Author: Jahanvi Saini, Guru Nanak Dev University, Amritsar
ABSTRACT
Right to health is considered as a universal right which is identified by the universal Declaration of Human Rights and the World Health Organization and makes it obligatory for the countries to consider health of its individuals as a top priority but with various other issues in a nation it never tops the priority list for the parties running the nation. On the International level the organizations talk about offering timely, beneficial and affordable quality of healthcare to the citizens of the countries but many instances are such where no profound healthcare can be offered due to economic, geographic and political factors to the general public. This right has recently sparked light on the need to be recognized by every country but the inadequate means usually work as a hurdle in the way. This paper aims to address these issues and explore the legal implications regarding the same. It will further examine challenges in low and middle income countries. By considering health as a human right, states can work toward equity, justice and prosperity.
KEYWORDS:
Right to Health, Healthy, Economic, Geographic, political factors, World Health Organization, Universal Declaration of Human Rights, Right to Life, Development, Justice, Equality, Equity.
INTRODUCTION
The foundation of the right to health can be traced back to the Universal Declaration of Human Rights (UDHR), adopted in 1948. Article 25 affirms the right to an adequate standard of living, which includes access to health care and medical services. This principle was reinforced earlier in the 1946 Constitution of the World Health Organization (WHO), which explicitly recognized health as a fundamental human right. Although the UDHR is not a legally binding document, it remains a landmark in the recognition of universal human rights and has significantly shaped the development of subsequent international treaties and legal frameworks. Health is though considered as a basic necessity on the international level but it is ignored by many great nations as well. Health is considered as the integral part of our life, if a man is healthy, he is considered to live a good life. The good quality of life also depends upon the health of the person. If the person lives a good life, it is considered that the person can also choose to do the best in their life. The very important quote of our childhood days, “Health is Wealth” , is considered to be the truth because if a man lives a healthy life, the man would be considered to live a wealthy life. Every important essential of living a wealthy life can only be attained by health. For example, if a man is not bed ridden and lives a healthy lifestyle, if the man has good intellect, the person can contribute towards the wellbeing of the society which can lead to the development of the society.
In reference to this Right, this article will showcase the essentials of healthcare and its basics. The access to medical assistance, medical care, hospitals, free medicines etc.
Right to health as every individual right
This right has to be considered as the basic and compulsory right for every individual. The National Health Mission (NHM) is a government program which aims to provide affordable, equitable and quality health care services in the country. It is a centrally sponsored scheme which provides support to the states and union territories to strengthen their healthcare systems.
The Pradhan Mantri Ayushman Bharat is a health infrastructure mission which was launched in September 2018 to strengthen the healthcare for the citizens of the country and achieve Universal Health Coverage. Many national free drug initiatives are also taken to promote free diagnostics and free drug distribution and checkup camps for the poor.
On the International levels as well whenever any nation goes through any natural calamity and disaster, the international organizations and NGOs reach those countries for the saviour of mankind. The recent example of floods in Turkey, when India sent backup for mankind by its forces.
The present international scenario in relation to right to health
Universal Declaration of Human Rights in 1948 declared Right to Health as a fundamental right as an adequate part of living in its Article 25. This right was considered important for every human being irrespective of its gender, age, caste, colour, race etc. In 1966 again, the right to health was recognized as a human right in the International Covenant on Economic, Social and Cultural Rights.
Right to health as the manual for NGOs
A resource manual is considered to be a document or booklet which provides comprehensive information, guidance and resources on any specific topic. Many NGOs such as Doctors for You, Swasth foundation, Khalsa Aid, Swasthya Swaraj and the Smile foundation work for this area of right to health. Many international organizations such as Amnesty international, CARE International etc work globally to protect the right to health. These NGOs and international organizations use this right in their resource manual to make the public aware of the need for this right and how it is being violated, this can help the organizations gain funds from various parts for the promotion and help of the people in actual need.
