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RIGHT TO HEALTH: STILL A DISTANT DREAM

    2 Author(s):  DR. SHASHI KANT SINGH , MRS. POOJA

Vol -  5, Issue- 12 ,         Page(s) : 198 - 210  (2014 ) DOI : https://doi.org/10.32804/IRJMSH

Abstract

The health of all peoples is fundamental to the attainment of peace and security and is dependent upon the fullest co-operation of individuals and States. Inequity and poverty are the root cause of ill health leading to malnutrition and starvation deaths in the marginalized sections of the society. The current health scenario favours the urban affluent class. There is a need to remove regional imbalances. Declining health expenditures have adversely affected health outcomes worsening the health scenario. There is a need to restructure the existing health system. The highly privatised health system has deprived the masses of even primary health care leading to out-of-pocket expenditure, which they can ill- afford. There is a need for a comprehensive legislative framework. The existing health system needs to be restructured to usher equity and social justice. This can be achieved through the promulgation of a comprehensive legislative framework, which should create conditions conducive to restoring sustainable balance in the health sector.

  1.   . See, WHO Constitution. The WHO Constitution, inter alia, provides that the achievement of any State in the promotion and protection of health is of value to all. Unequal development in different countries in the promotion of health and control of disease, especially communicable disease, is a common danger. Healthy development of the child is of basic importance; the ability to live harmoniously in a changing total environment is essential to such development. The extension to all peoples of the benefits of medical, psychological and related knowledge is essential to the fullest attainment of health. Informed opinion and active co-operation on the part of the public are of the utmost importance in the improvement of the health of the people. Governments have a responsibility for the health of their peoples, which can be fulfilled only by the provision of adequate health and social measures.
  2.   . See, General Comment No.14 (2000) to ICESCR-E/C.12/2000/4 adopted by ECOSOC dated 08.11.2000.
  3.   . See, Avanish Kumar, “Human Right to Health”, Satyam Law International, New Delhi, 2007.
  4.   . Right to health includes: safe drinking water and adequate sanitation; safe food; adequate nutrition and housing; healthy working and environmental conditions; health-related education and information; gender equality etc.
  5.   . These entitlements include: (a) right to a system of wealth protection proving equality of opportunity for everyone to enjoy the highest attainable level of health; (b) the right to prevention, treatment and control of diseases; (c) access to essential medicines; (d) maternal, child and reproductive health; (e) equal and timely access to basic health services; (f) the provision of health-related education and information; and (g) participation of the population in health-related decision-making at the national and community level.
  6.   . The right to health is not the same as the right to be healthy. A common misunderstanding is that the State has to guarantee us good health. However, good health is influenced by several factors that are outside the direct control of States, such as an individual’s biological make-up and socio-economic conditions. Rather, the right to health refers to the right to the enjoyment of a variety of goods, facilities, services and conditions necessary for its realization. This is why it is more accurate to describe it as the right to the highest attainable standard of physical and mental health, rather than an unconditional right to be healthy.
  7.   . Many of these and other important characteristics of the Right to Health are clarified in General Comment No. 14 (2000) on the Right to Health, adopted by the Committee on Economic, Social and Cultural Rights.
  8.   . See Vienna Declaration and Programme of Action (A/CONF.157/23), adopted by the World Conference on Human Rights, held in Vienna, 14–25 June 1993.
  9.   . See, Para 1 to General Comment No.14 (2000) to ICESCR.
  10.   . Violation of human right to water will adversely affect the other conceptually linked human rights [See, Peter H. Gleick, “Basic Water Requirements for Human Activities: Meeting Basic Needs” (1996) Vol.21, Water International, pp.88-89] such as right to life, right to peace, right to development (commercial, agricultural or industrial activities), [See, Sovit Ghosh et al., “Water and Food Security” (2009), Vol.57(5), Kurukshetra, pp.19-20.] right to clean environment, [See, A.E. Boyle and M.R. Anderson, “Human Right Approaches to Environmental Protection” (United Kingdom:Claredon Press, 1996).] right to health, right to education, right to housing, cultural rights etc.[See, Ved P. Nanda (ed.), “Water Needs for the Future: Political, Economic, Legal and Technological Issues in a National and International Framework” (Colorado:Westview Press Boulder, 1997), pp.15.]
