Right To Health

CHAPTER - III
ANALYSIS OF RIGHT TO HEALTH AS HUMAN RIGHT
3.1 Introduction
Right to health being paramount to a decent living of an individual, it is necessary

to analyse the various factors strengthening this right to health from various angles. Also,
this right has to be analysed both in the personal and social context of an individual as the
modern health care has a broader social dimension apart from an individualistic
requirement. The right to health suffers due to discrimination of people in the society, the
most vulnerable being the women and children, economically weaker sections of the
society, aged and disabled persons including mentally retarded groups. Also, the various
factors like food and nutrition, housing and living conditions, forced displacements of
people, natural disasters and wars, unsafe working conditions and environments etc.
imperil this right as well. Hence, this right to health can only be strengthened by
analyzing the impact of these various factors aforesaid to reach the goal of „Health for
All‟.
3.2 Meaning of Right to Health
The meaning of health however, is a difficult task to define. Therefore many

definitions of health have been offered from time to time. According to Webster
Dictionary „Health‟ is “the condition of being sound in body, mind or spirit, especially
freedom from physical disease or pain”. According to Oxford English Dictionary
„Health‟ is the “soundness of bodyor mind; that condition in which its functions are duly
and efficiently discharged”1.
The right to the highest attainable standard of health encompasses medical care,
access to safe drinking water, adequate sanitation, education, health related information,
and other underlying determinants of health. The right to health requires an effective,
responsive, integrated health system of good quality that is accessible to all. Modern
1
Dr. B R Upadyaya, Public Health Care Laws -Changing concept of Health in Human Rights, (North
Bengal University Press, 2011) p. 26.
1
concept of Health derives from two related concepts i.e. medicine and public health.
While medicine generally focuses on the health of an individual, public health emphasize
the health of populations. To oversimplify, individual health has been the concern of
medical and other health care services, generally in the context of physical and to a lesser
extentmentalillness and disability2.
In contrast, public health has been defined as ensuring the conditions in which
people can be healthy. Thus public health has a distinct health promoting goal and
emphasizes prevention of disease, disability and premature death. Therefore, from a
public health perspective, while the availability of medical and other health care
constitutes one of the essential conditions for health, it is not synonymous with “health”.3
Health deals with a person‟s most intimate life quality. It is the most precious pre
requisite for happiness. Physical and mental health embraces almost the entire personality
of human being. And when one is concerned with the entire personality of men and
women, one must necessarily consider so many aspects of life that affect his personality,
development and environment, external influence, the friendships and alliances, its ups
and downs, its moments of elevation and moods of depressions.4
The most widely used modern definition of health was developed by the World
Health Organization (WHO) as “Health is a State of complete physical, mental and social
well being and not merely the absence of disease or infirmity.” Through this definition
World Health Organisation has helped to expand the scope of health by radically
expanding and extending the roles and responsibilities of health professionals and their
relationship to the larger society5.
The WHO definition also highlights the importance of health promotion, defined
as “the process of enabling people to increase control over, and to improve, their health.”
To do so “an individual or group must be able to identify and realize aspirations to satisfy
needs, and to change or cope with the environment.” The social dimensions of this effort
2
“Definition of Right to Health”, available at http://cdn2.sph.harward.edu/ , visited on 18.9.2016
3
Ibid
4
Bakshi P M and Anil Bangalore Suraj, Health Law and Ethics: An Introduction, Module 2, (Pushpanjali
Printers and Publishers 2002), pp.8-9
5
Ibid
2
were emphasized in the Declaration of Alma Ata, 1978, which described health as a
“social goal whose realization requires the action of many other social and economic
sectors in addition to the health sector.”6
Thus the modern concept of health goes beyond health care to embrace the
broader social dimensions and the context of individual and population well being.
Perhaps the most far reaching Statement about the expanded scope of health is contained
in the preamble to the WHO Constitution, which declares that the enjoyment of the
highest attainable standard of health is one of the fundamental rights of every human
being.7
On 19th June 1946, International Health Conference was inaugurated by Sir

Ramaswami Mudaliar, President of ECOSOC. This was the first International Conference
with the world health in it. It was the first Conference to be called by the United Nations.
It decided that the Office International Hygiene Publique is absorbed; that arrangement
for transferring the League of Nations Health Organization function be made, and that the
Pan American Sanitary Organisation be integrated with the World Health Organization.
The Constitution of the World Health Organization was approved and signed by the 61
nations represented. The function of OIHP was taken over by WHO after the approval of
all signatories and the same was notified and finally OIHP ceased to exist8.
The International Health Conference also approved the transfer of the functions
of the League of Nations Health Organisation to the WHO interim Commission and later
to the World Health Organisation. An interim Commission was formed to prepare for the
1st World Health Assembly and to carry on the activities of the League of Nations Health
Organization and the United Nations Relief and Rehabilitation Administration (UNRRA).
The Commission was composed of representatives from 18 States including Dr. C. Mani
from India, who later became the first Regional Director of WHO‟s South East Asia
6
Simon Chesterman, Thomas M Franck, David M Malone, Law and Practice of the United Nations :
Documentary and Commentary, (Oxford university Press, 2008), p.173
7
See, Supra note 2
8
Harrison, Mark, Public health in British India: Anglo-Indian preventive medicine 1859-1914.New Delhi,
India: Foundation Books, (Cambridge University Press 1994), p.60.
3
Region. The Commission held its first meeting immediately after the appointment by the
Conference9.
The Commission also consisted of nine experts committee to guide all its
functions to prepare for the permanent organization, to carry out the statutory functions of
the previous health organization, epidemiological intelligence and to carry out emergency
International health work. Apart from these functions, the Commission also took the
responsibility to ratify the WHO Constitution and took over UNRRA‟s health work in 15
countries involving relief and rehabilitation in the field as well as prevention of
epidemics, malaria, tuberculosis, venereal diseases control and nutrition etc10.
The Constitution of the World Health Organisation has been called the Magna
Carta of Health. In its final form, it constitutes one of the most powerful instruments for
International collaboration to enable man to improve his conditions of life. The Right to
Health has been subsequently firmly established in numerous instruments at the
International, national and regional level. At the International level, however the term
„right to health‟ is most commonly used. This term best matches the International Human
Treaty provisions that formulate health as a human right. This provision not only
proclaims a right to health care but also a right to other health protection and
occupational health services11.
The term „health care‟ would accordingly not cover this broader understanding of
health as human rights. Today this organisation is concerned with the needs of public
health in more than 150 countries, where it envisages a broader definition for the concept
of health. It defines health as a “State of complete physical, mental, social wellbeing and
not merely the absence of disease or infirmity". The term "Social well-being” is of
particular significance. It gives room for wider interpretation and can accommodate every
important human right. The WHO definition projects a vision of the ideal State of health
9
Ibid
10
Ibid
11
S.P. Ranga Rao, Administration of Primary Health Centres In India:A Study from the Three Southern
States, ( Mittal Publications , New Delhi, 1993), p. 15
4
as an eternal and universal goal to constantly strive towards and has as its main purpose
defining directions for the work of the organisation and its member States12.
It holds the government and various countries responsible for the health of the
people by taking appropriate health and social welfare measures for the health of the
people. The resources of the WHO are largely utilized for rendering assistance and
advice to member countries in matters such as maternal and child health, occupational
health, environmental health, nutrition, health education and health administration. Apart
from this the organisation is equally concerned with the conduct of high level research in
the fields of medicine and public health.13
The World Health Assembly (WHA) held in May 1977 reaffirmed the
commitment of nations to strive towards the goals in a World Health Declaration that
stressed the "will to promote health by addressing the basic determinants and pre-
requisites for Health" and the urgent priority "to pay the greatest attention to those most
in need, burdened by ill health, receiving inadequate services for health or affected by
poverty”. It is worth noting here that the perceptible tension between the broad definition
of health proposed by WHO which includes the notion of social well-being, and the more
restrictive definition set out in the ICESCR reflects the very different purposes of these
two documents. The ICESCR definition differentiates the two attributes of health -
physical and mental well-being and is specifically concerned with assigning particular
responsibilities to the governmental health sector; it assigns obligations relevant to social
well-being to the same governments under other Articles of the treaty14.
Rule of law on any subject are not merely rules operating in the legal field. They
have wider dimensions. It is important to know, whether one is concerned with health law
or with any other branch of law. A study of matters pertaining to health has also to touch
many other areas, legal as well as non-legal. Thus, if the question is of consent to medical
or surgical treatment, the law of torts may be relevant. If the question is of abortion to be
12
Ibid
13
Ibid., p. 16
14
Manoj Kumar Sinha, Oyelade Olutunji S, Odunsi S Baba Femi, Human Rights and the Right to Health-
Right to Health in the context of HIV/AIDS in India and Africa, (MANAK publication Pvt. Ltd, 2008) p.
76
5
performed on an unmarried girl, questions of law of minority and guardianship would be
involved.
If the question relates to disclosure of information as to whether a particular

person is suffering from AIDS, and such disclosure is insisted upon by a prospective
marriage partner who seeks such information from the pathological laboratory concerned,
the legal issues that may possibly arise would inter alia cover the following fields-
i. The law relating to hospital administration, including the maintenance and

