Right to health has passed through different stages of evolution to reach the present state of recognition and justiciability as a human right and more so as a fundamental right. Its development is traceable from jurisprudential and international perspectives and both have cast a positive obligation on the State to protect, respect and fulfill public health. Yet, the question often raised is what the ‘State obligation’ means, and what is its content and extent in terms of enforceability? This issue assumes particular significance now in the context of the State’s continuing failure to discharge its primary public healthcare duty in making available smooth, continuous and uninterrupted oxygen supply and also in relation to people’s right to free vaccination.

Life is not mere living, but living well. The right to life is the most fundamental of all the rights and it is the very core of humanity. It is the sanctum sanctorum of human rights. It is the right from which all other rights stem. Life means the state of being alive as a human being. The desire to stay alive is man’s paramount wish, and the one that demands from other their most unfailing respect.

In a liberal democracy certain rights are regarded as paramount for protecting individuals from the State’s inbuilt tendency to authoritarianism. The evolution and development of right to health and public health at the domestic and international levels is the story of a voyage from natural right to human right, and further from human right to fundamental right and now getting recognition as justiciable and implementable rights at least in the limited extent of a country’s available resources.        

A protective right of the Community

It is well recognized that the community has a right to protect itself against an epidemic disease or pandemic which threatens the safety of its members. Government’s power to protect its citizens by quarantine and vaccinations are thus well justified on public health and safety. In Jacobson, US Supreme Court went to the extent of validating State’s power to fine residents who refused to receive compulsory smallpox injections, placing reliance on the theory of ‘paramount necessity’. But things stand on a different footing as far as COVID-19 vaccination drive is concerned. Vaccination is undertaken as a voluntary medical intervention which does not cause any interference with physical integrity. In the absence of any compulsion, there is no denial of the right to respect for private life.  

The legitimate aim of the vaccination policy is to protect one’s life and the rights of others against the coronavirus. It is thus a pressing social need. But the flaw associated with the policy is that it also envisages vaccination as a paid service, which undermines the scope and content of the vaccination policy bringing inequitable and unjust results. Such a condition associated with the vaccination service makes the policy totally unreasonable and undesirable in a democratic society. Payment requirement may prevent willing persons from taking vaccination and this may frustrate the legitimate aims of vaccination pursued by the State. 

The vaccination policy to be democratic must envisage free and equal access, availability and affordability to all. Making people immune from the disease must be seen as a preventive measure, and not punitive. When it is the joint obligation of the Centre and the States to provide medical services to its people, can there be different standards for the Centre and States in terms of accessibility is the question being raised.  

The recent Judgment of the European Court of Human Rights pronounced on April 8, 2021 in Vavricka v. The Czech Republic shows how the Court had subjected to scrutiny the vaccine policy based on proportionality principle. By a ratio of 16:1 majority, the Court held that there had been no violation of the right to respect for private life envisaged in Section 8 of the European Convention on Human Rights. The Czech Republic’s vaccination policy had placed a mandatory duty on parents to vaccinate children as prevention against 9 diseases, failing which parents could be fined. Non-vaccinated children are not accepted in nursery schools. The policy was upheld as valid based on the principle of proportionality.

Right to breathe and medical oxygen

Right to breathe was declared to be part of the species of the ‘right to life’ by the Supreme Court in Re-Ramlila Maidan Incident case (2012). Access to medical oxygen is an important facet of the right to breathe in respect of patients suffering from critical ailments. Oxygen is vital to human life. It is indeed life itself. Humans breathe it. It is the fuel required for the proper operation of the body system. Oxygen gives our body the ability to rebuild itself. It detoxifies the blood and strengthens the immune system.

Medical oxygen provides life support for artificially ventilated patients, aid cardiovascular stability, improves oxygen availability in cases of cardiac/respiratory arrest. With oxygen demands expanding due to COVID-19 pandemic, production and supply of medical oxygen without logistic issues is truly the primary responsibility of the Government and necessary for the survival of patients. As a life-saving therapy and essential medicine in emergency situations, medical oxygen should be widely available and accessible. Pandemic has thrown open an opportunity to close the oxygen divide, the greatest health inequity of the time. 

Even in a COVID-19 scenario, the presence of the Constitution as a living organism cannot be forgotten. The spirit of the Constitution is of all the ages.  State and its officials have broad power to govern for public health and safety. But there are limits imposed by the ‘Limited Government theory’ on the powers themselves and on those who exercise them. Pandemic poses grave public health challenges. Combating the same is difficult. But Government policies and decisions must not be discriminatory, must be tailored to meet the just requirements of a just society and social order. Unfortunately, one cannot be faulted in believing that vaccination policy is quite inequitable and discriminatory and fails to satisfy the requirements of fairness, accessibility, availability and affordability.  

