The whole world reeling under the Covid 19 pandemic taken issue of ‘heath’ very seriously and consequently has given priority. With the growing concern for Covid 19 cases, health has become a buzz word. The international organisations, medical fraternities, different Government bodies, NGOs and judicial bodies have come up with many circulars, guidelines and notifications to restore the health system of the people. It is actually, ‘we the people of India’ who failed to demand our respective rights expressly guaranteed by our constitution.

 Though the constitution of India under the Part III does not directly recognize the ‘Right to Health’ as a fundamental right but the judiciary in several instances interpreted ‘Right to Health’ under the Right to Life and Personal Liberty (Article 21).

In a few such instances, where ‘we the people of India’ failed but ‘the Supreme Court’ of the country in Bandhua Mukti Morcha Vrs Union of India & others recognised that ‘Right to Health’ must be counted under the Right to Life under Article 21.  Similarly, on another occasion, in the State of Punjab & others Vrs Mohinder Singh Chawla, the apex court repeated that the ‘Right to Health’ is fundamental to the right to life and it is the duty of the Government to ensure health services for its people.

Alike, in the case of Francis Coralie Mullin Vrs The Administrator, Union Territory of Delhi AIR 1981 746, the SC observed that “life” in Article 21 means a life with human dignity and for a dignified life, right to health, right to livelihood, better standard of life,

hygienic conditions in the workplace and right to leisure are indispensable. Further, the scope of Article 21 is widened in the case of Paschim Banga Khet Mazoor Samity vrs State of West Bengal (1996) 4 SCC 37, with the statement that responsibility of Government is to provide adequate medical aid to every person and to strive for the welfare of the public at large.

With the Covid-19, the public healthcare system of the country has been exposed when the State Governments have struggled to uphold their constitutional responsibility and are over-dependent on the Centre for technical expertise and financial support.

In few previous instances such as ‘Monkey Fever’ in Karnataka or ‘Japanese Encephalitis’ in Uttar Pradesh and Bihar, the grey areas of public health system were exposed, including lack of technical strength, budgetary, institutional and capacity constraints of States. Despite the constitutional guidelines to the States to ensure public health system for its people under Part IV, the outcomes of these directions such as States to promote the welfare of its people (Art.38); protect their health and strength from abuse (Art 39(e)); provide public assistance in case of sickness, disability or “undeserved want” (Art 41); ensure just and humane conditions of work; and finally raise the nutrition levels, improve the standard of living and consider improvement of public health as its primary duty (Art 47) are not at all fruitful even after many decades of implementation.

Additionally, under Article 243G, the Constitution also endows the Panchayats and Municipalities to strengthen public health system but that is too a ‘dead duck’. Further, the 7th schedule of the Indian constitution under the State list covers public health, sanitation, hospitals and dispensaries in order to adopt, enact and enforce public health regulations. Similarly, in the case of State of Punjab and Others Vrs Ram Lubhaya Bagga, the SC endorsed the State’s responsibility to maintain health services. Despite all such provisions, the Governments have failed to implement them.

Also, the international organisation such as World Health Organisation (WHO) pointed out that health is a state of complete physical, mental and social wellbeing and it is the legal obligation of the State to ensure uniform access to “timely, acceptable, and affordable healthcare to all its people.” Recently, in one such instance, the High-Level Group’ (HLG) under the 15th Finance Commission of 2019 recommended that the Government should consider the ‘Right to Health’ as ‘fundamental rights’ on the occasion of 75th Independence Day in 2022. Further, the HLG also recommended the shift of ‘Health’ from ‘State list’ to the ‘Concurrent List’ in order to improve the centralised heath system and have better access to health system.

The Central Government is the sole authority in designing the health policies and programmes. So, it has greater spending ability and availability of better technical resources. Other advantages are the Central Government has medical research institutions like the National Centre for Disease Control, National Health System Resources Centre and the Indian Council for Medical Research (ICMR) to advise the

Ministry of Health and Family Welfare from time to time. The same is recognised by a recent World Bank report which stated that India’s Public Health System is well functioning at national level compared to the State levels.

Therefore, it is the duty of the States to take proper measures and care of its people during the Covid 19 to restore the health system of its people. It must enhance the Directorate of Health Services for better medical services during the pandemic to save the lives of people.

(The write is Assistant Professor (Law), Xavier Law School XIM University, Ph: 9953079450, Email: biranchi@xub.edu.in & bnppanda2019@gmail.com)