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  • Writer's picturePGCL Moot Court Society


Updated: Dec 13, 2020

- Aashi Shah


With a daily jump of 90 thousand cases of coronavirus, India has unlocked the position to become the 2nd worst corona virus-hit country in the world.[1] The pandemic, notwithstanding its catastrophic effects, has exposed the vulnerabilities of our healthcare system. India has never spent more than 2% of its GDP on healthcare[2]– low expenditure on healthcare and the unprecedented coronavirus has opened the eyes of the people to the indispensable need of a robust and universal public health service. Ever since the outbreak of the virus in the country, the healthcare system is in a constant crisis. Therefore, it is in the national interest for everybody to be covered by quality healthcare, or for health services to be accessible to everyone.

The absence of a statutory framework for healthcare as a fundamental right has added insult to the injury. Furthermore, the exploitative nature of the private health sector and the inefficiency of the government in providing adequate public healthcare services has led the ones at the bottom of the economic strata suffer the most. It is, therefore, the right time to push forward the agenda to make the right to health a fundamental right. The universality of right to health will ease not only the health sector but also the other sectors of the economy that have been trickled down due to lack of preparedness.


Right to Health is not a fundamental right in India. However, there are several provisions in the Constitution of India which gives footing to public healthcare and the onus of the State in bestowing healthcare facilities to the citizens. The Directive Principles of State Policy in Part IV of the Constitution of India provide a basis for the right to health.[3]

- Article 39 (E) supervises the State to secure the health of workers,

- 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.

Moreover, the Constitution has also endowed the Panchayats and Municipalities to strengthen public health under Article 243G. The subject of “public health and sanitation, hospitals and dispensaries” falls under the blanket of the State list. This decentralization of power to healthcare is essential so as to deal with different necessities of each State.

In Paschim Bangal Khet Mazdoor Samity& Others V State of West Bengal & Others[4], the Supreme Court held that in a welfare state, the primary duty of the government is to secure the welfare of the people and moreover it is the obligation of the government to provide adequate medical facilities for its people. The same was reaffirmed in State of Punjab &Ors v Mohinder Singh Chawla[5]that the right to health is fundamental to the right to life and should be put on record that the government had a constitutional obligation to provide health services. Time and again, the Judiciary has set out precedents which put accountability on the State to maintain health services of the citizens. However, these provisions and the judgements ruled out by the Supreme Court are not sufficient. India’s predicament in healthcare has aggravated in the pandemic which should be dealt with immediately and effectively.

How ironical as it may be, the Epidemics Act 1897 that was invoked during the Covid-19 pandemic was enacted during the British rule. Ever since the bubonic plague forced the British to draft the Epidemics Act 1897, less attention has been drawn by the legislation towards public healthcare. This constant neglect of public healthcare conjoined by unsatisfactory and scanty measures at both the Centre and State levels have jeopardized the rights of the people especially the vulnerable section of the society. Therefore, it is paramount to introduce a Public Health Legislation and to make right to health a fundamental right under the Constitution of India.


A High-Level Committee on health sector constituted under the 15th Finance Commission in September 2019 had recommended the right to health to be declared as a fundamental right.[6] However, the recommendation could not be put into action due to lack of commitment on the part of Parliament towards the healthcare sector. The committee further recommended shifting the subject of health from the State List to the Concurrent List. But over-centralization of the health sector would lead to excessive bureaucracy, red tape and institutional constraints. The centralisation would seize the States of their constitutional rights. Furthermore, a uniform strategy would not prove beneficial for the States as their requirements may be disparate. Therefore, on a pivotal subject like health, co-ordination should be upheld between the Centre and the States. Transparent response from the States in taking actions and timely funding from the Centre to boost the States in their respective public health systems is necessary.

Adhering to the international human rights and health law, a statutory framework of right to health should be regulated in India on the principles of ‘solidarity, transparency and proportionality’.

- The principle of solidarity is linked to the basics of justice and equity. The current pandemic in India has further marginalised the vulnerable sections of the society due to the lack of or minimal access to healthcare and other basic needs. This has deepened the stark inequalities between the rich and the poor. The pandemic has resulted in increasing xenophobia, casteism and inequality among the various classes of the society. Thus, the principle of solidarity will guarantee equal access to public health systems to all. Solidarity means that the government and institutions treat people and protect their rights equally without any discrimination based on gender, caste, class, religion and language.

- The principle of transparency means that information should be available, accessible and disseminated among the citizens to effectively allow the scrutiny of decisions made by the government and of its institutions. This is crucial for good governance and to ensure people’s trust in public administration. The principle of transparency should be conjoined with that of accountability and reliability. In the context of the right to health and healthcare, the fundamentals of transparency will help in keeping the inflation in drugs and medical services under control, maintain the adequate functioning of public institutions and hold on to the trust of the people. The recent applications like Aarogya Setu should be in alignment with personal data protection and with the prior consent of the citizens.

- In the legal context, the principle of proportionality will help to strike a balance between the restrictions imposed by the state as a corrective measure and the gravity of the prohibited acts. The doctrine of proportionality will also determine the conditions for a limitation of constitutionally-protected rights. Countries across the globe including India have adopted extensive measures such as lockdown to control mobility, mandatory quarantine and punishment for those who do not adhere to the guidelines. However, these measures should not violate the fundamental rights and dehors the test of proportionality. Tough and stringent decisions do not necessarily lead to success; it is the systematic approach and respect for human rights and civil liberties that is the way forward.


In the light of the pandemic and its drawbacks, it is expedient to declare right to health a fundamental right. Increase in public expenditure on healthcare along with a polycentric response with respect to strong health laws will ensure societal resilience to future health crisis. Emergencies should not be an excuse to justify a violation of human rights, it is therefore critical to implement Public Health legislation on the principles of transparency, proportionality and solidarity.

Aashi Shah is a third year student at Pravin Gandhi College of Law, Mumbai.

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