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HEALTH DECISIONS TO BE GUIDED BY THE HUMAN RIGHTS PRINCIPLES


Introduction

The Council of Europe Committee on Bioethics recalls in a statement published recently, the fundamental principles, based on respect for human dignity and human rights that must guide medical decisions and practices in the context of the current pandemic crisis.
The Right to Health is stated in the 1948 Universal Declaration of Human Rights as part of the right to an adequate standard of living under Article 25 [1]  to be accepted globally.  In 1966 it was again recognized as a human right in Article 12 of the International Covenant of Social, Economic, and Cultural Rights.
The Honorable Prime Minister of India has addressed the nation in this regard several times talking about the ways to combat the pandemic. 
Considering the situation around the globe, health care systems are under extreme constraints, and the increasing numbers of severe cases pose major ethical challenges that patients’ health care professionals and competent authorities have to face. In a background of uncertainty and scarce resources, which can have a direct effect on individuals, tough decisions are being made at the collective and individual levels.
The current scenario of India has the Constitution of India which contains provisions regarding the right to health. The State’s obligation to ensure the establishment and maintenance of healthy conditions is laid down in the Constitutional rules and regulations listed in article 38, 39(e) & (f), 42, 47 and 48A of Part IV of the Indian Constitution and not to forget the lot giving Article 21.
The Convention on Human Rights and Biomedicine (Oviedo Convention), the only legally binding instrument in this area at the international level, offers a comprehensive human rights structure to guide decisions and practices in both clinical and research areas, particularly in the state of emergency and health crisis management like Covid-19. [2]
The Committee on Bioethics recalls a number of legal principles, drawn from the Convention:
i. Access to health care, particularly in the context of scarce resources, should be equitable and guided by medical criteria, so as to ensure that the most vulnerable people, such as people with disabilities, the elderly, refugees and migrants, are not discriminated against;
ii. Specific protection conditions should apply to the collection and processing of health-related information and guidelines, which is essential in the fight against COVID-19;
iii. Any restrictions on the exercise of the rights should be laid down in law with a view to protecting collective interests, including public health and safety;
iv. Unique conditions can relate to some clinical emergencies in the context of the COVID crisis, such as those faced by health care professionals and doctors, no matter where they come from;
v. The interests of persons undertaking research with a view to establishing effective therapeutic and preventive measures should be safeguarded (the Additional Protocol to the Oviedo Convention on Biomedical Research specifies the conditions in which work may be carried out on persons in emergency clinical situations).
The abovementioned legal principles make us want to analyze the status and data of health infrastructure and statistics within the purview of Indian Laws. As per the provisions in the Constitution of India, the State must direct its policy towards ensuring that the safety and strength of workers, men and women and children’s at a tender age are not violated and that people are not compelled by economic necessity to join lawsuits that are unsuitable for their age or strength [Article 39(e)] and that children are given opportunities and facilities to grow in a safe manner and under conditions of equality and exploration. [3]
Article 42 provides for the “Provision for just and humane working conditions and maternity assistance – The State shall provide for fair and humane working conditions and maternity relief.” [4]
Article 47 provides for ‘the State’s duty to raise the level of nutrition and living standards and improve public health-The State shall consider raising the level of nutrition and living standards of its people and improving public health as one of its primary tasks and, in particular, the State shall endeavor to introduce a ban on consumption of drugs, except for medicinal purposes. [5]
Environmental conservation and enhancement are also considered one of the State’s cardinal duties (Article 48 A). The same environment that has seemed to fix itself as the humankind is not out to ruin it. [6]
The above-mentioned articles act as guidelines to be pursued by the State to achieve certain living standards for its citizens. It also clearly demonstrates the State’s understanding that nutrition, working conditions, and maternity benefits are integral to health in normal circumstances.
But the question our heart seems to raise is, what about the situations like the current scenario-COVID 19. How efficient are these laws to help provide the needy with the basic level of maintainability the one requires?
Article 25(1) of the Universal Declaration of Human Rights safeguards the right to an adequate standard of living for health and wellbeing.
Article 7(b) of the International Covenant on Economic, Social and Cultural Rights in C E S C Ltd v Subhash Chandra Bose, [7]  has been cited by the Supreme Court while upholding a worker’s right to health, that while the DPSP (Directive Principles of State Policy) are convincing reasons for the right to health, this is not a guarantee by itself. There must be a clearly established right to health so that this right can be exercised by individuals and the breaches can be fixed.
To health in many ways through litigation in the public interest as well as litigation arising from claims made on the State by individuals with regard to health services, etc. As a result, substantial case law exists in India that shows the gamut of health-related issues such as:
Article 21 of the Constitution and Health-Care Rights
As specified in Article 21 of the Indian Constitution, the Fundamental Right to Life guarantees to the citizen his / her life itself, or personal liberty, except by a procedure laid down by law. The Supreme Court has widely interpreted this fundamental right and included in Article 21 the right to live with dignity and “all the necessities of life, such as adequate nutrition, clothing, etc.” It also held that act that affects an individual ‘s dignity would also violate his / her right to life.
