The National Health Policy (NHP) 2017, proposes an ambitious health agenda, especially with regard to the enhancement of public spending on health from the current level of 1.15% of GDP to 2.5 %. However, the policy does not address many issues pointed out in the draft NHP 2015.[i] This commentary analyses the negation of the right to health in the policy.
The policy explicitly rejects the idea of legislation on the right to healthcare, thus also negating the rights-based approach to health care. The policy states: “The policy while supporting the need for moving in the direction of a rights based approach to healthcare is conscious of the fact that threshold levels of finances and infrastructure as a precondition for an enabling environment, to ensure that the poorest of the poor stand to gain the maximum and are not embroiled in legalities. The policy, therefore advocates a progressively incremental assurance based approach, with assured funding to create an enabling environment for realizing health care as a right in the future”.
Further, it also states: “Right to health cannot be perceived unless the basic health infrastructure like doctor-patient ratio, patient -bed ratio, nurses-patient ratio, etc. are near or above threshold levels and uniformly spread -out across the geographical frontiers of the country”.
The policy cites the following reasons for the rejection of separate legislation on the right to health. First, India’s economic and health system development is not up to the level to make the right to health justiciable i.e. legally enforceable by the courts. Second, since health falls within the state list there is a lack of clarity with regard to the utility of a central legislation while the state government is responsible for health. Third, the lack of clarity with regard to the scope of the legislation: whether the focus of the legislation should be on the enforcement of public health standards or the obligation of the government to ensure entitlements on public health.
It elaborates on the operational challenges to make the right to health a legally enforceable right and states: “Excellent health care system needs to be in place to ensure effective implementation of the health rights at the grassroots level. Right to health cannot be perceived unless the basic health infrastructure like doctor-patient ratio, patient -bed ratio, nurses-patient ratio, etc. are near or above threshold levels and uniformly spread -out across the geographical frontiers of the country”. This tantamounts to a rejection of the legal obligation on the right to health, especially since the right to healthcare is a critical entitlement of right to health guaranteed under various international legal instruments and the Indian Constitution.
From a legal perspective, the government of India is under a legal obligation to protect the right to health including the right to healthcare even in the absence of dedicated legislation. This legal obligation emanates from the following facts. First, India has undertaken an international obligation to protect the right to health through the ratification of various human rights treaties. Second, both the Supreme Court of India and High Courts recognised the right to health as a fundamental right that falls within the scope of Article 21 of the Constitution. The following parts of this write-up explain the nature of the legal obligation on the right to health under international law and the constitutional provisions.
International Obligation on Right to Health
India’s international obligation mainly originates from her ratification of the following human rights treaties viz. International Covenant on Economic Social and Cultural Rights (ICESCR), International Convention of the Elimination of All Forms of Racial Discrimination (1965), Convention on the Elimination of All Forms of Discrimination against Women (1979) and the Convention on the Rights of the Child (1989). The following paragraphs explain the nature of the obligation on right to health under Article 12 of ICESCR.
State parties to ICESCR under Article 12.1 “recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. There is a non-exhaustive list of steps to be taken for the realisation of the rights mentioned in Paragraph 1: “(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness”.
The Committee on Economic Social and Cultural Rights (CESCR), the body monitoring the implementation of the ICESCR, publishes its interpretations of the provisions of the ICESCR known as General Comments. Even though General Comments are not binding on state parties they provide guidance for the implementation of ICESCR.
General Comment No. 14, which deals with right to health, states that “right to health goes beyond the right to health care and therefore must be understood as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health”. Further, it spells out the four important elements of the right to health viz. availability, accessibility, acceptability and quality. Availability refers to the availability of functioning public health facilities. Accessibility contains four sub-elements viz. non-discrimination, physical accessibility, economic accessibility, and information accessibility. Acceptability means the availability of health facilities, goods and services must be ‘respectful of medical ethics and culturally appropriate’. Quality demands that health facilities, goods and services should be scientifically and medically appropriate and good quality”.
This General Comment also lists three general obligations on the right to health. First, the duty to respect refrains state parties from interfering with the enjoyment of the right to health. Second, the duty to protect obligates state parties to prevent third parties from interfering with rights guaranteed under Article 12. Third, the duty to fulfil obligates state parties to take measures such as “appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realization of the right to health”. It also lists six core obligations (see Box 1) that are “non-derogable”, i.e. obligations to be fulfilled in all circumstances including circumstances of limited resources.
