INTRODUCTION

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 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 happiness 1. Following are the important
provisions in the Constitution of India for the protection of Right to Health.
Definition of health
The widely acceptable definition of health is that given by the WHO in the preamble of its
constitution, according to World Health Organization, Health is a state of complete physical,
mental and social wellbeing and not merely the absence of disease2. In recent years, this
1 Chouri, Dnyneshwar, Constitutional Perspective of Right to Health in India, The IUP Law Review,
Vol. II No. 1, Jan, 2012, p. 46
2 Preamble to the Constitution of the World Health Organization as adopted by the International Health
Conference, New York, 1922 June 1946; signed on 22 July 1947 by the representatives of 61 States
(Official Records of the World Health Organization, no. 2, p. 100); and entered into force on 7 April 1948

statement has been amplified to include the ability to lead a socially and economically
productive life. Through this definition, WHO has helped to move health thinking beyond a
limited, biomedical and pathology-based perspective to the more positive domain of well
being. Also, by explicitly including the mental and social dimensions of well being, WHO has
radically expanded the scope of health and by extension, the role and responsibility of health
professionals and their relationship to the larger society.3
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.
Right to health is not included directly in as a fundamental right in the Indian Constitution .The
Constitution maker imposed this duty on state to ensure social and economic justice. Part four of
Indian constitution which is DPSP imposed duty on States. If we only see those provisions then
we find that some provisions of them has directly or indirectly related with public health. The
Constitution of India not provides for the right to health as a fundamental right. The Constitution
directs the state to take measures to improve the condition of health care of the people. Thus the
preamble to the Constitution of India, inter alia, seeks to secure for all its citizens justice-social
and economic. It provides a framework for the achievement of the objectives laid down in the
preamble. The preamble has been amplified and elaborated in the Directive Principles of State
policy.

3 Kumar Avanish, Human Right to Health, satyam law international 2007 at 21

CONSTITUTIONAL

AND

LEGAL DIMENSIONS

India joined the UN at the start on October 30th 1945 and on December 12th 1948 when the
Universal Declaration of Human Rights (UDHR) was proclaimed, India was a party to this. The
formulation of Indias Constitution was certainly influenced by the UDHR and this is reflected in
the Fundamental Rights and the Directive Principles of State Policy. Most of the civil and
political rights are guaranteed under the Indian Constitution as Fundamental Rights. But most of
the Economic, Social and Cultural Rights do not have such a guarantee. The Constitution makes
a forceful appeal to the State through the Directive Principles to work towards assuring these
rights through the process of governance but clearly states that any court cannot enforce them.4
Right to health is not included directly in as a fundamental right in the Indian Constitution .The
Constitution maker imposed this duty on state to ensure social and economic justice. Part four of
Indian constitution which is DPSP imposed duty on States. If we only see those provisions then
we find that some provisions of them has directly or indirectly related with public health. The
Constitution of India not provides for the right to health as a fundamental right. The Constitution
directs the state to take measures to improve the condition of health care of the people. Thus the
preamble to the Constitution of India, inter alia, seeks to secure for all its citizens justice-social
and economic. It provides a framework for the achievement of the objectives laid down in the
preamble. The preamble has been amplified and elaborated in the Directive Principles of State
policy.
Directive Principle of State Policy and Health:
Articles 41, 42 and 47 of the Directive Principles10 enshrined in Part IV of the Constitution
provide the basis to evolve right to health and healthcare. Article 38 of Indian Constitution
impose liability on State that states will secure a social order for the promotion of welfare of the
people but without public health we cannot achieve it. It means without public health welfare of
people is impossible. Article 39(e) related with workers to protect their health. Article 41
4 The WHO definition was influenced largely by Sigerist, who argued that state of health is a physical,
mental and social condition and health is, therefore, not simply the absence of disease it is something
positive, a joyful attitude toward life, and a cheerful acceptance of the responsibilities that life puts on the
individual [Sigerist, 1941, p.68].

imposed duty on State to public assistance basically for those who are sick and disable. Article
42 makes provision to protect the health of infant and mother by maternity benefit.