disclosure of medical records;
ii. The law relating to medical confidentiality;
iii. The law relating to marriage – particularly pre-marital obligations and
iv. The law relating to fundamental rights.15
3.2.1. Public Health and Private Health
Health is a wide word as it covers public health as well as private health. The
social considerations that are relevant in the sphere of public health and those which are
relevant in the private health are not necessarily identical. In the case of public health
beyond the interest of the affected person the interest of community is involved and the
interest of the other persons may arise occasionally. Thus the legislation relating to
epidemic diseases may well provide for measures which may have to be enforced not in
the interest of the patient only, but in the interest of the society at large16.
Incidentally, the distinction between private and public health may prevail in
relation to mentally defective patients, violent persons and so on. But the general rule is
to insist on the patient‟s consent, where one is concerned with private health. In contrast,
a different approach may prevail where public health is endangered. Certain
precautionary measures have to be adopted to check the spread of dangerous diseases
regardless of the absence of consent on the part of the patients17.
15
See, Supra note 2
16
Jonathan M Mann, Lawrence Gostin, Sofia Gruskin, Troyen Brennan, Zita Lazzarini and Harvey
Fineberg, Health and Human Rights, (Ashgate Publishing Ltd 2010), p. 114
17
Ibid
6
Here, the law abandons its normal approach, which lays stress on patient
autonomy and gives superior importance to considerations of public health. This is one of
those very rare occasions on which the law seems to act on the maxim Salus Populi
Suprema Lex (People‟s welfare is the Supreme Law). Health and human right is not only
the right to the highest attainable standard of health or other related right but in the
broader context it is the power of a rights - based approach to health, in particular, the
approach to tackle and ultimately to reverse and end the communicable diseases18.
For Jonathan Mann, for instance, former head of the AIDS program at the WHO,
human rights offered public health a more coherent, comprehensive and practical
framework of analysis and action on the societal root causes of vulnerability to
HIV/AIDS than any framework inherited from traditional health or biomedical sciences.
While analyzing the practical aspects of health and human rights, Mann made very clear
that the promotion and protection of right to health are inextricably linked.
In the Indian context, the distinction between public health and private health
possesses relevance from another point of view. The Indian Constitution distributes
legislative power between the Union and the States (Article 246). Details of the
distribution are set out in legislative lists, assigning various subjects to the centre and the
States respectively. For the present, it is suffice to mention that while the topic of “public
health and sanitation, hospitals and dispensaries”, forms a specific entry in the topics
assigned to the States (State list, Entry 6), few other aspects of health are dealt within
several scattered entries. There is no entry related to “health” generally or to “Private
Health” specifically. Of course, in case of doubt, recourse can be had to the residuary
entry,(Union list, Entry 97), under which parliament has power to legislate on any matter
not mentioned in the State List or the Concurrent List19.
3.3 Determinants of Right to Health
Right to health is closely connected to the realization of the right to food, housing,
work, education, non-discrimination, equality and the prohibition of ill treatment, and
18
Alica Ely Yamin & Siri Glappon, Litigating Health Rights: Can Courts Bring More Justice to Health?,
(Harvard University Press, 2001) p. 165
19
Ibid
7
respect of human dignity. It has a close nexus to the right to privacy and family life,
access to information and the freedoms of association, assembly and movement. Various
external or internal factors may adversely impact full enjoyment of the right to health
guaranteed under Article 12 of the International Covenant on Economic, Social and
Cultural Rights. The direct cause of ill- health is caused by and result of poor living
conditions. Unhealthy and polluted environment, unsafe drinking water and
undernourishment are the main causes of ill-health. So also dangerous working
conditions leads to poor health20.
The special sections of the population viz, prisoners and detainees, ethnic
minorities and indigenous populations, disabled persons, aged persons, asylum seekers,
refugees and migrant workers are more at risk than the others. For example, women and
girls are often denied of adequate access to health services mainly due to gender
inequality and discrimination. Insufficient financial resources of individuals or of the
State, or of both, on many occasions affect the enjoyment of right to health. Health is also
affected by discrimination between different regions within a State, particularly between
urban and rural areas21.
The right to health may also be affected by natural or man-made diseases. Trade
or financial agreements may also adversely affect the right to health. Thus it is not only
the responsibility of a State, but also that of the third parties to eliminate factors causing
obstruction or impediment to the full enjoyment of the right to health. Although many
factors of national and International nature may interfere with the right of everyone to
enjoy the best possible level of health, the major factor causing hindrance to the full
enjoyment of this right is poverty. Poverty denies economic and social rights, such as the
right to health, adequate housing, clothing, food and safe water. It also promotes
unhealthy lifestyles, such as prostitution, drug addiction, alcoholism and beggary22.
Poverty is not a phenomenon rampant only in developing countries, but also it is

prevalent in all countries in varying degrees. Certain categories of the population also
20
Michael J Selgelid & Thomas Pogge (Ed), Health Rights, (Ashgate Publishing Ltd, England 2010), p.
158
21
Ibid
22
Ibid., pp. 159-160
8
experience poverty in many developed countries. People belonging to ethnic minority
groups, indigenous populations and migrant workers live in pathetic conditions. People
living in slums and temporary settlements are without proper infrastructure. Women are
more likely to live in poverty than men, and frequently have a sole responsibility for the
care of their children. Further the poverty stricken children are the worst affected.
3.3.1 Discrimination
Everyone should have access to health facilities, access to hospitals and clinics,
goods and services, trained medical personnel and essential drugs without discrimination.
There are numerous International Treaties and Covenants on Economic, Social and
Cultural rights prohibiting discrimination on the ground of sex, religion, race etc. Despite
the various Treaties and Conventions, in practice all the aspirations contained therein
have not yet materialized. Vulnerable and marginalized groups like ethnic or religious
minorities, indigenous people, women and children, aged and disabled persons are often
the victims of limited or even lack of access to health care and the underlying health
determinants. Unfortunately due to their ethnicity or the colour of their skin, these
persons are often victims of discrimination in relation to healthcare23.
This is mainly on account of the high cost of health services and goods in relation
to the financial conditions of these people. This means that health facilities, services and
goods shall be affordable to all and it must be based on the principle of equity. The State
is under obligation to provide adequate availability of health care to everyone including
socially disadvantaged groups, although there are numerous social security benefits and
also the public, private or mixed system health care insurance.24.
Despite the economic growth in the State, there is no access to basic health care
services and goods, especially to women and children, resulting in high incidence of
maternal and infant mortality apart from tuberculosis and other communicable diseases.
Discrimination on the ground of sex is still widespread in certain States and it affects not
23
Andrew Clapham, Mary Robinson, Claire Mahon & Scot Jerbi, Realising the Right to Health, Vol. 3
(Ruffer & Rub Publication, 2009) p. 62
24
See, Supra note 20
9
only the enjoyment of economic, social and cultural rights of people but also in access to
employment, housing and in particular health services25.
Lack of access to essential health care and goods can seriously affect the health of
these persons especially those suffering from HIV/AIDS infected persons. This however,
includes a wider segment of the population like refugees, asylum seekers, migrant
workers and all other non-nationals under the State‟s jurisdiction.26.
Lack of access health care schemes, privatization of medical facilities and

services and the shift of trained medical personnel to the private sector, all these
constitute significant obstacles to enjoy the right to health and to receive adequate health
care without any discrimination. Large scale privatizations in various countries have
affected not only the cost, but also the quality and availability of health services and
goods27.
This impacts in particular, on the poorest categories of the population. In spite of

Constitutional and legislative provisions which prohibit caste based discrimination, the
persons belonging to socially inferior groups or the poorest catagories of the population
are more likely to suffer due to the poor quality of health services than the rest of the
population28.
3.3.2 Food and Nutrition
Food and water is essential for good health to lead a good life. But the fact is that
inspite of having sufficient food to feed everyone, a minimum of 854 million people
suffer food insecurity and nutrition. About 40 per cent of our people live below the
poverty line and face problems of day to day existence, with no money to buy simple
food items, often not even for the next meal, which results in malnutrition among babies
and growing children, blindness, brain damage and mental retardation etc29.
25
Ibid., pp. 135-136
26
Available at http://www.gjpi.org , visited on 30.07.2015
27
Ibid
28
Ibid
29
AP J Abdul Kalam, with Y S Rajan, India 2020 A Vision for the New Millennium, (Penguin Books, New
Delhi, 2002) p. 59
1
Article 11 of the Covenant on Economic, Social and Cultural Rights guarantees
the enjoyment of the right to adequate health, food and the right to be free from hunger
which is of paramount importance and is linked to the inherent dignity of the human
being and is indispensable for the fulfillment of other human rights enshrined in the
International Bill of Human Rights30.
Furthermore, the right to nutritionally adequate and safe food and the right to be
free from hunger, are considered to be part of the core obligations of State parties. In
theory, all categories of the population may be affected but in practice, it is the most
vulnerable groups, who are the most suffers of food, malnutrition and hunger than all
other categories of population. Equal distribution of food may be hampered by
inefficiency, corruption and discrimination among general catagories of population31.
3.3 .3 Housing and Living Conditions
Safe physical and economic access to health care and goods implies that medical
services and the underlying determinants to health such as safe and potable water and
adequate sanitation facilities are accessible to all categories of the population, including
those who reside in rural areas. A large number of individuals and families on low
incomes live in a sub-standard houses and thus in unsafe, unhygienic and unhealthy
conditions. Persons belonging to racial, ethnic and national minorities especially migrant
workers and persons of foreign origin, are specially affected32.
Women and in particular, migrant women or those belonging to ethnic minorities,

aged persons and persons with disabilities are subject to lack of security, tenure and
forced evictions. Indigenous people are often deprived of access to their ancestral lands.
All these negative living conditions will adversely affect the health of the people
concerned. In many States prisoners and detainees live in appalling circumstances.
Overcrowded and unhygienic conditions in prisons as well as lack of appropriate health
care have all given rise to a high rate of tuberculosis and other serious health problems,
30
Sudarshan Nimma, Right to food Reforms and Approaches,(Icfai University Press, Hyderabad, 2007), p.
101
31
See, Supra note 23, p. 65
32
Ibid., p 66
1
such as HIV/AIDS, among the prison population. Homelessness affects more than 100
million people in the world33.
It is the cause of much ill health which affects marginalized and vulnerable
groups and it may even lead to suicide. Although there is no sole and easily identifiable
cause of homelessness, a certain number of risk factors have been pinpointed by States.
Lack of affordable housing, speculation in housing and land for investment purposes,
urban migration, unemployment, poverty, domestic violence, drug addiction and mental
illness are but a few factors which make people vulnerable to homelessness34.
3.3.4 Physical and Mental Violence
It is true that State neither provide protection nor a good health be ensured by the
State. But the State, in order to ensure good health can compulsorily adopt measures for
protection against all causes of ill health.
However women and children belonging to disadvantaged or marginalized groups

are usually the most affected. Domestic violence is both physical and mental violation of
the rights of women and children, which is unfortunately widespread in many developed
and developing States and it frequently goes unreported and therefore unpunished.
Spousal rape and sexual abuse of children have tragically become common place. In
many cases, domestic violence will have disastrous effect on physical and mental health
which can even lead to death. As such, domestic violence has been criminalized in order
to provide shelter to women and children as reiterated by the Committee on Economic,
Social and Cultural Rights35.
There is also a strong prevalence of HIV/AIDS among high risk groups such as
sex workers, drug users and incarcerated persons. These people are also frequently
victims of discrimination by health care institutions. Trade in human organs, particularly
in kidneys, is prevalent in States and is on the increase. Such practices are an affront of
33
Ibid
34
Ibid
35
Ibid ., p. 68
1
human dignity and constitute a serious violation of the right to physical integrity. They
affect primarily the poorest and most vulnerable categories of the population36.
3. 3.5 Safe and Healthy Working Conditions and Healthy Environment
It is not only State authority but also non-State actors like NGO‟s, public spirited
individuals, private employers, who have the responsibility to create a healthy and safe
working condition. Unsafe or unhygienic working conditions can lead to grave accidents
and industrial diseases, like lead poisoning and asbestos related illness.In addition,
generally poor conditions of work such as excessive working hours, lack of sufficient rest
breaks and lack of periodic holidays with pay are not only contrary to the interest of any
individual but are also dangerous to health37.
Environmental degradation generally has a strong negative impact on the health