Right to health for the vulnerable and marginalized population
The right to health for the vulnerable sections of the society is not the same as the others, the LGBTQs, the refugees and the migrants, the poor do not get the same access to rights as the others. The NGOs and the international organizations only work as their saviour but this does not open the way of justice for these sections because if any individual faces the violation of this right can approach the court for justice but usually the justice is given to the citizens of the country, just like Article 14 of the Indian Constitution which provides right to equality and on discrimination of the same one can approach the court but only the citizens can be served with justice.
The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (art. 28) stipulates that all migrant workers and their families have the right to emergency medical care for the preservation of their life or the avoidance of irreparable harm to their health.
Right to health in the war prone nations
Whenever any country enters into war, it is usually considered that the country has signed the death of its individuals. Once Plato said that “only the dead see the end of the war” and it is rightly said because anyone who is dead cannot revive and ask for help but the one who remains alive has to undergo various wounds and injuries. For their safety, they demand help and for their recovery, they demand healthcare which is usually lacking in war prone nations. Though the international organizations talk about this right but they fail to establish it when countries go on war. In the present sense if we talk about countries in war such as: Israel and Palestine, Russia and Ukraine. In such an instance can one think of the right to health? When the only basic priority of the people there right now would be to live in peace, food, shelter.
Everyday dozens of people including children, infants and adults are being killed and the situation has worsened to such an extent that no housing societies now exist there. Do the NGOs or international bodies now care about their resource manuals of right to health as a basic necessity? When the government for the people is even not able to beat the need for food and shelter for their people.
Right to health in nexus with right to equality and right to life (Article 14 & 21)
Article 14 of the Indian Constitution guarantees the right to equality before law and equal protection of laws to all persons within the territory of India, which in general means that every person is to be treated equally in every aspect within the Indian territory. This Article has a strong nexus with Right to Health which generally means that healthcare services should be accessible to every person irrespective of their age, sex, colour, race etc. UHC which means Universal Health Coverage ensures that the policies in relation to health covers all the citizens.
Article 21 of the Indian Constitution which talks about Right to Life, guarantees the protection of Life. Right to Health has been interpreted by the Supreme Court in various judgements. Paschim Banga Khet Mazdoor Samity v. State of West Bengal: The Supreme Court emphasized the state's responsibility to provide adequate medical aid.
State of Punjab & Ors. v. Mohinder Singh Chawla (1997): This case reaffirmed that the right to health is fundamental to the right to life and that the government has a constitutional obligation to provide health services.
Common Cause v. Union of India (2018): The court recognized the right to die with dignity as part of Article 21, including the right to refuse medical treatment or life support.
Various Public Interest Litigations (PILs): PILs have been filed on issues like the health rights of children in jails, pollution hazards, and the rights of HIV/AIDS patients, highlighting the broad scope of Article 21 in health-related matters.
Emerging challenges in right to health
There are various challenges in the field of healthcare such as inadequacy in infrastructure, emergence of new kinds of diseases, shortage of doctors, hospitals, specialists, hospital beds. The very recent example is of covid-19 which came as an outbreak in 2020 and affected many lives. In such a situation many people lost their lives due to failure in good infrastructure in the government hospitals because not everyone could afford private and expensive hospitals. Nevertheless, the situation in private hospitals was also alarming. The proof of poor infrastructure and inadequacy of government to utilize the public paid taxes was seen during covid times.
The changing trends in healthcare are also seen as nowadays people give equal importance to mental health which isn’t taken as seriously as physical health, this proves the lack of awareness of people towards health.
The issue of Rural and Urban is equally important to be discussed as women have to undergo this issue, women in the rural areas receive less accessibility to health services as compared to urban areas due to social norms of the rural society. Women’s right to healthy menstruation also stands in the queue because women in rural areas are also less aware about diseases borne out of unhealthy periods.
The division between rich and poor is as dangerous as any other division because this makes a thin wall between accessibility of quality drugs for poor in the government aided hospitals. The present economic conditions of the country and non- availability of drugs in aided hospitals has pushed the weaker section away from getting good medical assistance.
LITERATURE REVIEW
Many articles, papers and important articles and sections in law of various countries are available on this topic as it is a very common and important topic in the present scenario. The insight of the individuals is only relevant when it comes to writing about this topic because only the people of any nation can demand for their rights. The following are the past researches related to this topic:
Universal Declaration of Human Rights (1948).