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. 5 In U.P.S.C. Board v. Harishankar,6 Supreme Court 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 India7, 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.
Article 47: Duty of the State to raise the level of nutrition and the standard of living and to
improve public healthThe 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

5 Jain, Prof. M. P., Indian Constitutional law, Lexis Nexis Butterworths Wadhwa, Nagpur, 6th Ed.
2010, p. 1383
6 AIR 1979 SC 65: (1978) 4 SC 16
7 AIR 1984 SC 802

particular, the State shall endeavor to bring about prohibition of the consumption, except for
medicinal purposes, of intoxicating drinks and of drugs which are injurious to health
In the India the Directive Principle of State Policy under the Article 47 considers it the primary
duty of the state to improve public health, securing of justice, human condition of works,
extension of sickness, old age, disablement and maternity benefits and also contemplated.
Further, States duty includes prohibition of consumption of intoxicating drinking and drugs are
injurious to health. Article 48A ensures that State shall Endeavour to protect and impose the
pollution free environment for good health.
Article 47 makes improvement of public health a primary duty of State. Hence, the court should
enforce this duty against a defaulting authority on pain of penalty prescribe by law, regardless of
the financial resources of such authority.8
Under Article 47, the State shall regard the raising of the level of nutrition and standard of living
of its people and improvement of public health as among its primary duties. None of these lofty
ideals can be achieved without controlling pollution inasmuch as our materialistic resources are
limited and the claimants are many.9
The Food Corporation of India being an agency of the State must conform to the letter and spirit
of Article 47to improve public health it should not allow sub-standard food grains to reach the
public market. The State under Article 47 has to protect poverty stricken people who are
consumer of sub-standard food from injurious effects.10
Public Interest Petition for maintenance of approved standards for drugs in general and for the
banning of import, manufacturing, sale and distribution of injurious drugs is maintainable. A
healthy body is the very foundation of all human activities. That is why the adage

8 Ratlam Municipal Council Vs Vardichand, AIR 1980 SC 1622

9 Javed Vs State of Hryana, AIR 2003 SC 3057
10 Tapan KumarVs FCI, (1996) 6 SSC 101

Sariramadyam Khalu Dharma sadhanam. In a welfare State, it is the obligation of the State to
ensure the creation and sustaining of conditions congenial to good health.11
Some other provisions relating to health fall in DPSP. The State shall in particular, direct its
policy towards securing health of workers.12 State organised village panchayats and gave such
powers and authority for to function as units of self-government. 13 This Directive Principle has
now been translated into action through the 73rd Amendment Act 1992 whereby part IX of the
constitution titled The Panchayats was inserted. The Panchayat system has significant
implications for the health sector. There will be discussed in relation to relevant Articles 243243A to 243O contained in Part IX.
Article 41 provides right to assistance in case of sickness and disablement. It deals with The
state shall within the limits of its economic capacity and development, make effective provisions
for securing the right to work, to education and to public assistance in case of unemployment,
Old age, sickness and disablement and in other cases of undeserved want. 14 Their implications
in relation to health are obvious. Article 42 give the power to State for make provision for
securing just and humane conditions of work and for maternity relief and for the protection of
environment same as given by Article 48A and same obligation impose to Indian citizen by
Article 51A.(g).
Panchayat, Municipality and Health: Not only the State also Panchayat, Municipalities liable to
improve and protect public health. Article 243G says State that the legislature of a state may
endow the panchayats with necessary power and authority in relation to matters listed in the
eleventh Schedule.15 The entries in this schedule having direct relevance to health are as
follows:
11 Vicent v. UOI, AIR 1987, SC 990
12 Article 39(e) of the Constitution of India
13 Article 40 of the Constitution of India
14 Article 41 of the Indian Constitution
15 Article 243 G of Indian Constitution

11 -Drinking
23 -Health and sanitation including hospitals, primary health centers and dispensaries.
24 -Family welfare
25 -Women and Child development
26 -Social welfare including welfare of the handicapped and mentally retarded.

