What’s healthcare? A privilege or a right?

healthcare
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About the Author:

Ayush Kumar Singh is a law student at ICFAI Law School, The ICFAI University, Dehradun

Abstract

The flare – up of the COVID-19 deadly virus has presented law and policy experts around the world with socio-eco-politico-legal issues on an unprecedented scale. The most pressing of these issues is preventing the contagion from spreading. Though India’s response to the pandemic in terms of implementing a national shutdown and other administrative regulations is commendable, it cannot be overlooked that the lack of a statutorily mandated healthcare apparatus at the Centre and State levels has made the public sceptical of the country’s success.

The issue emerges as to why India, like other common law jurisdictions, has not passed a National Health Care Legislation. One likely explanation appears to be that “healthcare system and sanitation” belongs within the “State List,” making it difficult for the Centre to legislate on it without causing conflict with the States; as a result, the National Health Bill, 2009 has been shelved. State sovereignty is vital, if not necessary, for India’s democracy to work. The outbreak, on the other hand, has demonstrated how incapable the United States are at dealing with a catastrophe of this magnitude on their own. Transferring health of the public to the concurrent list could be a realistic alternative, as it would provide Parliament the authority to enact national law while also allowing states to augment it according to their own needs.

Background

In the year 2019, India welcomed around 6.97 lakh international tourists who came to the country on a medical visa. This accounted for 6.9% of total international tourist arrivals in that year. The medical tourism business in India is predicted to reach $9 billion by 2020, according to a report released by the FICCI and Ernst & Young in 2019.[1]

Although the Covid-19 outbreak that followed, may have had an influence on the tourism sector, it is worth mentioning that India is gradually being viewed as a go-to destination for high-quality, low-cost medical care. According to the 2016 Medical Tourism Overall Rankings, India ranked fifth among 41 countries, famous globally for their healthcare services.

Extreme Numerical Disparity

In sharp contrast, widening economic disparity between the haves and have-nots in the country have made access to affordable and high-quality healthcare a faraway dream for many, particularly those living in rural areas. On the other hand, overcrowded and under-equipped public health care facilities and pricey private medical care put top-notch health care out of reach for a large portion of the population.

While India’s healthcare to GDP pledge has been upped to 3% in the 2020-21 Budget, many developed countries, such as Japan and the United States, spend far over 10% of their GDP on the health care sector. India ranks 184th out of 191 countries in terms of health spending, according to the World Health Organization report (WHO).[2] Furthermore, India has only 1.4 beds per 1,000 people, 1 doctor every 1,445 people, and 1.7 nurses per 1,000 people, according to statistics.[3]

Healthcare resources

The Covid-19 pandemic has had a ruthless impact across the country. One of the most important lessons learned from the current crisis is that it has raised public awareness regarding the necessity for a robust and comprehensive public healthcare system that is available to all. Because India has a federalized government, the administration of healthcare is split between the Union and the state governments. On a national level, the Union Ministry of Health and Welfare is in charge of policy execution, on the other hand, topics like public health, which is critical in times of a health emergency, fall under the jurisdiction of the states.

Because the majority of private health-care professionals are located in metropolitan regions, the ongoing pandemic has wreaked havoc on the country’s rural communities.

In any rural location, a primary health care centre is constructed only on the basis of population norms, making it inaccessible to a huge proportion of rural and semi-rural people. A primary health centre (PHC) in India currently has only one medical officer and the others is paramedical officers. That means there is just one doctor for a thirty-thousand-person area. According to the National Rural Health Mission, India currently has 722 district hospitals, 4833 community health centres, 24,049 primary health care centres, and 1,48,366 special care centres.

Using an 80 percent availability assumption, the doctor-patient ratio is predicted to be 1:1445, which is lower than the WHO recommended ratio. Regardless, medical officers and paramedical staffs are currently pushing themselves above the limit in order to meet the Covid-19 requirements and provide healthcare facility to as many patients as possible. But what about the plight of tens of thousands of individuals who have no access to healthcare at all?

The problems of the current healthcare model, which is highly unbalanced with private facilities enjoying wide independence and subject to lax oversight, have begun to unravel, and the current epidemic has brought the expensive price of private medical care to the forefront. This is the perfect occasion for the government to make its first move in recognising   the Right to Healthcare as a Fundamental Right under Article 21 of Indian Constitution and moving healthcare to the concurrent list along with education.

