The Constitution of India under Article. 21 provides for Right to Life and Personal Liberty to the people of India. Under the various provisions of the Constitution it imposes the responsibilities to the Central as well as State Government, of establishing a Welfare state, securing and protecting the rights of the individual and promoting their well-being. The State has to implement the Directive Principles, as it is the obligatory duty of the Government, to provide adequate medical facilities and health care to the people of India, by running hospitals and health care centers. Basically, the courts are custodian and protector of the Fundamental Rights of the citizens, but now they are empowered to proceed further and give compensatory relief to the victims, whenever, there is violation of his or her fundamental right to health, by public or by the State. For violation of the fundamental rights of the citizens, Supreme Court under Article. 32 and the High Court under Article. 226 can grant monetary relief to the sufferer through Writ Petitions. It can penalise the wrong doer, including the Government and fix the liability for the public wrong, under the Constitution of India. There is no express provision, for fixing such liability but, the Supreme Court, through its various judgments, have made the adequate provisions for fixing the liabilities for the same.
In the Constitution of India, the spirit of Fundamental Rights and Directive Principles of State Policy recognises many basic rights of the individuals, safeguarding the human dignity. Fundamental Rights are justiciable, i.e., they can be enforced by legal action. Directive Principles are directions for the legislatures and are not enforceable or justiciable but are powerful instruments for the good governance of the country and it shall be the duty of the State to apply these Principles in making the law (Article. 37).
Article. 21: No person shall be deprived of his life or personal liberty except according to the procedure established by law. Thus, the Right to Life or Personal Liberty under Article. 21 from the point of health includes -
(i). Right to Health;
(ii). Right to Doctor's Assistance;
(iii). Right to Pollution free environment.
Article. 32: The Constitution gives Right to Move Supreme Court for the enforcement of the Fundamental Rights. Whenever a right of the citizen is violated, he can move the Supreme Court for the enforcement of that right.
Article. 226: The Constitution gives right to move High Court for the enforcement of the fundamental rights. Whenever a right of the citizen is violated, he can move the High Court for the enforcement of that right.
Public Interest Litigation: Normally the person, whose individual right is violated or infringed, has a locus standi to file a writ petition for the enforcement of a fundamental right. However, when there is a breach of some public duty or breach of a constitutional provision which causes injury to the general public. Any person is allowed to file Writ Petition for such violation and Supreme Court has taken cognizance of even petitions filed based on the Press reports, for such violation of fundamental rights.
Relevant Directive Principles Related With Right To Health To Be Followed By The State:
(A). Article. 39:
(a). That the citizens, men and women equally, have the right to an adequate means of livelihood.
(e). That the health and strength of workers, men and women and the tender age of children are not abused, and the citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.
(f). That the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity, and that children and youth are protected against exploitation and against moral and material abandonment.
(B). Article. 41:
The State shall, within the limits of its economic capacity and development, make effective provisions for securing the Right to Work, to Education and to Public Assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Thus it deals with social services and confers Right to Public Assistance in cases of sickness and disablement.
(C). Article. 42:
It requires, that the State, within the limits of its economic capacity and development, to make effective provisions, for securing just and human conditions at work and also make provisions for maternity relief.
(D). Article. 47:
It lays down, the duty of the State, to regard, as among its primary duties - the raising of the level of nutrition and the standard of living of its people and the improvement of public health. The State has to endeavour to bring about prohibition of the consumption (except for the medicinal purposes) of intoxicating drinks and drugs which are injurious to health.
(E). Article. 48-A (introduced by the forty-second amendment Act, 1976): It obligates the State to endeavour to protect and improve the environment in view of the public health. The State must take necessary steps for protection and improvement of healthy environment - essential for preserving and maintaining good public health.
Some Relevant Directive Principles Under New Chapter: Prior to Forty-Second Amendment of the Constitution in 1976, there were no fundamental duties of the citizens. The list of Fundamental Duties was incorporated in the Constitution on the recommendation of the Swaran Singh Committee.