Article 243-W finds place in part IXA of the constitution titled The Municipalities:
5 -Water supply for domestic industrial and commercial purpose.
6 -Public health, sanitation conservancy and solid waste management.
9 -Safeguarding the interest of weaker sections of society, including the handicapped and
mentally retarded.
16 -Vital statistics including registration of births and deaths
17- Regulation of slaughter houses and tanneries.

FUNDAMENTAL RIGHTS

AND

HEALTH:

The DPSP are only the directives to the State. These are non-justifiable. No person can claim for
non-fulfilling these directives. But the Supreme Court has brought the right to health under the
preview of Article 21. The scope of this provision is very wide. It prescribes for the right of life
and personal liberty. The concept of personal liberty comprehended many rights, related to
indirectly to life or liberty of a person. And now a person can claim his right of health. 16 Thus,

16 Sheeraj Latif Ahmad Khan, Right To Health. (1995) 2 SCJ 29-34, at 30.

the right to health, along with numerous other civil, political and economic rights, is afforded
protection under the Indian Constitution.
The debate surrounding the implementation of the human right to health is fresh and full of
possibility for the developing world. In fact, Indian has been able to create a legal mechanism
whereby right to health can be protect and enforced. The early of 1970s, witnessed a watershed
in human rights litigation with the Keshawanand Bharti v. State Of Kerala,

17

ushering in a

unprecedented period of progressive jurisprudence following the recognition fundamental rights.

At the same time standing rules were relaxed in order to promote PIL and access to justice. So
there were two developments in 1980s, which led to a marked increase in health related
litigation. First was the establishment of consumer courts that made it cheaper and speedier to
sue doctors for medical negligence. Second, the growth of PIL and one of this offshoots being
recognition of health care as a fundamental right. Through PIL the Supreme Court has allowed
individual citizen to approach the court directly for the protection of their Constitutional human
rights.18
The Constitution guarantees the some fundamental rights having a bearing on health care. Article
21deal with No person shall be deprived of his life or personal liberty except according to
procedure established by law.19 Right to live means something more, than more animal
existence and includes the right to live consistently with human dignity and decency.
In 1995, the Supreme Court held that right to health and medical care is a fundamental right
covered by Article 21 since health is essential for making the life of workmen meaningful and
purposeful and compatible with personal dignity. The state has an obligation under Article 21 to
safeguard the right to life of every person, preservation of human life being of paramount
importance. The Supreme Court has in the case of Parmanand Katra vs Union of India 20, held
17 (1973) 4 SCC 225.
18 Kumar Avanish Human Right to Health satyam law pub. 2007 at 171
19 Constitution of India.
20 AIR 1989 SC 2039

that whether the patient be an 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 may be punished.21
Article 23 is indirectly related to health. Article 23(1) prohibits traffic in human beings. It is well
known that traffic in women leads to prostitution, which in turn is to major factor in spread of
AIDS. Article 24 is relating to child labor it deal with No child below the age of 14 years shall
be employed to work in any factory or mine or engaged in any other hazardous employment. 22
Thus this article is of direct relevance to child health.
In addition to constitutional remedies sensitizing of the relevant ordering law towards later health
for all adds to the content of right to health. Legal prohibition of commercialized transplantation
of human organ and effective application of consumer protection act to deal with deficient
medical services have animated right to health23.