International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966).
Article 12 of the ICESCR, it provides a detailed articulation of this right, including obligations on states to prevent disease, ensure medical care, and address child and maternal health.
General Comment No. 14 (2000) by the UN Committee on Economic, Social and Cultural Rights elaborates the right’s content, emphasizing the principles of availability, accessibility, acceptability, and quality (AAAQ) in health services.
Scholars such as Toebes (1999) and Forman et al. (2013) have analysed the enforceability and scope of these rights within international and domestic legal systems.
Critics such as Ooms & Hammonds (2009) question how low-income countries can fulfil such rights without adequate international support.
Yamin (2005) argues that legal recognition alone is insufficient without mechanisms for accountability and community participation.
Marmot et al. (2008) argue that addressing health inequities requires action across sectors, not only in healthcare. This view is reinforced by the Commission on Social Determinants of Health (WHO, 2008)
Fidler (2001) and Chapman (2002) explore how regional human rights systems such as those in Africa and the Americas, approach health rights within their unique political and social contexts.
Authors like Gostin (2021) and Meier & Gostin (2019) emphasize the role of global health governance, advocating for stronger international cooperation and the inclusion of human rights in health-related global agreements.
METHODOLOGY
This article relies on the primary and secondary sources of the qualitative data, which includes the range of existing sources such as research papers, articles and many other documents which are related to the topic. The resources mentioned above have formed the actual research paper and the article contains both the arguments which were for and against the topic as it helps in analyzing both the sides of the coin.
CONCLUSION
The needed enforceability of Right to Health in our country with respect to global consideration is very necessary in today’s world and this article emphasizes a few of the issues faced by people all around the globe when it comes to accessing their Right to Health. The Indian constitution and its savior i.e. the Supreme Court marks various judgements and laws in the support of Right to Health therefore ascertaining that this right for people is not violated. Even in matrimonial matters nowadays mental health of a female is considered by the courts as very important.
The ambiguity in the nation is because of absence of any specific law regarding health, though the legislation has already enacted acts such as Public Health Act, Clinical Establishment Act etc. which promotes health of individual and healthy environment in one or the other way but there are many loopholes prevailing in the act, also there is still a need to enact an act which needs to control the entire system related to public welfare and health.
REFERENCES
Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. GAOR, 3d Sess., Supp. No. 13, U.N. Doc. A/810 (Dec. 10, 1948).
Constitution of the World Health Organization, July 22, 1946, 14 U.N.T.S. 185.
International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3.
U.N. Comm. on Econ., Soc. & Cultural Rts., General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), U.N. Doc. E/C.12/2000/4 (Aug. 11, 2000).
Office of the United Nations High Commissioner for Human Rights, The Right to Health, Fact Sheet No. 31 (2008).
Brigit Toebes, The Right to Health as a Human Right in International Law (1999).
Judith Asher, The Right to Health: A Resource Manual for NGOs (2004).
Lawrence O. Gostin, Global Health Law (2014).
Benjamin Mason Meier & Lawrence O. Gostin eds., Human Rights in Global Health: Rights-Based Governance for a Globalizing World (2018).
Audrey Chapman, Core Obligations Related to the Right to Health, in Core Obligations: Building a Framework for Economic, Social and Cultural Rights 185 (Audrey Chapman & Sage Russell eds., 2002).
Lisa Forman, Gorik Ooms & Claire Brolan, Rights Language in the Sustainable Development Agenda: Has Right to Health Discourse and Norms Shaped Health Goals?, 15 Health & Hum. Rts. J. 1 (2013).
Gorik Ooms & Rachel Hammonds, Strengthening Health Systems Through International Support, 377 Lancet 52 (2009).
Alicia Ely Yamin, The Right to Health as a Human Right in International Law, 7 Health & Hum. Rts. 45 (2005).
Michael Marmot et al., Closing the Gap in a Generation: Health Equity Through Action on the Social Determinants of Health, Final Report of the Comm’n on Soc. Determinants of Health, World Health Org. (2008).
David Fidler, International Law and Infectious Diseases, 31 Int’l Law. 723 (2001).