(F). Article. 51-A(g): It is the Fundamental Duty of every citizen to protect and improve the natural environment including forests, lakes, rivers, wild life to have compassion for living creatures.
Article. 12 of the International Covenant on Economic, Social and Cultural Rights: It requires the State parties to strive for the highest attainable standard of physical and mental health. The effect of these international human rights documents are to impose obligations on the State, relating to health, under different laws, such as Law of Torts, Law of Contract, Consumer Protection and Law of Crimes.
Survey of Judicial Decisions in Establishing Right to Health as a part of Right to Life:
(1). Municipal Council, Ratlam v. Vardhichand (1980) 4 SCC 162: The case refers to Article. 21 for Right to Health with reference to the pollution free environment and State duty to maintain pollution free environment under Article. 47. In this case, resident of Ratlam, Vardhichand filed a complaint that Municipality had failed to prevent the discharge of malodorous fluids from the nearby Alcohol Plant into the public street (nala) and provide sanitary facilities on the roads. The Supreme Court directed the Municipality to follow the statutory duties as provided in Article. 47 of the Constitution and stop the effluents from the alcohol plant from flowing into the nala or street and remove unhygienic conditions amounting to public nuisance. It further stressed, that Article. 47, makes it paramount primary duty on the State or Municipality to take steps to prevent pollution free environment and improve the public health. The Court also observed that - Where Directive Principles have found statutory expression in do's and don'ts, the Court will not sit idle and allow municipal or Government to become statutory mockery. The Law will relentlessly be enforced and the plea of poor finances will be alibi when people in the misery cry for JUSTICE. The officer-in-charge and even elected representative, will have to face the penalty of law, if what the Constitution and follow-up legislation, direct them to do are defied and denied wrongfully.
(2). M.C.Mehta v.Union of India (1987) 4 SCC 463 (Ganga Pollution Case): The case refers to the Article. 21 for Right to Health with reference to the pollution-free environment. Justice Singh declared the closure of Industries which were polluting River Ganga (though it may bring unemployment and loss of revenue to the State/ as life, health and ecology have greater importance for the people than the unemployment and loss of revenue.
(3). M.C. Mehta v. Union of India AIR 1987 SC 965: This case refers to the Article. 21 for Right to Health with reference to the pollution free environment. In this case, there was a leakage of oleum gas on 04th December, 1985 from the Shri Ram Food and Fertiliser Corporation, New Delhi, in which one person died on the spot and several persons were taken ill because of the leakage of the toxic gas. M.C.Mehta filed a PIL under Article. 32 for the violation of Article. 21 and sought to close and relocate the Plant which was located in the thickly populated area of Delhi. The District Magistrate, Delhi ordered to close down the factory. Chief Justice Bhagawathi showed his deep concern for the safety of the people of Delhi from the leakage of the hazardous substance like oleum gas. The Apex Court made significant announcement in this case, that enterprises engaged in hazardous or inherently dangerous activity owe an absolute duty to the community and must be absolutely liable to compensate for the harm caused by such activities. It was observed that there is an element of hazard or risk inherent in the very use of science and technology and it is not possible to totally eliminate such hazards or risks to the community. We cannot possibly adopt a policy of not having any chemical or other hazardous industries, merely because, they pose hazards or risk to the community. We can only hope to reduce the elements of hazards or risks to the community, by taking all necessary steps. It allowed it to restart the factory with modifications of the workers safety, while maintaining the effluent discharge and emission standards.