JUDICIAL RESPONSE:
With the recognition that both the Indian Constitution and the fundamental right of life
emphasize human dignity, began to address the importance of health to Indian citizen. In the
DPSP, Art.47 declares that the State shall regard the level of nutrition and the standard of living
of its people and the improvement of public health as among its primary duties. Since DPSP are
not enforceable by the court, implementation of the guarantee has remained illusory.24 However,
in a series of cases dealing with the substantive content of the right to life, the court has found
that the right live with human dignity including right to good health. 25 In Consumer Education
21 Ibid.
22 Constitution of India, 1950.
23 Spring Meadow Hospital Vs Harijol Ahluwaliya, AIR 1998 SC180
24 Bandhua Mukti Morcha AIR 1984 SC 812
25 Ibid page 811

and Research Center v. UOI26, the Court explicitly held that the right to health was an integral
factor of a meaningful right to life. The court held that the right to health and medical care is a
fundamental right under Article 21. The Supreme Court, while examining the issue of the
constitutional right to health care under arts 21, 41 and 47 of the Constitution of India in State of
Punjab v. Ram Lubhaya Bagga,27 observed that the right of one person correlates to a duty upon
another, individual, employer, government or authority. Hence, the right of a citizen to live under
art 21 casts and obligation on the state. This obligation is further reinforced under art 47; it is for
the state to secure health to its citizens as its primary duty. No doubt the government is rendering
this obligation by opening government hospitals and health centers, but to be meaningful, they
must be within the reach of its people, and of sufficient liquid quality. Since it is one of the most
sacrosanct and valuable rights of a citizen, and an equally sacrosanct and sacred obligation of the
state, every citizen of this welfare state looks towards the state to perform this obligation with
top priority, including by way of allocation of sufficient funds. This in turn will not only secure
the rights of its citizens to their satisfaction, but will benefit the state in achieving its social,
political and economic goals.

RIGHT TO HEALTH CARE AS A FUNDAMENTAL RIGHT:

The Supreme Court, in Paschim Banga Khet mazdoor Samity & ors v. State of West Bengal &
ors,28 while widening the scope of art 21 and the governments responsibility to provide medical
aid to every person in the country, held that 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 obligation undertaken by the government in a welfare state. The government
discharges this obligation by providing medical care to the persons seeking to avail of those
facilities. Article 21 imposes an obligation on the state to safeguard the right to life of every
26 AIR 1995 SC 636
27 1998) 4 SCC 177: AIR 1998 SC 1703.

28 (1996) 4 SCC 37.

person. Preservation of human life is thus of paramount importance. The government hospitals
run by the state 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 his right to life guaranteed under Article 21. The Court
made certain additional direction in respect of serious medical cases:
a. Adequate facilities be provided at the public health centers where the patient can be given
basic treatment and his condition stabilized,
b. Hospitals at the district and sub divisional level should be upgraded so that serious cases can
be treated there.
c. Facilities for given specialist treatment should be increased and having regard to the growing
needs, it must be made available at the district and sub divisional level hospitals.
d. In order to ensure availability of bed in any emergency at State level hospitals, there should
be a centralized communication system so that the patient can be sent immediately to the
hospital where bed is available in respect of the treatment, which is required.
e. Proper arrangement of ambulance should be made for transport of a patient from the public
health center to the State hospital.
f. Ambulance should be adequately provided with necessary equipments and medical
personnel.29

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 Mohammed,30 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 8 mentioned in Part IV of the Constitution. Further, In
Burrabazar Fire Works Dealers Association and Others v. Commissioner of Police, Calcutta,31
29 Ibid, at 47-48.
30 AIR 1986 SC 1205: (1986) 3 SCC 20.
31 AIR 1998 Cal. 121.

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.
Article 21 of the Constitution and right to health care:
The Fundamental Right to Life, as stated in Article 21 of the Indian Constitution,32 guaranties to
the individual her/his life which or personal liberty except by a procedure established by law.
The Supreme Court has widely interpreted this fundamental right and has included in Article 21
the right to live with dignity and all the necessities of life such as adequate nutrition,
clothing. It has also held that act which affects the dignity of an individual will also violate
her/his right to life.
The Constitution incorporates provisions guaranteeing everyones right to the highest attainable
standard of physical and mental health. Article 21 of the Constitution guarantees protection of
life and personal liberty to every citizen. The Supreme Court in Bandhua Mukti Morcha v.
Union of India,33 has held that the right to live with human dignity, enshrined in art 21, is
derived from the directive principles of state policy and therefore includes protection to health.
In Vincent Panikulangara v. Union of India,34 the Supreme Court of India on the right to health
care observed:
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.
32 Indian Constitution, 1950.
33Bandhua Mukti Morcha vs. Union of India. AIR 1984 SC
34 802 Vincent Panikulangara vs. Union of India. AIR 1987 SC 990: 995. p. 995.

