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Realizing the Right to Health through Cooperative Judicial Review : An Analysis of the Role of
the Indian Supreme Court
Amita Dhanda
Introduction
Octavio Ferraz has examined the role of the courts in the realm of socio–economic rights and
more particularly the right to health on the two poles of abdication and usurpation. On the basis
of such conceptual categorization, he opines that whilst the reasonableness prompted decisions
of the South African Constitutional Court could be perceived as abdicating, the Brazilian
Supreme Court with its stress on individual relief could be viewed as usurping. Courts according
to Ferraz cannot escape this duality in the realm of socio-economic rights. Considering allocation
of resources between competing claims is at the heart of the adjudication on socio-economic
rights Ferraz expresses his preference for the abdicating posture of the South African
Constitutional Court. I am in this accompanying piece using the conceptual apparatus provided
by Ferraz to delineate and analyze the role played by the Indian Supreme Court in the legal
realization of the right to health.
The Constitution of India when adopted in 1950 incorporated the civil political rights as
fundamental rights and included them in Part III of the Constitution. The social economic rights
were designated as Directive Principles of State Policy (hereinafter DPSP) and included in Part
IV of the Constitution. Article 13 of the Constitution forbade the state from making any laws
which took away or abridged the fundamental rights and any laws made in contravention of the
fundamental rights were to the extent of contravention void. This embargo was given teeth by
guaranteeing the right to directly move the Supreme Court of India by appropriate proceedings
for the enforcement of the fundamental rights. In contrast the social economic rights included in
Part IV of the Constitution could not be enforced by any Court, even as the principles included
in the part were declared to be fundamental in the governance of the country and a duty was
reposed on the state to make laws to apply these principles.
In the early years, this prohibition of justiciability was strictly interpreted by the Supreme Court.
Thus the Court ruled that a legislation was required for the implementation of the Directives.
The DPSP’s without more did not create a justiciable right in favour of individuals.
Consequently, Courts could not compel the state to carry out any of the DPSPs. Further, due to
the prohibition on justiciability no law could be declared void on the ground that it infringed the
DPSP. Even though, the DPSP were declared to be fundamental in the governance of the
country, the state could not use them to trump any of the other limitations placed on legislative
and executive power. Thus in State of Madras v Champakam AIR 1951 SC 226 the reservations
by the state for weaker sections were nullified on the reasoning that Part IV was subsidiary to
Part III. To nullify the impact of this judgment, Article 15 of the Constitution was amended to
allow for the making any of the special provisions for socially and educationally backward
classes. Even as the Court began by privileging fundamental rights, in subsequent decisions in
case of conflict between Part III and Part IV of the Constitution, the Court opted for harmonious
construction. The need for harmony was also dictated by the Twenty Fifth Amendment to the
Constitution which by adding Article 31C provided that any laws made for redistribution of
resources and prevention of monopolies as required by Articles 39 (b) and (c) could not be
questioned in any Court of Law on the ground that it infringed the right to equality or property.
A subsequent Government effort to accord primacy to all the DPSPs over the fundamental rights
by the 42nd Amendment did not obtain the approval of the Court, though the primacy to Articles
39 (b) and (c) remained.
It is significant to note that the process of according primacy to the DPSPs by the legislature
necessarily reduces the ambit of the fundamental rights. However a process by which the Court
draws upon the Directive Principles to settle the meaning of fundamental rights both expands the
ambit of the rights and reduces the dichotomy between fundamental rights and DPSPs. This
development is of special significance to the theme of this article, since it is by the expanded
reading of fundamental rights that the Court started to pronounce upon matters of health which
were by the text of the Constitution included in the DPSPs. The Court obtained a say in settling
the contours of the right to health by expanding the ambit of Article 21.
The Indian Supreme Court started with a very formal and legalistic interpretation of Article 21
whereby it ruled that the deprivation of life and liberty was permissible provided it was done by
a duly enacted parliamentary legislation. Executive orders could not be the basis of denying life
and liberty. And life was primarily seen as survival. This interpretation was progressively
altered whereby at first the Court started to enhance the fairness requirements of the life and
liberty depriving procedure and subsequently by pronouncing upon the quality of life guaranteed
by the Constitution. This life the Court ruled was not a right to bare physical existence but a
right to a full and meaningful life. And a full and meaningful life includes the right to health
within its purview.
The above narration outlined how the Indian Supreme Court through a circuitous route accorded
justiciability to the right to health. The paving of this circuitous route could itself be categorized
as usurpation by institutional essentialists. However that debate would be only of academic
significance for the central inquiry of this article which is what can be the role of Courts to
implement the right to health? How does the Indian Supreme Court fare on the Ferraz scale of
abdication and usurpation? The following analysis will show that the Indian Supreme Court
cannot be encapsulated under any one label since it has in realizing the right to health played
both activist and restraintvist and whilst exercising restraint has also played the role of advisor,
facilitator and promoter of health rights.
