Lessons from the Law
Author is Senior lecturer at KCEF Law College Pulwama
The outbreak of COVID-19 has posed a series of intricate policy challenges to legislators, the government and public health professionals. According to the World Health Organization (WHO), health is a state of complete physical, mental and social wellbeing and not merely the absence of disease. The WH0 goes on to clarify that it is the state’s legal obligation to ensure uniform access to “timely, acceptable, and affordable health care of appropriate quality as well as to provide for the underlying determinants of health, such as safe and potable water, sanitation, food, housing health-related information and education, and gender equality” to all its people. In India, this right, which is a natural corollary to promoting public health, is protected under the Constitution of India in multiple ways. The Directive Principles of State Policy (DPSP), enshrined in Chapter IV of the Constitution of India, require the state to, among other duties, promote the welfare of its people (Art.38); protect their health and strength from abuse (Art 39(e); • provide public assistance in case of sickness. disability or “undeserved want” (Art 41); · ensure just and humane conditions of work; and raise nutrition levels, improve the standard of living and consider improvement of public health as its primary duty (Art 47).
In addition to the DPSP, some other health- related provisions can be found in the 11th and 12th Schedules, as subjects within the jurisdictions of Panchayats and Municipalities, respectively. These include the duty to provide clean drinking water, adequate healthcare and sanitation (including hospitals, primary health care centers and dispensaries), promotion of family welfare, development of women and children, promotion of social welfare, etc. The Constitution of India does not expressly recognize Right to Health as a fundamental right under Part III of the Constitution (Fundamental Rights). However, through judicial interpretation, this has been read into the fundamental right to life & personal liberty (Article 21) and is now considered an inseparable part of the Right to Life. Article 23 of the Constitution of India also indirectly contributes to protecting the Right to Health as it prohibits human trafficking and child labour. The role of Indian Supreme Court in protecting the health of the public at large is noteworthy. The Supreme Court has repeatedly observed that the expression “life” in Article 21 means a life with human dignity and not mere survival or animal existence (Francis Coralie Mullin vs The Administrator, Union Territory of Delhi AIR 1981 746). Right to life has a very broad scope which includes right to livelihood, better standard of life, hygienic conditions in the workplace & right to leisure. Right to Health is, therefore, an inherent and inescapable part of a dignified life. Article 21 should also be read in tandem with the directive principles of state policy, cited above, to truly understand the nature of the obligations of the state in this respect. In the case of BandhuaMuktiMorcha v. Union of India AIR 1984 SC 812, the Supreme Court held that although the DPSP are not binding obligations but hold only persuasive value, yet they should be duly implemented by the State. Further, the Court held that dignity and health fall within the ambit of life and liberty under Article 21. In the case of PaschimBangaKhetMazoorSamity v. State of West Bengal (1996) 4 SCC 37, the scope of Article 21 was further widened, as the court held that it is the responsibility of the Government to provide adequate medical aid to every person and to strive for the welfare of the public at large.
Further, the Supreme Court in the case of ParmanandKatara v Union of India AIR 1989 S.C. 2039, held that every doctor at Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life of a patient. In the subsequent case of Consumer Education and Research Centre V. Union of India AIR 1995 SC 922, held that right to health and medical aid to protect the health and vigor of a worker, bath while in service and post-retirement, is a fundamental right under Article 21. Further, According to Article 19 (1) (g) of the Indian Constitution, the fundamental right of all citizens to practice any profession, or carry on any occupation, trade or business is subject to restrictions imposed in the interest of the general public under Article 19(6). The Hon’ble Supreme Court in the case of Burrabazar Fire Works Dealers Association and Others v. Commissioner of Police, Calcutta AIR 1998 Cal. 121, held that Article 19 (1) (g) does not guarantee any freedom which is at the cost of the community’s safety, health and peace. Right to Health is a part and parcel of Right to Life and therefore right to health is a fundamental right guaranteed to every citizen of India under Article 21 of the Constitution of India. We owe the recognition of this right to the fact that the Supreme Court of India, through a series of judicial precedents, logically extended its interpretation of the right to life to include right to health. Therefore, it is the duty of the State to care for the health of the public at large and the Central Government and various State governments have, rightfully and proactively, taken various measures to contain the entry and spread of the COVID-19 pandemic.