In a historic judgment in Consumer Education and Resource Centre v. Union of India,35 the
Supreme Court has held that the right to health and Medical care is a fundamental right under
Article 21 of the constitution as it is essential for making the life of the workman meaningful and
purposeful with dignity of person. Right to life in Article 21 includes protection of the health
and strength of the worker. The expression life in Article 21 does not connote mere animal
existence. It has a much wider meaning which includes right to livelihood, better standard of life,
hygienic conditions on workplace and leisure. The court held that the State, be it Union or State
Government or an industry, public or private is enjoined to take all such action which will
promote health, strength and vigour of the workman during period of employment and leisure
and health even after retirement as basic essentials to life with health and happiness. The right to
life with human dignity encompasses within its fold, some of the finer facets of human
civilization which makes life worth living. The court accordingly laid down the following
guidelines to be followed by all asbestos industries:
In Kirloskar Brothers Ltd v. Employees State Insurance Corpn.,36 The Supreme Court,
following the Consumer Education and research Centers case, has held that right to health is a
fundamental right of the workmen. The Court also held that this right is not only available
against the State and its instrumentalities but even private industries to ensure to the workmen to
provide facilities and opportunities for health and vigour of the workman assured in the provision
of Part IV of the Constitution which are integral part of right to equality under Art 14 and right
to invigorated life under Article 21 which are fundamental rights to the workmen.
Further in, State of Punjab and Others v. Mohinder Singh Chawala37 it has been held that
right to health is integral to right to life. Government has a constitutional obligation to
provide health facilities. Similarly, the court has upheld the states obligation to maintain
health services.38

35 Consumer Education and Resource Centre vs. Union of India. AIR (1995) 3 SSC, 42.
36 Kirloskar Brothers Ltd vs. Employees State Insurance Corpn. 1996) 2 SCC 682.
37 State of Punjab and Others vs. Mohinder Singh Chawala. AIR (1997) 2 SC 83
38 State of Punjab v Ram Lubhaya Bagga. (1998) 4 SCC 117.

Apart from recognizing the fundamental right to health as an integral part of the Right to Life,
there is sufficient case law both from the Supreme and High Courts that lays down the obligation
of the State to provide medical health services.
The issue of adequacy of medical health services was also addressed in Paschim Banga Khet
Mazdoor Samity v. State of West Bengal.39 The question before the court was whether the nonavailability of services in the government health centres amount to a violation of Article 21? It
was held that that Article 21 imposes an obligation on the State to safeguard the right to life of
every person. Preservation of human life is thus of paramount importance. The government
hospitals run by the State and the medical officers employed 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 his right to life guaranteed under Article
21. Therefore, the failure of a government run health centre to provide timely treatment is
violative of a persons right to life. 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.
In Mahendra Pratap Singh v. State of Orissa,40 a case pertaining to the failure of the
government in opening a primary health care centre in a village, the court had held In a country
like ours, it may not be possible to have sophisticated hospitals but definitely villagers within
their limitations can aspire to have a Primary Health Centre. The government is required to assist
people get treatment and lead a healthy life. Healthy society is a collective gain and no
Government should make any effort to smother it.
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 was 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
39 Agarwal SC (J), Nanawati GT (J). Paschim Banga Khet Mazdoor Samity of Ors. vs. State of West
Bengal & Anr. 1996.
40 Mahendra Pratap Singh vs. State of Orissa. AIR 1997 Ori 37.

life is a duty of the state and that this duty covers the providing of right to primary health
care. This would then imply that the right to life includes the right to primary health care.