The difficulty to categorize the role of the Court also emanates from the fact the Court has
intervened on a wide range of issues in the realm of health. Thus whilst you have the Court
dealing with the drug policy at one end of the spectrum it is concerned with the prompt
administration of medical treatment to accident victims at the other end. Evidently, this wide
range required varied strategies and the response of the Court has differed from issue to issue. It
is this varied response that shall be elaborated upon in the rest of this article.
In the realm of policy
Vincent Panikurlangara v Union of India (1987) 2 SCC 165, amongst the early cases which
reached the Supreme Court sought a rationalization of the drug policy. The petitioner in public
interest sought a ban on the import, manufacture, sale and distribution of such drugs whose ban
had been recommended by the Drugs Consultative Committee. The petitioner also asked the
Court to direct the Central Government to constitute a high powered authority to go into the
hazards suffered by people of the country by reason of such drugs being in circulation and to
suggest remedial measures including the award of compensation.
The Supreme Court admitted the petition and issued notice to the Medical Council of India,
Indian Medical Association and the Drug Control Authorities of the states to assist the Court in
the matter. However except for the state of Karnataka, the notice did not evoke a response from
any of the state authorities. The Court stressed upon the importance of the matter for the country
and rebuked the statutory authorities for not responding to the summons of the Court. These
bodies the Court pointed out were not litigants and do not have the choice of keeping away like
private parties in ordinary litigations. Even as the Court stressed on the importance of
widespread participation and ordered the induction of consumer representatives on to the Drugs
Technical Advisory Board, it refrained from pronouncing on the main petition by stating that
“(h)aving regard to the magnitude, complexity and technical nature of the enquiry…a judicial
proceeding is not appropriate…for (the) determination of such matters”. The court thus took the
matter on board to stress on its importance; expanded the number of stake holders involved in the
process of deliberation; advised the Government to examine the issues raised by the petitioner
but refrained from taking any action in the matter.
Medical treatment for accident victims
The issue of medical treatment for accident victims was brought to the Court by a human rights
activist when a scooterist bled to death because medical treatment was provided only after the
completion of legal formalities. The Court issued notice to the Ministry of Health, allowed the
Medical Council and the Indian Medical Association to be impleaded in the matter, in order to
determine the appropriate procedure for providing medical treatment to an accident victim. It is
significant to note that each of the impleaded authorities conceded that the medical needs of the
victim should prevail over forensic considerations. Consequent to this concession, and more
importantly because considerations of life should prevail over law enforcement, the Supreme
Court directed that the treatment of accident victims should not be delayed in order to investigate
the cause of the accident. The Court also required that the treatment should be provided by the
first medical establishment, whether public or private, to which the victim is brought since
administrative considerations of zoning could not prevail over the accident victims right to
treatment.
Significantly, the Court also recognized the limitations of making law through judgments and
therefore it directed that the decision should be published in all journals reporting decision of the
Supreme Court whilst adequate publicity should be given by the print and electronic national
media. It further required adequate copies of the judgment be sent to every High Court who
could then forward them to every Session Judge within their respective jurisdictions and the
Session Judge in their turn was required to give due publicity to the decision in their
jurisdictions. The Court also required the Medical Council of India to forward copies of the
judgment to every medical college affiliated to it. Judgment copies were also to be sent to State
Governments with a direction to provide wide publicity in order to ensure that every practicing
doctor would become familiar with the requirements of the law. This direction of the Court
demonstrated that the Court was attempting to lessen some of the institutional constraints
surrounding judge made law.
In an emergency
An oft quoted constraint on the realization of socio economic rights is the resources required to
enforce them. The right to medical care is perceived as an integral component of the right to
health even as controversy surrounds the extent of the right. Is the right unlimited in its purview?
Do all people have the right to access all manner of treatment for all kinds of ailments or do
resources place a constraint on the extent of the right? Ferraz deliberates on how the South
African Constitutional Court upheld the restrictions on dialysis placed by the South African
Government. The Indian Supreme Court has not been required to address a similar kind of
question; the Court has however refused to entertain the constraint of resources in the context of
emergency treatment. In Paschim Banga Kheth Mazdoor Samiti v State of West Bengal, (1996)
4 SCC 37, the Court was required to address the health entitlements of an agricultural laborer
who suffered head injuries and brain hemorrhage after falling of a train. Subsequent to the
accident, the petitioner was taken to several government hospitals for treatment but failed to
obtain admission as there were no vacant beds. The petitioner ultimately received treatment as
an in-door patient at a private hospital and moved the Court for appropriate orders to vindicate
the infringement of his right to health.