and well-being of the whole population. Exposure to a hazardousor polluted environment
can have serious effects on the enjoyment of the right to health like polluted water or air
and soil radiation and exposure to harmful chemicals or heavy metals can also seriously
impair the health of an entire population38.
To avoid any kind of accidents like Bhopal Gas Leak case in 1984, it is very
important to have knowledge about the riskto adopt measures for preventing nuclear
accidents and for ensuring rapid intervention of any such accidents. In this context, the
States are obliged to inform the population of any dangers to the environment which
could harm the health or life of the community39.
3. 3. 6 Access to Information, Education and Effective Remedies
Access to health related education and information including information on

sexual and reproductive health, is an important determinant of the right to health. This
means that the right to seek, receive and to communicate health issues must be respected.
36
Ibid ., p. 10
37
Ibid., p. 70
38
Ibid
39
Ibid
1
In addition, the population should be associated with and participate in all health related
decision making in the community at local, national and International levels40.
However, access to health related information does not mean that personal health
record of a patient which should be treated with almost confidentiality must be divulged.
The prevention, treatment and control of epidemics, endemics and occupational and other
diseases require States to draw up and adopt prevention and education programmes.
Information on health should also be made available throughout the State territory
including remote rural or mountain areas41.
Generally, lack of education and illiteracy present serious obstacle to the full
enjoyment of the right to health. The phenomenon of early marriages, the high rate of
maternal mortality and the rapid spread of HIV/AIDS and other sexually transmitted
diseases can largely be attributed to the lack of sex and reproductive education which is
still viewed by some States as taboo. Children and girls in particular, are often deprived
of access to education, thus barring them from obtaining basic schooling and hence
valuable knowledge on health issues42.
Equally adults, who are denied of education, are severely handicapped when
accessing health goods and services. Access to effective judicial or other remedies
without discrimination constitutes an essential determinant of right to health. Without the
possibility to claim health entitlements within the legal order of a State, the most
vulnerable and the needy may find themselves deprived of the means to exercise their
right to receive basic health care43.
3. 3. 7 National and International Trade and Financial Agreements
Trade and financial agreements may have negative effects on the cost of health
services and especially that of essential drugs. They may even have an impact on access
to health care, social security and the intellectual property regimes protecting inter alia,
40
Ibid., pp.70 -71
41
Ibid., p.72
42
Ibid
43
Ibid
1
access to generic medicines, biodiversity, water and the right of indigenous committees to
these resources44.
The failure of a State to respect the legal obligations regarding the right to health
when entering into bilateral or multilateral agreements with other States, International
Organizations and Multilateral Corporations constitute a violation of the standards laid
down in Article 12 of the Covenant, which can result in serious damage to physical and
mental health45.
3.4Criteria to Evaluate the Right to Health
The four criteria by which to evaluate the right to health are as follows :
i. Availability : Public health and health care facilities, goods and services, as well
as the programmes, have to be available in sufficient quantity.
ii. Accessibility : Health facilities, goods and services have to be accessible to
46
everyone without discrimination, within the jurisdiction of the State party .
Accessibility has the following four overlapping dimensions:
i. Non-discrimination;
ii. Physical accessibility;
iii. Economic accessibility (affordability);
iv. Information accessibility47
iii. Acceptability :All health facilities, goods and services must be conform to medical
ethics and culturally appropriate, sensitive to gender and life cycle requirements, as well
as being designed to respect confidentiality and improve the health status of those
concerned48.
44
Ibid., p. 73
45
See, Supra note 4, pp. 120-121
46
Neera Bharihoke, Human Rights And the Law, (Serials Publications, New Delhi 2009), p.6
47
Priyanka Kher, The Right to Health : Recognition and Issues of Enforceability, Lawyers Collective, Vol.
19, (Universal Law Publishing Co, 2014) p. 13
48
N.B. Sarojini, Suchitha Chakraborthy, Deepa Venkatachalam, Saswati Bhattacharya, Anuj Kapilashrami,
Rajan De, Women’s Right to Health, (National Human Rights Commission, New Delhi, 2012), p. 18
1
iv. Quality: Health facilities, goods and services must be scientifically and medically
appropriate and of good quality49.
3. 5 Right to Health and the Vulnerable Groups of the Society
Some groups or individuals, such as children, women, persons with disabilities or

persons living with HIV/AIDS, face specific hurdles in relation to the right to health.
These can result from biological or socio-economic factors, discrimination and stigma, or
generally, a combination of these. Considering health as a human right requires specific
attention to different individuals and groups of individuals in society, in particular those
living in vulnerable situations50.
Similarly, States should adopt positive measures to ensure that specific

individuals and groups are not discriminated against. For instance, they should
disaggregate their health laws and policies and tailor them to those most in need of
assistance rather than passively allowing seemingly neutral laws and policies to benefit
mainly the majority groups. To illustrate what the standards related to the right to health
mean in practice, this chapter focuses on the following groups: women, children and
adolescents, persons with disabilities, migrants and persons living with HIV/AIDS51.
3.5. 1 Women
Women‟s access to health services is much less in comparison to men. The reason
being their lower status in the family and lack of decision making power regarding ill
health, expenditure on health care and non availability of health care facilities preventing
them from seeking medical health, women‟s lack of time due to existing unequal division
of labour and the social sanctioned „feminine‟ quality of „sacrifice‟52.
Besides, the perceptions of acceptable levels of discomfort for women and men
lead to gender differences in willingness to accept that they are sick and seek care.
49
Devesh Kumar Sahu and B M Mukherjee, Human Rights and Right to Health: An Indian Scenario,
Human Rights and the Law (Serial Publications 2009) p. 6
50
Dr. Ashok Sahani, Health of the High Risk Groups: Mothers, Children and Elderly, (Indian society of
Health administration Bangalore, 1988) pp. 22-23
51
Ibid
52
Mamta Rao, Law Relating to Women and Children, 3rded, (Eastern Book Company, Lucknow, 2012) p.
14
1
Women wait longer than men to see medical care for illness. This is partly due to their
unwillingness to disrupt household functioning unless they become incapacitated. India
accounts for the second highest maternal mortality rate in the world. The reason for this is
the situation of health services in India which lag behind in providing basic facilities and
accessibility to women during pregnancy53.
National Family Health Survey indicates that one woman dying every five
minutes primarily from sepsis infection, hemorrhage, eclampsia, obstructed labour ,
abortion and anaemia. With 85% of pregnant women being anaemic, blood loss due to
hemorrhage in pregnancy and labour can be fatal. A vicious circle of under nourishment
and ill health is set in motion; poor nourished mothers give birth to low birth weight
babies. These babies have a great risk of dying from diarrhea and acute respiratory
infections54.
It is the duty of States Parties to ensure right to health to both men and women
equally by taking all appropriate measures to eliminate discrimination against women in
the field of health care services, including those related to family planning and to ensure
to women appropriate services in connection with pregnancy, confinement and the post-
natal period, granting free services where necessary, as well as adequate nutrition during
pregnancy and lactation. Special protection should be accorded including a paid leave or
leave with adequate social security benefits within a reasonable period before and after
child birth to working mothers55.
Although men and women both are affected by many of the same health
conditions,it is said that women experience them differently. The wide spread poverty
and economic dependence among women, their experience of violence, gender bias in the
health system and society at large, discriminationbased on the grounds of race or other
factors, the limited privilege many women have over their sexual and reproductive lives
and their lack of influence in decision-making are the social realities and have an adverse
53
Prof. Bishnu Prasad Dwivedi, Prof. Gamgotri Chakraborthy, Dr. Rathin Bandopadyay, Dr. Sujith Kumar
Biswas, Public Health Law, (North Bengal University Press 1999), p.244
54
Lalitahar Parihar, Women and Law: From Impoverishment to Empowerment, 1st ed., (Eastern Book
Company, 2011), p. 427
55
Vishwas K R, A Past Issue in Women’s History, Chiguru, (KLE Society‟s Law College ,
Bangalore, 2016-17 ) p. 135
1
56
impact on their health . So also, women particularly,belonging to some groups,
including refugee or internally displaced women, women in rural and sub urban settings,
slums, women living with HIV, indigenous and rural women, women with disabilities
also face multiple forms of discrimination and barriers57.
Sexual and reproductive health is another key aspect of women‟s right to health.
States should give privilege to women enable women to have control over and decide
freely and responsibly on matters related to their sexuality, including their reproductive
health, without any coercion, lack of informationand violence. The Programme of Action
of the InternationalConference on Population and Development and the Beijing Platform
for Action directed the State parties to highlight the right of men and women to be
informed and to have access to safe, effective, affordable and acceptable methods of
family planning of their choice, and the right of access to appropriate health-care services
that will enable women to go for a safe pregnancy and child birth and provide couples
with the best chance of having a healthy infant58.
Violence against women, both physical and psychological harm or suffering

amounts to violation of their right to health. The Committee on the Elimination of
Discrimination against Women requires States among other things to enact and enforce
laws and policies that protect women and girls from violence and abuse and provide for
appropriate physical and mental health services 59. Health-care workers should also be
trained in this respect to detect and manage the health consequences of violence against
women, including promoting the prohibition of female genital mutilation60.
States must exercise due diligence to prevent, investigate and prosecute such State
actors or private persons and must provide adequate opportunities for reparation and
rehabilitation that strengthen their physical and mental health.61.
56
57
58
Dr. A David Ambros, Abortion: A Basic Human Right, National Workshop on Women‟s Rights,
(University College of Law and P G Department, Karnatak University, Dharwad, 2006), p. 194
59
See, Supra note 48 , p. 41
60
Ibid , p 42
61
P D Kaushik, Women Rights, in collaboration with Rajiv Gandi Institute of Contemporary Studies, (Book
Well Publications New Delhi 2007), p.67
1
3.5.2 Children and Adolescents
Children during their physical and mental development face many health
challenges which makes them especially vulnerable to malnutrition and infectious
diseases, and, when they reach adolescence affects their sexual, reproductive and mental
health problems. Most childhood deaths are due to respiratory infections, diarrhea,
measles, malaria and malnutrition. In this regard both the International Covenant on
Economic, Social and Cultural Rights and the Convention on the Rights of the Child
imposes an obligation on States to reduce infant and child mortality, and to combat
disease and malnutrition62.
In addition, a baby who has lost his or her mother to pregnancy and child birth
complications has a higher risk of dying in early childhood. Infant‟s health is also closely
connected to women‟s reproductive and sexual health, whereasthe Convention on the
Rights of the Child directs States to ensure access to essential health services for the child
and his/her family, including pre and post-natal care for mothers. Children are also
increasingly at risk because of HIV infections occurring mostly through mother-to-child
transmission.63.
Accordingly, States should adopt measures to eradicate such transmission

