PROJECT REPORT ON CONSTITUTIONAL LAW-I
“SUPREME COURT ON RIGHT TO HEALTH CARE UNDER RIGHT TO LIFE” LIFE ”
CONTENTS S.NO
TOPIC
PG.NO
1
Introduction
1
2
Right to health care
3
3
Origin of Right to health care from
3
Directive principle to Right to life 4
Right to health and medical aid for workers
5
Professional obligation to
5
Protect Life of Accident Victims
7
6
Guidelines for Holding Eye Care Camps
7
7
Environment Pollution is linked to
8
Health and is violation of right to life with dignity 8
Adequate and Quality medical care
9
9
Compensation Claims against the State
9
10
Rights of Government Employees
10
To Receive Health Care 11
Right to Emergency Health Care
11
12
Obligations of Private Sector
13
13
Conclusion
14
14
Bibliography
15
List of cases: 1. A.K.Gopalan v. State of Madras AIR 1950 SC 27 2. Maneka Gandhi v. Union of India AIR 1978 SC 597 3. Consumer Education and Research Center v. UOI AIR 1995 SC 636 4. State of Punjab v Ram Lubhaya Bagga(1998) 4 SCC 177 5. Paschim Banga Khet mazdoor Samity & ors v. State of West Bengal & ors (1996) 4 SCC 37. 6. Bandhua Mukti Morcha v Union of India AIR 1984 SC 802 7. CESE Ltd v Subhash Chandra Bose AIR 1992 SC 573 8. Parmanand Katra vs Union of India AIR 1989 SC 2039 9. A.S Mittal v. State of Uttar Pradesh (1989) 3 SCC 233 10.Murli 10. Murli Deora v. Union of India and Ors (2001)8 SCC 765 11.VHAP 11. VHAP v. Union of India Petition no. 349/2003 12.T. 12. T. Ramakrishna Rao vs. Hyderabad Development Authority2002 (2) ALT 193 13.T. 13. T. Damodar Rao and others vs. Special Officer, Municipal Corporation of Hyderabad AIR 1987 AP 171, 14..C. 14. .C. Mehta vs. Union of India (1987) 4 SCC 463 15.S.K. 15. S.K. Garg vs. State of U.P (1998) 2 UPLBEC 1211 16.Peoples‘ 16. Peoples‘ Union of Civil Liberties vs. Union of India (1998) 2 UPLBEC 1211 17.State 17. State of Tripura vs. Amrita Bala Sen 2005 1 GLR 7 18.Marri 18. Marri Yadamma vs. State of Andhra Pradesh AIR 2002 AP 164 19.State 19. State of Punjab vs. Mohinder Singh Chawla (1997) 2 SCC 83 20.State 20. State of Punjab vs. Mohinder Singh Chawla (1997) 2 SCC 83 21.Common 21. Common Cause vs. Union of India AIR 1996 SC 929
List of abbreviations: 1. 2. 3. 4. 5. 6.
SC- Supreme Court AIR- All India Report Cal- Calcutta Ker- Kerala AP- Andhra Pradesh Ap- Arunachal Pradesh
Supreme Court on Right to Health Care under Right to Life Introduction Right to life and personal liberty is one of the important fundamental Right which includes almost all individual rights in it, The right to life assures a man that he has a right to live, and particularly that t hat he has the t he right ri ght not be killed by another human being. Article 21 states that ―No person shall be deprived of his life or personal liberty except according to procedure established by law.‖ According to this article right to life means the right to lead meaningful, complete and dignified life. It does not have restricted meaning. The object of the fundamental right under Article 21 is to prevent any restriction by the State to a person upon his personal liberty and deprivation of life except according to procedure established by law. The word ―Personal liberty‖ has a wide meaning which includes almost all kinds of Rights like Right to travel, Right to privacy, Right to education, Right to environment, Right to livelihood etc., through judicial decisions it is clear that Article 21 is being invoked in almost all kinds of Rights even directive principles which are not justifiable. Immediately after the constitution became effective the question of interpretation of these words arose in A.K.Gopalan v. State of Madras 1 in this case the validity of preventive detention Act 1950 was challenged. The main question arose in this case is whether Art 21 envisaged any procedure laid by a law enacted enacte d by a legislature le gislature or whether the procedure should be fair and reasonable. On behalf of gopalan it was argued that to hold the courts could adjudicate upon the reasonableness of the preventive detention Act or for that matter any law depriving a person of his personal liberty. The issues raised were 1. The word law in Art 21 does not mean merely enacted law but incorporates principles of natural justice so that a law to deprive a person of his life or personal liberty can‘t be valid unless it incorporates these principles in the procedure laid down by it. 2. The reasonableness of the law of preventive detention ought to be judged under Art 19. 3. The expression ―Procedure established by law‖ introduces into India the American concept of procedure due process which enables the court to see whether the law fulfils the requisite elements of a reasonable procedure. SC held and accepted the argument by state where they argued that procedure established by law must be understood in terms of ―lex‖ and not in the form of ―jus‖ Regarding Art 19 SC held that Art 19(1) (a) can be restricted by Art 19(2)