The Supreme Court used the situation to pronounce upon the health entitlements of persons in a
medical emergency. To that end, the Court made the following directions:
1. Adequate facilities are available at the Primary Health Centres where the
patient can be given immediate primary treatment so as to stabilize his
condition.
2. Hospitals at the district level and Sub-Division level are upgraded so that
serious cases can be treated there.
3. Facilities for giving specialist treatment are increased and are available at the
hospitals at district level and sub-Division level having regard to the growing
needs.
4. In order to ensure availability of bed in an emergency at State level hospitals
there is 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.
5. Proper arrangement of ambulance is made for transport of a patient form the
Primary Health Centre to the district hospital or Sub-Division hospital and
from the district hospital or Sub-Division hospital to the State hospital.
6. The ambulance is adequately provided with necessary equipment and medical
personnel.
7. The Health Centres and the hospitals and the medical personnel attached to
these centres and hospitals are geared to deal with larger number of patients
needing emergency treatment on account of higher risk of accidents on certain
occasions and in certain seasons.
The Court admitted that financial resources would be required to provide these facilities but was
quick to point out that it was the constitutional obligation of the state to provide adequate
medical services to the people. The Court recalled how in the context of legal aid it had ruled
that the state cannot avoid its obligations on account of financial constraints. The said
observations it emphasized “would apply with equal, if not greater force in the matter of
discharge of constitutional obligation of the state to provide medical aid to preserve human life”.
Health entitlements of Government Servants
In Paschim Banga the Supreme Court was deliberating upon the emergency health entitlements
of the populace generally. In a series of cases, the Court has been required to pronounce upon
the health claims of Government Servants. In Surjit Singh v State of Punjab (1996) 2 SCC 336,
the Court allowed a Government Employee underwent open heart surgery at a specialized
hospital in London, England. In filing his medical claims he did not seek reimbursement of the
actual expenses incurred but instead asked the State to reimburse that quantum of the cost as
would have been incurred had he undergone the surgery at a private hospital in India. The State
Government allowed Government Employees to seek treatment in private hospitals after a
Medical Board certified that such treatment was not available in Government hospitals. The
Petitioner proceeded to seek treatment abroad without presenting himself to a Medical Board and
obtaining an opinion that treatment for his condition was not available in the Government
hospitals in the state.
The State refused the petitioner’s claim for reimbursement on the ground that he had failed to
follow this mandatory procedure before proceeding to seek treatment abroad. The High Court
only allowed such of the expenses that the Petitioner had incurred towards his treatment in India.
In his appeal to the Supreme Court, the Court changed the terms of discourse and described the
act of government servant as an act of self preservation. And “self preservation of one’s life” the
Court ruled “is the necessary concomitant of the right to life enshrined in Article 21 of the
Constitution of India fundamental in nature, sacred, precious and inviolable”.
Thus in State of Punjab v Mohinder Singh Chawla (1997) 2 SCC 83, the Court included within
the constitutional obligation to provide health facilities, the obligation to reimburse expenses
incurred to access these facilities. Thus, in the aforementioned case the respondent had a heart
ailment which required replacement of two valves. Since the specialized treatment was not
available in the State of Punjab, he was permitted to obtain the treatment at a specialized health
facility outside the state. The controversy was whether the respondent was entitled to claim
reimbursement of the room rent paid whilst obtaining the medical treatment. The state refused
the reimbursement but was ordered to make the necessary payment by the Punjab & Haryana
High Court. In appeal from the order of the High Court in the Supreme Court the State
contended that such like expenses would be a needlessly heavy burden which would prevent the
state from providing assistance to general patients. The Court appreciated the need for greater
allocation of resources for general patients but deflected the contention of prioritization by
berating the government on improper maintenance and mismanagement of government hospitals.
It evoked the constitutional obligation of the State to bear the expenses for Government Servants
while in service or retirement and insisted that it was asking the State to do no more than fulfil its
constitutional obligation. That such performance of the constitutional obligation would require
incurring of expenses the Court perceived as an inevitable consequence which did not merit its
concern and consideration.
The issue of prioritization of interests was confronted by the Court only in State of Punjab v
Ramu Lubhaya Bagga (1998) 4 SCC 117. In this case, the Supreme Court was required to
consider whether the State Government had the authority to alter its medical reimbursement
policy and whether such modification was constitutionally permissible. The Government of
Punjab in its 1991 Policy allowed reimbursement of medical expenses whether incurred in a
government or private hospital. In 1995, this policy was altered to provide that whilst treatment
could be obtained in a government or private hospital, the reimbursements were limited to the
rate applicable in the government hospital.
