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  COUNSELING
 
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  ARTICLE  
     
  Right to health  
  Make it fundamental  
   
  IT is very often said that 'good economics needs good politics'. True, but so far as resource generation, exploitation, utilisation, management and consolidation are concerned, good politics needs good economics too.

Candidly, both politics and economics have become demand-driven and, as a consequence, in the last couple of decades we have seen a sea change in policy-making and policy implementation.

The new demand-driven polity and emerging requirements of newer forms of fundamental rights have virtually forced governments to become accountable. Former UN Secretary-General Kofi Annan once said that a rights-based approach to development described situations not simply in terms of human needs, or of developmental requirements, but in terms of the society's obligations to respond to the inalienable rights of individuals. It also empowered people to demand justice as a right, not as charity and gave communities a moral basis from which to claim international assistance when needed.

The Right to Health (RTH) has been accorded the status of an aspirational right in prominent international instruments, such as the Universal Declaration of Human Rights (UDHR) 1948 and the International Covenant on Economic, Social and Cultural Rights (ICESCR), presented to the UN General Assembly in 1966 and adopted in 1976. These instruments relate RTH with human rights.

Article 25 of the UDHR says, 'Everyone has the 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 and necessary social services and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond its control.'

Likewise, Article 12(1) of ICESCR recognizes RTH, while Article 12(2) makes it mandatory for states to take steps for the purpose.

Right to Health does not mean the right to be healthy, nor does it mean that poor governments must put in place expensive health services for which they have no resources. On the contrary, it does require that governments and public authorities put in place policies and action plans that will lead to available and accessible health services for all in the shortest possible time. To ensure that this happens is the challenge facing both the human rights community and public health professionals.

Traditionally, the notion of healthcare was individual-centric and focused on access to medical treatment, medicines and procedures. At the collective level, it was largely identified with statistical determinants like life expectancy, mortality rates and access to modern pharmaceuticals and procedures. However, new understanding about public health shows an interrelationship with aspects like clean and living environment, education (especially about disease prevention) and social security measures. This demands a change in attitude so that RTH is well protected by all regimes across the world.

The Indian Context

India spends between 2 and 3 per cent of its GDP on health and is, hence, unable to correct deficiencies in this sector. Health indices, especially for women and girls, have been extremely poor. Extensive malnutrition has emerged as a major challenge.

According to estimates, about 46 per cent of children below five years of age in India are malnourished. Moreover, about 60 per cent of the diseases prevalent in India are preventable, but, unfortunately, inadequate education and awareness have been killing a large number of people. The Government of India, no doubt, has been implementing a plethora of programmes like the National Rural Health Mission, Janani Suraksha Yojana, Pradhan Mantri Swasthya Suraksha Yojana, etc. However, not much ice has been broken so far.

One has to burn the proverbial midnight oil to provide healthcare to all. For a rapidly growing economy like India, the RTH assumes greater significance, as health is one of the pillars of human capital formation. Now, after the implementation of the Right to Education Act, it is the right opportune to immediately consider the implementation of Right to Health as a fundamental right.

No explicit provision has been made in Part III of the Constitution of India in the category of Fundamental Rights. However, in various other forms, it has been enshrined in Articles 39 (e), 39 (f), 42 and 47 in the Directive Principles of State Policy. Elaborating the importance of the right to health, the Supreme Court in Menaka Gandhi vs Union of India, AIR 1978, SC 579, has held that healthcare is an inalienable part of the 'Life' contained in Article 21 of the Constitution.

Further, India is a signatory to the ICESCR, which directs states in terms of respecting, protecting and fulfilling the right to health. 'Respecting' the right to health signifies that governments must refrain from taking actions that inhibit or interfere with peoples' ability to enjoy their right. 'Protecting' the right to health, on the other hand, means that the state must seek to protect people from having their rights infringed by others and 'fulfilling' the right to health means that the government is to take positive steps in terms of policies and allocation of resources to correct healthcare deficiencies.

Considering the increasingly growing importance of the RTH, the Supreme Court, on many occasions, has made it a point to guide the state to take positive actions. For instance, the Apex Court, in Permanand Katara vs Union of India, AIR 1989, SC 2039, held that no medical authority could refuse immediate medical attention to a patient in need, because it violated Article 21.

Moreover, in Indian Medical Association vs V P Shantha, AIR 1996, SC 550, the Court opined that the provision of a medical service, diagnosis or treatment in return for monetary consideration amounted to a 'service'. Hence, medical practitioners could be held liable under the Act for deficiency in service, in addition to negligence.

Thus, the upshot is that for optimisation of Right to Health, resources needed should be made available and utilised effectively. In fact, the Right to Health is a positive right, not a protective one. Thus, emphasis should switch over from respect to protect.
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Photo caption: Dance therapy for the mentally in Kolkata's Antara
 
  By  CBP Srivastava  
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