State Liability on Administrative Action; in complying with Right to Access to Health care services

Prologue

No legal or political system today can place the State above the law as it is unjust and unfair for a citizen to be deprived of his rights or liberties illegally or by negligent act of officers of the State without any remedy. The State is a juristic person, propounded in nineteenth century is a sound sociological basis for State immunity.

The right to life with human dignity encompasses within its fold, some of the finer facets of human civilization which makes life worth living. The debate surrounding the implementation of the human right to health is fresh and full of possibility for the developing world.[1] The Constitution directs the state to take measures to improve the condition of health care of the people.

The state was established to meet the needs of the individual and society, and hence it has to discharge properly obligations expected of it. The proper functioning of the state depends upon a well-organized system of duties and rights. It should also promote the health of the individuals, to achieve the right to health it is sine quo non that every individual must get access to health care services in terms of his inherent right.

Every person secures his right to access to health care services not from the birth but before that. State has made provisions and laws ensuring access to health care services since the conception as well as preconception stage itself.[2] In this paper the author has pointed at various constitutional provisions & judicial pronouncements ensuring right to health, the present work is moreover concern with showing how the State is liable for complying the right to access to health care services and liability for non-complying with this very basic right.

The widely acceptable definition of health is that given by the WHO[3] 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[4].” In recent years, this statement has been amplified to include the ability to lead a ‘socially and economically productive life’.

Constitutional provisions

Right to health is not included directly in as a fundamental right in the Indian Constitution. The Constitution maker imposed this duty on state to ensure social and economic justice.[5] Part four of Indian constitution which is DPSP[6] imposed duty on States. If we only see those provisions then we find that some provisions of them has directly or indirectly related with public health. The Constitution of India not provides for the right to health as a fundamental right. Thus the preamble to the Constitution of India, inter alia, seeks to secure for all its citizens justice-social and economic. It provides a framework for the achievement of the objectives laid down in the preamble. The preamble has been amplified and elaborated in the Directive Principles of State policy. 

Fundamental Rights and Health:

The DPSP are only the directives to the State. These are non-justifiable. No person can claim for non-fulfilling these directives. But the Supreme Court has brought the right to health under the preview of Article 21. The scope of this provision is very wide. It prescribes for the right of life and personal liberty. The concept of personal liberty comprehended many rights, related to indirectly to life or liberty of a person. And now a person can claim his right of health.[7] Thus, the right to health, along with numerous other civil, political and economic rights, is afforded protection under the Indian Constitution.

The Constitution guarantees the some fundamental rights having a bearing on health care. Article 21deal with “No person shall be deprived of his life or personal liberty except according to procedure established by law.”[8]Right to live means something more, than more animal existence and includes the right to live consistently with human dignity and decency.

Article 23 is indirectly related to health. Article 23(1) prohibits traffic in human beings. It is well known that traffic in women leads to prostitution, which in turn is to major factor in spread of AIDS. Article 24 is relating to child labor it deal with “No child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment.”[9]Thus this article is of direct relevance to child health.

In addition to constitutional remedies sensitizing of the relevant ordering law towards later health for all adds to the content of right to health. Legal prohibition of commercialized transplantation of human organ and effective application of consumer protection act to deal with deficient medical services have animated right to health.[10]

Right to Health Care as a Fundamental Right:

The Supreme Court, in Paschim Banga Khet Mazdoor Samiti & ors v. State of West Bengal & ors,[11] while widening the scope of art 21 and the government’s responsibility to provide medical aid to every person in the country, 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.

Directive Principle of State Policy and Health:

Article 38 of Indian Constitution imposes liability on State that states will secure a social order for the promotion of welfare of the people but without public health we cannot achieve it. It means without public health welfare of people is impossible. Article 39(e) related with workers to protect their health.

Article 41 provides right to assistance in case of sickness and disablement.[12] Their implications in relation to health are obvious. Article 42 give the power to State for make provision for securing just and humane conditions of work and for maternity relief and for the protection of environment same as given by Article 48A and same obligation impose to Indian citizen by Article 51A.(g).

Article 47[13] considers it the primary duty of the state to improve public health, securing of justice, human condition of works, extension of sickness, old age, disablement and maternity benefits and also contemplated. Further, State’s duty includes prohibition of consumption of intoxicating drinking and drugs are injurious to health. Article 48A ensures that State shall Endeavour to protect and impose the pollution free environment for good health.

Article 47 makes improvement of public health a primary duty of State. Hence, the court should enforce this duty against a defaulting authority on pain of penalty prescribe by law, regardless of the financial resources of such authority.[14]

Panchayat, Municipality and Health: – Not only the State also Panchayat, Municipalities liable to improve and protect public health.  Article 243G says “State that the legislature of a state may endow the panchayats with necessary power and authority in relation to matters listed in the eleventh Schedule”.[15]

Judicial Response:  

With the recognition that both the Indian Constitution and the fundamental right of life emphasize human dignity, began to address the importance of health to Indian citizen.

In 1995, the Supreme Court held that right to health and medical care is a fundamental right covered by Article 21 since health is essential for making the life of workmen meaningful and purposeful and compatible with personal dignity.

Since DPSP are not enforceable by the court, implementation of the guarantee has remained illusory.[16] However, in a series of cases dealing with the substantive content of the right to life, the court has found that the right live with human dignity including right to good health.[17] In Consumer Education and Research Center v. Union of India[18], the Court 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 in State of Punjab v Ram Lubhaya Bagga,[19]observed that the right of one person correlates to a duty upon another, individual, employer, government or authority.