through, for instance: medical protocols for HIV testing during pregnancy; information
campaigns among women on these forms of transmission; the provision of affordable
drugs; and the provision of care and treatment to HIV-infected women, their infants and
families, including counseling and infant feeding options. Governments and health
professionals should treat all children and adolescents without any discrimination. This
means that they should give particular attention to the needs and rights of specific groups,
like children belonging to minorities or indigenous communities, intersex children,
generally, young and adolescent girls, who in many circumstances are prevented from
accessing a wide range of services including health care64.
62
63
“The Right to Health”, available at http://www.ohchr.org.factsheet31 visited on 23.09.2017
64
Ibid
1
Girls‟ more specifically, should have equal access to adequate nutrition, safe
environments, and physical and mental health services. Standardize method should be
taken to annihilate harmful traditional practices that affect mostly girls‟ health, such as
female genital mutilation, early marriage, and preferential feeding and care of boys. State
must also protect children who have experienced neglect, exploitation, abuse, torture or
any other form of cruel, inhuman or degrading treatment or punishment and must adopt
appropriate measures for promoting children‟s physical and psychological recovery and
social reintegration. Although adolescents are in general a healthy population group, they
are prone to risky behaviour, sexual violence and exploitation and are also vulnerable to
early and/or unwanted pregnancies. According to UNICEF reports, there are more than
650,000 child prostitutes in Asia alone of which India‟s contribution is almost 20%65.
Adolescents‟ right to health is therefore dependent on health care that respects

confidentiality and privacy and includes appropriate mental, sexual and reproductive
health services and information. Adolescents are, moreover, particularly vulnerable to
sexually transmitted diseases, including HIV/AIDS. In many parts of the world, new
HIV infections are heavily transmitted among young people (15–24 years of age).
Effective prevention programmes should be addressed by the State on sexual health and
ensure equal access of information relating to HIV and preventive measures such as
voluntary counseling and testing, and affordable contraceptive methods and services66.
3.5.3 Persons with HIV/AIDS
Morethan 25 million people have died of AIDS in the past 25 yearsand now about
33 million people are living with HIV/AIDS making it one of the most destructive
pandemics in recent times. This destructive epidemic had a serious devastating effect on
human rights and development. It is now recognized that HIV/AIDS raises many human
65
Sumana Lata and Anjani Kant, Child and the Law, (A P H Publishing Corporation, New Delhi, 2007),
p.154
66
2
rights issues. Whereas, protecting and promoting human rights are essential for
preventing the transmission of HIV and reducing the impact of AIDS on people‟s lives67.
Many human rights are violated due to HIV/AIDS, such as the right to freedom
from discrimination, the right to life, equality before the law, the right to privacy and the
right to the highest attainable standard of health. The links between the HIV/AIDS
pandemic and poverty, stigma and discrimination, based on gender and sexual
orientation, are widely admitted. The prevalence discriminating incidence and spread of
HIV/AIDS are disproportionately high among women, children, those living in poverty,
indigenous peoples, migrants, men having sex with men, male and female sex workers,
refugees and internally displaced people68.
The discrimination makes them more vulnerable to HIV infection and undermine
their right to health and the fear of being identified with HIV/AIDS may stop people who
suffer discrimination, such as sex workers or intravenous drug users etc. from voluntarily
seeking counseling, testing or treatment69.
States should forbid discrimination on the grounds of health status, including

actual or presumed HIV/AIDS status, and protect persons living with HIV/AIDS from
discrimination. State legislation, policies and programmes should include positive
measures to address factors that hamper the equal access of these vulnerable populations
to prevention, treatment and care, particularly their economic status70.
Universal access to health care and treatment is also an important element of the
right to health for persons living with HIV/AIDS. Equally, it is important to ensure the
availability of medicines and strengthen HIV prevention by, providing contraceptive and
HIV-related information and education, and preventing transmission of HIV/AIDs from
67
Digumarti Baskara Rao, HIV/AIDS and Law and Human Rights, (Discovery Publishing House, New
Delhi, 2000), pp.253-255
68
69
Ibid ., p. 128
70
2
mother to child. The Internationalrecommendation on HIV/AIDS and Human Rights
provide further guidance on safeguarding the rights of persons living with HIV/AIDS71.
Gender inequality and failure to respect the rights of women and girls are
important factors in the HIV/AIDS pandemic in many parts of the world. For instance,
women‟s servitude to men in private and public life may avert women and girls from
obtaining safe sex practices and are disproportionately vulnerable to infection. In
addition, young women in particular have less access to available treatments and
adequate information72.
States should enforce laws and policies that challenge gender inequality and
social norms that contribute to HIV/AIDS expansion. They should also render equal
access to HIV-related information, education, means of prevention and health services.
Significantly, they should protect women‟s sexual and reproductive rights, which are key
to HIV prevention. In this respect preventing HIV transmission in pregnant women,
mothers and their children is pivotal. States should also ensure women against sexual
molestation, which makes them more vulnerable to HIV infection and other sexually
transmitted infection73.
3.6 Right to Health and International Development
Today there is a wide developing recognition between health and human rights.
There is a broad linkage between health policies, programmes and practices on the
enjoyment of human rights. Protecting human rights is recognized as key to protect the
public health74. These linkages are in explicit manner, yet both are powerful, modern
approaches in defining and advancing human well being. Attention to the intersection of
health and human rights may provide practical benefits to those engaged in health or
71
Ibid
72
Ibid., p. 333
73
Ibid
74
Ibid , p .102
2
human rights work, may help reorient thinking about major global health challenges, and
may contribute to broadening human rights thinking and practice75.
The right to health should be understood as right to the enjoyment of a variety of

facilities and conditions which the State is responsible for providing as being necessary
for the attainment and maintenance of good health 76. Health is universally recognized as
essential to improve the human conditions. Apart from being the concern of the
individual, a healthy physique and mind are also the concern of the entire community,
because without a healthy population no sustainable economic, scientific and
technological development is possible. The right to health is one of the economic, social
and cultural human rights that require positive and affirmative State action to create
better conditions for people rather than just governmental restraints77.
A healthy life depends on many social, economic, political and cultural factors,
which the State should guarantee. These factors include providing people with adequate
nutritional food, sanitation, clean air and water, and an adequate livelihood, prohibiting
discrimination and providing people with a mechanism for social change. These factors
constitute not only the components of the human right to health, but it also determines the
health status of an individual. Further, health and development are intimately inter
connected.78
The human rights revolution launched after World War II saw the development in
International law of the two concepts sensed in earlier British and American practices: (1)
scrutiny of public health measures that interfered with individual rights, and (2)
government responsibility for providing for conditions conducive to public health. The
former was developed through instruments incorporating civil and political rights and the
latter took shape in Treaties addressing economic, social and cultural rights. This section
75
Dr Justice S R Nayak, The Right to Health - A Basic Human Right of Every Human Being, vol.III, No. 2,
KSLUJ, (Karnataka State Law University, 2015), p.10
76
Amrendra Kumar Ajit, The Challenges to the Health Care System in Rural India and the Duty of the
Welfare State, Public Health Law, (North Bengal University Press 2011), p.155
77
See, Supra note, 11
78
Ibid
2
deals with the evolution of public health measures impinging on civil and political
rights79.
All major InternationalTreaties that protect civil and political rights recognize
that the protection of public health is a legitimate reason for government interference
with certain rights. Medicine, public health and human rights have much common
grounds. The right to health cannot be realized without the interventions and insights of
health workers; and the classic, long established objectives of public health and medicine
can benefit from the newer dynamic disciplines of human rights. A few enlightened
people have understood the relation of health and human rights when the WHO
Constitution was drafted in 1946 and when the Declaration of Alma Ata was adopted in
1978 affirming the right to the attainable standard of health80
The 1978 Alma Ata Declaration called all nations to ensure essential Primary
Health Care availability. The World Health Assembly, in 1978, stressed the will to
promote health addressing its determinants and prerequisites. The goal of extending the
benefits of sustainable health over an expanding life span, to all members of the human
family, is the cardinal tenet of public health. The Declaration of human rights eloquently
upholds the right to life as an inalienable entitlement of all human beings. As the
mutually nurturing relationship between health and development becomes increasingly
clear, protection of health became integral to the mandate of human rights. Such a shared
vision and mission paved the way for a natural alliance between the public health and
human rights81
3.6.1 The United Nations Charter, 1945
The United Nations Charter signed on June 26, 1945 and came into force on 24,
October 1945. The Preamble of this Charter States that the people of the United Nations
have determined to save succeeding generations from the scourge of war, which was
witnessed by the whole world twice, to reaffirm faith in fundamental human rights, in the
79
See, Supra note 8
80
“Public Health”, Online article by Nordic School of Guthenburg, Sweden, available at http://www.gu.se>
visited on 2.03.2016
81
2
dignity and worth of the human person , in the equal rights of men and women and of
nations at large and small, and to establish conditions and under which justice and
respect for the obligations arising from Treaties and other sources of International law
can be maintained, and to promote social progress and better standards of life in larger
freedom82.
It also ensures to practice tolerance and live together in peace with one another as
good neighbours, and to unite our strength to maintain International peace and security,
and to ensure, by the acceptance of principles and the institution of methods, that armed
force shall not be used, save in the common interest, and to employ International
machinery for the promotion of the economic and social advancement of all peoples83.it
is to be noted that United Nations Charter do not explicitly deal with health as a human
right. The United Nations charged with the promotion of respect and protection of any
human right, has to function through the General Assembly, which is entrusted with this
function84.
While Article 1(3) of this Charter clearly says that the purpose of United Nations
Charter is to achieve International cooperation in solving International problems of an
economic, social, cultural or humanitarian character and in promoting and encouraging
respect for human rights and for fundamental freedoms for all without distinction as to
race, sex, language or religion. To achieve this purpose, the United Nations Charter
accepts the responsibility to promote higher standard of living, full employment,
conditions of economic, social progress and development and solutions of International
economic, social health and related problems 85. Apart from this the member States are
obliged to take joint and similar responsibility in cooperation with UNO for the
achievement of the mentioned purposes86.
82
Ibid
83
“The United Nations Charter, 1945” , available at http://www.un.org>charter-united-nations , visited on
30.08.2015
84
United Nation Charter 1945, Article 13(b)
85
Ibid., Article 55
86
See, Supra note 11, Article 56
2
3.6.2 Universal Declaration of Human Rights (UDHR), 1948
Human rights are rights inherent to all human beings, whatever our nationality,
place of residence, sex, national or ethnic origin, colour, religion, language or any other
status. We are all entitled to our human rights without discrimination. These rights are all
interrelated, interdependent and indivisible. Universal human rights are often expressed
and guaranteed by law in the forms of Treaties and customary International lawin order to
promote and protect rights and fundamental freedoms of individuals or groups87.
In 1948, the UDHR was signed by all members of the General Assembly, who
expressed a desire to participate and to represent in the world body .The preamble of the
DeclarationStates that the freedom, justice and peace are the foundation, which
recognizes the inherent dignity and the equal and inalienable rights of all members of the
human family. The adoption of the UDHR by the General Assembly brought out a
revolution by marking a new era in the mankind‟s struggle for freedom and human
dignity88. Now through a Preamble and 30 articles, the UDHR defines specific rights and
their limitations. Article 1 of the UDHR proclaims that all human beings are born free
and equal in dignity and rights as they are endowed with reason and conscience and
should act towards one another in a spirit of brotherhood. Article 2 declares the basic
principles of equality and non-discrimination as regards enjoyment of human rights and
fundamental freedoms. Article 3 proclaims the right to life, liberty and security of the
person, a right essential to the enjoyment of all other rights89.
Article 4 to 21 set out civil and political rights viz, freedom from slavery and
servitude; freedom from torture and cruel, inhuman and degrading treatment or
punishment; the right to recognition everywhere as a person before the law; the right to
an effective judicial remedy; freedom from arbitrary arrest, detention or exile; the right to
a fair trial and public hearing by an independent and impartial tribunal; the right to be
presumed innocent until proved guilty; freedom from arbitrary interference with privacy,
family, home or correspondence; freedom from movement and residence; the right of
87
Parikshith K Naik, Mehrabudin Wakma, Human Rights & International Organisations,(Trinity
Publication, 2013), p. 3
88
Dyaneshwar P Chouri, Right to Health and Legal Protection, (Regal Publications, 2013), p. 31
89
2
asylum; the right to a nationality; the right to marry and to found a family; the right to
own property; freedom of thought , conscience and religion; freedom of opinion and
expression; the right to a peaceful assembly and association, the right to take part in the
government of one‟s country and to equal access to public service in one‟s country90.
The rights recognized under Articles 22 to 27 include the right to social security,
the right to work, the right to equal pay for equal work, the right to rest and leisure, the
right to a standard of living adequate for health and well being, the right to education and
individual copy rights. Finally Articles 28 to 30 recognises that everyone is entitled to a
social and Internationalorder in which the human rights and fundamental freedoms set
forth in the Declaration may be fully realized and stress the duties and responsibilities
which each individual owes to his community91.
Article 25 is the crucial provision of the Declaration, which expressly recognizes