(4). Pt. Parmanad Katara v. union of India AIR 1989 SC 2039: This case refers to the Article. 21 for Right to Health. Article. 32, Articles. 41 and 42 Right to get Treatment in Sickness and Disablement. In this case Pt. Parmanad Katara was a small human right activist fighting for the good cause of general public interest. He filed a writ petition on the basis of a report in Hindustan Times, in which it was alleged that a man travelling by Scooter was knocked down by a speeding car. He has an head injury and was bleeding profusely. He was picked by a person on the road and he took him to the nearest hospital. The doctor refused to attend to him and give treatment. He could not get the treatment due to lack of operative facilities for a Head Injury and non-availability of a neuro-surgeon. He was advised to take him to a different hospital located about 20 kms. away, authorised to treat Medico-Legal cases. At last he died on the way. The Supreme Court has held that there cannot be two opinions, that preservation of Human Life is of paramount importance. Every medical practitioner, whether practicing or attached to government or private hospital has a profound obligation, to extend his services with due expertise for protecting life.No law or statute can intervene, to avoid or delay the discharge of this paramount obligation, cast upon the members of the Medical Profession. Many a times the member of the Medical Profession avoids his duty to help a dying person, because it might turn out to be a medico-legal case. No doubt a Physician is free to choose his patient, whom he wants to serve. However, he should respond to any request for his assistance in an emergency. The Supreme Court has further held that whenever a member of the medical profession is approached, and if he finds, that whatever assistance he could give, is not sufficient to save the life of the patient, and some better assistance is necessary, it is the duty of the medical man, to provide primary medical aid to the patient and then refer the patient to the other hospital, where the expertise facilities required for the treatment are available. The practice of the doctors and certain Government Institutions, to refuse even the primary medical aid to the patient and referring them to other hospitals, simply because they are medico-legal cases is deprecated. No medical man shall commit an act of negligence depriving the patient from necessary care.
(5). Union Carbide Corporation v. Union of India AIR 1992 SC 248 commonly called as the Bhopal Gas Tragedy: This case refers to the Article. 21 for Right to Health with reference to the pollution free environment. In this case, there was leakage of Methyl Isocynate (MIC) gas from the Union Carbide Corporation at Bhopal on 02nd - 03rd December, 1984. It was reported that more than 3,000 people died the same night and 2,00,000 persons were taken ill of various ailments. In this case the Supreme Court held that the Union Carbide Corporation will compensate the victims and their relatives and also for the injuries to unborn children whose congenial defects were traceable to MIC toxicity inherited or derived congenitally due to the accident.
(6). State of Punjab v. Mohinder Singh AIR 1997 SC 1225: The Right to Health is recognised as a part of Fundamental Right to Life, guaranteed by Article. 21 of the Constitution. In this case an employee Mr. Mohinder Singh of the Punjab State had a heart ailment. The specialist of this disease was not available in Punjab so he was permitted by the Director of Health Services and the Medical Board of Punjab, to have treatment outside Punjab, i.e., at All India Institute of Medical Sciences, New Delhi. The employee had to pay room at the Institute as per their rates. The employee claimed re-imbursement for the same. The State Government rejected the claim saying that the room rent was not permitted as per Government Rules. The Employee went to the Court and it was held that having regard to Article. 21 of the Constitution, the employee was entitled for the re-imbursement amount actually paid by him as room rent.
(7). Dilip Basu v. State of Bengal AIR 1997 SC 3017: This was a writ petition in the Supreme Court and was decided by Honourable Justices Dr. A.S. Anand and K.T. Thomas. The petition was related to Articles. 21, 22, 32 and 226. The Honourable Apex Court has held that as established in Article. 21 that no person shall be deprived of his life or personal liberty except according to the Procedure established by law. Personal liberty thus is a sacred and cherished right under Constitution of India. The expression Life and Personal Liberty has been held to include the Right to Live with Human Dignity and thus it would also include within itself a guarantee, against torture and assault by the State or its functionaries.
