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Mainstream, VOL 61 No 15, April 8, 2023

Declare Right to Health a Fundamental Right | Arun Mitra

Saturday 8 April 2023, by Arun Mitra


The Passing of the Right to Health Bill by the Rajasthan Assembly is a long overdue requirement of the citizens and a demand of the health care organizations. This Act gives the residents of Rajasthan right to free healthcare. The right to health thus becomes justiciable, that is the government is now answerable in the eyes of law. The Act primarily puts the onus on the state to ensure healthcare to the people through the guarantee of nutrition, safe drinking water, sewerage facilities etc. The patients will have the facility to avail of OPD or indoor care free of charge in the public health facilities.

Since a major part of health care has been developed in the private sector in our country, the act involves the private sector also to provide emergency care to the needy and in case of emergency delivery even if the person is not able to pay. The doctors of Rajasthan have been agitating against the Act. The government has agreed to the demand of doctors and has excluded health facilities with less than 50 beds and those who have not taken any grant from the government from the purview of the Act.

Rajasthan has shown the way; it is now important that such an act is passed at the central government level and health is declared as a Fundamental right.

This is essential because the healthcare indices in our country are dismal. Every year out of a population of 100,000 in our country 36.11 persons die due to Tuberculosis [1]; a large number of children fall prey to Encephalitis, Diarrhea, Malaria, and many other communicable diseases, is a matter of grave concern. Needless to mention the havoc caused by the COVID Pandemic where we failed to prevent several thousand deaths because of mismanagement and skewed priorities. Non-communicable diseases too are on the rise. It is estimated that 29.8% of Indians have hypertension. India is soon likely to become the diabetes capital of the world.

It is very unfortunate that several patients die in case of an emergency because of denial of treatment for want of money or due to some technicalities. This is deplorable and a complete violation of the right to life which is a basic human right. The Supreme Court of India as long back as 1989 observed in Parmanand Katara v. Union of India AIR 1989 SC 2039 that when accidents occur and the victims are taken to hospitals or to a medical practitioner, they are not taken care of for giving emergency medical treatment on the ground that the case is a medico-legal case and the injured person should go to a Government Hospital. The Supreme Court emphasized the need for making it obligatory for hospitals and medical practitioners to provide emergency medical care. The Apex court further observed that this is not the only reason for not attending on injured persons or persons in a medical emergency, for sometimes such persons are turned out on the ground that they are not in a position to make payment immediately or that they have no insurance or that they are not members of any scheme which entitles them to medical reimbursement [2].

Despite the above information well in the knowledge of those responsible to manage the health affairs, we have failed to take steps to provide healthcare to all the citizens. The Joseph Bhore committee report had recommended way back in 1946 the need to ensure equitable healthcare to all citizens irrespective of their capacity to pay. India has been a signatory to the Alma Ata Declaration of 1978 whereby our country committed to ensuring health for all by the year 2000. But we failed in that. Presently 75% of healthcare expenditure comes from the pockets of households. Every year 6.3 crore population of India is pushed towards poverty due to out-of-pocket expenditure, a fact admitted in the Health Policy 2017. This catastrophic healthcare cost is an important cause of impoverishment which further adds to poor health. Our public health spending is one of the lowest in the world which is nearly 1.1% of the GDP against the required minimum of 5% as recommended by the WHO.

On the contrary, there has been a paradigm shift in the approach to healthcare. The National Health Policy 2017 showed concern about the healthcare situation in the country but it offers a solution for insurance-based healthcare. The existing insurance-based schemes cover only indoor care while nearly 67% of the health expenditure is incurred on OPD care. With the entry of the corporate sector in the healthcare system, healthcare has been turned into a business rather than social responsibility. Moreover, those not covered under any government insurance scheme have to shelve huge amounts for insurance. Senior citizens are the worst affected. The insurance-based schemes have in fact turned into doling away public money to the insurance companies.

Health was recognized as a human right way back in 1966. The erstwhile USSR declared health as a right of every citizen and the responsibility of the state in 1936. In the year 1948 the UK government took a similar step to establish National Health Services (NHS). But ironically till date the Constitution of India does not expressly guarantee a fundamental right to health. However references to the state’s responsibility to health of the people are mentioned in the directive principles in Part IV of the Indian Constitution. These provide a basis for the right to health. Article 42 directs the State to just and humane conditions of work and maternity relief. Article 47 casts a duty on the state to raise the nutrition levels and standard of living of people and to improve public health. Article 21 guarantees the right to life.

A subject like healthcare cannot be left to market forces alone. It will further exclude the low-income strata from quality healthcare. Organisations like the Indian Doctors for Peace and Development (IDPD) and the Alliance of Doctors for Ethical Healthcare have been demanding such an Act from the central government to declare Health as a Fundamental Right. It is the primary duty of all doctors as custodians of health to press for the demand for Health as a Fundamental Right. This will also help in reducing the trust deficit between patients and doctors.

With Rajasthan Act in force, it is time now for the central government to follow.

(Author: Dr Arun Mitra is an ENT Surgeon based in Ludhiana (Punjab). Presently he holds the office of Co-President of International Physician for the Prevention of Nuclear War (IPPNW) and President of Indian Doctors for Peace and Development (IDPD))

[1Dhamnetiya, D., Patel, P., Jha, R.P. et al. Trends in incidence and mortality of tuberculosis in India over past three decades: a joinpoint and age–period–cohort analysis. BMC Pulm Med 21, 375 (2021).

[2Law Commission of India 201st Report on Emergency Medical Care to Victims of Accidents and During Emergency Medical Condition and Women Under Labour (Draft Model Law Annexed) August 2006

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