1
AIR 1950 SC 27
Regarding Regarding due process SC again rejected the argument and said that the word ―due‖ was absent in Art 21. This was a very significant omission for the entire efficacy of the procedural due process concept emanates from the word ―Due‖ The another case which strikes next to Gopalan is Maneka Gandhi v. Union of India 2 in this case Maneka Gandhi was issued a passport on 1/06/1976 under the Passport Act 1967. The regional passport officer , New Delhi issued a letter dated 2/7/1977 addressed to Maneka Gandhi , in which she was asked to surrender her passport under section 10(3)(c ) of the Act in public interest, within 7 days from the date of receipt of the letter. Maneka Gandhi immediately wrote a letter to the Regional passport officer New Delhi seeking in return a copy of the statement of reasons for such order. However the government of India, Ministry of External Affairs refused to produce any such reason in the interest of general public. Maneka Gandhi then filed a writ petition under Article 32 of the constitution in the Supreme Court challenging the order of the government of India as violating her fundamental rights guaranteed under Article 21 of the constitution. The main issues before the court in this case were as follows; 1. Whether right to go abroad is a part of right to personal liberty under Article 21. 2. Whether the Passport Act prescribes a ‗procedure‘ as required by Article 21 before depriving a person from the right guaranteed under the said Article. 3. Whether section 10(3) (c) of the Passport Act is violative of Article 14, 19(1) (a) and 21 of the constitution. 4. Whether the impugned order of the regional passport officer is in contravention of the principles of natural justice. The Supreme Court in this case reiterated the proposition that the fundamental rights under the constitution of India are not mutually exclusive but are interrelated. According to Justice K. Iyer, ‗a fundamental right is not an island in itself‘. The expression ―personal liberty‖ in Article 21 was interpreted broadly to engulf a variety of rights within itself. The court further observed that the fundamental rights should be interpreted in such a manner so as to expand its reach and ambit rather than to concentrate its meaning and content by judicial construction. Article 21 provides that no person shall be deprived of his life or personal liberty except in accordance with procedure established by law but that does not mean that a mere semblance of procedure provided by law will satisfy the Article , the procedure should be just , fair and reasonable. The principles of natural justice are implicit in Article 21 and hence the statutory law must not condemn anyone unheard. A reasonable opportunity of defence or hearing should be given to the person before affecting him, and in the absence of which the law will be an arbitrary arbitrar y one.
2
AIR 1978 SC 597
Right to health care In India, the right to health care and protection has been recognised since early times. India is a founder member of the United Nations, and it ratified various International Conventions promising to secure health can rights of individuals in society. In this context, art 51 of the Constitution of India provides for promotion of international peace and security. The preamble to the Constitution of India, which strives to provide for a welfare state with socialistic patterns of society under art 21 of the Constitution, guarantees the Right to life and personal liberty. Though it does not expressly contain the right to health, it has now been well settled through a series of cases that this includes the right to health further, arts 38, 42, 43, and 47 of the Constitution also provide for the promotion of health of individuals in society. Definition of health
The widely acceptable definition of health is that given by the WHO in the preamble of its constitution, according to World Health Organization, ―Health is a state of complete physical, mental and social wellbeing and not merely the absence of disease.
