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Mains Answer Writing

6-october-2023

Q1) In the context of India, despite the presence of constitutional provisions, legal precedents, and international commitments that establish a robust foundation for a right to health, why has there been a lack of explicit legal recognition of this right?

ANSWER:

In India, various constitutional provisions under Article 21, Article 38, Article 39(e), Article 41, Article 47 Article 243G, etc. have directed the state to take essential steps for the betterment of the health of every citizen. In 1978, India adopted the Alma-Ata Declaration for providing comprehensive primary health care to its entire people. However, despite such constitutional directions and international commitments, the right to health has not explicitly received proper legal recognition.

REASONS FOR LACK OF EXPLICIT RECOGNITION OF THE RIGHT TO HEALTH

  1. Lack of Adequate Infrastructure: According to the State of Health Infrastructure, there is almost a 20% shortfall in healthcare infrastructure. This hinders the recognition of the legal right to health as enforcement of such right is difficult.
  2. Availability of Manpower: Another area that hinders such right to health is the poor availability of manpower and health staff. For e.g., the doctor-patient ratio in India is 1:1500 while the WHO recommends it to be 1:1000.
  3. No Constitutional Recognition: The Constitution does not explicitly provide for the Fundamental Right to Health. Health has been kept as a part of DPSP in order to align the State to provide for the betterment of the health of every citizen.
  4. State List: “Health” is a part of List II of Schedule VII, i.e., a State Subject. This restricts the declaration of the “Right to Health” as a Constitutional Right as it requires a complex procedure under Article 368.
  5. Enforcement Problems: A legal recognition of the right to health creates huge implementation problems since it will lead to unnecessary litigations and bring Article 226 into the picture. The enforcement of rights through courts will become a problem considering a lack of adequate infrastructure.
  6. Emergence of Private Sector: India’s health sector is hugely dependent on public-private partnership where it is difficult to implement and enforce any legal right since writs are difficult to issue to the private sector. Often it leads to huge protests as seen in the case of Rajasthan Right to Healthcare Act, 2022.
  7. Fiscal Constraints: India’s healthcare expenditure is poor at 2% (2022) as against the mandated 4%. This shows the poor availability of fiscal resources in the hands of the State. This restricts the legal recognition of the right to health.
  8. Emerging Challenges: India’s public health sector faces significant challenges like a rise in communicable diseases and non-communicable diseases, fear of pandemics after the CoViD-19 crisis, lifestyle issues and malnutrition, etc. which are not directly solvable through a legal right to health rather require a holistic intersectoral approach.

The Supreme Court in Bandhua Mukti Morcha vs. Union of India, 1984 recognized the “Right to Health” as being part of Article 21. The same was reiterated in Murali S. Deora vs. Union of India, 2001.

The healthcare crisis during the CoViD-19 pandemic flamed the issue of recognizing the right to health as a legal right. Rajasthan in this regard has taken the lead with the passage of the Rajasthan Right to Healthcare Act, 2022. It can provide valuable input and feedback to other States for such.

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