Locating the right to healthcare within the fundamental rights chapter of the Indian Constitution and explaining what it entails, MAHESH HYATI writes that other Indian states must follow the example of Kerala and Tamil Nadu, both of which have recently capped the sale prices of COVID-19 essentials, in order to ensure that their residents’ right to healthcare is not violated.
HE world is going through a tough phase, amidst a pandemic that appears to have gained momentum as it has highlighted the system’s flaws. Any government intervention aimed at preventing the spread of the pandemic must be well-founded, as it will have far-reaching consequences. A single death owing to the pandemic may only be number in the daily bulletin of COVID-19 fatalities, as far as the State is concerned, but it shatters the family of the deceased.
Everyone has been put to test by the pandemic. The competency of the elected government, the efficiency of the executive, the activism displayed by the judiciary for public welfare, the credibility of the media as well as the fidelity of the public to law, has come under scrutiny. Who passes the test at whose cost would be a question for which perhaps only introspection and accountability can provide an answer.
Right to healthcare is a fundamental right
The Constitution of India, which provides for fundamental rights and places limits on State action, assumes greater importance in these testing times. The right to life is envisaged under Article 21 of the Indian Constitution. The liberalization of locus standi, coupled with the expansion of the scope of Article 21 by various judicial dictums, has led to the recognition of several rights at par with fundamental rights.
One of the cardinal rights which has come to the fore during the pandemic is the right to healthcare, which was recognized as a fundamental right in the case of Pt. Parmanand Katara v. Union of India & Ors., 1989 SCR (3) 997. The Supreme Court has reiterated this in a plethora of subsequent judgments.
The consequence of recognizing a right as part of the fundamental rights guaranteed by the Constitution is that it becomes justiciable, that is, it can be enforced through courts of law. The justiciability of a right is what makes it meaningful. Generally speaking, a fundamental right confers a legal entitlement upon a person, and the State is restricted from violating the said right.
Positive and negative rights
Rights can be understood to be of two types: negative and positive rights. Negative rights require preventing the State and other entities from infringing, through their actions, on individuals’ ability to claim that right. It implies that the State is obligated to respect and protect the right in question by not interfering in its enjoyment.
On the other hand, positive rights entail not only respecting and protecting but also actively fulfilling and facilitating the exercise of such right. One such right is the right to healthcare. This right imposes a duty on the State to provide its citizens access to medical aid at an affordable price in order to facilitate the exercise of their right to healthcare.
Why prices of COVID essentials must be capped
Over the last several months, and especially during the current second wave of the pandemic, we have borne witness to simple medical necessities that everyone has been advised to stock up on, such as oximeters, N95 Masks, and thermometers, among others, being sold at exorbitant prices by private medical stores. Essentially, these medical stores are fleecing the public.
It is apposite to mention that the State owes a duty to its citizens to control the prices of essential medical kits, failing which would be a dereliction of duty on the part of the State. This is because courts have consistently held that people should not be deprived of access to healthcare and medical equipment on account of their financial incapacity.
The State should not choose to treat those encumbered with poverty poorly, and economic restraints must not prevent anyone from being able to preserve their health and protect themselves from COVID.
Kerala and Tamil Nadu lead the way
Last month, the Government of Kerala, in exercise of its power under the Kerala Essential Articles Control Act, 1986, rightfully passed an order restricting the prices of fifteen COVID essentials (such as PPE kits, N95 masks, hand sanitizers, oxygen masks, and oximeters, among others), thereby enabling the public to have access to medical equipment at affordable prices.
Last week, the Government of Tamil Nadu followed suit, issuing an order under the Tamil Nadu Essential Articles Control and Requisitioning Act, 1949, fixing the maximum retail prices of fifteen medical items as well.
The aforementioned orders would go a long way in realizing the right to access to medical equipment, which falls under the broad ambit of the right to healthcare. Other states must take a leaf out of the Kerala and Tamil Nadu governments’ book, and reasonably restrict the prices of medical kits, otherwise, the right to healthcare would be reduced to be on paper only, a glorious fundamental right living in a vegetative state with no oxygen supply.
The lack of oxygen may kill people but the apathetic attitude of the State in providing proper healthcare at free or affordable rates may kill people’s faith in the system, which is more dangerous and contagious.
(Mahesh Hyati is an advocate at Haranahalli Law Partners, Bangalore. The views expressed are personal.)