Article 2 guides the implementation of obligations under ICESCR. According to Article 2.1 “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures”. Thus the obligations under ICESCR are to be achieved progressively through all appropriate measures, including legislative measures making use of maximum available resources.
General Comment No. 3 that deals with the nature of the obligation of state parties under Article 2 of ICESCR explains that resource constraints alone cannot be cited as a reason for the non-fulfilment of obligation. It states that: “even where the available resources are demonstrably inadequate, the obligation remains for a State party to strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances.” State parties also have the burden of proof to show the lack of available resources. “In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.”
However the word “appropriate” in Article 2 gives the flexibility to state parties to decide on the most appropriate mechanism for the implementation of treaty obligations. Therefore a state party has the freedom to decide whether to have legislation or health policy to implement its obligation on the right to health. Nevertheless, General Comment No. 3 proposes legislation as a means of implementation. It reads: “The Committee recognizes in many instances legislation is highly desirable and in some cases may even be indispensable … In fields such as health, the protection of children and mothers, and education, as well as in respect of the matters dealt with in articles 6 to 9, legislation may also be an indispensable element for many purposes”.
According to General Comment No. 14, “States should consider adopting a framework law to operationalize their right to health national strategy. The framework law should establish national mechanisms for monitoring the implementation of national health strategies and plans of action”. Hence, India has the freedom to determine the appropriate measures for the implementation of Article 12, i.e. national health strategy or legislation or both. However, according to General Comment No. 3 “the ultimate determination as to whether all appropriate measures have been taken remains one for the Committee to make”.
The benefit of legislation for the implementation of the right to health depends on the design of the legislation. For instance, if the legislation reduces the right to health to certain minimum entitlements this would be a regressive step because it may result in the containment of the dynamic aspects of the right to health. However, legislation on the right to health in India has the potential to ensure the political support for the implementation of the policy. The history of NHP during the last three and half decades is the history of unfulfilled promises. For instance, NHP 2002 set a target to increase the government expenditure on health from 0.9% to 2% of GDP by 2010 but the government share remains at 1.15% even after 15 years of the adoption of NHP 2002. Similarly, many targets mentioned in NHP 1983 remain unfulfilled. Interestingly, NHP 1983 proposed a unified national legislation on health. It reads: “It is necessary to urgently review all existing legislation and work towards a unified, comprehensive legislation in the health filed, enforceable all over the country”. As mentioned above India has the freedom to choose whether to have legislation for the implementation of obligation on the right to health, subject to the scrutiny of the CESCR.
Similarly, categorisation of health within the state list may not stand the scrutiny of CESCR in the light of Article 253 of the Indian constitution. Article 253 states: “Legislation for giving effect to international agreements: Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body”.
Thus the obligation on the right to health commence on the day of ratification. The state party to the ICESCR like India cannot absolve itself from the obligation by citing lack of legislation or lack of resources or robust health system. In other words, even though legislative measures are to be considered “as appropriate” to fulfil the obligations under Article 12, a state party has to fulfil its obligation on the right to health even in the absence of legislation.
Core Obligations under Article 12
Right to Health under the Indian Constitution
Though there is no explicit mention of the right to health in Part 3 of the Constitution on fundamental rights, the Directive Principles of State Policy (DPSP) clearly spell out measures to be taken to protect public health in Articles 38, 39 and 47. However, over the years, starting from the late 1970s, the Supreme Court expanded the scope of the right to life under Article 21 and it now encompasses the right to health. Since the 1980s the Supreme Court and High Courts have recognised the right to health as part of Article 21 and upheld the right to health in petitions related to environmental health, occupational health, quality of healthcare, and availability of healthcare.
Even though DPSP are not enforceable (justiciable), the court made it clear that various organs of the government are bound by DPSP. In Akhil Bharatiya Soshit Karmachari Sangh v. Union of India,[ii] the Supreme Court held that even though DPSP cannot be enforced in a court of law this does not mean that they are less important than fundamental rights or they are not binding on the various organs of the government. The Supreme Court went further and declared that the right to life under Article 21 provides the right to live with dignity and this right derives its life from DPSP. [iii]
In Vincent Panikulangara v. Union of India the Supreme Court extended the scope of Article 21 to cover public health. It held that the improvement and maintenance of public health is important for the existence of the community and for the building of a society envisaged by the framers of the Constitution.[iv] In 1991 while deciding on the healthcare benefits of workers the Supreme Court cited rights recognised in the Universal Declaration of Human Rights and ICESCR and held that “right to health is a fundamental human right to workmen”.[v] The Court also considered the lack of resources as a reason for the non-fulfilment of obligations on the right to health in Paschim Banga Khet Mazdoor Samity & ors v. State of West Bengal & ors. [vi] . It acknowledged the resource crunch but held that there is a constitutional obligation to provide adequate medical services to the people. The Supreme Court equated the situation with its earlier judgment for providing free legal aid to a poor accused in the matter Khatri (II) v. State of Bihar, 1981 (1) SCC 627 as a constitutional obligation and stated that providing medical aid is also a matter of discharging of constitutional obligation.