The Supreme Court upheld the right of the State to change its policy from time to time according
to changing circumstances. The Government, the Court informed forms its policy based on a
number of circumstances on facts, law including constraints based on resources. It is also based
on expert opinion hence it would not be wise for the Court to evaluate the beneficial effect of the
policy. The Court did not permit the State to totally deny its obligation to provide medical
treatment it however considered the actual provision of treatment a matter which resided within
the jurisdiction of the State. Thus, a reduction in the reimbursement of medical expenses due to
financial constraints was viewed as perfectly permissible by the Indian Supreme Court. Even as
the change in policy was upheld by the Court in individual cases the Court was inclined to make
a liberal reading and allow for the maximum reimbursement possible in the particular case1.
Treatment facilities at mental hospitals
This batch of cases drew the attention of the Indian Supreme Court on the living conditions and
treatment facilities available at different mental hospitals in the country. In its first interaction
with the issue of treatment facilities in mental hospitals, the Supreme Court drew out detailed
guidelines on minimum treatment facilities and acceptable living conditions in the hospitals. In
order to ensure that the drawn guidelines resulted in change of living conditions, the Court has
issued a continuing mandamus and tried to ensure that the guidelines provided by it were in fact
implemented by the state authorities. Subsequent to a long sojourn of trying to enforce standards,
the Court appointed the Human Rights Commission to perform this job on its behalf.
The Court had its second encounter with mental hospitals when it was faced up with the mal
treatment of persons living with mental illness in places other than mental hospitals. This round
going, the Court was intent on creating an infrastructure of mental hospitals in all parts of the
country, in order to ensure that no person living with mental illness was obtaining treatment at
any place other than a mental hospital. 2 In this round of orders, the Court was less concerned
with laying down the minimum treatment conditions operable in mental hospitals and more
1
Facts of individual case to be provided.
concerned with ensuring that there were sufficient number of hospitals in the country. The
Ministry of Health in its affidavit tried to impress upon the Court that mental hospitals were not
equivalent with mental health treatment. Even as the Court in its rulings did not accede to this
argument of the Ministry and insisted that a psychiatric hospital should be established in every
state of the country. Consequent to the order of the Court, the Ministry has enhanced the
financial allocations of existing mental hospitals and has also redoubled the resources allocated
to the District Mental Health Programme but has not due to the Court’s Directive reversed its
policy on the establishment of psychiatric hospitals. The Ministry had decided not to establish
any mental hospitals after 1960, the Court’s orders has not caused this policy to change. At the
same time, it is significant to note that the intervention of the Indian Supreme Court has
increased governmental attention to the health care entitlements of persons living with mental
illness.
Health entitlements of prisoners
The health entitlements of prisoners like the health entitlements of persons living with mental
illness have reached the Court in crisis situations. The Court has been required to pronounce
upon the health rights when a person in custody has lost his life due to neglect and the absence of
health care facilities. The Court has been careful to pronounce that persons are sent to prisons as
punishment and not for punishment. Since the Court has at all times stressed that there is a basic
entitlement of all persons to medical care, it has extended the same right to prisoners.
Conclusion
What does this analysis of the Indian Supreme Court add to Ferraz’s analysis? The analysis
shows that if the slippery nature of socio-economic rights is kept in view then it may not be
desirable to box courts into either the abdicators or the usurpers corner. Courts can and should
play both roles as demanded by the situation. Such indeterminate functioning by Courts could
allow them to be greater guarantors of social economic rights than if they are exclusively cast in
activists or restraintivist roles.
The analysis also shows that the Court needs to more deeply reflect on the category of citizen for
whom they should intervene. For example, the Court’s activism for accident and emergency care
victims is unexceptionable; but its zealousness in ensuring the highest threshold of rights for
government servants requires more consideration. At the same time the concern of the Court has
brought the healthcare entitlements of mental hospital inmates and prisoners on the radar of
public policy; a consequence which could not have ensued without active monitoring by the
Court.
The role of the Indian Supreme Court in the realm of health cannot be understood on a
dichotomy of activism and restraint. The complex nature of the Court’s intervention can be better
understood when placed on a continuum of activism and restraint. Such a continuum allows
room for restrained activism and activist restraint. The court may succeed in obtaining actual
relief in individual cases and also nudge public policy in a more constitutionally consonant
direction by asking the rights question. The Indian Supreme Court shows the merit of reflecting
on the role of the court outside the ambit of institutional essentialism and in the category of
constitutional cooperation. Cooperative constitutionalism allows Courts to give voice to those
issues and interests which have been marginalized in the political system. If it is recognized that
the articulation of a right in the juridical system does not necessarily mean that the realization of
the right has also to occur within the same system then such articulation could be the first vital
step in rendering social economic rights visible, and such visibilization is necessary for the
realization of these rights. To this process of visibilization pending its structural actualization the
Indian Supreme Court has been a significant contributor and to the individual aggrieved person
in a particular case it has been a powerful guarantor.