 1225

15
AIR 1986 SC 1205: (1986) 3 SCC 20

14 | P a g e
Commissioner of Police, Calcutta16, the Supreme Court has held that Article 19 (1) (g) does

not guarantee the freedom which takes away that communitys safety, health and peace.

It can be said that the reasonable restrictions as imposed on the freedoms are in wide in sense

that Court has the power to interpret the same in the interest of general public. One must

therefore consider Public health as pertinent while enjoying the freedoms under the

Constitution. Also in recent times on many occasions the Supreme Court has highlighted the

significance of public health while delivering many judgments.

2. Article 21: Protection of Life and Personal Liberty:

The multi dimensional view of Article 21 is an important development in Indian

Constitutional jurisprudence. The Supreme Court has come to impose positive obligations

upon the State to take steps for ensuring for the individual a better enjoyment of his life and

dignity under its comprehensive interpretation of Article 21. The right to health as extended

under Article 21 relates with maintenance and improvement of public health, improvement of

the environment etc.

The Supreme Court in C.E.R.C. v. Union of India17, held that right to health, medical aid to

protect the health and vigour of a worker while in service or post-retirement is a fundamental

right under Article 21. One other issue relating to medical care and health arose in Mr. X. v.

Hospital Z18, in which the question before the court was can a doctor disclose to the would be

wife (with whom the marriage is contracted) of a person that he is HIV positive or does it

violate the right to privacy of the person concerned. The court answered both questions in

16
AIR 1998 Cal. 121

17
AIR 1995 SC 922

18
AIR 2003 SC 664

15 | P a g e
negative. Further, the Court stated that the lady proposing to marry such a person is also

entitled to all human rights which are available to any human being. Therefore it includes the

right to be told that a person, with whom she was proposed to be married, was the victim of a

deadly disease which is communicable. The Supreme Court in this instance gave primacy to

the Right to Health over right to privacy.

In Parmanand Katara v. Union of India19, the Supreme Court has considered a very serious

problem existing in medico-legal field such as cases of accident in which the doctors usually

refuse to give immediate medical aid to the victim till, legal formalities are completed. In

some cases the injured die for want for medical aid pending the completion of legal

formalities. The Court stated that preservation of health is of paramount importance. Once

life is lost it cannot be restored. Hence, it is the duty of doctors to preserve life without any

kind of discrimination.

In Paschim Banga Khet Mazoor Samity v. State of W.B.20, the Court ruled that under

welfare State policy, the primary duty of the government is to provide adequate medical

facilities for its people. The Govt. discharges this application by running hospitals and health

centres to provide medical care to those who need it. In State of Punjab v. Ram Lubhaya

Bagga21, the Supreme Court has recognized that provisions of health facilities cannot be

unlimited. It has to be to the extent to which finance permit.

No country has unlimited resources to spend on any of its projects. The above judgments are

the extended view of Article 21 through which Supreme Court held that Right to Health is

19
AIR 1989 SC 2039

20
1996 (4) SCC 37

21
AIR 1998 SC 1703

16 | P a g e
one of the fundamental rights. It is the liberal interpretation of the Article 21 that Right to

Life means something more than mere survival and mere existence.

3. Article 25 and Article 26: Freedom to Profess or Practice Religion and Freedom to

manage Religious Affairs:

Article 25 guarantees to every person and not citizen of India the right to profess and practice

religion and Article 26 gives special protection to religious denominations. Both can be

enjoyed by any person subject to public order, morality and health and other provisions of the

respective part of the Constitution.

The person has the right to enjoy these freedoms but it should not adversely affect the right of

others including that of not being disturbed in their activities22.

d) Responsibilities of Institutions of Local Self Government:

The Indian Constitution observes a federal political structure. There is a division of

legislative powers between the union and the states and assigns certain matters are related to

concurrent competence. In this scheme, the subject of Health has been left to the States to a

large extent.

Article 243-W of the Constitution provides that the legislature of the State may by law,

endow the municipalities with such powers and authorities as may be necessary to enable

them to function as institutions of local self-government23.