In Devika Bisws v Union of India & ors the Supreme Court states: “It is well established that the right to life under Article 21 of the Constitution includes the right to lead a dignified and meaningful life and the right to health is an integral facet of this right…. That the right to health is an integral part of the right to life does not need any repetition”.[vii] Thus the right to health is treated as a fundamental right under Article 21 and there is no doubt about its enforcement in a court of law.
Courts have also expanded the ambit of free treatment citing the right to health. Recently, the Delhi High Court ordered free treatment of rare genetic diseases citing the right to health.[viii] Similarly, various high courts including the Delhi High Court and Mumbai High Court also passed orders to provide free treatment for haemophiliac patients. The Delhi High Court, while rejecting a plea for a preliminary injunction in a patent infringement petition, said that granting the injunction would in effect stifle Article 21 for the people to access the generic version of that patented medicine. [ix]
The Mumbai High Court, while rejecting a petition questioning the capping of prices of certain medicines, stated: “…market failure alone may not constitute sufficient grounds for Government's intervention, but when such failure is considered in the context of role the pharmaceuticals play in the area of public health, which is a social right, such intervention becomes necessary, especially when exploitative pricing makes medicines un-affordable and beyond the reach of most and also puts huge financial burden in terms of out of pocket expenditure on health”.[x]
The government of India itself also cites the constitutional obligation with regard to health. For instance, the National Pharmaceutical Authority in its notification for ceiling the prices of cardiac stents states: “the Government is under constitutional obligation to provide fair, reasonable and affordable price for Coronary Stents and therefore its immediate intervention is imperative to check unethical profiteering and exploitive pricing…”.[xi]
The above discussion clearly shows that India’s ratification of various international human rights treaties, especially ICESCR creates an international obligation to protect and implement the right to health. Therefore, the CESCR can scrutinise NHP 2017 and its negation of the right to health. Even in the absence of legislation declaring the right to health as a fundamental right, the Indian judiciary treats it as a fundamental right under Article 21 of the Constitution. While upholding the right to health as a fundamental right, the Indian judiciary does not consider the availability of resources, health system and public health infrastructure as a precondition. The government also invoked its constitutional obligation to protect people from the exploitation by third parties such as pharmaceutical and medical devices manufacturers. Since the policy’s negation of right to health goes against India’s international obligations on human rights and Article 21 of the Constitution there is an urgent need to rewrite the policy to reflect the correct legal position.
[i] See Phadke, Anant (2015) , “Slippery Slope for Public Health Services” , EPW Vo.50 (9) 10-32; Chowdhury, Javid (2015) : National Health Policy 2015: A Narrow Focus Needed”, EPW , Vol.50 (9) , 25-30; Rao Mohan et all, “ Draft National health Policy 2015 : A Public Health Analysis”, EPW Vol50(17) 94-101.
[ii] Akhil Bharatiya Soshit Karmachari Sangh v. Union of India ( 1 SCC 246 )
[iii] Bandhua Mukti Morcha v. Union of India 1984] 3 SCC 161
[iv] Vincent Panikurlangara v. Union of India, (1987) 2 SCC 165
[v] CESC Ltd. vs. Subash Chandra Bose (1991) SCR Supl. (2)
[vi] Paschim Banga Khet Mazdoor Samity v. State of W.B., (1996) 4 SCC 37
[vii] Devika Bisws v Union of india&ors WP C No 95/2012
[viii] Mohd. Ahmed (Minor) vs Union Of India & Ors W.P.(C) 7279/2013
[ix] F. Hoffmann-La Roche Ltd. And Anr. vs Cipla Limited MIPR 2008 (2) 35
[x] Indian Pharmaceutical Alliance v Union of India WP 2700/2014
[xi] SO 412(E) available at http://www.nppaindia.nic.in/ceiling/press13Feb2017/so412e-13-02-17.pdf