the right to health. It reads as follows:
i. “Everyone has the right to a standard of living adequate for the health and
well-being of himself and his family, including food, clothing, housing and
medical care and necessary social services, and the right to security in the
event of unemployment , sickness, disability, widowhood, old age or other
lack of livelihood in circumstances beyond his control.
ii. Motherhood and childhood requires special care and assistance. All children,
whether born in or out of wedlock, shall enjoy the same special protection”92
The above provision of the UDHR makes all signatory States to adopt this right in
their respective countries by specifically stating that the sick, disabled and elderly, their
physical and mental health are entitled to security for their wellbeing. The UDHR not
only recognizes the importance of civil and political rights, but also proclaims the
economic, social and cultural rights like individual rights to social security, to work, to
protect against unemployment, to rest and leisure and to protect against torture, cruel and
90
See Supra note 11, pp. 268-269
91
Lohit D Naikar, The Law Relating to Human Rights, ( Puliani and Puliani, Bangtalore, 2004), p. 63
92
Paras Diwan , Peeyushi Diwan, Human Rights and The Law, ( Deep and Deep Publications, New Delhi,
1996), P. 552
2
inhuman treatment. These are some of the important rights the enjoyment of which
depends on the efficiency of the right to health and health care93.
3.6.3 European Social Charter 1961
The European Social Charter of 1961 is the counter part of the European
Convention on Human Rights in the sphere of economic and social rights. The Charter
guarantees the enjoyment without discrimination of fundamental social and economic
rights defined in the framework of a social policy that parties undertake to pursue by all
appropriate means. A particular significance has been given by the Charter to the right to
work, the right to organize, the right to bargain collectively, the right to social security,
the right to social economic and legal protection of the family, and the protection of the
rights of the migrant workers and their families94.
The European Social Charter, 1961 clearly says that everyone has the right to
benefit from any measures enabling him to enjoy the highest possible standard of health
attainable and also specifies the right to protection of health.The parties undertake, either
directly or in cooperation with the public or private organization, to take appropriate
measures to remove as far as possible the causes of ill health, to provide advisory and
educational facilities for the promotion of health and encouragement of individual
responsibility in matter of health, and to prevent as far as possible epidemics, endemics as
well as accidents95.
Article 11- The Right to Protection of Health

This Article States:
“With the view to ensuring the effective exercise of the right to protection of
health, the contracting parties undertake, either directly or in co-operation with public or
private organization, to take appropriate measures designed inter alia:
i. To remove as far as possible the causes of ill- health;
93
Dr. H O Agarwal, International Law and Human Rights, 21sted, (Central Law Publications, Allahabad,
2016), p. 785
94
David P Fidler, International Law and Infectious diseases, (Clarendon Press Oxford 1999)p. 180
95
The European Social Charter , 1961, Article 11
2
ii. To provide advisory and educational facilities for the promotion of health and the
encouragement of individual responsibility in matters of health; and
iii. To prevent as far as possible epidemic, endemic and other diseases, as well as
accidents.”96
Article 13–The Right to Social and Medical Assistance
Article 13(1) States:
“To ensure that any person, who is without adequate resources and who is
unable to secure such resources either by his own efforts or from other
resources, in particular by benefits under social security scheme, be granted
adequate assistance, and in case of sickness, the care necessitated by his
condition.”97
3.6.4 International Convention on the Elimination of All Forms of Racial

Discrimination, (ICEFRD ) 1965
Much before acceptance of the adoption of the Universal Declaration on Human

Rights (a non-binding document) in 1948, broad argument existed that the rights which
were to be embodied in the Declaration were to be transformed into legally binding
obligation through the negotiation of one or more Treaties. The ICEFRD was the first
ever treaty to be negotiated and it was adopted by the United Nations General Assembly
on 21st December 1965 and brought into force on 4th January 196998.
The Convention defines racial discrimination as “any distinction, exclusion,

restriction or preference based on race, colour, descent of national or ethnic origin which
has the purpose or effect of nullifying or impairing the recognition, enjoyment on an
equal footing of human rights, fundamental freedoms in the political, economic, social,
cultural or any other field of public life. The Convention requires State parties at all
levels to abolish all forms of racial discrimination and to prohibit any form of racial
96
“The European Social Charter,1961” available at http://www.coeint>turin-europe, visited on 12.11.2015
97
Ibid
98
Gokulesh Sharma, Human Rights and Legal Remedies, (Deep and Deep Publications Pvt Ltd, New Delhi,
2000) pp. 290-291
2
discrimination by any person, groups or organization and to adopt measures to prohibit
any forms of racial discrimination of ideas based on racial superiority or hatred,
incitement to racial discrimination of acts of violence and incitement of such acts and any
form of assistance to such activities99 .
In Article 5, the Convention establishes that State parties must obstruct and
abolish racial discrimination in all its forms; by signing and ratifying the Convention
guaranteeing civil, political, economic, social and cultural rights without any forms of
racial discrimination regarding participation in election, security of person, freedom of
movement, nationality, freedom of thought, conscious and religious freedom, freedom of
opinion and expression, work, housing, public health and medical care, education and the
right to equal participation in cultural activities. As per the direction of the Convention a
committee on the elimination of racial discrimination was established to examine the
report submitted by State parties on the legislative, judicial, administrative or other
measures which they have adopted to give effect to the provisions of the ICEFRD100.
In responding to these reports the concluding observation was issued by the

committee and gave a clear profile including both the concern and recommendations to
the State parties. The committee had also given interpretations in the form of general
recommendations where the content of the Convention, thematic issues or methods of
work are explained and elaborated upon. The main aim of these general
recommendations is to clarify States parties‟ duties with respect to certain provisions and
suggest approaches to implementthe treaty101.
Committee moreover, considered individual or group communications concerning

allegations of violations of rights contained in the Convention102. For the mechanism to
be accessible to a State party in question, it must have made a Declaration under Article
14 accepting the competence of the committee to consider such communications. Once
the committee has reached a decision regarding the communications, it issues an opinion
99
International Convention on the Elimination of All Forms of Racial Discrimination, 1965, Article 1,2 and
4
100
A Panel of Legal Commentators, Law Relating to Human Rights, 5th ed.,(Asia Law House, 1998), p. 52
101
Ibid
102
International Convention on the Elimination of All Forms of Racial Discrimination, 1965, Article 14
3
on the merits of the complaint. The committee will often include suggestions and / or
recommendations to the State parties concerned even if it has formally found that there
has been no violation of the Convention. The committee may also entertain Inter-State
claims whereby a State party may bring to the committee‟s attention that another State
party is not fulfilling its obligations under the Convention103.
This procedure has however never been employed. Lastly, the committee holds
regular thematic decision on issues related to racial discrimination and the Convention.
Having considered the State parties‟ report, the committee may among other things high
light in the concluding observations about the State party‟s short comings in relation to
implementing the right to health, but also regarding the other directly or indirectly health
related issues. The committee may also indicate how the State party should go about
correcting these short comings. Both the report and the concluding observations are
available to the public. Following the concluding observation, the committee may request
additional information from State parties or remind the State party of recommendation
included in the previous concluding observations of the Committee and their obligations
as parties to the ICEFRD104.
The Committee may also make use of procedures which aim to either prevent or
limit serious violations of the Convention. All these means may be used to raise the issue
of health rights both within a State party and at the International level through the
Committee. Although the Committee has not issued a specific general recommendation
on racial discrimination and the right to health, it has however issued a general
recommendation in relation to Roma descent and non citizens where the right to health
has been considered105.
The Committee in referring to the Roma and descent based communities high
lights the necessity to ensure that they have equal access to health care and to involve
them in the designation and implementation of health programs. In considering non
citizens, the committee highlights the importance of removing obstacles which prevent
103
Ibid
104
See, Supra note 2
105
Ibid
3
them in their enjoyment of the right to health. If an individual or a group of individuals
believed that they have been discriminated against, according to the Conventions
definition, in exercising or enjoying their right to health they can submit a
communication to the Committee. After the Committee has considered the case and
issued an opinion, the State parties will be invited to inform the Committee of the action
it has taken on the Committee‟s suggestions and recommendations106.
On receipt of that information, the committee may take whatever steps it deems to
be appropriate. This is a further opportunity to raise the issue of the right to health both
through State channels and individually. Furthermore, part of the mandate of the special
Rapporteur on the right to health is now concerned with the human rights, included in
Article 5(e) (iv) of the ICEFRD. In addition, the working group of experts on people of
Africa descent of the Human Rights Council has recently considered the relationship
between racism and health. Also, the Committee on Economic, Social and Cultural rights
in its general comment on Health, referring to the International Covenant on Economic,
Social and Cultural Rights prescribes inter alia that any form of discrimination is
detrimental to health care and underlying determinants of health (ICERDPDF).107
3.6.5 International Covenant on Economic, Social and Cultural Rights, 1966
In addition to specific treaty provisions addressing the right to health, there are
number of general treaty provisions stipulating that there is a universal right to health.
The most well known and influential of these is the International Covenant on Economic,
Social and Cultural Rights, which is a multilateral treaty adopted by the United Nations
General Assembly on 16th December 1966 and in force from 3 rd January 1967. It focused
towards the granting of economic, social and cultural rights to the non self governing and
trust territories and individuals, including labour rights and the right to health, the right to
educationand the right to an adequate standard of life to all its members108.
106
Ibid
107
108
Halashetti Jagadish, Right to Health and Health Care: International and Constitutional Dimensions ,
KLE Law College, Bangalore (Chiguru – Annual Souvenir 2011-2012) p. 42
3
In the year 1945 at the San Francisco Conference the proposal for the Declaration
of right of man had been placed which led to the founding of the United Nations and the
Economic and Social Council was given the task of drafting it. Prior to this process, the
document was split into a Declaration setting forth general principles of HR and a
Convention containing binding commitments. The former evolved into the UDHR and
was adopted on 10th December 1948.Drafting continued on the Convention, but there
remained significant differences between the members of the Convention which
eventually caused the Convention to be split into two separate covenants, one to contain
civil and political rights and the other to contain economic and social and cultural
rights109.
The two documents were to contain as many similar provisions as possible and be
opened for signature simultaneously. Each would contain an Article on the right of all
peoples to self determination. The first document became the International Covenant on
Civil and Political rights and the second, the International Covenant on Economic Social
and Cultural Rights. The drafts were presented to the UN General assembly for
discussion in 1954 and adopted in 1966. The Covenant follows the structure of the
UDHR and particularly the Covenant recognizes the right of every one to the enjoyment
of the highest attainable standard of physical and mental health. Here health is understood
not just as a right to be healthy, but as a right to control one‟s own health and body and to
be free from interference such as torture or medical experimentations110.
The States must protect this right by ensuring that everyone within their
jurisdiction has access to all which is not detrimental to health such as clean water,
sanitation, food nutrition and housing and through a comprehensive system of health care
which is available to everyone without discrimination and economically accessible to all.
It also require parties to take specific steps to improve the health of their citizens,
including reducing infant mortality and improving child health, preventing controlling
and treating epidemic diseases, healthy environmental conditions,for example- the State
parties have to take safety measures for the protection against radiation; the
109
Ibid
110
See, Supra note 108
3
implementation and monitoring of health and safety measures in the work place; creating
conditions to ensure equal and timely access to medical service for all, etc.111
Right to health is interpreted as requiring parties to respect women‟s reproductive