(8). Pachim Bengal khod Majdoor Samiti and Others v. Government of West Bengal AIR 1996 (4) SCC 37: This case refers to the Article. 21 for Right to Health and Articles. 41 and 42 making it the duty of the State to provide the treatment in sickness and disablement. One member of the Pachim Bengal Khod Majdoor Samiti fell from the train and suffered Head Injury for which he needed a Neuro Surgeon to operate on him. He moved from 7-8 hospitals and was turned down for lack of operative facilities for a Head Injury and non-availability of a Neuro-Surgeon. At last he was admitted and operated at some hospital after wastage of few hours. He was alright but he sued the government for not providing adequate facilities for Neuro-Surgery in the State Hospital. The Supreme Court has held that it is the responsibility of the State to provide for the facilities of treatment in the state run hospitals and held this inability to provide Neuro-Surgery in the State Hospital as violation of Articles. 41 and 42 to be read with Article. 21 and penalised the Bengal government with a fine of Rs. 25,000/-. It was held that Life without health is no life at all. It also issued necessary directions to the Central and State Government to ensure availability of proper medical facilities to deal with the emergency cases. It also emphasised that the State cannot abdicate the constitutional obligation imposed upon it, by citing financial constraints - as a reason for not providing adequate health care facilities.
(9). In M.C. Mehta v. Kamal Nath AIR 2000 SC 1997: Justice Saghir Ahmed of Supreme Court gave a wider interpretation of the fundamental right or constitutional right of article. 21. It was held that the expression Life in Article. 21 does not mean, mere animal existence. It has a wider meaning which includes right to livelihood, better standards of life, hygienic conditions in the work place and leisure. This means right to live with human dignity and have a living environment congenial to human existence. Any activity which pollutes the environment and makes it unhealthy, hazardous to human health, is violative of the right to have living environment, guaranteed by Article. 21. He further held that environmental pollution should also be regarded as amounting to violation of Article. 21 of the Constitution.
(10). Hinch Lal Tiwari v. Kamla Devi 2001 (6) SCC 496: This case refers to Article. 21 for Right to Health with reference to the pollution free environment. In this case, the Supreme Court has held that material resources of the community like forests, tanks, ponds, hillock, mountain, etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality of life which is the essence of the guaranteed right under Article. 21 of the Constitution. The Court decided that the Pond's land cannot be allotted for the residential purpose.
-C.S. Chakravarthy-
----------------------------------------------------------------
Survey of Judicial Decisions in Establishing Right to Health as a part of Right to Life:
(1). Municipal Council, Ratlam v. Vardhichand (1980) 4 SCC 162: The case refers to Article. 21 for Right to Health with reference to the pollution free environment and State duty to maintain pollution free environment under Article. 47. In this case, resident of Ratlam, Vardhichand filed a complaint that Municipality had failed to prevent the discharge of malodorous fluids from the nearby Alcohol Plant into the public street (nala) and provide sanitary facilities on the roads. The Supreme Court directed the Municipality to follow the statutory duties as provided in Article. 47 of the Constitution and stop the effluents from the alcohol plant from flowing into the nala or street and remove unhygienic conditions amounting to public nuisance. It further stressed, that Article. 47, makes it paramount primary duty on the State or Municipality to take steps to prevent pollution free environment and improve the public health. The Court also observed that - Where Directive Principles have found statutory expression in do's and don'ts, the Court will not sit idle and allow municipal or Government to become statutory mockery. The Law will relentlessly be enforced and the plea of poor finances will be alibi when people in the misery cry for JUSTICE. The officer-in-charge and even elected representative, will have to face the penalty of law, if what the Constitution and follow-up legislation, direct them to do are defied and denied wrongfully.
(2). M.C.Mehta v.Union of India (1987) 4 SCC 463 (Ganga Pollution Case): The case refers to the Article. 21 for Right to Health with reference to the pollution-free environment. Justice Singh declared the closure of Industries which were polluting River Ganga (though it may bring unemployment and loss of revenue to the State/ as life, health and ecology have greater importance for the people than the unemployment and loss of revenue.