Origin of Right to health care from directive principle to Right to life India joined the UN at the start on October 30 th 1945 and on December 12th 1948 when the Universal Declaration of Human Rights (UDHR) was proclaimed, India was a party to this. The formulation of India‘s Constitution was certainly certainly influenced by the UDHR and this is reflected in the Fundamental Rights and the Directive Principles of State Policy. Most of the civil and political rights are guaranteed under the Indian Constitution as Fundamental Rights. But most of the Economic, Social and Cultural Rights do not have such a guarantee. The Constitution makes a forceful appeal to the State through the Directive Principles to work towards assuring these rights through the process of governance but clearly states that any court cannot enforce them. The Fundamental Rights and Article 21 (Right to Life with Dignity) forms the basis of Right to Health. Article 21 of the Indian Constitution, a fundamental right reads: ―No person shall be deprived of his life or personal liberty except ex cept through procedure established by law.‖ Till the 1970s the courts, by and large, had interpreted ‗life‘ literally ‗life‘ literally i.e. right to exist- right not to be killed. In late la te 1970s, the Supreme Court began to t o give an expanded meaning me aning to the term ‗life‘ appearing in Article in Article 21. Over the years it has come to be accepted that life does not only mean animal existence but the life of a dignified human being with all its concomitant attributes. This would include a healthy environment and effective health care facilities. Today, therefore, the Fundamental Right to Life is seen in a broad context. Before Right to health is not a fundamental right but through cases it was declared as a fundamental right. There were two developments in 1980s, which led to a marked increase in health related litigation. First was the establishment of consumer courts that made it cheaper and speedier to sue doctors for medical negligence. negligence. Second, the growth growth of PIL and and one of this offshoots being recognition of health care as a fundamental right. Through PIL the Supreme Court has allowed individual citizen to approach the court directly for the protection of their Constitutional human rights.
In Consumer Education and Research Center v. UOI 3 this case was concerning the occupational health hazards faced by workers in the asbestos industry. The Court for the first time explicitly held that the right to health was an integral factor of a meaningful right to life. The court held that the right to health and medical care is a fundamental right under Article 21. The Supreme Court, while examining the issue of the constitutional right to health care under arts 21, 41 and 47 of the Constitution of India. It went further and observed that health is not merely absence of sickness: ―The term health implies more than an absence of sickness. Medical care and health facilities not only protect against sickness but also ensure stable manpower for economic development. Facilities of health and medical care generate devotion and dedication to give the t he workers‘ best, physically as well as mentally, mentall y, in productivity. It enables the worker to enjoy the fruit of his labour, to keep him physically fit and mentally alert for leading a successful economic, social and cultural life. The medical facilities are, therefore, part of social security and like gilt edged security, it would yield immediate return in the increased production or at any rate reduce absenteeism on grounds of sickness, etc. Health is thus a state of complete physical, mental and social well being and not merely the absence of disease or infirmity. In the light of Arts. 22 to 25 of the Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights and in the light of socio-economic justice assured in our Constitution, right to health is a fundamental human right to workmen. The maintenance of health is a most imperative constitutional goal whose realisation requires interaction by many social and economic factors.‖ 4
State of Punjab v Ram Lubhaya Bagga Supreme Court observed that the right of one person correlates to a duty upon another, individual, employer, government or authority. Hence, the right of a citizen to live under art 21 casts and obligation on the state. This obligation is further reinforced under art 47; it is for the state to secure health to its citizens as its primary duty. No doubt the government is rendering this obligation by opening government hospitals and health centres, but to be meaningful, they must be within the reach of its people, and of sufficient liquid quality. Since it is one of the most sacrosanct and valuable rights of a citizen, and an equally sacrosanct and sacred obligation of the state, every citizen of this welfare state looks towards the state to perform this obligation with top priority, including by way of allocation al location of sufficient funds. This in turn will not only secure the rights of its citizens to their satisfaction, but will benefit the state in achieving its social, political and economic goals. 5
Paschim Banga Khet mazdoor Samity & ors v. State of West Bengal & ors In this case, Hakim Sheikh, a member of the Paschim Banga Khet Mazdoor Samity, fell off a train and 3
AIR 1995 SC 636
4
(1998) 4 SCC 177: AIR 1998 SC 1703.
5
(1996) 4 SCC 37.
suffered serious head injuries. He was brought to a number of state hospitals, including both primary health centres and specialist clinics, for treatment of his injuries. Seven state hospitals were unable to provide emergency treatment for his injuries because of lack of bed space and trauma and neurological services. He was finally taken to a private hospital where he received his treatment. Feeling aggrieved by the call sensitive attitude of the government hospitals in Calcutta in providing emergency treatment the petitioner filed this petition in the Supreme Court and sought compensation. While widening the scope of art 21 and the government‘s responsibility to provide medical aid to every person in the country, SC held that in a welfare state, the primary duty of the government is to secure the welfare of the people. Providing adequate medical facilities for the people is an obligation undertaken by the government in a welfare state. The government discharges this obligation by providing medical care to the persons seeking to avail of those facilities. Article 21 imposes an obligation on the state to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The government hospitals run by the state are duty bound to extend medical assistance for preserving human life. Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment, results in violation of his right to life guaranteed under Article21. The Court made certain additional direction in respect of serious medical cases: a. Adequate facilities are provided at the public health centres where the patient can be given basic treatment and his condition stabilized. b. Hospitals at the district and sub divisional level should be upgraded so that serious cases are treated there. c. Facilities for given specialist treatment should be increased and having regard to the growing needs, it must be made available at the district and sub divisional level hospitals. d. In order to ensure availability of bed in any emergency at State level hospitals, there should be a centralized communication system so that the patient can be sent immediately to the hospital where bed is available in respect of the treatment, which is required. e. Proper arrangement of ambulance should be made for transport of a patient from the public health centre to the State hospital. f. Ambulance should be adequately provided with necessary equipments and medical personnel.