The Constitution incorporates provisions that guarantee the right of all to the highest achievable standard of physical and mental health. Article 21 of the Constitution guarantees every individual, be it the person with disabilities, the old people, poor, rich or migrants, and children as well, no matter what gender they are, the protection of life, and of personal liberty. In Bandhua Mukti Morcha v. Union of India, [8] the Supreme Court held that the right to live with human dignity, enshrined in art 21, stems from the state policy guidelines and thus requires health security.
In a historic judgment in the Consumer Education and Resource Center v. Union of India[9] the Supreme Court held that the right to health and medical care is a fundamental right pursuant to Article 21 of the Constitution as it is essential to make a worker ‘s life meaningful and purposeful with dignity. “Right to life” in Article 21 provides for the protection of the worker’s health and strength. The term ‘life’ in Article 21 does not connote the mere existence of animals. It has a much broader meaning that includes the right to livelihood, better standard of living, workplace hygienic conditions, and leisure. The court held that the State, whether it is a Union or State government or a company, public or private, is required to take all such activities that will promote the health, strength, and vigor of the workers during the period of employment and leisure and fitness, even after retirement, as necessary to health and happiness living. Within its fold, the right to life with human dignity encompasses some of the finer facets of human civilization that make life worth living. Accordingly, the Court set out the following guidelines for all asbestos industries to follow:
In State Insurance Corpn for Kirloskar Brothers Ltd v. Employees[10] following the case of the Center for Consumer Education and Research, the Supreme Court held that ‘right to health’ is a fundamental right of workers. The Court also held that this right is available not only against the State and its instruments but also against private industries, to ensure that workers are provided with facilities and opportunities for the health and vigor of the worker guaranteed by the provision of Part IV of the Constitution, which is an integral part of the right to equality under Article 14 and the right to a revitalized life under Article 21.
Furthermore, State of Punjab and Others v. Mohinder Singh Chawala[11] it was held  “that right to health is integral to right to life has been held. The government has a constitutional obligation to provide health facilities. “Similarly the court upheld the obligation of the state to maintain health services.
Besides recognizing the fundamental right to health as an integral part of the right to life, there is sufficient case law from both the Supreme Court and High Courts in India that stipulates the State ‘s obligation to provide medical health services, pandemic or no pandemic.
In Paschim Banga Khet Mazdoor Samity vs. West Bengal[12] State also raised the problem of adequacy of public health services. The question before the court was whether the non-availability of facilities in government health centers led to a violation of Article 21? It was held that Article 21 imposes upon the State an obligation to safeguard every person’s right to life. Therefore protecting human life is of utmost importance. The State-run government hospitals and the medical officers working therein have a responsibility to provide medical assistance to save human life.
A failure by a government hospital to provide a person in need of such treatment with timely medical treatment results. In denial of the guaranteed right to life under Article 21. Therefore, failure to provide timely care by a government-run health center is a violation of a person’s right to life. The Court also ordered the equipping of primary health care facilities to deal with medical emergencies. In this judgment, it was also held that the shortage of financial resources should not be a justification for the State to shy away from its constitutional duty.
In Mahendra Pratap Singh v. State of Orissa[13] a case relating to the government’s failure to open a primary health center in a village, the court held that “In a country like ours, sophisticated hospitals may not be possible, but villagers can definitely aspire to a primary health center within their limitations. This needs the government to help people get the care and live a healthier life. A healthy society is a public good, and no government can try to smother it.
The primary concern should be the primary health center, and technical fetters cannot be introduced as subterfuges to hinder the establishment of a health center. “It was also stated that” great achievements and accomplishments in life are possible if an acceptable healthy life is allowed to lead. There is an inference, therefore, that the protection of the right to life is a state duty and that this obligation includes the provision of primary health care services. This will also mean that the right to life would provide primary health care. And the importance of ‘Immunity’ that has become the most talked-about health concern shall be considered seriously.
Worker’s Living and Working Conditions, and Health Care Rights
Although the provision of health services is essential to ensure good health, there are several other factors influencing the health of a person. That has been recognized in a number of ways by the Supreme Court. This was first addressed in a case concerning the living and working conditions of stone quarry workers in Bandhua Mukti Morcha v. Union of India[14], and whether those conditions deprived them of their right to life. The court held that fair working conditions are necessary if the right life is to be sought. This stipulates that medical services, safe drinking water, and sanitation facilities should be provided for workers so that they can live with human dignity.
In Municipal Ward Citizens and Inhabitants v. Municipal Corporation, Gwalior, [15]  the court deliberated on the issue- Is the state machinery required to provide adequate conditions necessary for health? The case included the municipal companies managing sanitation and drainage services. It was held that the State and its machinery (the Municipal Corporation in the instant case) was obliged to ensure hygienic living conditions and hence safety.