(3). M.C. Mehta v. Union of India AIR 1987 SC 965: This case refers to the Article. 21 for Right to Health with reference to the pollution free environment. In this case, there was a leakage of oleum gas on 04th December, 1985 from the Shri Ram Food and Fertiliser Corporation, New Delhi, in which one person died on the spot and several persons were taken ill because of the leakage of the toxic gas. M.C.Mehta filed a PIL under Article. 32 for the violation of Article. 21 and sought to close and relocate the Plant which was located in the thickly populated area of Delhi. The District Magistrate, Delhi ordered to close down the factory. Chief Justice Bhagawathi showed his deep concern for the safety of the people of Delhi from the leakage of the hazardous substance like oleum gas. The Apex Court made significant announcement in this case, that enterprises engaged in hazardous or inherently dangerous activity owe an absolute duty to the community and must be absolutely liable to compensate for the harm caused by such activities. It was observed that there is an element of hazard or risk inherent in the very use of science and technology and it is not possible to totally eliminate such hazards or risks to the community. We cannot possibly adopt a policy of not having any chemical or other hazardous industries, merely because, they pose hazards or risk to the community. We can only hope to reduce the elements of hazards or risks to the community, by taking all necessary steps. It allowed it to restart the factory with modifications of the workers safety, while maintaining the effluent discharge and emission standards.
(4). Pt. Parmanad Katara v. union of India AIR 1989 SC 2039: This case refers to the Article. 21 for Right to Health. Article. 32, Articles. 41 and 42 Right to get Treatment in Sickness and Disablement. In this case Pt. Parmanad Katara was a small human right activist fighting for the good cause of general public interest. He filed a writ petition on the basis of a report in Hindustan Times, in which it was alleged that a man travelling by Scooter was knocked down by a speeding car. He has an head injury and was bleeding profusely. He was picked by a person on the road and he took him to the nearest hospital. The doctor refused to attend to him and give treatment. He could not get the treatment due to lack of operative facilities for a Head Injury and non-availability of a neuro-surgeon. He was advised to take him to a different hospital located about 20 kms. away, authorised to treat Medico-Legal cases. At last he died on the way. The Supreme Court has held that there cannot be two opinions, that preservation of Human Life is of paramount importance. Every medical practitioner, whether practicing or attached to government or private hospital has a profound obligation, to extend his services with due expertise for protecting life.No law or statute can intervene, to avoid or delay the discharge of this paramount obligation, cast upon the members of the Medical Profession. Many a times the member of the Medical Profession avoids his duty to help a dying person, because it might turn out to be a medico-legal case. No doubt a Physician is free to choose his patient, whom he wants to serve. However, he should respond to any request for his assistance in an emergency. The Supreme Court has further held that whenever a member of the medical profession is approached, and if he finds, that whatever assistance he could give, is not sufficient to save the life of the patient, and some better assistance is necessary, it is the duty of the medical man, to provide primary medical aid to the patient and then refer the patient to the other hospital, where the expertise facilities required for the treatment are available. The practice of the doctors and certain Government Institutions, to refuse even the primary medical aid to the patient and referring them to other hospitals, simply because they are medico-legal cases is deprecated. No medical man shall commit an act of negligence depriving the patient from necessary care.
(5). Union Carbide Corporation v. Union of India AIR 1992 SC 248 commonly called as the Bhopal Gas Tragedy: This case refers to the Article. 21 for Right to Health with reference to the pollution free environment. In this case, there was leakage of Methyl Isocynate (MIC) gas from the Union Carbide Corporation at Bhopal on 02nd - 03rd December, 1984. It was reported that more than 3,000 people died the same night and 2,00,000 persons were taken ill of various ailments. In this case the Supreme Court held that the Union Carbide Corporation will compensate the victims and their relatives and also for the injuries to unborn children whose congenial defects were traceable to MIC toxicity inherited or derived congenitally due to the accident.