Right to health and medical aid for workers Right to health and medical care is a fundamental right under art 21 read with arts 39(e) and 41, 43 makes the life of the workmen meaningful and purposeful with dignity of person. 6 Health and strength of worker is an integral facet to life. Denial thereof denudes the workman of finer facets of life violating art 21. In this case the court gave appropriate directions to the 6
Consumer education and research centre vs. union of India 1995 (3) SCC 42
employer, be it the state or its undertaking or private employer to make the right meaningful. The authorities or the private persons are bound by the directions given by the Supreme Court. Self preservation of one‘s life is the necessary concomitant of the right to life enshrined in Art 21, fundamental in nature, sacred, precious and inviolable. Hence the government employee undergoing open heart surgery in England is entitled to claim reimbursement of medical expenses at the rates prevalent in escorts heart institute in view of delaying process involved in getting admission to the AIIMS. 7 Though right to healthy life is an obligation of the state yet the government is justified in limiting the facilities to the extent permitted by its financial resources8. The right to healthy life which is inherent in Art 21, would justify the breach of confidentiality and right to privacy of another person. The SC directed a committee to be constituted to examine the ban of use of pesticides and chemicals causing health hazard.9 Though the Right to medical aid is a fundamental right of all citizens including exservicemen guaranteed by Art 21 of the constitution framing of schemes for ex-servicemen and asking them to pay ―on―on -time contribution‖ neither violates part III nor is it inconsistent with part IV of the constitution and thus th us can‘t be said to be illegal, unlawful, arbitrary, or otherwise unreasonable getting free and full medical facilities is not a part of the fundamental right of ex-servicemen10 The Supreme Court has recognized the rights of the workers and their right to basic health facilities under the Constitution, as well as under the international conventions to which India is a party. In its path breaking judgment in Bandhua Mukti Morcha v Union of India 11, the court delineated the scope of art 21 of the Constitution, and held that it is the fundamental right of every one in this country, assured under the interpretation given to art 21 by this court in Francis Mullin‘s Case to live with human dignity, free from exploitation. This right to live with human dignity enshrined in art 21 derives its life breath from the directive principles of state policy and particularly clause (e) and (f) of art 39 and arts 41 and 42. It must include protection of the health and strength stren gth of workers, men and women; and children of tender te nder age against abuse; opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity; educational facilities; just and humane conditions of work and maternity relief. These are the minimum requirements, which must exist in order to enable a person to live with human dignity. No state, neither the central government nor any state government, has the right to take any action which will deprive a person of the enjoyment of these basic essentials. 12
CESE Ltd v Subhash Chandra Bose the court held that, the health and strength of a worker is an integral facet of the right to life. The aim of fundamental rights is to create an
7 8
Surjit Singh vs. State of Punjab 1996 (2) SCC 83 State of Punjab vs. Ram Lubbaya Bagga 1998 (4) SCC 117
9
Ashok vs. Union of India AIR 1997 SC 2298 Confederation of Ex-servicemen Association vs. union of India (2006) 8 SCC 399 11 AIR 1984 SC 802 12 AIR 1992 SC 573 10
egalitarian society to free all citizens from coercion or restrictions by society and to make liberty available for all. The court, while reiterating its stand for providing health facilities
Professional obligation to Protect Life of Accident Victims Parmanand Katra vs Union of India 13 The petitioner filed a writ petition under Article32 of the Constitution where in it requested the Union of India to include a direction where it is made mandatory to treat every injured individual instantly so as to preserve the life and the procedural criminal law should s hould be followed after that so as to prevent any negligent deaths to occur.
