SHOULD HEALTHCARE BE A FUNDAMENTAL RIGHT?
Updated: Dec 1, 2020
By Avni Bhargava, II year B.B.A., LL.B. Amity Law School, Noida.
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COVID -19 pandemic has again given rise to one of the most debated topics, whether healthcare should be made a fundamental right in India. More than 46,197 people have died so far in India because of COVID and suicide have to lead to more than 300 deaths, killing themselves either due to isolation, loneliness and a fear of being tested positive. A clear violation of the right to healthcare is noticed. Right to health does not simply mean to be free from any kind of physical disorder or disease in an inclusive way it includes everything a healthy mental state, quality and affordable health services, clean drinking water, right to sex education and everything related to the human body. We as individuals pray for good health and work day and night so that we can provide all the essentials to our loved one. Right to health is important in the same manner as the right to education and violation of the same is something which cannot be ignored.
In 1946 it was WHO which enshrined the right to health as a fundamental right which every human deserves equally. In 1948 it was stated in “ Universal declaration of human right” that the right to health is a part of the right to live after that again in 1966 it was declared as a human right in “International covenant on the economic social and cultural right”. Right to health has been a part of the discussion in international conferences and agreements; violation of the same is against the human right.
RIGHT TO HEALTH IN INDIAN CONSTITUTION:
The constitution of India does not guarantee Right to health as a fundamental right of the citizens of India however there are provisions for the state concerning health care. The directive principle of state policy in part IV influences public healthcare policy.
1. Article 38 says that a state should work for the health of the public.
2. Article 39(a) talks about worker’s health
3. Article 41 provides that a state should assist in old age or other special cases
4. Article 42 deals with mother and child health
5. Article 47 imposes a duty of the state to work for public health, provide assistance in special cases such as child, old age, the person with disabilities and to take measures when it comes to public safety and well such as it can restrict the sale of tobacco or drugs.
The above-stated provisions are the only directive in nature unlike fundamental rights which are justifiable and one can move directly to the Supreme Court in case they are violated. Sometimes the state takes advantage of this kind of situation and tries to escape from their responsibility of providing and working for quality health care. The supreme court of India because of the above-stated reason brought the right to health under the purview of article 21 which talks about the right to life and personal liberty. In the case of Bandhua Mukti Morcha v. Union of India held that DPSP is non-justifiable however they must be followed and interpreted right to health under article 21.
INDIA’S SPENDING ON HEALTH CARE:
India spends 3.6% of GDP on healthcare which is much lower than in many countries, total spending has increased in the financial year 2020 but is still less. The centre share was only 25% and the rest was of the state. OECD countries spend 8.8 % of GDP on average for health care. Countries such as the USA spend 16.9% on healthcare, China spends 5%, and even South Africa stands at 8%. Looking into the past we can notice a trend of spending less. In financial year 20, the expenditure was not even rupees 300 per person. As healthcare is not a fundamental right it falls in DPSP, states find a way to escape this responsibility with 10 states as data suggest spend was less than 1% on healthcare. India ranking was 170 out of 188 in health expenditure concerning its GDP as per WHO reports in 2016. The expenditure on medical research has not at all increased in the previous year as compared to other nations. Goa performed the best while Assam performed the worst. IMF in the global report also stated that poor health spending is one of the chief hurdles in ease of doing business.
RIGHT TO HEALTH WITHIN PURVIEW OF COVID 19:
Corona pandemic has exposed the weakness of India’s healthcare system and one of the critical reasons is the absence of a statutory framework which guarantees our citizen right to health as a fundamental right. Our constitution does not oblige states to work for public health. In the case of State of Punjab Ors v. Ram Bagga, the Supreme Court held that health comes under state responsibility. The fifteenth financial commission in the year 2019 also recommended declaring the right to health as fundamental right so that it can be implemented strictly and it could be made more justifiable.
However NITI aayog stated that in India there are a lot of differences between each state health care requirements and a uniform policy cannot be applied throughout the country if the subject is moved to concurrent list it would lead to conflicts, restriction of state and violation of their right concerning healthcare. When it comes to health care there is a need for cooperation between centres and state what we call it as cooperative federalism which is an essential element of our constitution. COVID pandemic has shown us that decentralization is important and the matter should continue in the state list so that states can freely implement the right to healthcare. However international treaties and global commitments, very less improvement and expenditure by the state on healthcare gives a solid reason why the right to health should be made a fundamental right so that it can be made justifiable, accountable and more transparent.
It is the time, the right to health should be made a fundamental right similar to the right to education Strong laws for health will help us to strengthen our country and fight future health emergencies and pandemic, also ensure more transparency and inclusiveness. We cannot ignore human rights at the cost of an emergency. The impact of corona pandemic can be seen in the states of Kerala and Karnataka which we thought to have strong health care services. Data shows that India has always spent less than 2% for healthcare even our neighbour countries such as Bangladesh have made significant improvement in few years unlike India, state blame centre for that and vice versa lack of transparency and accountability.
The positive impact of the pandemic is that it has been an eye-opener for us it has shown where our health system lacks. The importance of universal commitment, recommendation and the need for medical research, why is that important for India to spend on medical research. The pandemic has shown that even the bigger cities of Delhi and Mumbai find it so much difficult to handle a pandemic. It has shown us the need for inclusive, transparent and standard healthcare services.
So this is the right time to take this agenda of healthcare forward. Right to health care is a very important agenda for discussion nowadays and we must all together put it forward.