22
Church of God in India v. K. K. R. Majestic Colony Welfare Association (2000) 7

SCC 282

23
Jain, Prof. M. P., Supra note 7, p. 474

17 | P a g e
This power is connected with matters included in the Twelfth Schedule, item 6 i.e. Public

health, sanitation conservancy and solid waste management. 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.24

Similar provision is made for the Panchayats under Article 243-G in matters connected with

Eleventh Schedule under item 23 i.e. health and sanitation, including hospitals, including

primary health centres and dispensaries.

24
Abhichantani Justice, R. K. , Health as a Human Right- Role of Courts in Realisation of the Right, available at
http://gujarathighcourt.nic.in/Articles/articles.htm

18 | P a g e
 DUTY OF STATES

India has been independent for more than 60 years but India has yet to provide its citizens the

basic amenities like food security, health care, housing and good environment which are the

basic amenities for a reasonable human existence. A highly inequitable health system has

denied quality health care to all those who cannot afford it. Although the Directive Principles

are asserted to be fundamental in the governance of the country, they are not legally

enforceable. They are guidelines for creating a social order characterized by social,

economic, and political justice, liberty, equality, and fraternity as enunciated in the

Constitutions Preamble. Both the Centre and the State have powers to legislate in the matter

of social security and social insurance, medical profession and prevention of the extension

from one State to another of infections or contagious diseases or pests affecting man, animals

or plants25.

The obligation on 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. Securing the health and strength of workers

including men , women and the tender age children by ensuring that the right of individuals

are not abused and that citizens are not forced by economic necessity to enter vocations

unsuited to their age or strength (Article 39(e)) .The opportunities and facilities are

maintained in a healthy manner and in conditions wherein the freedom and dignity and

individual(s) are protected against exploitation , moral and material abandonment. (Article

39(f)). Right to a healthy environment safeguards human life itself under two aspects,

namely, the physical existence and health of human beings and the dignity of that existence,

25
Entries 23, 26 and 29 respectively contained in the Concurrent list of the Seventh Schedule.

19 | P a g e
the quality of life that renders it worth living26. The State is required to make provisions for

just and humane conditions of work and for maternity benefit (Article 42).

The State should ensure the raising of the level of nutrition and standard of living of its

people by improving the public health of its citizens. Protection of health of citizens and

improvement in their healthy existence is an enshrined cardinal duty of the State27. The State

legislature is under Entry 6 of the State List contained in the Seventh Schedule to the

Constitution, empowered to make laws with respect to Public Health and sanitation, hospitals

and dispensaries. Article 21 embarks on the State the duty to safeguard the Right to Life of

every person, preservation of human life being of paramount importance.

The Constitution (Forty Second Amendment) Act 1976 explicitly incorporated environmental

protection and improvement as part of State policy through the insertion of Article 48A.

Article 51A (g) imposed a similar responsibility on every citizen to protect and improve the

natural environment including forests, lakes, rivers, and wildlife and to have compassion for

all living creatures.In addition to the Constitution, there are five main instruments in the

Indian legal system that deal with regulation of health care and safeguarding individuals

against medical negligence.

26
See Ministerial Conference on Pollution and Climatic Change. The Noordwijk Declaration on

Climate Change, 4 (Nov. 1989)

27
Article 48 A

20 | P a g e
These are: Law of Torts; Consumer Protection Act, 1986; Indian Penal Code, 1860; Indian

Medical Council Act, 1956; Indian Contract Act, 1872.

Various Municipal laws prescribe duties of such local authorities in the sphere of public

health and sanitation which include establishment and maintenance of dispensaries, public

vaccination, providing special medical aid and accommodation for the sick in the time of

dangerous diseases, taking measures to prevent the outbreak of diseases etc. The State may

endow the Municipalities with such powers and authorities which may be necessary to enable

them to function as institutions of self government (Article 242 of the Constitution). State

has provided 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 is included 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. 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.