the Supreme Court in this case held that it is the duty of professional obligation of all doctors whether government or private, to extend medical aid to the injured immediately to preserve life without waiting for legal formalities to be complied with police under the Code of Criminal Procedure . Art 21 of the constitution casts obligation on the state to preserve life. It is the obligation of those who are in charge of the community to preserve life so that the innocent may be protected, and the guilty may be punished. Social laws do not contemplate death by negligence which amounts to legal punishment. No law or state action can intervene to delay the discharge of this paramount obligation of the members of the medical profession. The obligation being total laws of procedure whether in statues or otherwise which would infer this obligation can‘t be sustained and must therefore give way. The court directed direct ed that in order make everyone aware of this position the decision of the court must be published in all journals and the national media should give adequate publicity highlighting these aspects. The medical council should send copies of this judgement to every medical college affiliated to it. The court further submitted that if this decision of the court is followed in its true spirit and vigour it would help in saving the lives of many citizens who otherwise die because of lack of immediate medical aid by doctors on the ground that they are not authorised to treat medico-legal cases.
Guidelines for Holding Eye Care Camps 14
A.S Mittal v. State of Uttar Pradesh public interest litigation brought under article 32 of the constitutions and the allied negligence on the part of the doctors in a free eye care camp at Khurja. However laudable the intentions with which it might it have been launched. The operated eyes of the patient were irreversibly damaged owing to post-operative infection. The mishap was due to some common contaminated source. After an inquiry it was found that it was due to normal saline used in the eyes at the time of the operation. The vision of 84 persons could not be restored. The court held that a mistake by a medical practitioner, which no reasonably competent and careful practitioner would have committed, is a negligent one. The court further held that the highest standard of aseptic and sterile should be maintained. The govt. spends so much on public health but standard of cleanliness and hygiene are to be desired. The victims were given a compensation of Rs 5000 as interim relief. The state govt. was directed to pay a sum of Rs. 12,500 to each of the victims. 13
AIR 1989 SC 2039 (1989) 3 SCC 233: AIR SC 1570
14
Murli Deora v. Union of India and Ors
15
In a public interest litigation, the Supreme Court prohibited smoking in public places in the entire country on the grounds that smoking is injurious to health of passive smokers and issued directions to the UnionofIndia, State Governments as well as the Union Territories to take effective step so to ensure prohibiting smoking gnall public places such as auditoriums, hospital buildings, health institutions, educational institutions, libraries, courts, public offices and public conveyances, including railways. VHAP v. Union of India
16
Despite as tidy rise in the rate of HIV infection, prior to 2004, the Government to of India only had an aids prevention policy. Treatment was not part of its duty. In 2003 ,hr l in filed a petition on behalf of three voluntary health association of Punjab (VHAP) calling calli ng up on the government to provide free are drugs to HIV positive persons. Soon after the petition was filed, the Government announced free ARV drugs for 100,000 people in six high prevalence States: Maharashtra, Andhra Pradesh, Nagaland, Manipur, Tamil Nadu and Karnataka, with the objective of providing free anti retro vir al treatment to100,000 PLHAs by the end of 2005, and to provide treatment to an additional 15-20 percent of AIDS cases each year, thereafter, fora period of five years
Environment Pollution is linked to Health and is violation of right to life with dignity 17
T. Ramakrishna Rao vs. Hyderabad Development Authority this is the letter addressed by Sri T. Ramakrishna Rao, a learned member of the A.P. High Court Bar which is considered as writ petition regarding the conditions of Hyderabad by forwarding an article in in the Indian Express Supplement dated 28-11-1998 under the caption "A victim of urbanization" thus the Andhra Pradesh High Court held Protection of the environment is not only the duty of the citizens but also the obligation of the State and i t‘s all other organs including the Courts. The enjoyment of life and its attainment and fulfilment guaranteed by Article 21 of the Constitution embraces the protection and preservation of nature‘s gift without which life cannot be enjoyed fruitfully. The slow poisoning of the atmosphere caused by the environmental pollution and spoliation should be regarded as amounting to violation of Article 21 of the Constitution of India.
In T.Damodar Rao and others V. Special Officer, Municipal Corporation of 18 Hyderabad the legitimate duty of the Courts as the enforcing organs of the constitutional objectives to forbid all actions of the State and the citizens from upsetting the ecological and environmental balance.
