The pandemic has revealed India's healthcare system's deep vulnerabilities. Most of this is due to India's low public health spending, 1.29 percent of GDP (in 2019-20), lower than most other nations. Another crucial reason for India's poor public health is the absence of a legislative structure that guarantees a basic right to health Hence the need to consider the right to health a fundamental right and enforce it within the framework of solidarity, proportionality, and openness legal devices and human rights principles that will help India address the challenges faced by CO Implementing the right to health within India's system of co-operative federalism would create capabilities where they are most needed – at the grassroots.
The Constitution and the Welfare Right: A basic right to health is not explicitly guaranteed by the Constitution of India. There are, however, many references in the Constitution to public health and to the role of the state in providing people with healthcare. The basis for the right to health is provided by the Directive Principles of State Policy in Part IV of the Constitution of India. Article 39 (E) directs the State to secure the health of workers, Article 42 directs the State to just and humane conditions of employment and maternity relief, Article 47 casts an obligation on the State to increase the nutrition rate and standard of living of people and to improve public health. Moreover, the Constitution not only mandates the State to improve public health but also encourages the Panchayats and Municipalities to improve public health in accordance with Article 243G (read with 11th Schedule, Entry 23).
A 2019 NITI Aayog study illustrated the unequal public health systems of states in India. This disparity was mainly attributable to insufficient technological expertise and fiscal limitations. Although the fiscal dependency of states on the center remains a major challenge, it will lead to unnecessary bureaucracy, red tape, and bureaucratic constraints if the issue of health were transferred to the Concurrent List. While states' policy decisions would continue to be subjective to the federal executive's political orientation, this centralization would rip their constitutional rights away from states. Furthermore, the specialized attention that states across India require will not be provided by a standardized strategy. There must be cooperation between the center and states on a vital topic such as health without impeding cooperative federalism; an integral feature of the Indian Constitution. The need for strong capacity at district and local levels to control the spread of the pandemic was highlighted in the joint response to COVID19. Lessons from the response also indicate that while it is imperative to communicate seamlessly between states and the middle, health must continue to be on the State List. Therefore, it is imperative to decentralize control and funds to states to improve their respective public health systems. Uttar Pradesh and Bihar, for instance, we're able to monitor the Japanese Encephalitis outbreak in 2019, though they struggled in the beginning. The Infectious Diseases Act, 1897 was invoked by Maharashtra and Delhi even in the current pandemic, until the central government invoked the National Disaster Management Act, 2005 on March 23.
The Constitution has made a powerful appeal to the State, through the Directive Principles of State Policy, to ensure a fair standard of living. Several legal precedents have dictated that citizens' healthcare is the responsibility of the state. As a state group, India's adherence to international legal treaties and conventions also obliges it to develop and provide sufficient public facilities and a minimum level of universal health care. Current constitutional protections, legal precedents, and global agreements provide a firm framework for India's basic right to health. A constitutionally assured right would make health access legally binding and ensure transparency. For the provision of adequate healthcare in India, a constitutional amendment should be introduced on the lines of the 93rd amendment to the Constitution, which provided a constitutional sanction for the right to education.
The doctrine of proportionality is, in the legal sense, an instrument for determining the proper balance between the limitations imposed by the State as a disciplinary measure and the seriousness of the forbidden acts. In deciding the requirements for the restriction of constitutionally protected rights, the doctrine of proportionality helps. Currently, together with other nations, the Government of India has introduced far-reaching steps such as lockdown of the control movement, compulsory institutional quarantine, and criminalization of all who do not comply with the guidelines. These activities have resulted in unprecedented limits on human rights and civil liberties. The government is definitely entitled to take such public health enhancement decisions; however, the test of proportionality should not be depreciated by such decisions. The concept of transparency is vital for good governance and for maintaining the confidence of citizens in public administration. Information should be available, usable, and disseminated among the population in order to effectively allow the scrutiny of decisions taken by the government and its retained institutions. The concept of accountability and efficiency goes hand-in-hand with that of openness. The practice of openness, in the light of the right to health and health care, would help to monitor inflation in drugs and medical services, ensure the proper functioning of public institutions and maintain the trust of the people. Recent attempts to use big data analytics to monitor patients and track contacts through applications such as Aarogya Setu need to be compatible with the principle of the privacy of personal data, and any use or distribution should be clear with citizens' prior consent.
It is time that India has declared the right to health a basic right. Strong health regulations will help create community resilience to future pandemics and emergencies in public health. Emergency responses should not come at the cost of human rights commitments being ignored. It is then important that the right to health, founded on the ideals of openness, proportionality, and solidarity, be enforced. The experience of COVID19 has also shown the value of a centrally controlled response, so the co-operative federalism of India must be reinforced.