rights by not limiting access to contraception or censoring withholding or intentionally
misrepresenting information about sexual health. This includes the important issues like
the policies and practices concerning abortion. The covenant has found that the
circumstances under which such practices take place are more relevant under ICECSR
than the legal status of abortion.112 Finally, health education requires that measures to be
taken to provide education concerning prevailing health problems as well as the measures
that are necessary for preventing and controlling them.113
This has been ratified by 145 countries as of 2002. In 2000, the Committee on
Economics, Social and Cultural Rights, which monitors the Covenant, adopted a General
Comment on the right to Health. The general comments serve to clarify the nature and
content of individual rights and State party‟s obligations. The general comment
recognized that the right to health is closely related to and dependent upon the realization
of other human rights, including the right to food, housing, work, education,
participation, the enjoyment of the benefits of scientific progress and its applications, life,
non-discrimination, equality, the prohibition against torture, privacy, access to
information and the freedom of association, assembly and movement114.
Further, the Committee interpreted the right to health as an inclusive right

extending not only to timely and appropriate health care, but also identifying the
determinants of health such as access to safe and potable water and adequate sanitation,
an adequate supply of safe food, nutrition and housing, healthy occupational and
111
. P. L. Mehta, Neena Verma, human Rights under the Indian Constitution: The Philosophy and Judicial
Gesry Mandatoring, (Deep and Deep Publications (P) Ltd, New Delhi, 2009), p. 156-157
112
International Covenant on Economic, Social and Cultural Rights, 1966, Article 12
113
Mangari Rajender, The Protection of Human Rights Act and Relating Laws, ( Law Book Agency,
Hyderabad, 2000), P. 251
114
Ibid
3
environmental conditions and access to health related education and information,
including sexual and reproductive health.115
The Committee on Economic, Social and Cultural Rights encourages State parties
to adopt measures aimed at informing the public of the dangers linked to drug or alcohol
abuse, both active and passive smoking and unsafe sex. The Committee also recommends
that State parties analyse the motives for committing suicide, with a view to developing
effective measures aimed at the prevention of suicide among vulnerable groups such as
young people, homosexuals, persons addicted to drugs and /or alcohol, detainees and
aged persons.116 As per the recommendation of the Committee, the State should provide
information on the number and nature of cases brought before the courts in relation to
violation of the right to health and physical integrity.117
ICSCR recommended that State parties access ex ante the potential adverse
impact of trade or financial agreements and development policies on the right to health of
their populations and in particular on the health of the most vulnerable groups. In order
to ensure that the rights of health, adequate food and a decent standard of living are not
adversely affected, States should also eliminate dependency of small scale farmers on
multinational corporations.118
3.6.6 Declaration on the Right of Mentally Retarded Persons (DRMRP), 1971
To protect the rights of mentally retarded persons, the General Assembly called
the National and International action and proclaimed DRMRP on December 20, 1971 to
ensure the common use of this Declaration. The General Assembly reaffirmed the
universal protection of the right to adequate health and mandate proper care to be assured
to the mentally retarded persons. It also affirmed that the mentally retarded person should
receive aid and assistance to reach their highest potential as any other human beings119.
115
See, supra note 49, p. 55
116
A Panel of Legal Commentators, Law Relating to Human Rights, 7thed, (Asia Law House, Hyderabad,
2001), p. 58
117
Ibid
118
Ibid., pp.63-67
119
See, Supra note ,87 p.
3
“The mentally retarded person has a right to proper medical care and physical
therapy and to such education, training, rehabilitation and guidance that will enable him
to develop his ability and maximum potential”.120
3.6.7 Alma Ata Declaration, 1978
The Declarationof Alma Ata was adopted at the International Conference on

Primary Health Care (PHC) at Almaty (formerly Alma Ata) at Kazakhstan on 6 th to12th
121
September 1978 . It called on nations to ensure essential Primary Health Care
availability.122It expressed the need for urgent action by all governments, all health and
development workers and the world community to protect and promote the health of all
people. It was the first Declaration underlining the importance of Primary Health Care.
The Primary Health Care approach has been accepted by member countries of the World
Health Organisation (WHO) as the key to achieve the goal of “Health for All” but only in
developing countries first and after five years, to all other countries123.
The Conference called for urgent and effective National and International action
to develop and implement Primary Health Care throughout the world and particularly in
developing countries in a spirit of technical cooperation and in keeping with a new
International economic order. It urged governments, the WHO, UNICEF and other
International Organizations as well as multilateral and bilateral agencies, non-
governmental organizations funding agencies, all health workers and world community to
support national and International commitment to primary health care, to increase
technical and financial support to it, particularly in developing countries. The Conference
called on the afore mentioned to collaborate in introducing, developing and maintaining
Primary Health Care in accordance with the spirit and content of the Declaration124.
The first session of the Declaration reaffirms the WHO definition of health as “a
complete physical, mental and social wellbeing and not merely the absence of disease or
120
Ibid ., p. 41
121
It states that economic and social development, based on a new international economic order, is of basic
importance to the fullest attainment of Health For All and to the reduction of the gap between the health
status of the developing and developed countries
122
See, Supra note, 37
123
Ibid
124
Ibid
3
infirmity”. The definition seeks to include social and economic sector within the scope of
attaining health and affirms health as a human right. The second session of the
Declaration highlighted the inequality of health status between the developed and the
developing countries and termed it politically, socially and economically unacceptable.
The third session called for economic and social development as a pre -requisite to the
attainment of „Health for All‟. It also declared positive effects on economic and social
development and on world development and on world peace through promotion and
protection of health of the people. In this Declaration the participation of people as a
group or individually in planning and implementing their health care was declared as a
Human Right and Duty125.
The Declaration emphasized the role of the State in providing adequate health and
social measures. This action enunciated the call for “Health For All” which defined the
full attainment of Health for All by the year 2000 that will permit them to lead a socially
and economically productive life. The Declaration urged governments, International
organizations and the whole world community to take this up as a main social target in
the spirit of social justice126.
It is this Declaration which urged the signatory States to incorporate the concept
of Primary Health Care in their health systems, the Primary Health Care has since been
adopted by many member nations. The impact of the call of WHO was keenly felt by
member countries who rapidly incorporated the same in their national health strategies.
Almost all the member countries intensified their programmes for Primary Health Care
for rural masses by focusing attention on safe water supply and sanitation, massive
immunization campaign for protection of children, nutrition and sanitation, mother and
child care, control of epidemic diseases, health education and provision of minimum
medical care127.
125
Ibid
126
Ibid
127
V R Krishna Iyer, The Dalectics & Dynamics of Human Rights in India : Yesterday, Today and
Tomarrow, (Eastern Law house, Calcutta, 1999), p. 307
3
3.6.8 Convention on the Elimination of Discrimination against Women (CEDAW),
1979
Convention on the Elimination of Discrimination against Women (CEDAW),

1979came into force on 3rd September 1981 and India acceded to it on 9th July 1993 128.
The main object of this Convention is to bring equality between men and women by
eliminating all forms of discrimination that are prevailing against women 129 and to repeal
all national penal provisions which constitute discrimination against women. Member
States have agreed to adopt all appropriate measures to modify the cultural and social
patterns of conduct of men and women and to ensure the family education and also
eliminate discrimination against women in the political andpublic life of the country 130.
The Convention also deals with the problems faced by rural women and seeks to ensure
that all appropriate measures are taken to apply the provisions of the Convention to
women in rural areas as well and thereby to eliminate discrimination against women in
rural areas131.
Article 2 of the Convention imposes a series of obligations on the State parties to

undertake various measures to ensure equality of women with men. This Article States
that the parties condemn discrimination against women in all forms, agree to persue by
all appropriate means and without delay a policy of eliminating discrimination against
women and to that end, undertake:
i. To embody the principle of the equality of men and women in their national
Constitutions or other appropriate legislations if not yet incorporated therein and
to ensure, through law and other appropriate means the practical realization of this
principle;
ii. To adopt appropriate legislative and other measures, including sanctions by
appropriate prohibition of all discrimination against women;
128
Malcolm N Shaw, International Law, 6thed, ( Cambridge University Press, 2008), p. 209
129
Convention on the Elimination of Discrimination against Women, Article 1
130
Ibid., Article 7
131
Ibid., Article 14
3
iii. To establish legal protection of the rights of women on an equal basis with men
and to ensure through competitive national tribunals and other public authorities
for the effective protection of women against any act of discrimination.
iv. To refrain from engaging in any act of practice of discrimination against women
and to ensure that public authorities and institutions shall act in conformity with
this obligation;
v. To take all appropriate measures to eliminate discrimination against women by
any person, organization or enterprise;
vi. To take all appropriate measures, including legislations, to modify or abolish,
existing laws, regulations, custom and practices which constitute discrimination
against women;
vii. To repeal all national penal provisions which constitute discrimination against
women132.
The Convention provides that State parties shall ensure the health and well-being
of families, including information and advice on family planning 133 Article 12 provides
that State parties shall eliminate discrimination against women in health care to ensure,
on a basis of equality of men andwomen, access to health care services, including those
related to family planning, ensure appropriate services in connection with pregnancy.
Article 14 provides that State parties shall ensure that women in rural areas have access
to adequate health care facilities, including information counseling and services in family
planning.
The Convention provides for the establishment of a Committee on Elimination of