15
(2001)8 SCC 765 Petition no. 349/2003. 17 2002 (2) ALT 193 18 AIR 1987 AP 171, 16
In M.C. Mehta vs. Union of India 19 in this case an PIL was filed by a senior advocate practising in Sc of India and a public activist M.C.Mehta for protecting the water of ganga which is been polluted by the industries nearby the SC in this case held that it is the duty of the government to take proper steps for shifting the industries to a safe place within six months of time and to take proper steps for protection of Water ganga. It further observed imposed ―a positive obligation upon the State to take steps for ensuring to the individual a better enjoyment of life and dignity and for elimination of water water and air pollution.‖ pollution. ‖
Adequate and Quality medical care 20
S.K. Garg vs. State of U.P was dealing with conditions of public hospitals. The Petition had been filed raising concerns about the pitiable nature of services available in public hospitals in Allahabad. Complaints were made concerning inadequacy of blood banks, worn down X- ray equipment, unavailability of essential drugs and unhygienic conditions. The Court appointed a Committee to go into these aspects and report back to the Court. The High Court held that the allegations were proved and it is the government to ensure for proper health care of people. 21
Peoples’ Union of Civil Liberties Liberties vs. Union of India public interest litigation was filed against the Government for backing out of a project to build a psychiatric hospital-cummedical college in Delhi. The plan had been approved but when it was found that over Rs. 40 crores would be the expenditure, the Delhi Administration expressed its inability to fund such a project and the Central Government refused to take on its responsibility. The Supreme Court held that setting up of a psychiatric hospital in the capital city was necessary. Once land has been earmarked and on principle a decision taken that hospital should be shifted and part of it should be converted into a teaching institution institution while the other part should be a hospital, funding should not stand in way of locating such a hospital. As it was difficult to fund such a huge amount in a single year, it was to be taken up as a continuous project spread over a period.
Compensation Claims against the State Violation of Article 21 by the State will give rise to a claim under public law remedy.9 The State is also vicariously liable for acts of its agents or police or Government hospitals. The earlier notion was that ‗king could do no wrong‘ and the State could not be held liable for the wrongdoings of its servants. But in last 2 decades the concept of compensation came into force and SC liberally started awarding compensation. Thus, whether the State was or was not liable in torts for actions of its servants it would be still liable if such actions amounted to violation of fundamental rights. Once it was held that right to health and health care is a
19
(1987) 4 SCC 463 (1998) 2 UPLBEC 1211 21 (1991) 3 SC 1121 20
fundamental right then a breach of such a right by a state functionary would also make the State liable for payment of compensation. 22
State of Tripura vs. Amrita Bala Sen a case where two persons who were admitted to a Government hospital for cataract operation lost an eye each due to the operation. A Writ Petition was filed directly in the high court by these two persons claiming compensation from the State. The Division Bench found that the facts were quite clear and negligence of the doctors was apparent on the face of the record. The Court therefore directed the State to pay to each of these persons compensation of Rs. 60,000/- with interest. The State argued that the concerned individuals should be asked to file a civil suit in local courts (which would have been time consuming and also expensive) rather than approaching the High Court directly. But the Court rejected this contention and held that when the facts were clear, there was no need for the high court in cases of state negligence to ask the complainants to go through long-winded legal proceedings and could itself direct compensation. 23
Marri Yadamma vs. State of Andhra Pradesh the deceased was an under trial who died of ‗congestive cardiac failure‘. The petition was filed by his spouse alleging negligence on part of the jail authorities and jail doctor in not providing appropriate treatment on time or referring to a specialist to determine the root cause of the ailment. The High Court observed that the condition of the deceased at the time of his death was such that it could have developed over a period of time and not immediately. Thus, it was abundantly clear that no care or caution was taken by the Respondents to get the deceased examined by a Surgeon or a specialist, even though he had often complained of various ailments. Further, the high court cast doubts over the genuineness of the medical record maintained by the jail hospital. If the cause of death of the deceased was congestive cardiac failure associated with aortic valve, then the deceased must have complained about some form of heart ailment one or two months prior to his death. As the jail authorities had suppressed original records this fact remained in question. The high court stated that on arrest a prisoner merely loses his right to free movement. All other rights, including the right to medical treatment remains intact and it cannot be violated and held the jail authorities negligent and the State liable to pay Rs.1,50,000 as compensation to the Petitioner. Peti tioner.
