Health as a Justifiable Fundamental Rights

There has always been a lingering question so as to make Right to Health as a fundamental right similar to right to education. The draft national health policy, 2015 proposes the following formulation- “the Center shall enact, after due discussion and on the request of three or more States a National Health Rights Act, which will ensure health as a fundamental right, whose denial will be justiciable.”

Issues

In the previous topic, we have studied that Supreme Court has widely interpreted the scope of Right to Health under Article 21 (right to life) and has thus established right to health as an implied fundamental right. Making this right justifiable in nature would help to enforce strict compliance to deliver better health services. However, there are several questions:

• Has India reached to a level of economic development to make it justifiable? When we make a law justifiable, its denial becomes an offense.
• Since health is a state subject, is Union capable of making a central law/ amending the constitution and impose such legislation on states? If not, then how a justifiable act can be voluntarily implemented by states.
• If there is a central law, what should it focus? The state list items (public health standards on water, sanitation, food safety, air pollution etc) or health rights (access to health care and quality of health care).

Is Right to Health on lines of Right to Education feasible?

Right to education, which was declared a fundamental right in 2009 has several parallels with healthcare: the quality of education in government schools and the quality of services in public hospitals and primary health centres; the insistence, as a result, of even poor parents on their children attending private schools, however badly run; the beeline to private hospitals even by poor patients; and the small and large glitches in the implementation of the law. The lesson is obvious: what looks excellent on paper becomes a different proposition when it has to be put into practice.

In summary, a Central Law may not be feasible. The National Health Policy suggests  that states should be voluntarily opt to adopt such a law by a resolution of their Legislative Assembly. It further says that the state which have per capita public health expenditure rate of over Rs 3800 per capita ( at current prices) should be in a position to deliver on this- and though many States are some distance away- there are states which are approaching or have even reached this target.