  11.   . Dr. Puran Singh, “Swachh Bharat Mission—An Opportunity for Making Open Defecation Free and Clean”, Kurukshetra, Vol.63(2), 2014, Pp.3-6. Also see, Vaishali jaiswal, “Sanitation Intervention for Public Health and Hygiene”, Kurukshetra, Vol.63(2), 2014, Pp.30-33.
  12.   . See, Para 12 of General Comment No.14 (2000) to ICESCR-E/C.12/2000/4 adopted by ECOSOC dated 08.11.2000. As a reminder it is important to emphasise that in the Bhore Committee report of 1946 we already had these guidelines, though they were not in the ‘rights’ language. Thus, within the country’s own policy framework all this has been available as guiding principles for now 67 years.
  13.   . Accessibility has four overlapping dimensions:
  14. • Non-discrimination: health facilities, goods and services must be accessible to all, especially the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited grounds.
  15. • Physical accessibility: health facilities, goods and services must be within safe physical reach for all sections of the population, especially vulnerable or marginalized groups, such as ethnic minorities and indigenous populations, women, children, adolescents, older persons, persons with disabilities and persons with HIV/AIDS. Accessibility also implies that medical services and underlying determinants of health, such as safe and potable water and adequate sanitation facilities, are within safe physical reach, including in rural areas. Accessibility further includes adequate access to buildings for persons with disabilities.
  16. • Economic accessibility (affordability): health facilities, goods and services must be affordable for all. Payment for health-care services, as well as services related to the underlying determinants of health, has to be based on the principle of equity, ensuring that these services, whether privately or publicly provided, are affordable for all, including socially disadvantaged groups. Equity demands that poorer households should not be disproportionately burdened with health expenses as compared to richer households.
  17. • Information accessibility: accessibility includes the right to seek, receive and impart information and ideas concerning health issues. However, accessibility of information should not impair the right to have personal health data treated with confidentiality.
  18.   . The obligation to respect requires the stakeholders to refrain from interfering directly or indirectly with the enjoyment of the right to health.
  19.   . The obligation to protect requires States to take measures that prevent third parties from interfering with guaranteed rights.
  20.   . The obligation to fulfill requires States to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realization of the right to health.
  21.   .Article 25 of UDHR: Article 25(1)- Everyone has a right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care [emphasis supplied] and necessary social services, and right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. Clause (2) to Article 25 says: Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. 
  22.   . The Covenant was adopted by the United Nations General Assembly in its resolution 2200A (XXI) of 16 December 1966. It entered into force in 1976 and by 1st December 2007 had been ratified by 157 States. The Committee on Economic, Social and Cultural Rights, the body responsible for monitoring the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966). It is to be noted that the ICESCR has been ratified by India. Thus, India has to take a number on steps to ensure right to health.
  23.   . Convention on the Rights of the Child Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 entry into force 2 September 1990. Article 24(1): States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services. Article 24(2): States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures: (a) To diminish infant and child mortality; (b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care; (c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution; (d) To ensure appropriate pre-natal and post-natal health care for mothers; (e) To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents; (f) To develop preventive health care, guidance for parents and family planning education and services. Article 24(3): States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children. Article 24(4): States Parties undertake to promote and encourage international co-operation with a view to achieving progressively the full realization of the right recognized in the present article. In this regard, particular account shall be taken of the needs of developing countries. 
  24.   . International Convention on the Elimination of All Forms of Racial Discrimination Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965 entry into force 4 January 1969.
  25.   . Adopted and opened for signature, ratification and accession by General Assembly resolution 34/180 of 18 December 1979 entry into force 3 September 1981.
  26.   . See, Preamble, Articles 16(4), 22(2), 25, 26 and 27(1)(a) of CRPD, 2006.
  27.   . See Article 11.
  28.   . See, Article 16.
  29.   . See, Article 10.
  30.   . Trisha Agarwala, “Urban Sanitation in India: A Growth Story Gone Away”, Yojana, Vol.59(January), 2015. Pp.28-31.

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