Conclusion
Finally, the Bioethics Committee will promote the exchange of information and examine the ethical issues raised during and in the aftermath of this pandemic, under its Strategic Action Plan on Human Rights and Developments in Biomedicine (2020-2025) and on the basis of the Council of Europe’s reference corpus of human rights law built explicitly around the Oviedo Convention. But talking about the Indian scenario, it is evident from the above review of cases that the judiciary has specifically read the right to health into Article 21, Right to Life. This has now gone further into the definition of wellbeing and substantiated the importance of the right to life. 
The question that needs to be answered in greater detail is whether it is appropriate to amend the Constitution which will state the basic right to health? The rights listed have an edge over broader interpretations of existing rights since States can be held accountable for violations. The rights that help us fight the situations like current pandemic better and stronger.
However, with the extensive case law available, isn’t it possible to use what’s available to ensure that every citizen’s health care, facilities, and health-guaranteed condition are fundamental rights? If the jurisprudence represents the willingness of the courts to read the definition of ‘health’ in a very broad context (in the right to safety, everything from the municipal corporation’s duty to provide sanitation services to obtain emergency medical care has been interpreted) so why not use the case law instrument to grant rights? It is this question that needs to be discussed in light of the recent amendment that provides primary education for everyone. The process leading up to the amendment must be examined critically as well as the way it is being implemented at the moment. So, we fight as One and win as One.
Any amendment guaranteeing the right to health, which is preventive and curative, should focus on primary health care. It should also focus specifically on women’s health-More specifically reproductive health, children, and the physically and mentally disabled. With this in mind, an amendment to the Constitution must be discussed in more detail, ensuring the right to health.

References
[1]  Universal Declaration of Human Rights, 1948, Art. 25
[2]  Oviedo Convention, 2020
[3]  Constitution of India, Art. 39
[4]  Constitution of India, Art. 42
[5]  Constitution of India, Art. 47
[6]  Constitution of India, Art. 48
[7]  AIR 1992 SC 573
[8]  AIR 1984 SC 802
[9]  AIR (1995) 3 SSC
[10]  (1996) 2 SCC 682
[11]  (1997) 2 SC 83
[12]  1996
[13]  AIR 1997 Ori 37
[14]  AIR 1984 SC 802, 808
[15]  1993-(004) SCC- (0204) SC

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