Discrimination against Women which was established under Article 22 of the
134
Convention . This Committee was composed of 23 experts serving in individual
capacities for four years term. The State parties are bound to report to the Committee the
legislative, judicial and administrative measures they have adopted to give effect to the
provisions of the Convention. It is also empowered to invite specialized agencies to
132
133
Convention on the Elimination of Discrimination against Women, Article 10
134
Dr. Anjani Kant, Law Relating to Women and Children, (Central Law Publication, Allahabad, 2003), pp.
4-5
3
submit reports on the implementation of the Convention on areas falling within the scope
135
of their activities . The Committee sends such reports with suggestions
recommendations and comments to the General Assembly of the UNO through the
Economic and Social Council136.
3.6.9 Convention on the Rights of the Child(CRC), 1989,
TheConvention on the Rights of the Child (CRC) came into force on 20

November 1989 and India acceded to it on 11th December 1992. Article 24 of The CRC
provides that State parties recognise the right of the child to the enjoyment of the highest
attainable standard of health and to facilities for the treatment of illness and rehabilitation
of health137. India being a member State of WHO, during the recent years annually an
amount of about Rs. 1.50 Crores was allotted for the family welfare sector.138
In this Convention rights of the girl child is protected particularly, the child who
is subjected to arbitrary or unlawful interference with privacy, family, home or health 139.
States parties have agreed to take all appropriate measures to protect the child from all
140
forms of physical and mental violence for which a girl child is more prone . The
Committee established under Article 43 of the Convention sets aside time for general
discussion on particular topics. An open ended working group of the Commission on
Human Rights is seized of an optional protocol to the Convention relating to the
question of the sale of children, child prostitution and child pornography141
Children are vulnerable to exploitation, beit economic, sexual or both. In

particular trafficking of children remains a serious problem in many States endangering
substantial mental and physical suffering. Children are usually victims of forced labour or
hazardous working conditions. This type of exploitations are contraryto Articles 6 and 7
of the covenant and the International Labour Organisations and it is the worst form of
135
136
Ibid., Article 21
137
See, Supra note, 128, p. 534
138
See, Supra note, 30
139
140
Ibid .,Article 19
141
Dr. J S Patel, Concerns of International Community and Women’s Human Rights, (National Workshop
on Women‟s Rights, University College of Law & P G Department, Karnatak University , Dharwad,
2006), pp.23-24
4
Child Labour. It is also rebuttal to the right of every child to receive a basic education.
Millions of children live in streets and are amongst the most vulnerable to sexual
exploitation and forced labour as well as to health risks, such as alcohol or drug addiction
and HIV/AIDS.142
3.6.10 The Ottawa Charter, 1986
The Ottawa Charter declares that health promotion is the process of enabling
people to increase control over, and to improve their health. To reach a State of complete
physical, mental and social well-being, an individual or group must be able to identify
and to realise aspirations, to satisfy needs, and to change or cope with the environment.
The charter emphasizes that promoting health is not only providing health services, but
also protecting peace, housing, education, food, income, a sustainable environment,
social justice and equity which are all fundamental pre-requisites for the achievement of
health143.
3.6.11The Beijing Declaration, 1995
The Beijing Declaration on Women144 gives a wider dimension to the right to

health, where women have the right to the enjoyment of the highest attainable standard of
physical and mental health. The enjoyment of this right is vital to their life and well-being
andtheir ability to participate in all areas of public and private life. Health is a State of
complete physical, mental and social well-being and not merely the absence of disease or
infirmity. Women‟s health involves their emotional, social and physical well-being and is
determined by the social, political and economic context of their lives, as well as by
biology145.
Beijing Declarationwas adopted at the United Nations Fourth World Conference

on women held in Beijing, China, by representatives from 189 countries. Para 17 and 30
of Beijing Declaration explicitly recognized the right of all women to control aspect of
142
Asha Bajpai, Child Rights in India, 2nded, ( Oxford University Press, New York, 2003) pp. 377-379
143
Ottawa Charter on Health promotion, adopted by the Conference on Health Promotion, Ottawa ,
Canada,1986
144
Beijing Declaration and Platform for action, Adopted by the Fourth World Conference on Women,
Beijing, September, 1995
145
“Beijing Declaration” available at http;//www.un.org>platform>declarvisited on 12.11.2015
4
their health, in particular their own fertility, basic to their empowerment and determined
to ensure equal access to and equal treatment of women and men, their health care and
enhance sexual and reproductive health of women146.
3.6.12 Doha Declaration, 2001
On November 14th2001, the ministerial Conference of the World Trade

Organisation, met at Doha, Qatar, to adopt the Declaration on the TRIPS Agreement and
Public Health (Doha Declaration) andto affirm that the WTO Agreement on Trade
Related Aspects of Intellectual Property Rights shall be interpreted and implemented in
the same manner to support WTO members‟ right in protecting and promoting public
health, in particular, ingress to medicines for all and to confirm that the Agreement
bestows flexibility for this purpose. This Declaration assigned that if the State parties face
any difficulties in manufacturing pharmaceuticals due to compulsory licensing, the
council for TRIPS finds an efficient solution to this problem. This was implemented by
giving importance to public health, after two years on August 30, 2003, by the WTO
General Council147.
The debate regarding the conflict of interest between the private rights and the
public benefits has been fierce ever since the beginning of the attempts to establish an
International patent regime, especially with regard to the pharmaceutical sector. The
tensions between the interests of the pharmaceutical industry and that of the public,
particularly in the developing countries, have been brought into focus by the recent South
Africa AIDS crises. The HIV/AIDS epidemic had been sweeping through Africa,
especially affecting the poorest of the poor. What made this epidemic worse was the lack
of access to medicines. The patents for the medicine for HIV/ AIDS, known as anti-
retroviral drug combination were held by a few Pharmaceutical multinationals, who were
exclusively marketing the drugs in these countries at a price which was approximately
$10,000 per patient- per year148.
146
Ibid
147
V .K. Ahuja, Addressing public health problems in the light of Doha Declaration, (International law
Journal, July, 2011 ) p. 263
148
Ibid
4
In countries where the average per capita income is not even$250 per year, it was
impossible for majorty of the patients to access the medicine. Cipla, an Indian firm, at
this point offered to supply a generic version of the same ARV combination at $350 per
patient per year which was 3.5% of the prices offered by the Multinational Corporations
(hereinafter “MNCs”). The efforts of the South African government to procure the
medicines from India was opposed through legal and diplomatic means by the
pharmaceutical majors(despite the legality of such act both under the WTO and South
African law) and the matter snowballed into a controversy of International proportions149.
This issue became a major flashpoint in International relations and the legitimacy
of the International intellectual property system and the WTO mechanism related to
intellectual property rights was at stake. So it was no surprise that this was the most
important issue when the WTO met for its Fourth Ministerial Conference at Doha. The
significance of the issue led to the Ministerial Conference adopting a separate Declaration
titled “Declaration on the TRIPs Agreement and Public Health”.150
The Doha Declaration comprises of seven paragraphs. Three of these are

preambular and indicate the importance which the WTO Members shall ascribe to
effectively addressing public health concerns, especially epidemic diseases. In paragraph
3 of the Declaration, the members recognized the fact that patents have an adverse effect
on the prices of medicines. Paragraph 4 includes a strong decision in support of
member‟s rights to take measures to protect public health and provide affordable access
to medicines. It States that the WTO Agreement on TRIPs “can and should be interpreted
and implemented in a manner supportive of WTO members right to protect public health
and access to medicine for all” and reiterates the right of the members to make use of the
“flexibilities” provided for in the TRIPs for this purpose. Paragraph 5 of the Declaration,
149
Shalini Arora and Rekha Chaturvedi, Impact of TRIPS in providing easy Access to Affordable Medicines
in India, ( The National Institute of Science Communication and Information Resources, New Delhi, July
2016), pp. 260-261
150
Milind V Sethe, Compulsory Licensing in Knowledge Economy- It is Now and Never- What, Why and
When about, (Satish Upadhyay Satyam Law International, New Delhi, 2012), p. 269
4
makes specific Statements with regard to provisions in the agreement and clarifies
provisions on compulsory licensing of IPRS151.
It affirms, inter alia, that the TRIPs agreement does not limit the grounds on
which members may grant compulsory licenses, that each member has discretion to
determine the existence of a public health emergency and that the TRIPS Agreement
permits each member to adopt its own policies and rules regarding the exhaustion of IPRs
and parallel trade. The sixth paragraph places the issue of compulsory licensing for
export on the agenda of the TRIPS council, requiring that a proposal be furnished to the
general council by the end of 2002, the transition period for least developed members to
provide or enforce pharmaceutical product patent protection152.
Paragraph 4 is Stated in terms of an agreement among WTO ministers acting on

