The Right to Health in Relation to Human Rights (original) (raw)
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Walailak Journal of Social Science, 2021
In India, the concept of 'health' has been accorded prime importance at all stages of its historical development. In ancient period, utmost priority was given to hygiene and a clean environment which is key to health. Moreover, during that period, Ayurveda system of medicine flourished and great physicians like Charaka and Susruta rendered their great service to serve the ailing mankind. During the Mughal Rule, the Unani and Siddha medicine flourished and thereafter, during the British Rule the modern system of medical science was born. After independence, 'health' was included in the category of non-justiciable rights under the Directive Principles of State Policy which depended upon the will of the States for its implementation. But the Supreme Court of India realizing the importance of 'health' granted it the status of Fundamental Rights by bringing it within the ambit of 'Right to Life' under Article 21 through its landmark decisions. Since this right is not explicitly mentioned in the Constitution, there is lack of awareness resulting in the violation of this important right. Hence, in order to make the people more vigilant, there is a need to expressly incorporate the 'Right to Health' under Article 21 by constitutional amendment just like the Right to Education under Article 21A.
Right to Health in India-A Study of Constitutional and Judicial Attitude
2014
Health is one of the basic requirements of human being. Nowadays India is facing problem of degradation of health. The Constitution of India is supreme law to govern the whole Nation. The condition of health is worsening day by day in spite of various health schemes and policies. The Supreme Court is performing Nobel function of interpretation of provisions of Constitution. The framers of Indian Constitution have rightly inserted various provisions regarding health of public. Further the role of Indian Supreme Court is significant in protecting health of people at large with the help of various decisions. The effective implementation of Laws enacted based on Constitutional provisions will control the present problem.
RIGHT TO HEALTH AND RULE OF LAW: AN INDIAN SOCIO-LEGAL STUDY
Indian Journal of Law and Legal Research, 2022
The concept of "Rule of Law" is the building square on which the advanced majority rule society is established. For the effective working of the nation it is basic that there's authorization of law and of all contracts based on law. Laws are made for the welfare of the individuals to preserve agreement between the clashing strengths in society. One of the prime objects of making laws is to preserve law and arrange in society and create a serene environment for the advance of the individuals. The concept of Rule of Law plays a vital part in this process. In counting this as a prerequisite for the rule of law, Dicey's conviction was that it was to basically incorporate the over two standards within the structure of the nation or in its other laws for the state to be one in which the standards of rule of law are being taken after. There must be an upholding authority and Dicey believed that this authority may be found within the courts. The courts are the authorities of the rule of law and they must be both fair-minded and free from all outside impacts. Hence the flexibility of the legality gets to be a critical column to the rule of law. In the context Rule of Law has come to be caught on as a framework which has shields against official intervention, anticipates political agitation and permits individuals to arrange the lawful results of their activities.
Right to Health, Consumer Protection and Challenges in Health Care Services in India
Health is a vital indicator of human development and human development is the basic ingredients of economic and social development. Right related to heath is highly influenced by health care facility available in a country to its population. 2 The scope and ambit of right to health has been debated during last few decades at international level as well as in India. With the development in medical science the concept of health right are changing in a high speed. The national and local decisions regarding health are affected by global forces and policies. The effect of globalization on heal has resulted in substantial gains for some groups and severe marginalisation of others. MEANING OF HEALTH 'Heath' is one of such terms which most people find difficult to define though they understand what it means. Health is universally recognised as essential to human condition. Truly speaking does not merely serve a nominal need of health analysis but has operational relevance for health practice. 3 Keeping this in view various efforts has been made to define health. The World Health Organisation (WHO) defines health broadly as "a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity". 4 This definition is most commonly accepted at the international level. It clearly underlines the importance of recognising not only the right to health care, but also right to a certain number of underlying preconditions for health. These preconditions are: (i) safe and potable water and adequate sanitation, (ii) adequate supply of safe food, nutrition and housing, healthy occupational and
National Health Policy in India With Regard To Right To Health- An Overview
Swayamprakash Journal of Research, 2018
The Constitution of India does not provide the explicit right to health under part III. The Supreme Court has interpreted Article 21 of the Constitution and provided the right to health as a fundamental right. The Preamble itself gives core ideas to give any possible reliefs to people at large. A welfare state like India has its own National Health Policies to improve the condition of health. The UNO and WHO both are playing a pivotal role at the international level as guiding authorities for member countries to fulfil health care needs. Health planning in India is governed by various committees constituted by Government, Five Year Plans (FYPs) and National Health Policies (NHPs). Health is not merely the absence of disease or infirmity rather complete physical, mental and social well-being is a universal definition. The NHP 1983 is an approach in conformity with the DPSP, the NHP 2002 set a goal of decentralisation wherein it is expected to get the assistance of personnel from various institutions and NHP 2017 aims to clarify and strengthen the role of the government in health expenditures, organised health care services, preventive and promotive health care, health human resource development. The recent health policy is rejected straightway the recognition of a right to health as a justiciable right as the government is far away from public health targets.