Healthcare’s constitutional position

The Preamble to the Indian Constitution, which lays down the country’s goals, envisions India as a country that provides socioeconomic justice and equality of status and opportunity to its citizens. Chapters III AND IV on Fundamental Rights and Directive Principles of State Policy were added to our Ground norm to support this mission and the principle of Democratic Socialism.[4]

The Supreme Court has ruled that Article 21’s right to live in dignity is derived from state policy directives and thus encompasses health protection.[5]The Directive Principles of State Policy (DPSP), which are incorporated in Chapter IV of the constitution, give government the following responsibilities:[6]

  • To establish a social order that promotes people’s wellbeing, with a focus on public health care. (Article38)
  • To safeguard workers’ health and well-being. (Article 39).
  • To provide public help to people who are sick or incapacitated, or who fall under the category of “undeserved want” (Article 41)
  • Through maternity benefit programmes, preserve the health of the infant and the mother. (Article 42)
  • To keep tabs on people’s living standards and to improve overall public health. (Articles 47)
  • The 11th and 12th schedules of the Constitution also impose obligations on local governments and panchayats in terms of sufficient healthcare, sanitation, and welfare.              

Nonetheless, under Part III of the Indian Constitution, the right to health is not explicitly mentioned as a Fundamental right. Recognizing that the right to life in Article 21 extends beyond “mere animal existence” to include the “bare necessities of life,” the Supreme Court has issued several landmark decisions over the years aimed at securing to the people their long-overdue socio-economic rights. “It was not a question of whether Article 21 unquestionably includes the right to affordable and high-quality healthcare.”[7]

The Supreme Court recognised the imperativeness of states to comply with the Directive Principles of State Policies, despite the fact that they are not immediately enforceable by law, in the landmark decision of BandhuaMorcha v Union of India[8].

The Supreme Court recently ruled in Master Arnesh Shaw v Union of India &Anr.[9] that-

“The Right to Health and Healthcare falls under the ambit of the Right to Life, and that as a Fundamental Right under Article 21, it is imperative that authorities in the field of medicine ensure that patients’ rights are safeguarded and not jeopardised at any cost.”

In light of the aforementioned cases, it is important to note that, while the Constitution does not explicitly recognise the right to healthcare as a fundamental right. The judiciary has widened the scope of Article 21 by including the right to quality healthcare in light of the State’s welfare goals.

J.P. Unnikrishnan v. State’s[10] Importance

Prior to 2002, Article 45 of the Constitution said, “Within ten years of the commencement of this constitution, the State shall endeavour to provide for free and compulsory education for all children until they complete the age of fourteen years.” However, because DPSPs are non-justiciable, judicial enforcement of the right to education has remained a mystery.

In the case of Mohini Jain v. Karnataka &Anr.[11], the Supreme Court made history by recognising the Right to Education as a basic right for the first time. The Right to Life, it was stated in this ruling, is the comprehensive expression of all those rights that the courts must try to enforce since they provide the foundation for the dignified enjoyment of life. It encompasses the entire spectrum of actions that an individual is free to engage in. The court also determined that the Right to Education is inextricably linked to the Right to Life.

Article 21 guarantees the Right to Life and dignity of an individual, but only with a restriction if that right is supplemented by the right to education. The state government has an obligation to make every effort to give educational opportunities to its citizens at all levels.

In the case of J P Unnikrishnan vs. State of Andhra Pradesh, the Supreme Court restricted the scope of the right outlined in Mohini Jain case. In this case, the Supreme Court ruled that free education for children aged 6 to 14 is a basic right. Furthermore, it was decided that Article 21’s protection of the right to life and personal liberty must be interpreted in light of the directive principles of state policy set down in Part IV of the Constitution.

Following that, in 2002, the 86th Constitutional Amendment established Article 21-A (basic right to education for children aged 6 to 14) and Article 51-A (k) (fundamental duty of parents/guardians to provide educational opportunities for their children aged 6 to 14).[12]

The Unnikrishnan decision had a profound impact on the understanding of the directive principles as it prepared the path for the legal enforcement of a critical socioeconomic right: educational access. Quality education and healthcare are, without a doubt, two of the most important determinants of a country’s success and prosperity. As a result, the significance of this decision cannot be overstated.

The imperative need of the hour

The most critical issue in our country right now is guaranteeing low cost and high-quality healthcare. One solution is to move the category for “public health and sanitation” from the state list to the concurrent list, allowing the Centre to draught pan-India legislation.[13] Alternatively, the Judiciary must declare the Right to Quality and Affordable Healthcare to be an inherent component of Article 21 of the Constitution, paving the door for the Centre to draught a Model Act, which the States could then include into their own legislation.

The viability of the former has been a source of contention, as has the question of whether it will jeopardise state rights. However, the general public’s interest will have to be considered, and no one can argue that a state’s right will take precedence over the wellbeing of its residents. The recent devastating second wave of the Covid-19 epidemic revealed numerous states’ fragility and inequity in coping with the pandemic.

While a few states were successful in curbing the pandemic early on, the way the larger governments dealt with the situation, left a lot to be desired. States were found to be unprepared and unsure of how to reduce the number of positive cases. It eventually devolved into a blame game between the states and the federal government, with each side attempting to shift blame to the other to hide their own inefficiencies.