The citizens can approach the High Court under Article 226 of the Constitution for seeking a

Mandamus to get the duties enforced whenever there is failure of these statutory obligations

of the local authorities. A wide dimension of the Right to Life and the right to a healthy

environment entails the consequent wider characterization of attempts or threats against those

rights, what in turn calls for a higher degree of their protection. The importance of health

promotion at the work place is increasingly recognized particularly in large organizations.

Health promotion of workmen reduces absenteeism thereby leading to gain in the

21 | P a g e
productivity. In Consumer Education and Resource Centre Vs Union of India28 it was

held that the Right to Health is essential for human existence and is, therefore an integral part

of the Right to Life. Fundamental Right under Article 21 read with Articles 39(c), 41 and 43

of the Constitution and makes the life of the workman meaningful and purposeful with

dignity of person. Right to life includes protection of the health and strength of the worker

and is a minimum requirement to enable a person to live with human dignity. Similarly

in Bandhua Mukti Morcha Vs Union of India29, the Supreme Court has held that the Right

to Life includes the right to live with dignity. The Supreme Court held that the right to health

includes the health care and right to determinants of health such as food security, water

supply, housing and sanitation etc. It reflected the importance of health as a prerequisite for

Right to Life whereby it can be inferred that Right to Health is an important human right and

its denial can be detrimental to the existence of human life. The Apex court held in Paschim

Baga Khet Mazoor Samiti Vs State of West Bengal30 that that Article 21 imposes an

obligation on the State to safeguard the right to life of every person therefore 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 his Right to Life guaranteed under Article 21. Further, the

Court ordered that Primary health care centres be equipped to deal with medical

emergencies. It has also been held in this judgment that the lack of financial resources cannot

be a reason for the State to shy away from its constitutional obligation.

Medical practitioners do not enjoy any immunity from an action in tort, and they can be sued

on the ground that they have failed to exercise reasonable skill and care. The Supreme Court

has held that medical practitioners are governed by the Indian Medical Council Act and are

subject to the disciplinary control of the Medical Councils. Service rendered to a patient by a

28
AIR 1955 SC 636
29
AIR 1984 SC 802

30
AIR 1996 SC 426

22 | P a g e
medical practitioner (except where the doctor renders service free of charge to every patient

or under a Contract of personal service), by way of consultation, diagnosis and treatment,

both medical and surgical, was held to fall in the case of within the ambit of Service as

defined in Section 2(1) (O) of the Consumer Protection Act, 1986.In Parmanand Katara v.

Union of India31, the Supreme Court said that whether the patient was innocent or a criminal,

it is an obligation of those in charge of community health to preserve the life of the patient.

Every doctor has a professional obligation to extend his services with due expertise and care

for protecting life. The Right to Health is integral to Right to Life as held in State of Punjab

and Others Vs Mohinder Singh32. Government has a constitutional obligation to provide

health facilities. In Mahendra Pratap Singh Vs State of Orissa33, a case pertaining to the

failure of the government in opening a primary health care centre in a village, the court had

held that the government is required to assist people get treatment and lead a healthy life.

Primary concern should be the primary health centre and technical fetters cannot be

introduced as subterfuges to cause hindrances in the establishment of health centre. It also

stated that, great achievements and accomplishments in life are possible if one is permitted to

lead an acceptably healthy life. Thereby, there is an implication that the enforcing of the

right to life is a duty of the state and that this duty covers the providing of right to primary

health care implying that the right to life includes the right to primary health care.

The Right to Life has been given a wider perceptive to include environment pollution

affecting health of the citizens in the land mark case of M.C Mehta Vs Union of India34 the

Supreme Court has held that environmental pollution causes several health hazards, and

therefore violates Right to Life. Specifically, the case dealt with the pollution discharged by

31
1989(4) SCC 286

32
AIR 1997 SC 1225
33
AIR 1997 Ori 37
34
AIR 1987 SC 1086

23 | P a g e
industries into the Ganges. It was held that victims, affected by the pollution caused, were

liable to be compensated. Similarly, in Subhash Kumar Vs State of Bihar35, the Court

observed that right to life guaranteed by Article 21 includes the right of enjoyment of

pollution-free water and air for full enjoyment of life. Through this case, the Court

recognised the right to a wholesome environment as part of the fundamental Right to Life.