RIGHT

TO

HEALTH CARE

AND

MEDICAL ASSISTANCE:

This has been explicitly held with regard to the provision of emergency medical treatment in Pt.
Parmananda Katara v. Union of India,41. It has been held that held that it is the professional
obligation of all doctors, whether government or private, to extend medical aid to the injured
immediately to preserve life without waiting legal formalities to be complied with by the police
under Cr.P.C. Article 21 of the Constitution casts the obligation on the State to preserve life. No
law or State action can intervene to delay the discharge of this paramount obligation of the
members of the medical profession.
The obligation being total, 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.
This is a very significant ruling of the Court. It is submitted that if this decision of the Court is
followed, in its true spirit it would help in saving the lives of many citizens who die in accidents
because no immediate medical aid is given by the doctors on the ground that they are not
authorized to treat Medico-legal cases. Let us hope that all doctors (Government or private) of
this country should follow this ruling of the court earnestly.

Medical Examination of rape victim and Right to health care:

It was a common practice among the doctors to refuse to examine the rape victim unless she is
not referred by the police.
However, the Supreme Court in State of Karnataka v. Manjanna,42 has recognised the right of
the rape victims medical examination and disapproved the refusal of some government hospital
41 Misra R, Oza, GL (J). Pt. Paramanand Katara v. Union of India & Ors., AIR 1989 SC 2829.

doctors, particularly in rural areas, where hospitals are few and far between, to conduct any
medical examination of a rape victim unless the case of rape is referred to them by the police.
Such refusal to conduct the medical examination necessarily results in a delay in the ultimate
examination of the victim by which time the evidence of the rape may have been washed away
by the complainant herself or be otherwise lost.
Working of Blood Banks and Right to Health Care:
The instrument of Public Interest Litigation used by Common Cause, addresses the issue of the
working of commercial blood banks. The court in Common Cause v. Union of India and Ors.,43
while recognizing that blood donation is considered as a great life saving service to humanity, it
must be ensured 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 centres relating to
health care.
Cases of HIV/AIDS and Right to health care:
Recently the Supreme Court

44

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 health to precedence over the mans
right to privacy. It found that the hospital did not error in disclosing his status to his fianc.
Sahara House and Sankalp Rehabilitation Trust 45 filed Public Interest litigation in the
Honble Supreme Court for access to equitable treatment for PLHIV (Patient Living With HIV,
AIDS). In this Public Interest Litigation, the Honble Supreme Court of India reviewed the steps
42 State of Karnataka v Manjanna. (2001) 4 LRI 731, (2000) 6 SCC 188.
43 Common Cause vs. Union of India and Ors. AIR 1996 SC 929
44 Sahara House v. Union of India. [W.P, (C) No. 535 of 1998].
45 Sankalp Rehabilitation Trust vs. Union of India. [W.P. (C) No. 512 of 1999].

taken by National AIDS Control Organisation, Ministry of Health and Family Welfare,
Government of India to combat HIV/AIDS and the services being provided to PLHAs. In this
regard, the Supreme Court has issued various directives for enhancing the extent and efficacy of
treatment administered to PLHAs.
Living and working conditions of workers and right to health care:
While the provision of health services is essential to ensure good health, there are several others
factors that influence a persons health. The Supreme Court has recognized this in a number of
ways. This was first addressed in Bandhua Mukti Morcha v. Union of India,46 a case
concerning the living and working conditions of stone quarry workers and whether these
conditions deprived them of their right to life. The court held that humane working conditions
are essential to the pursuit of the right life. It lay down that workers should be provided with
medical facilities, clean drinking water and sanitation facilities so that they may live with human
dignity.
In Citizens and Inhabitants of Municipal Ward v. Municipal Corporation, Gwalior,47 the court
deliberated on the question- Is the State machinery bound to assure adequate conditions
necessary for health? The case involved the maintaining of sanitation and drainage facilities by
municipal corporations. It was held that the State and its machineries (in the instant case, the
Municipal Corporation) are bound to assure hygienic conditions of living and therefore, health.

