“The situation, in which we are placed today, is one which the country – and, indeed, the world – has not witnessed earlier and, hopefully, would not have to witness again. It is incumbent, on every member of the populace, to be aware of the forbidding nature of the struggle, between man and microbe, in which each one of us is a participant, willing or unwilling. A joint, cohesive and concerted effort, alone, can result in success in this struggle. This would involve, in its wake, certain sacrifices, which, within the peripheries of the law, each one of us has to make. We cannot afford, in such a situation, to balk at inconveniences.” – Naresh Kumar v. Director of Education W.P.(C) 2993/2020.
The Constitution of the World Health Organisation in its Preamble defines health as a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity. 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. According to the UN Committee for Economic, Social and Cultural Rights, the right to health requires availability, accessibility, acceptability, and quality with regard to both health care and underlying pre-conditions of health. The Committee opines that the right to health, as defined in the International Covenant on Economic, Social and Cultural Rights as an inclusive right includes not only the appropriate health care but also the determinants of health, like access to potable water and adequate sanitation, an adequate supply of food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information. Scientists have highlighted three approaches for reducing the risk of diseases related to the pandemics, which are, screening animals, reducing land-use change and improving health infrastructure. On 3rd January, 2021, the Subject Expert Committee of Central Drugs Standard Control Organisation (CDSCO) approved the vaccines of M/s Serum and M/s Bharat Biotech for restricted use in emergency situations in India. The favourable outcomes of the vaccination rest on a robust public health infrastructure as the COVID-19 pandemic has already threatened our health care in a number of ways. Time is ripe to build a steady public health infrastructure to pave the way for affordable treatments and preventing diseases.
In a recent report submitted to the Vice President of India, the Parliamentary Standing Committee on Home Affairs stated that there was a need for a comprehensive public health law to keep a tab on private hospitals and check black-marketing of medicines.
In India, many states have enacted their own public health legislations like the Madras Public Health Act, 1939, the TravancoreCochin Public Health Act, 1955, the Andhra Pradesh (Andhra Area) Public Health Act, 1939, the Goa, Daman and Diu Public Health Act, 1985, Madhya Pradesh Public Health Act, 1949, the Puducherry Public Health Act, 1973, Gujarat Public Health Act, 2009, and Assam Public Health Act, 2010.
The Government of India also made efforts twice, in 1955 and then in 1987 to actuate the States to enact laws on its Model Public Health Act but the State Governments failed to take actions. The International Health Regulations, 2005 came into force in the year 2007.
They placed a number of obligations on the signatory Member States as well as the World Health Organization. India is one of the countries bound by the International Health Regulations, which aim to prevent public health risks globally. Another attempt was made by the Government of India to follow the mandate of the International Health Regulations when the Ministry of Health and Family Welfare proposed a draft of the National Health Bill, 2009 to provide for protection and fulfilment of rights in relation to health and wellbeing, health equity and justice, including those related to all the underlying determinants of health as well as health care, and for achieving the goal of health for all. But the National Health Bill, 2009 also failed to make mark.
The Supreme Court of India, not long ago, opined that the States which have the legislative competence to enact laws related to public health have failed to act and the Centre is unable to act for want of competence. In this regard, the Apex Court directed that a meeting of the Health Ministers or Secretaries of all States and Union Territories may be convened and all the States and Union Territories may be advised to come up with a master plan, both legislative and executive taking cue from the already existing Public Health Acts of various States and from the National Health Bill, 2009. The Court also directed the Government of India to file a comprehensive report with a compilation of the information received from the States and Union Territories and advised the States which already have Public Health Acts to finetune their existing enactments on the model of the National Health Bill, 2009.
The Supreme Court has also observed that right to health is a fundamental right guaranteed under Article 21 of the Constitution of India. Right to health includes affordable treatment. It is the duty upon the State to make provisions for affordable treatment. It cannot be disputed that for whatever reasons the treatment has become costlier and costlier and it is not affordable to the common people at all. Even if one survives from COVID-19, many times financially and economically he is finished.
According to the Ministry of Finance, Government of India, two major initiatives in health sector, as part of Ayushman Bharat programme, have already been announced. The National Health Policy, 2017 has envisioned Health and Wellness Centres as the foundation of India’s health system. These centres will provide comprehensive health care, including for non-communicable diseases and maternal and child health services. These centres will also provide free essential drugs and diagnostic services. The second flagship programme under Ayushman Bharat is the National Health Protection Scheme, which will cover over 10 crore poor and vulnerable families providing coverage up to 5 lakh rupees per family per year for secondary and tertiary care hospitalization.
The Supreme Court has directed that free testing for COVID-19 shall be carried out for persons eligible under Ayushman Bharat Pradhan Mantri Jan Aarogya Yojana and any other category of economically weaker sections of the society.
It was also directed that the Ministry of Health and Family Welfare may consider as to whether any other categories of the weaker sections of the society e.g., workers belonging to low-income groups in the informal sectors, beneficiaries of Direct Benefit Transfer, etc. were also eligible for the benefit of free testing and the Bench suggested issuing of appropriate guideline in this regard. As per a report formulated by the United Nations Department of Economic and Social Affairs, strengthening health systems through primary health care to advance the goal of universal access to health services is the need of the hour.
This would include, progressively expanding access to a comprehensive package of health services including adequate health workforce, financing, and information, providing financial protection from catastrophic health costs, moving away from user fees in developing countries and promoting prepayment and pooling schemes, working towards finding innovative ways for recruiting, training and retaining health workers and professionals and creating a critical mass of community health workers, building and strengthening health information systems for identifying and understanding gaps, successes and trends and for accountability, investing in information and communication technologies and health education to establish direct communication networks among experts, therapists, caretakers and patients; support system-wide implementation strategies for treatment and preventive practices; and make populations aware of health risks and health services provided, supporting affordable public transportation services and access to energy to ensure accessibility and availability of health care services, promoting health as an outcome of all policies through, taking action in many areas of policy to reduce the growing burden of non-communicable diseases and other health problems such as maternal mortality, etc.
Therefore, implementing the guidelines of the United Nations with regard to public health and building a robust and comprehensive public health care have to be our goals in order to deal with future pandemics. We have to draw our attention towards improving the medical relief facilities available in the country. Substantial and comprehensive public health laws will be greatly beneficial in preventing and controlling diseases. The Union Health Minister, Dr Harsh Vardhan, lately stated that the Union government is in the process of formulating a National Public Health Act, which is an indication that a long period of difficulty is nearing an end. The National Health Policy and the National Health Protection Scheme have to be implemented in letter and spirit by upgrading health services in the public sector health centres in the country, as aptly enunciated by Benjamin Disraeli that the health of the people is really the foundation upon which all their happiness and all their powers as a state depend.
Muneeb Rashid Malik is a student of law.