Stemming the spread of COVID-19 is unquestionably a ‘compelling State interest’, especially in jurisdictions like ours hard-hit by the pandemic.  However, the Government policy must be neutral and of general applicability and should be narrowly tailored to serve a compelling State interest. The Full Bench of the US Supreme Court, while barring the restrictions on religious services in New York that Governor had imposed to combat coronavirus, with a ratio of 5:4 observed that, “Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away or forgotten”. The Court was deliberating upon the application filed by the Roman Catholic Diocese of Brooklyn contending that the attendance restrictions in places of worship violate the Free Exercise Clause of the First Amendment. 

Inevitable constituents

There are two essential components of the right to health, i.e. the right to health care, and the right to underlying health conditions. Right to health care embraces right to health services in relation to disease prevention, health promotion, therapeutic services and rehabilitation, while right to underlying health conditions can be regarded as those encompassing health issues such as clean air, water, adequate sanitation, sufficient access to nutritious food, occupational health and access to health-related information. 

The obligation to fulfill requires States to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures to realize fully the right to health. The expanded meaning of right to life and health is wholly justified, for without health of a person being protected and his wellbeing looked after, it would be impossible for him to enjoy other fundamental rights in a positive manner.

Co-operative federalism

In Bandhwa Mukti Morcha case (1984), the Supreme Court observed that it is fundamental right of everyone in this country to live with human dignity, free from exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principle of State Policy and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 of the Constitution and at the least, therefore, it must include protection of the health and strength of the workers, men and women… These are the minimum requirements which must exist in order to enable a person to live with human dignity, and no State- neither the Central Government- has the right to take any action which will deprive a person of the enjoyment of these basic essentials. 

The Supreme Court has also stressed on the joint obligation of the Centre as well as the States to provide medical services. It is true that financial resources are needed for providing the medical facilities. But, at the same time, it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done by the Government. State cannot avoid its constitutional obligation or shy away from its responsibility on account of financial constraints as was made clear by the Apex Court in Khatri II case (1981). 

In Paschim Benga Khet Mazdoor Samity case (1996) the Supreme Court observed: “Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in the Welfare State. The Government discharges this obligation by running hospitals and health centres which provide medical care for the person seeking to avail 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”. 

International Perspectives

A facet of the right to health finds a place in Article 25(1) of the Universal Declaration of Human Rights, 1948, which states that everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including medical care and necessary social services, and the right to security in the event of sickness, disability, old age, etc.

Similarly, Article 12 of the ICESCR recognized explicitly the right of everyone to enjoy the highest attainable standards of physical and mental health. It also enumerates the steps to be followed by the State so that everyone can realize the right to health. It obligates the State to prevent and treat epidemic, endemic, occupational and other diseases. It also calls upon the State to strive to optimize health service, assuring to all medical service and medical attention in the event of sickness. Thus, a multi-faceted approach to health is carved out in the covenant. Similarly, the Charter on Environmental Rights and Obligations proclaims that everyone has the right to an environment adequate for the general health and well-being.

The Convention on the Rights of the Child, The African Charter on Human and Peoples’ Rights and the Vienna Declaration also laid stress on the right to enjoyment of the highest attainable standard of health, facilities for treatment of illness, rehabilitation of health, and access to healthcare services. As a result of the above international approach, right to health is now seen as a means of attaining full development of the right to life and integrity of human person, a means of recognizing right of each individual to what the community owes him, and a means of creating duties under State responsibility to contribute to the satisfaction of the individual aspirations of citizens. 

Heart bleeding for the poor

Right to health is a composite right which also means right to equal access to adequate healthcare and health related services. The prevailing view is that State should undertake to fulfill the essential obligations relating to right to health at least to the extent its resources permit. Life is not mere living but living in health. The health of the individual, as of nations, is of primary concern to all. It is essential to ensure basic health services by making it universal. 

Inalienable rights such as life, liberty and pursuit of happiness must be viewed as “freedoms from” rather than “rights to”. All human beings, irrespective of any consideration have the right to pursue their material well-being in conditions of freedom and dignity, of economic security and equal opportunity and they have the freedom to be protected from exploitation. The government of ‘limited powers’ is bound to the community by the guarantee that the people’s right to health would be preserved. Let the rulers and the ruled have a bleeding heart for the poor and the weak. 

(The writer is a prominent Lawyer, an acclaimed writer and a distinguished academician based in Kochi)