While the right to health has not been textually guaranteed as a fundamental right in the Indian constitution, it has by now been firmly entrenched as such. Through a series of progressive pronouncements delivered in the last two decades, starting from the 1995 case of Consumer Education and Research Centre versus Union of India, the Supreme Court has recognised the right as flowing from Article 21 of the constitution.
At a time when cases of COVID-19 are on the rise in India, as lawyer Gautam Bhatia notes, the right to health demands that a set of steps be taken by the Indian government to ensure the vindication of this right for India’s 1.3 billion people. The Supreme Court has not thus far articulated the full contours of the right in a manner that is analytically well-structured and theoretically coherent. However, some principles emerging from the jurisprudence in India on the right to health are of great significance in determining the manner in which the Union and state governments should respond to the current crisis.
Access to testing facilities
In 2002, the South African constitutional court was called upon to determine whether the response of the South African government to HIV-AIDS was consistent with the obligations imposed on it by the right to health. Among other things, the court directed the government to take reasonable measures to make counselling and testing facilities available to pregnant women for HIV. It held that these facilities had to be made available throughout the public health sector.
In Navtej Johar, when a 5-judge bench of the Supreme Court decriminalised homosexual intercourse, in his concurring opinion, Justice Chandrachud pertinently held:
“Article 21 does not impose upon the State only negative obligations not to act in such a way as to interfere with the right to health. This Court also has the power to impose positive obligations upon the State to take measures to provide adequate resources or access to treatment facilities to secure effective enjoyment of the right to health.”
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Further, the court has held that financial difficulties cannot come in the way of making medical facilities available to the people. Since this is the state’s constitutional obligation, whatever is necessary in this regard needs to be done. On Monday, the Supreme Court urged the government to consider a representation to make more testing labs and quarantine centres available to deal with COVID-19 cases. If the government does not respond to the representation in a robust fashion, there appears to be a constitutionally sound basis for the court to draw on the right to health to demand a more vigorous response.
While India is ramping up its testing capacity significantly, the eligibility conditions to secure a test still remain very restrictive. As an article in the Hindustan Times indicated, in order to be eligible to get tested, an individual needs to have: (a) returned from abroad or been in contact with a COVID positive patient and (b) exhibit symptoms of the disease. It is a widely held belief that India is currently in a nascent phase of the community spread stage, so exhibiting symptoms should be sufficient to access a test. Therefore, these restrictive testing criteria appear suspect from a right to health standpoint.
Patient conduct with a doctor at a fever clinic at the Civil Hospital in Lucknow on March 24, 2020. Photo: PTI/Nand Kumar
It bears mention that an upper limit of Rs 4,500 has been imposed on conducting COVID 19 tests. As the Delhi high court has held, “Just because someone is poor, the State cannot allow him to die. After all, health is not a luxury and should not be the sole possession of a privileged few.” As a result, the government will have to closely monitor the extent to which this price is reasonable, and if evidence emerges of it being an impediment in accessing tests, courts should step in to help set the situation right.
A conflict of rights
Following Prime Minister Narendra Modi’s declaration of a pan-India lockdown, a conflict has emerged between two fundamental rights: the right to personal liberty and the right to health. In a recent ruling, the Supreme Court held that a proportionality analysis needs to be applied in such cases. This essentially requires the two rights to be weighed in the balance, to ensure that the least amount of infringement is caused cumulatively.
There exists ample evidence on social distancing being the most effective nonpharmaceutical intervention in this case, and it is clear that the approach of asking people to observe self-imposed restrictions has been shown to be ineffective in various parts of the country. As a result, while the imposition of a lockdown per se appears constitutionally acceptable for now, it will have to be continually monitored whether the means chosen to deal with this pandemic are the least restrictive. While the creation of exceptions to enable essential services to be supplied unabated is crucial, the reported heavy-handed executive action against individuals supplying and purchasing essential goods and services clearly appears constitutionally tenuous.
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Recognition of practical realities
As the above analysis makes clear, given that India is a welfare state in which the right to health is constitutionally guaranteed, the Union and state governments are constitutionally obligated to respond to this crisis in a robust and effective fashion. At the same time, as Justice Sikri held in the living wills case, it is a hard and unpalatable fact that not everyone in India is able to enjoy this right, and the state cannot translate it into a reality for everyone.
The right to health can serve as an important resource to trigger judicial and governmental action in these unprecedented times. However, what the outer limits of this right are, as is the case with so many things flowing from this crisis, only time will tell.
Rahul Bajaj is a postgraduate law student at the University of Oxford, where he is studying the relationship between Indian patent law and the right to health.