Much of this can be prevented in the future if the right to healthcare is either included to the concurrent list of the Constitution’s 7th schedule or designated a fundamental right. In such a case, the central government can take the lead in dealing with the pandemic or any other scenario in which the lives of its residents are in jeopardy. The states would do well to follow the Centre’s instructions, which would result in equity in how all states handle issues across the country, as well as uniform healthcare for all inhabitants of the country, regardless of state size or development.

The right to health should be designated a basic fundamental right, according to a high-level discussion on the health sector convened by the 15th Finance Commission in September 2019. It also proposed that the issue of health be moved from the State List to the Concurrent List. If enacted, the recommendation to designate the right to health a fundamental right will improve people’s access to high-quality healthcare.

It may be claimed that the Constitution has made extraordinary efforts and has made an explicit plea to the government to offer a reasonable level of living in terms of fundamental rights through the Directive Principles of State Policy. Healthcare has been identified by the judiciary as an important subject to be included in the Fundamental Rights, as evident in many precedents.

Apart from this, India has signed international legal treaties such as the International Covenant on Economic, Social, and Cultural Rights (ICESCR) to improve and offer adequate public services as well as assure a minimum standard of universal health care in accordance with WHO standards. Existing constitutional guarantees, legal precedents, and international commitments provide a strong foundation for India’s fundamental right to health.

A legally recognised right that applies across India ensures that all citizens have access to high-quality healthcare which is unquestionably necessary. Furthermore, such legislations must be comprehensive, embracing all necessary components such as infrastructure, qualifications, and insurance within its scope.

It is important to note that, in addition to statutory recognition, the right to health in India must be implemented within the framework of international human rights and health law principles of solidarity, proportionality, and transparency, as proposed by Professor of Health Law Katharina Cathoir. These three concepts are even more important in dealing with the current COVID19 challenge, which has resulted in individual systems collapsing owing to oxygen and vaccination shortages.

Conclusion

Finally, it is past time to elevate the right to affordable and high-quality healthcare to the rank of a basic right. Furthermore, a strong and comprehensive central healthcare law must be drafted and executed, with appropriate provisions to account for the various needs of all States and UTs. This will aid in the development of societal resilience to future pandemics and public health emergencies. Human rights commitments cannot be ignored in the face of an emergency. The right to health must consequently be applied in accordance with the values of transparency, proportionality, and solidarity.

References


[1]FE Online, Medical tourism in India sees recovery amid Covid-19 pandemic, Financial Express, New Delhi, October 09, 2020 9:16 AM (https://www.financialexpress.com/lifestyle/travel-tourism/medical-tourism-in-india-sees-recovery-amid-covid-19-pandemic/2101384)

[2] ET CONTRIBUTORS, What I want from Budget 2020: A robust, primary healthcare system; at-home care integrated with Ayushman Bharat, The Economic Times, Last Updated: Jan 15, 2020, 06:03 PM IST, (https://economictimes.indiatimes.com/magazines/panache/what-i-want-from-budget-2020-a-robust-primary-healthcare-system-at-home-care-integrated-with-ayushman-bharat/articleshow/73268553.cms)

[3]Kuntala Sarkar, India’s healthcare not in a good health, Business Economics, July 14 2021, (https://businesseconomics.in/india%E2%80%99s-healthcare-not-good-health

[4]NISHANT SIROHI, Declaring the right to health a fundamental right, Health Express, Observer Research Foundation, JUL 14 2020 (https://www.orfonline.org/expert-speak/declaring-the-right-to-health-a-fundamental-right)

[5]Bandhua Mukti Morcha v. Union of India (AIR 1984 SC 802)

[6]Right to Health as a Fundamental Right Guaranteed by the Constitution of India, JSA Advocates and Solicitors, March 22, 2020 (https://www.jsalaw.com/covid-19/right-to-health-as-a-fundamental-right-guaranteed-by-the-constitution-of-india)

[7]Francis Coralie v The Administrator (1981 AIR 746, 1981 SCR (2) 516)

[8](1997) 10 SCC 549

[9]W.P.(C) 322/2021 & CM APPL.812/2021

[10]1993 AIR 2178, 1993 SCR (1) 594

[11]1992 AIR 1858, 1992 SCR (3) 658

[12]Mohd Aqib Aslam, Right of Children to Free and Compulsory Education (Amendment) Act, 2019, E-Journal,  Legal Service India, (https://www.legalserviceindia.com/legal/article-2027-right-of-children-to-free-and-compulsory-education-amendment-act-2019.html)

[13]Aparajita Mohanty&Saksham Kumar,NEED FOR A NATIONAL HEALTH LEGISLATION ININDIA: CONSTITUTIONAL PARADIGM, Journal of Legal, Ethical and Regulatory Issues Volume 24, Special Issue 1, 2021(https://www.abacademies.org/articles/need-for-a-national-health-legislation-in-india-constitutional-paradigm.pdf)

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