This case also indicated that the municipalities and a large number of other concerned

governmental agencies could no longer rest content with unimplemented measures for the

abatement and prevention of pollution. They may be compelled to take positive measures to

improve the environment. The Supreme Court has used the right to life as a basis for

emphasizing the need to take drastic steps to combat air and water pollution. It has directed

the closure or relocation of industries and ordered that evacuated land be used for the needs

of the community. The first health related Public Interest Litigation was filed in the Supreme

Court in the Workmen of State Pencil Manufacturing Industries of Madhya Pradesh

Case36concerning the death of workers at young age in the slate pencil manufacturing

industries, due to the accumulation of soot in their lungs. The Court required the State to

ensure installation of safety measures in the concerned factories, failing that it could close

down the industries.

In a Public Interest Litigation serious deficiencies and shortcomings in the matter of

collection, storage and supply of blood through various blood centres were highlighted before

the Supreme Court and directions were sought on the Union of India and State to take steps

for obviating the malpractices, malfunctioning and inadequacies of the blood banks37 The

issue of the working of commercial blood banks while recognizing that blood donation is

considered as a great life saving service to humanity the court enforces a duty on the blood

35
AIR 1991 SC 420
36
CWP No. 5143 of 1980
37
AIR 1996 SC 83

24 | P a g e
banks to ensure that the blood that is available with the blood banks for use is healthy and

free from infection. The Supreme Court in this case laid down a system of licensing of blood

banks. It may be inferred from the above reasoning that the State is entrusted with the

responsibility in matters of health, to ensure efficient functioning all centers relating to health

care.

In M.C. Mehta Vs Kamal Nath and Others38the court added that [it] would be equally

appropriate in controversies involving air pollution, the dissemination of pesticides, the

location of rights of ways for utilities, and strip mining of wetland filling on private lands in a

state where governmental permits are required. In both M.I. Builders Pvt. Ltd39 and Th.

Majra Singh40, the court reconfirmed that the public trust doctrine has grown from Article

21 of the Constitution and has become part of the Indian legal thought process for quite a

long time.

In Sheela Barse Vs Union of India and Another41 a case pertaining to the admitting of non-

criminal mentally ill persons to prisons in West Bengal, the Supreme Court has held that (1)

Admission of non-criminal mentally ill persons to jails is illegal and unconstitutional. The

Judicial Magistrate will, upon a mentally ill person being produced, have him or her

examined by a Mental Health Professional/Psychiatrist and if advised by such

MHP/Psychiatrist sends the mentally ill person to the nearest place of treatment and care. It

has further directed the state to improve mental health institutions and integrate mental health

into primary health care, among others.

More recently the Supreme Court has addressed the epidemic of HIV/ AIDS. In a case where

the court had to decide whether an HIV positive man should disclose his condition to the

woman he was to marry, the court has held that the womans right to good health to

38
(1997) 1 SCC 388
39
M.I. Builders Pvt. Ltd v. Radhey Shyam Sahu AIR 1999 SC 2468
40
Th. Majra Singh v. Indian Oil Corporation AIR 1999 J&K 81
41
1993(3) SCALE 417

25 | P a g e
precedence over the mans right to privacy There is sufficient case law on the issue of health

in State run institutions such as remand homes for children and care homes.

With the onward march of science and complexities of living processes, hitherto unknown

diseases are notified. New and emerging diseases, combined with the rapid spread of

pathogens resistant to antibiotics and of disease carrying insects resistant to insecticides, are

daunting challenges to human health. The gap between the ability of microbes to mutate into

drug-resistant strains and mans ability to counter them is widening fast. To meet the new

challenges new drugs have to be found. The Central Government is by Section 26A of the

Drugs and Cosmetics Act, 1940 empowered to prohibit in public interest, manufacture, sale

or distribution of any drug which is likely to involve any risk to human beings or animals or

if does not have the therapeutic value claimed.