Mentally ill person and right to Health care:

46 Bandhua Mukti Morcha vs. Union of India. A.I.R. 1984 S.C. 802, 808.
47 Citizens and Inhabitants of Municipal Ward vs. Municipal Corporation, Gwalior. 1993-(004)-SCC
-0204 -SC.

There is sufficient case law on the issue of health in State run institutions such as remand homes
for children and care homes. In Sheela Barse v. Union of India and Another,48 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, send 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.
Further in instant case,49 the Supreme Court has entrusted to High Courts the duty to monitor the
conditions of mentally ill and insane women and children in prisons and pass appropriate
orders from time to time.
In the most recent case involving the death of 25 inmates of a mental health institution in
Erawadi, Ramnathapuram District50 as they were chained to poles or beds and could not
escape from a fire that broke out, the Supreme Court has directed the state to implement the
provisions of the mental health act as well as to undertake a survey of all institutions that provide
mental health facilities and ensure that they are maintaining standards of care.
Section 81 of the Mental Health Act, 1987, has provided that mentally ill person be treated
without violation of human rights.
Biomedical Waste and Right to Health Care:
The Biomedical Waste (Management and Handling) Rules, 1998 and The Biomedical Waste
(Management and Handling) Amendments Rules, 2000 was notified by the Central Government
in exercise of the powers conferred by Ss 6, 8 and 25 of the Environment (Protection) Act, 1986.
The act makes it a duty of every occupier of an institution generating biomedical waste which
48 Sheela Barse vs. Union of India and Another. 1995-(005)-SCC -0654 -SC.
49 Ibid.
50 Erawadi, Ramnathapuram District vs. 2002-(003)-SCC -0031 -SC

includes a hospital, nursing home, clinic, dispensary, veterinary institution, animal house,
pathological laboratory, blood bank by whatever name called to ensure that such waste is
handled without any adverse effect to human health and the environment.
Pollution and Right to health Care:
In Santosh Kumar Gupta v. Secretary, Ministry of Environment, New Delhi,51 contended that
the policy, controls / regulations and their implementations are inadequate thereby causing health
hazards. In its judgments, the High Court of Madhya Pradesh has laid down that pollution from
cars poses a health hazard to people and that the State must ensure that emission standards are
implemented maintained.
In the land mark M.C. Mehta v. Union of India,52 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 industries into the Ganges. It was
held that victims, affected by the pollution caused, were liable to be compensated.

PROFESSIONAL

OBLIGATION TO

PROTECT LIFE

OF

ACCIDENT VICTIMS

The Supreme Court in its land mark judgment in Paramanand Katara v. Union of India,53 ruled
that every doctor whether at a Government hospital or otherwise has the professional obligation
to extend his services with due expertise for protecting life. No law or state action can intervene
to avoid delay, the discharge of the paramount obligation cast upon members of the medical
profession. The obligation being total, absolute, and paramount, 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. The Court laid down the following guidelines for
doctors, when an injured person approaches them:
51 Santosh Kumar Gupta vs. Secretary, Ministry of Environment, New Delhi. AIR 1998 MP 43.
52 MC Mehta vs. Union of India. A.I.R. 1987 S.C. 1086.
53 Supra.

1. Duty of a doctor when an injured person approaches him: Whenever, on such occasions, a
man of the medical profession is approached by an injured person, and if he finds that
whatever assistance he could give is not really sufficient to save the life of the person, but
some better assistance is necessary, it is the duty of the man in the medical profession so
approached to render all the help which he could, and also see that the person reaches the
proper expert as early as possible.
2. Legal protection to doctors treating injured persons: A doctor does not contravene the law of
the land by proceeding to treat an injured victim on his appearance before him, either by
himself or with others. Zonal regulations and classifications cannot operate as fetters in the
discharge of the obligation, even if the victim is sent elsewhere under local rules, and
regardless of the involvement of police. The 1985 decision of the Standing Committee on
3.