Rights of Government Employees to Receive Health Care The following case law refer to the issues and policies of reimbursement of medical expenditure either during service or after retirement from service and uphold the fact that adequate medical care is an employee‘s right to live li ve with dignity. 24 State of Punjab vs. Mohinder Singh Chawla , the Respondent was suffering from a heart ailment, which required replacement of two heart valves. Since the facility for such treatment was not available in the State hospital, the State Medical Board granted permission for 22
2005 1 GLR 7 AIR 2002 AP 164 24 (1997) 2 SCC 83 23
treatment in AIIMS, New Delhi. Later the Respondent approached concerned authorities for reimbursement of medical expenditure. The Appellants rejected the claim on expenditure on room rent paid to the hospital because of a change in the State policy for employees and exemployees that excluded expenses incurred on diet, stay of attendant and stay of patient in hotel/hospital. Thus, the issue before SC was the extent of State‘s responsibility State‘s responsibility to provide medical facilities to its employees. The State justified its policy on the ground that the ancillary expenses saddled it with needless heavy burden that limited its capacity to provide treatment for general patients. The Supreme Court held that the rent of room for an in-patient is an integral part of the expenses incurred on medical treatment, and could not therefore, be excluded. Though the Court agreed that greater allocation was required to be made for general patients, it was the the State‘s constitutional constitutional obligation to bear the expenses for the government servant while in service or after retirement. Devindar Singh Shergil vs. State of Punjab 25 dealt with a retired government employee. The Appellant, a retired government official, who had approached the Postgraduate Institute of medical Sciences (PGI), Chandigarh for kidney treatment, was declined admission as no accommodation was available. Due to malignant growth of kidney, the Appellant immediately left for UK and got himself treated. Later he filed his claim for reimbursement of the entire amount but the Medical Board sanctioned an amount that would have been incurred if the Appellant was treated at PGI, which equalled to Rs. 20,000. The Supreme Court dealt with the issue ―as to why the petitioner should not be reimbursed for medical expenses to the extent of the expenditure which may have been involved for his treatment/ operation if carried out in any of the recognized institutions/hospitals in India‖. Since the AIIMS was one such recognized hospital under the State Policy, the Supreme Court held that the Appellant was entitled to reimbursement at the AIIMS rate and further, as an admitted fact, if the Appellant would have been treated in India he would have been entitled to reimbursement of expenses on medical consumable, pharmaceutical items, therefore, he would also be entitled to reimbursement of such expenditure. The Respondent State was directed to pay Rs.22, 000 as per AIIMS rates for surgery and Rs.73, 000 for expenditure incurred on medicines. .
Right to Emergency Health Care The following questions repeatedly confront doctors, patients and social and legal activist s: Are doctors and hospitals bound to attend to emergency patients? Is the obligation same for government hospitals and private hospitals? If it is a police case, should the police formalities be first completed before attending to a patient? What if the patient or her relatives do not have money to bear expenses for the treatment? We read about and hear of many cases where emergency patients are sent from one hospital to another without receiving proper attention. Often private hospitals refuse to admit medico legal emergency cases (like accidents, poisoning and attempted suicide, etc.) and ask them to approach public hospitals. In India, there is no law that deals specifically with the duties of health facilities and personnel to provide medical treatment in emergency cases. Emergency
25
(1998) 8 SCC 552
health care, like public health facilities falls in the shadow of Article 21. In other words, where there is a refusal to treat an emergency case, the patient may approach the court to claim. The state has an obligation to provide medical facilities in such circumstances, and financial inability or lack of infrastructure is no justification to avoid this obligation. Whenever the state fails to discharge its constitutional obligation, the patient or immediate kin may approach either the Supreme Court or the High court under Articles 32 or 2261 of the Constitution, as a legal remedy. Court may also be approached by a public-spirited person or organization as the Supreme Court, in a number of judgments has held that the traditional concept of ‗locus standi‘ does do es not strictly apply to such cases. The Supreme Court and the High court‘s also have the power to convert a letter concerning any issue of public importance into a Public Interest Litigation (PIL) suo moto (at i ts own initiative). 26
Common Cause vs. Union of India the Supreme Court laid down guidelines regarding operation of blood banks. The issue raised before the court was that the deficiencies and shortcomings in collection, storage and supply of blood through blood centres operating in the country could prove fatal it issued following directions The Union Government shall take steps to establish forthwith a National Council of Blood Transfusion as a society registered under the Societies Registration Act. In consultation with the National Council, the State Government/Union Territory (UT) Administration shall establish State Councils, which shall be registered as a society under the Societies Registration Act, in all States/UTs. The National Council shall undertake training programmes for training of technical personnel in various fields connected with the operation of blood blood banks. The National Council shall take steps for starting special postgraduate courses in blood collection, processing, storage and transfusion and allies field in various medical colleges and institutions in the country. The Union Government, State Governments and UTs should ensure that within a period of not more than a year all blood banks cooperating in the country are duly licensed and if a blood bank is found ill-equipped for being licensed, and remains unlicensed after the expiry of the period of one year, its operations should be rendered impossible through suitable legal action. The Union Government, State Governments and UTs shall take steps to discourage the prevalent system of professional donors so that the system of professional donors is completely eliminated within a period of not more than two years. The existing machinery for the enforcement of the provisions of the Drugs and Cosmetics Act and Rules should be strengthen and suitable action be taken in that regard on the basis of the Scheme submitted by the Drugs Controller (I) to the Union Government for up-gradation of the Drugs Control Organization at the Centre and the States. Necessary steps should be taken to t o ensure that Drugs Inspectors duly trained in blood banking operations are posted in adequate numbers so as to ensure periodical checking of the operations of the blood banks throughout the country. The Union Government should consider the advisability of enacting a separate legislation for regulating the collection, processing, storage, distribution and transportation of blood and the operation of the blood banks in the country.