(6). State of Punjab v. Mohinder Singh AIR 1997 SC 1225: The Right to Health is recognised as a part of Fundamental Right to Life, guaranteed by Article. 21 of the Constitution. In this case an employee Mr. Mohinder Singh of the Punjab State had a heart ailment. The specialist of this disease was not available in Punjab so he was permitted by the Director of Health Services and the Medical Board of Punjab, to have treatment outside Punjab, i.e., at All India Institute of Medical Sciences, New Delhi. The employee had to pay room at the Institute as per their rates. The employee claimed re-imbursement for the same. The State Government rejected the claim saying that the room rent was not permitted as per Government Rules. The Employee went to the Court and it was held that having regard to Article. 21 of the Constitution, the employee was entitled for the re-imbursement amount actually paid by him as room rent.
(7). Dilip Basu v. State of Bengal AIR 1997 SC 3017: This was a writ petition in the Supreme Court and was decided by Honourable Justices Dr. A.S. Anand and K.T. Thomas. The petition was related to Articles. 21, 22, 32 and 226. The Honourable Apex Court has held that as established in Article. 21 that no person shall be deprived of his life or personal liberty except according to the Procedure established by law. Personal liberty thus is a sacred and cherished right under Constitution of India. The expression Life and Personal Liberty has been held to include the Right to Live with Human Dignity and thus it would also include within itself a guarantee, against torture and assault by the State or its functionaries.
(8). Pachim Bengal khod Majdoor Samiti and Others v. Government of West Bengal AIR 1996 (4) SCC 37: This case refers to the Article. 21 for Right to Health and Articles. 41 and 42 making it the duty of the State to provide the treatment in sickness and disablement. One member of the Pachim Bengal Khod Majdoor Samiti fell from the train and suffered Head Injury for which he needed a Neuro Surgeon to operate on him. He moved from 7-8 hospitals and was turned down for lack of operative facilities for a Head Injury and non-availability of a Neuro-Surgeon. At last he was admitted and operated at some hospital after wastage of few hours. He was alright but he sued the government for not providing adequate facilities for Neuro-Surgery in the State Hospital. The Supreme Court has held that it is the responsibility of the State to provide for the facilities of treatment in the state run hospitals and held this inability to provide Neuro-Surgery in the State Hospital as violation of Articles. 41 and 42 to be read with Article. 21 and penalised the Bengal government with a fine of Rs. 25,000/-. It was held that Life without health is no life at all. It also issued necessary directions to the Central and State Government to ensure availability of proper medical facilities to deal with the emergency cases. It also emphasised that the State cannot abdicate the constitutional obligation imposed upon it, by citing financial constraints - as a reason for not providing adequate health care facilities.
(9). In M.C. Mehta v. Kamal Nath AIR 2000 SC 1997: Justice Saghir Ahmed of Supreme Court gave a wider interpretation of the fundamental right or constitutional right of article. 21. It was held that the expression Life in Article. 21 does not mean, mere animal existence. It has a wider meaning which includes right to livelihood, better standards of life, hygienic conditions in the work place and leisure. This means right to live with human dignity and have a living environment congenial to human existence. Any activity which pollutes the environment and makes it unhealthy, hazardous to human health, is violative of the right to have living environment, guaranteed by Article. 21. He further held that environmental pollution should also be regarded as amounting to violation of Article. 21 of the Constitution.
(10). Hinch Lal Tiwari v. Kamla Devi 2001 (6) SCC 496: This case refers to Article. 21 for Right to Health with reference to the pollution free environment. In this case, the Supreme Court has held that material resources of the community like forests, tanks, ponds, hillock, mountain, etc. are nature's bounty. They maintain delicate ecological balance. They need to be protected for a proper and healthy environment which enables people to enjoy a quality of life which is the essence of the guaranteed right under Article. 21 of the Constitution. The Court decided that the Pond's land cannot be allotted for the residential purpose.
-C.S. Chakravarthy-
----------------------------------------------------------------
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