Forensic Medicine is the effective guideline.

No legal bar on doctors from attending to the injured persons: 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 effort to save the person should be the top
priority, not only of the medical professional, but even of the police or any other citizen who
happens to be connected with the matter, or who happens to notice such an incident or a
situation.

Workers right to health care facilities: The Supreme Court has recognized the rights of the
workers and their right to basic health facilities under the Constitution, as well as under the
international conventions to which India is a party. In its path breaking judgment in Bandhua
Mukti Morcha v Union of India, the court delineated the scope of art 21 of the Constitution, and
held that it is the fundamental right of every one in this country, assured under the interpretation
given to art 21 by this court in Francis Mullins Case to live with human dignity, free from
exploitation. This right to live with human dignity enshrined in art 21 derives its life breath from
the directive principles of state policy and particularly clause (e) and (f) of art 39 and arts 41 and
42. It must include protection of the health and strength of workers, men and women; and
children of tender age against abuse; opportunities and facilities for children to develop in a
healthy manner and in conditions of freedom and dignity; educational facilities; just and humane
conditions of work and maternity relief. These are the minimum requirements, which must exist
in order to enable a person to live with human dignity. No state, neither the central government

nor any state government, has the right to take any action which will deprive a person of the
enjoyment of these basic essentials.In CESE Ltd v Subhash Chandra Bose,[26] the court held
that, the health and strength of a worker is an integral facet of the right to life. The aim of
fundamental rights is to create an egalitarian society to free all citizens from coercion or
restrictions by society and to make liberty available for all. The court, while reiterating its stand
for providing health facilities in Vincent v. Union of India, held that a healthy body is the very
foundation for all human activities. That is why the adage Sariramadyam khalu dharma
sadhanam. In a welfare state, therefore, it is the obligation of the state to ensure the creation and
the sustaining of conditions congenial to good health.
Guidelines For Holding Eye Care Camps:- In the case of A.S Mittal v. State of Uttar Pradesh,
public interest litigation brought under article 32 of the constitutions and the allied negligence on
the part of the doctors in a free eye care camp at Khurja. However laudable the intentions with
which it might it have been launched. The operated eyes of the patient were irreversibly damaged
owing to post-operative infection. The mishap was due to some common contaminated source.
After an inquiry it was found that it was due to normal saline used in the eyes at the time of the
operation. The vision of 84 persons could not be restored. The court held that a mistake by a
medical practitioner, which no reasonably competent and careful practitioner would have
committed, is a negligent one. The court further held that the highest standard of aseptic and
sterile should be maintained. The govt. spends so much on public health but standard of
cleanliness and hygiene are to be desired. The victims were given a compensation of Rs 5000 as
interim relief. The state govt. was directed to pay a sum of Rs. 12,500 to each of the victims.
In a similar case Pushpaleela v. State of Karnataka a free eye camp was organized by lions club
and some social service organizations on 28th and 29th January 1988. In this camp free eye
treatment were given and 151 people were operated for cataract problem. Most people who got
operated in this eye camp developed eye infection and severe eye pain. 72 of them lost the sight
on one eye while 4 of them lost sight of both the eyes.
Right to Health is a Fundamental Right: In CESC Ltd. v. Subash Chandra Bos, the Supreme
Court relied on international instruments and concluded that right to health is a fundamental
right. It went further and observed that health is not merely absence of sickness: The term
health implies more than an absence of sickness. 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 to give the workers best, physically as
well as mentally, in productivity. It enables the worker to enjoy the fruit of his labour, to keep
him physically fit and mentally alert for leading a successful economic, social and cultural life.
The medical facilities are, therefore, part of social security and like gilt edged security, it would
yield immediate return in the increased production or at any rate reduce absenteeism on grounds
of sickness, etc.