26
AIR 1996 SC 929
Obligations of Private Sector With increasing privatization of the health care sector and gradual withdrawal of the State from it, it becomes important to understand what are the rights of citizens vis a vis the private sector. The Public Trusts Acts which operate in Delhi and Bombay, as also in many other places provide that if the State has given certain amount of aid to ‗charitable‘ hospitals these hospitals are liable to treat certain quota of patients totally free and certain other quota of patients on a subsidized basis. Delhi High Court appointed a retired High Court judgejudge- Justice Qureshi to enquire into the issue and report back to the High Court. He filed a comprehensive and detailed report before the Delhi High Court and the case is pending. In Bombay High Court a similar exercise was carried out and the Court passed a detailed order by which a scheme was prepared in order to ensure that private hospitals provide free and subsidized treatment to certain number of poor patients. The Scheme passed by the Bombay High Court is quite instructive and is being reproduced.
Conclusion The Fundamental right to health and health care has been recognized by the Supreme Court. Though this is a major leap there are number of limitations. First, fundamental rights are available only against the State and not against private individuals or organizations. Second, the State is required to enforce this fundamental right which is, however, subject to financial availability. But the positive outcomes have not been that citizens have been using the fundamental right to get better facilities from State hospitals, cast obligations on State doctors and on custodial institutions. Prisoners and mentally ill have been held to be equally endowed with this right. The growth of environmental litigation in India is premised on the recognition of the right to health as a fundamental right. Even so, various questions remain unanswered. If a poor person has the fundamental right to health and health care can she approach the Court and demand that he/she should be given free treatment at a Government hospital? To what extent can such a free treatment be demanded? Can it be said that the free treatment extends to providing expensive drugs and procedures free of charge? Can it include complex surgeries? Since the right to health care has been recognized as a fundamental right the answers to all these questions should be in the affirmative. But looking at the manner in which the Courts have been acting in recent times they are likely to say that yes, it is a fundamental right, but subject to the financial capacity of the State. These are the areas in which in the next few years the Court battles are likely to be fought, all the more so because the State has been withdrawing from the health sector. A negative fundamental right casts an obligation on the State not to act in a manner that would deprive a citizen of her fundamental right. On the other hand, a positive fundamental right would mandate the State to take proactive measures to fulfil its obligation. Time has come for the Courts to recognize r ecognize that the right to health and health care is a positive fundamental right that cannot be contingent upon the financial capacity of the State. Meanwhile, the people‘s movements and and communities have now begun struggles to stop the State from privatizing and thus unregulated commercialization of the health care which further violates the right to the health of the citizens. The activists in the health field will have to use both these strategies –— to to urge the state to provide health care to all citizens and also to stop the state from unleashing commercialization and privatization of health care on the other. Using the Right to Life as the broader framework, the Court rulings would be useful tools for all those who join hands to pursue a vision ―Health ―Health for All‖. All‖.
Bibliography: th
1. J.N. Pandey, The Constitutional Law of India, 49 Edition, Central Law Agency, Allahabad. th 2. Durga Das Basu, Introduction to the Constitution of India, 20 edition, Lexis Nexis Butter Worths Swadha, Nagpur. th 3. V.N.Shukla, Constitution of India 11 edition, Easten Book Company, Lucknow. 4. Adv. Kamayani Bali Mahabal, Health Care Case Law in India, Centre for Enquiry into Health and Allied Themes, Mumbai. 5. Phadke, Anant (1998): Drug Supply and Use – Towards Towards a Rational Policy in India, Sage, New Delhi. th 6. M.P.Jain, Indian Constitutional Law, 6 edition, Lexis Nexis Butter Worths Swadha, Nagpur