Role of State/administration in complying with Right to Access to Health care services

The state has an obligation under Article 21 to safeguard the right to life of every person, preservation of human life being of paramount importance. The Supreme Court has in the case of Parmanand Katara vs Union of India[20] held that whether the patient be an innocent person or be a criminal liable to punishment under the law, it is the obligation of those who are in charge of the health of the community to preserve life so that innocent may be protected and the guilty may be punished.[21]

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 centers, 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 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.

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.

Liability of State

To every right there corresponds an obligation or duty. If the right is legal, so is the obligation; if the right is contingent, imaginary, or moral, so is the obligation. A right in its main aspect consists in doing something, or receiving and accepting something.

Now it is clear that access to health care services is a basic right of every individual. It is certain that whenever this right gets infringed either by State or by its agency then the same should be held responsible.

The Constitution of India has clearly articulated the social and economic goals and has specified agents for achieving the promised social revolution. Good Governance, it was hoped, would transform the social, political and economic life of the people, within the framework of democracy.

In the beginning the constitutional arrangements relating to governance worked more or less to general satisfaction and provided the people with a fairly safe and secure life.  However, as time passed their inadequacies have become evident and Government has lost its élan as it has failed to live up to the expectations of the Constitution to give real substance to the policies designed to promote social well being.  Even the most modest expectations have remained unfulfilled.

The liability of the State has gone beyond the traditional principles in view of changing laws and the Constitutional mandates in this country too. Negligence and carelessness of the employees are words of great importance and the State would be liable to pay compensation to aggrieved persons because of the negligent and careless act done by its employees during the course of employment. Even if an employee was doing an unauthorized act but not in a prohibited way, the employer is liable for such acts because such employee was acting within the scope of his employment and in acting did something negligent or wrongful.

State’s liability for the acts or omissions of statutory authorities arises only in cases where (a) the statutory authority acts outside his legal authority while purporting to act pursuant to the legal authority conferred upon him and   (b) the act or omission, which causes or results in damage to a person, is  not within the ambit of the statutory protection, if any, contained in such enactments.   This rule is evolved for the obvious reason that an act done under a statute and in accordance with the statute can never amount to a tort as was said by the Supreme Court in Martin Burn Ltd. Vs. Calcutta Corporation[22].  

Remedial action

Various legal remedies[23] are available to the individual against the illegal actions of the administration. These remedies help in preventing the recurrence of an illegality. Art. 21 cast the obligation on the State to preserve life. It is the obligation of those who are in charge of the health community to preserve life.

Failure on the part of a governmental hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Art. 21 of the Constitution. The Court directed the State to pay Rs. 25000 to the petitioner as compensation.[24]

In Kirloskar Brothers Ltd. v Employeees’ State Insurance Corp.[25] the Supreme Court, following the Consumer Education & Research Centre’s case,[26] has held that ‘right to health’ is a fundamental right of the workmen. The Court also held that this right is not only available against the State and its instrumentalities but even private industries to ensure to the workmen to provide facilities and opportunities for health and vigour of the workman assured in the provision of Part IV of the Constitution which are integral part of right to life under Art. 21.

The Court also held that, the State employees are entitled to medical reimbursement of expenses for treatment and room rent charges both in approved specialized hospitals outside the government hospitals.[27]

Conclusion:

Our constitution makers was much aware about the public health or right to health that’s why they imposed liability on Stat by some provision (Article 38, 39(e) 41, 42, 47, 48A ) of DPSP. Due to this duty state are taking steps in this regard and hospitals are running in control of State to give free health service to public at large. A person should have health entitlements, medical aid, medical assistance which provided by States.

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.

 

Mr. Mahendra Subhash Khairnar,

Assistant Professor, Bharati Vidyapeeth’s 

Yashwantrao Chavan Law College, Karad

 

[1] http://www.legalindia.in/right-to-health/

[2] Pre-conception & Pre natal Diagnostic (Prohibition on use of technology for sex determination) Act, 2009

[3] World Health Organization

[4] Preamble to the Constitution of the World Health Organization as adopted by the International Health Conference, New York, 19–22 June 1946; signed on 22 July 1947 by the representatives of 61 States (Official Records of the World Health Organization, no. 2, p. 100); and entered into force on 7 April 1948

[5] Article 38, 39 etc.

[6] Directive Principle of State Policy

[7] Sheeraj Latif Ahmad Khan, “right to health”. (1995) 2 SCJ 29-34, at 30.

[8] Constitution of India.

[9] Constitution of India

[10] Spring Meadow Hospital Vs Harijol Ahluwaliya, AIR 1998 SC180

[11] (1996)  4 SCC 37.

[12] Article 41, " with “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 case of unemployment, old age, sickness and disablement and in other cases of undeserved want”.

[13] Under Article 47, the State shall regard the raising of the level of nutrition and standard of living of its people and improvement of public health as among its primary duties.

[14] Ratlam Municipal Council Vs Vardichand, AIR 1980 SC 1622

[15] Article 243 G of Indian Constitution

[16] Bandhua Mukti Morcha AIR 1984 SC 812

[17] Ibid at-811

[18] AIR 1995 SC 636

[19] (1998) 4 SCC 177: AIR 1998 SC 1703.

[20] AIR 1989 SC 2039

[21] Ibid

[22] Martin Burn Ltd. Vs. Calcutta Corporation (AIR 1966 SC 529 at 535)

[23] Remedies such as Writs under Article32 & 226 of the Constitution of India, other civil remedies i.e. Injunction, Declaratory orders

[24] Paschim Banga Khet mazdoor Samity & ors v. State of West Bengal & ors,(1996) 4 SCC 37

[25] (1996) 2 SCC 682

[26] Consumer Education & Research Centre v Union of India, (1995) 3 SCC 42

[27] State of Punjab v Mohinder Singh Chawla, AIR 1997 SC 1225

 

mahendra khairnar 
on 03 September 2014
Published in Constitutional Law
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