The Supreme court in M.C. Mehta Vs Union Of India42 held that there are dicta that life,

public health and ecology have priority over unemployment and loss of revenue. The

precautionary principle requires the State to anticipate, prevent and attack the causes of

environment degradation . Right to pollution free air falls within Article 21, thereby there is

no reason to compel a non-smokers to be helpless victims of air pollution. Right to enjoyment

of pollution free water.

In Puttappa Honnappa Talavar v. Deputy Commissioner, Dharwad43, the High Court has

held that the right to dig bore wells therefore can be restricted or regulated only by an Act of

legislature and that the right to life includes the right to have access to clean drinking water.

The High Court of Rajasthan has held that stray animals in urban areas pose a danger to

people and also cause nuisance to the public.

42
AIR 1987 SC 1086
43
AIR 1998 Kar 10

26 | P a g e
The question before the Court was, does the negligence of restraining the number of these

animals violate Art 21 of the public at large? The Court found that stray animals on the road

interfere with transportation, polluted the city and therefore posed a health risk to people. It

was held that public nuisance caused by these stray animals was a violation of Art. 21, of the

public at large. Thus, in light of above cases a wide dimension of the Right to Life

embedding the right to a healthy environment. An example of the threats is provided by, e.g.,

the effects of global warming on human health: skin cancer, retinal eye damage, cataracts and

eventual blindness, neurological damage, lowered resistance to infection, alteration of the

immunological system (through damaged immune cells); in sum, depletion of the ozone layer

may result in substantial injury to human health as well as to the environment (harm to

terrestrial plants, destruction of the zooplankton, a key link in the food chain), thus disclosing

the needed convergence of human health protection and environmental protection.

The right to health is an individual right imbedded in the Right to Life which requires the

protection of the physical and mental integrity and dignity of the individual; and it is also a

social right in that it imposes on the State and society the collective responsibility for the

protection of the health of the citizens and the prevention and treatment of diseases.

27 | P a g e
 CONCLUSION

From the above discussion of cases it is evident that the Judiciary has held that Article 21,

Right to Life embeds in it the Right to Health also. An effective system of peoples monitoring

of public health services if organized at the village, block and district levels with powers

conferred in Panchayati Raj system would involve community in health services whereby

significantly increasing the accountability of these services. The citizens have a right to

quality health care, treatment and medication regardless of race, religion, social status and

ability to pay. The duties of the State and Municipal authorities can be enforced through the

Courts whenever a breach occurs. It is in the enforcement of these obligations of the State

and local authorities that the Courts can play an effective role in safeguarding the right to

health of the citizens. The term Right to Health is nowhere mentioned in the Indian

Constitution yet the Supreme Court has interpreted it as a fundamental right under Right to

Life enshrined in Article 21. It is a significant view of the Supreme Court that first it

interpreted Right to Health under Part IV i.e. Directive Principles of State Policy and noted

that it is the duty of the State to look after the health of the people at large. In its wider

interpretation of Article 21, it was held by the Supreme Court that, the Right to Health is a

part and parcel of Right to Life and therefore one of fundamental rights provided under

Indian Constitution. In the real sense, the court has played a pivotal role in imposing positive

obligations on authorities to maintain and improve public health.

28 | P a g e
 BIBLIOGRAPHY

BOOKS:-

1. THE CONSTITUTIONAL LAW OF INDIA: BY:- Dr. J.N. PANDEY

2. INDIAN CONTITUTIONAL LAW: BY:- PROF. M.P. JAIN

3. THE CONSTITUTION OF INDIA: BY:- D.D. BASU

STATUTE

1. THE CONSTITUTION OF INDIA.

WEBSITES

1. www.google.co.in

2. lawmin.nic.in

3. www.nesri.org

4. www.lawyersclubindia.com

29 | P a g e