The Human Right to Health: In International, Regional and National Legal Instruments
Global Scientific Journals , 2021
This Article discusses the contents, essential elements of human rights to heath, right to health and other fundamental principles of human rights in international, regional and national legal instruments. The human right to health discussed in this Article is only from the legal point of view. Almost all international human rights treaties recognize the right to "highest attainable standard" of health. The human right to health perceived as significant aspect of economic development, environmental issues, and the rights of children-all currently important international concern. The human right to health importantly focuses the attachment of health status to the issue of dignity, non-discrimination, justice and participation. Almost all states of the world at least signed one international human right treaty that recognize health as human right but the problem is there is no flexible standard that consider the developing nations their level of wealth and development for progressive realization of this right.
Everyday there are always chances and forum for us to discuss or be concerned about the matter of “health” or staying “healthy”, from private life to public issues, from domestic policies to global governance, because “health”, by definition or criteria, is highly related to personal dignity, lifestyle, and living conditions. Being the basis of everyone’s personal development, maintenance and protection of health has been long recognized as one of the fundamental human rights by international human rights law, in such forms of “the right to a standard of living adequate for the health” or “the right to the enjoyment of the highest attainable standard of physical and mental health” contained respectively within the UDHR and the ICESCR, and in fact, the WHO Constitution even manifests more that “The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.” Notwithstanding this undeniable importance, one question is frequently raised by international community, particularly by States when ratifying, or after ratifying, human rights treaties: as a human right, what does “health” indicate and entail upon States and other non-State actors in law? It is because “health” involving with too many complicated factors. Namely, despite recognitions of the existence and necessity of the right to health, but to ensure the right to health not to be infringed upon, or to be remedied when being violated, still depend on those questions of “what the substantial legal obligations are, how to comply with, and how to monitor and evaluate the situations of States’ compliance.” All of these questions have eventually been clarified in 2000 by CESCR’s No. 14 General Comment, which is referred to and based on by this study as well when interpreting the normative contents of the right to health. Besides, this study also highlights the relationship between a government and people from the lens of public health. Looking closer upon the methodology and current development of public health, such as identification of social determinants of health and internationalization of health governance, it is found that “public health” has a dual sense, externally and internally, for States under international law; that is, not only public health affairs are definitely subject to the principles of jurisdictional exclusiveness and non-interference, but also they can be regarded as performances of health protection for people. This can be inferred by the interpretations of States’ “right to protect public health” and individuals’ “right to health care” provided separately in the preambular clause of the WHO-FCTC and the Charter of Fundamental Rights of the European Union. As a result, this normative implication may serve as the rationale of the principles of “health promotion” and “health equity” in modern public health. In the last part of this study, it applies the homogeneity and complementariy between the right to health and public health to answering the question of “whether and how the right to health can be implemented in national public health based on the nexus between the right to health and public health under international human rights law”. For instance, the requirements of priority setting and public participation contained within “the right to health” can be taken as the theoretical basis and strategic guidance of public health policies on one hand. On the other hand, the process, outcomes, and any investigations into people’s health by “public health” mechanisms may be used as factual evidence for the right to health indicators-benchmarks assessment, and this is also why the CESCR emphasizes that monitoring over satisfaction of the right to health should refer to the Alma Ata Declaration in 1978, the Program of Action of the International Conference on Population and Development in 1994, the health-related Millennium Development Goals in 2000 and so on. At the final stage, this study would like to further elaborate upon the theory of “right to health-based public health”, which has been consistently advocated by human rights organizations and public health community, including the UN and all its specialized agencies, based on the inextricable nexus between the right to health and public health, such as the principles of non-discrimination, progressive realization and whichever central to safeguarding human dignity and social justice. Therefore, this study hopes to prove the necessity of its existence in theory and the feasibility of its application in practice, by demonstrating that the right to health can serve as the justification to legitimize public health measures on one hand, and public health may provide practicability to implement the right to health on the other hand, according to the theory of “right to health-based public health”.
Health is not merely the absence of disease but a state of physical, mental and social wellbeing. It encompasses all facets of human right, including the right to health automatically. In the erstwhile Jammu and Kashmir state and now Indian Union Territory (UT) has been under conflict situation resulting in assaults on health by conventional and rubber bullets, tear gas shells and pellet firearms in crowd control and security. The security forces during the last three decades to quell the discontentment and uprising have used power to the detriment of the people's health and well being. The access to health care and delivery assumes importance in conflict and peace situations equally being inalienable human right to life and health. The paper takes a legal stance on security-driven health issues and diseases in the human rights perspective in Kashmir.