behalf of members. This agreement is most reasonably considered a “decision” of WTO
members under Article IX of the WTO agreement. This decision of WTO members
would appear to constitute an agreement on the method of application of the agreement
within the meaning of Article 31(3)(a) of the Vienna Convention on the law of Treaties,
and to be the substantive equivalent of an interpretation of the TRIPs agreement.
Ministers in Doha should be assumed to have acted with a purpose. The only apparent
purpose for greeting on a method of application of the TRIPS Agreement is to have an
effect on the way in which the agreement is implemented by WTO members,
notwithstanding the claims that this is a merely “political” Statement153.
On the whole, it has been felt that the Declaration is a step forward for developing
countries with respect to patents. However, whatever solutions have been sought have
been strictly within the confines of the TRIPS Agreement. More forceful proposals made
by the Africa group of membersto issue a special Declaration on the TRIPS Agreement
and access to medicines at the ministerial Conference in Qatar, affirming that nothing in
151
Mitali Bhagwat, Geethesh Kaushik and Vijay Kumar Shivpuje, “Second Medical Use Patenting : A
Review of Practice Across Different Jurisdictions” - Journal of Intellectual Property Rights,(The National
Institute of Science Communication and Information Sources, New Delhi, July 2016), pp. 260-261
152
Ibid
153
Ashwathy Asok, "Compulsory Licensing of Patented Drugs and National Emergency”,Journal of
Intellectual Property Rights,(The National Institute of Science Communication and Information Sources,
New Delhi, July 2017),pp. 270-271
4
the TRIPS Agreement should stopmembers from obtaining measures to ensure public
health was not accepted. Solutions were sought to be within the TRIPS Agreement154.
The most contentious part about the implementation of the Doha Declaration was
finding a suitable system to provide flexibilities for countries which lack the capacity to
produce pharmaceuticals or in other words, a solution to the issue recognized under Para
6 of the Declaration.
Though the deadline for this was December 2002, because of the deadlock over
the legal nature of the solution, this deadline was missed and ultimately, a decision was
arrived on 30thAugust 2003. The decision on the implementation of paragraph 6 of the
Doha Declaration on the TRIPS Agreement and Public Health allows any members to
export pharmaceutical products made under compulsory licenses within certain terms set
out in the decision155.
The system allows members to provide a compulsory license for export purposes
also, thereby ensuring that one country can grant a compulsory license for a public health
crises in another country, provided that latter country has “insufficient or no
manufacturing” capacity. The importing country has to notify the TRIPs council about
its intention to use the system and the exact amount demanded. The drug produced under
this system has to be identified as such through special packaging, shaping, colouring and
so on. The remuneration has to be paid by the exporting member based on the value of
the product on the importing member‟s territory. A concession that has been given to the
member nations is that a compulsory license can be applied to a product from an
exporting country for a trading region as a whole on a country by country basis provided
at least 50 percent of the members of that region are least developed countries. But each
importing country will have to apply for a compulsory license to import the generic
drugs.156
154
Ibid
155
See, Supra note, 150
156
Ibid., p. 274
4
3.6.13 Medi Crime Convention, 2011
The Council of Europe has drawn up the first International treaty against
Counterfeiting of Medical Products and Similar Crimes involving threats to Public
Health. This Convention came into force in the year 2016. The main purpose of this
Convention is to prevent and combat threats to public health by providing for the
criminalization of certain acts, protecting the rights of victims of the offences established
157
under this Convention and forging national and International co-operation and to
implement the provision of this Convention by the parties particularly to enjoy the
measures by protecting the rights of victims without any discrimination on any such
grounds like sex, race, colour, language, age, religion, political or otherwise, national or
social origin, association with a national minority, property, birth, sexual orientation,
State of health, disability or other States158.
The Convention directed each party to take the necessary legislative and other
measures to establish as offences under its domestic law, the intentional manufacturing of
counterfeit medical products, active substances, expedients, parts, materials and
substances159. It also States that each party at the time of signature or when depositing its
instrument of ratification, acceptance or approved by the Declaration, declare that it
reserves the right not to apply and if applying only in specific cases or conditions.
It speaks with regard to the supply or offering to supply including brokering,

trafficking, importing, exporting, keeping in stock of counterfeit medical products, active
substances, recipients, parts, materials and accessories 160, the making of false documents
or the act of tampering with document made intentionally which each party is privileged
to take necessary measures to consider it as an offence and must be specifically
mentioned in its domestic law161. All these above stated activities are considered as crime
involving threats to the public health162.
157
, Medi Crime Convention, 2011, Article 1
158
Ibid., Article 2
159
Ibid., Article 5
160
Ibid., Article 6
161
Ibid., Article 7
162
Ibid., Article 8
4
The Convention also lays down a frame work for National and International co-
operation between the competent health, police,
custom authorities on both national and International levels, measures for crime
prevention by involving also the private sector and the effective prosecution of crime and
the protection of the victims and witnesses. In all these respect, the States are accorded
certain rights to accept or approve in specific cases or with conditions. Furthermore, it
provides for the establishment of a committee to follow-up the implementation by the
signatory States163.
According to the survey conducted by Nordic School of Public Health,

recognition of the right to the highest attainable standard of physical and mental health is
a right to health, feature of a health system focusing mainly on International and the
national recognition. The clear indication of this survey shows the number of countries
that have ratified 3 International human rights Treaties that include the right to health.
The step after ratification of Treaties is the recognition of the right to health in the
national Constitution or other statute, but more than two third of the countries do not have
this recognition. Only 56 countries have ratified the International Covenant on Economic,
Social and Cultural Rights including the right to health in their Constitution and other
statutes.
International recognition of the right to health is subsequently more wide spread

than national recognition probably because International accountability is weaker than
national accountability. International human-rights law recognizes that the right to the
highest attainable standard of health cannot be realized overnight; it is expressly subject
to both progressive realization and resource availability. This means that the country has
to improve its human rights approach steadily. If there is no progress, the government of
that country has to provide a rational and objective explanation. The right to health also
imposes some obligations of immediate effect, such as non-discrimination and the
requirement that a State atleast prepares a national plan for health care and protection164.
163
Ibid
164
See, Supra note, 147
4
It is very much necessary to have indicators and bench marks to monitor the
progress and realize the right to health and it is possible by giving active and informed
participation of each individual and community as a whole by involving in the decision
making process that rightly effects them. Under International law developed countries
have some responsibilities towards the realization of the right to health in developing
countries because right to health gives rise to legal entitlements and obligations165.
3.7 Globalization and Right to Health
Over the last decades the countries across the globe have changed their economic
models driven by free market, incorporating process of liberalization, privatization and
globalization (LPG). The question that need to be focused is whether these advancement
truly reflect improved health care for all Indians, whether we deserve to take pride in
them, or indeed, be comforted that they will serve us well when we need them most? To
have a good health care system its essential to realize „3A‟ being „Accessible‟,
„Affordable‟ and „Acceptable‟166.
It is true that the globalization not only gives or offers opportunities but also poses
important challenges. By allowing the life expectancy to increase from about 50 years to
around 72 years and infant mortality to decrease by more than half during the same
period, dramatic progress has been made in the area of health over the past 58 years. The
health status of developing countries has also improved with life expectancy from 45 to
62 years and child mortality dropping from 1960 to the end of the 1990s167.
3.7.1 Globalisation and Developing Nations
The free global market economy gave new life to health services. On the whole
this system has worked well. Unfortunately, large scale blemishing has threatened to
undermine this system. Globalization has its own merits for developing nations, i.e.
165
Ibid
166
Charles Collins, Andrew Green, Valuing Health System – A Framework for Low and Middle Income
Countries,(Sage Publications, New Delhi 2014) pp.26- 29.
167
Sofia Gruskin and Daniel Tarantola, Health and Human Rights, ( Ashgate Publishing Limited, 2010) p.
156
4
i. Free flow of trade and commerce;
ii. Easy and cheap availability of medicine, healthy business competition;
iii. The most rational and efficient allocation of resources can take place without
government interference;
iv. Rapid economic growth;
v. Free flow of goods and capital across national borders;
vi. Single integrated market leads to growth, efficiency and healthy competition in
health sectors;
vii. Development and transfer of new technology;
viii. Provide better health services168.
It became more challenging and more complex when the health sector profoundly
affected by the introduction of new changes in the process of globalization from the
horror of the HIV/AIDS pandemic to the increasing rates of refugees and migrants. It is
now no longer enough for medical curricula to teach about national medicine where the
new doctors wanted more to learn and inculcate in their practice169.
The economic reform policies have been increasing the health crises, starvation
and malnutrition, abject poverty and external dependence have worsened due to this
enormous worldwide problem of occupational related diseases, disability and death of
workers resulting in violation of right to work under just and humane conditions170.
Globalization has widened the scope of intellectual property right, patent laws
aimed to protect individual interest, whereas aim of health laws is to protect social
interest or interest of public at large.
168
Dr. Purohit Mona, The Globalisation and Health Laws: The Challenges, A collection of modified
research papers presented on the national seminar organized by the department of law University of North
Bengal on „Human Rights, Equality and Health Role of the State and the Citizen‟,held on 28 th and 29th
March 2010, (North Bengal University Press, 2011) p. 126
169
Michael J Selgelid & Thomas Pogge (Ed), Health Rights, (Ashgate Publishing Ltd, England, 2010), p.
152
170
Ibid
4
3.7.2 Major Impacts of Globalization
According to the Human Development Report 1999, the impacts of globalization

are:
i. Public services have deteriorated markedly as a result of economic stagnation,

structural adjustment programmes or dismantling of State services;
ii. AIDS is now a poor people‟s epidemic with 95 percent of all HIV infected
victims in the third world;
iii. About 1.3 billion people do not have access to clean water;
iv. About 840 millions are malnourished;
v. About 1.3 billion people live on incomes of less than US $1 a day171.
Apart from this, still more adverse impacts of globalization on Health are:
i. Increase in the cost of medicine;

ii. Individual interest are given more preference than social interest;
iii. Right to wholesome environment gets infringed as environmental pollution
increase;
iv. Consumerism undermines the human values;
v. Constitutional goal to achieve social justice has been hampered;
vi. Increase of more channel of interaction;
vii. Increase gap between rich and poor;
viii. Conflict of individual and public interest.
ix. National health laws are insufficient to control the problems occurring due to
more channel of interactions;
x. The opening of economies, increasing flows across borders, and
xi. Increasing interdependence between people and places172.
An important debate on globalization is whether the rising of International trade

and finance, combined with increasing super national laws, may reduce the economic and
171
S R Myneni, International Trade Law, 3rded, ( Allahabad Law Agency, Faridabad, 2017), pp. 115 - 116
172
T G Agitha, “Global Governance for Facilitating Access to Medicines : Role of World Health
Organisation”, Journal on Intellectual Property Rights, (National Institute of Science Communication and
Information Resources, New De4lhi, 2013) p. 589
5
political autonomy of national governments, limiting their possibilities to address the
issues like health. But the globalization impairing the ability for democratic governments
to implement policies is also relevant for health. Globalization has allowed corporate to
operate more effectively at the world level, also increasing the links across societies, as
well as changing the dynamics of the interaction between markets, the States, and civil
societies, within the country and Internationally. Various laws are found in the country to
confront global concerns, from violation of rights to health, to environmental problems
and to access to affordable drugs etc173.
Now this has not been the disease profile but due to the International pressure, the
government conveniently took up the responsibility of preventive and curative health
services and left the curative care largely in the hands of the public health sector. The
present policy is to take loans from the World Bank and other International agencies to
upgrade and run the health programs in the country. This brings out the fact that the
government is abdicating its role of providing free health services especially to those with
the greatest need. In the present socio economic conditions the poor would be the most
affected174.
Only recently the private practitioners were brought under the purview of the
Consumer Protection Act, a policy which was met with great resistance from the medical
fraternity. The existing regulations which are outdated and inadequate are not being
implemented. It has become more important after the private sector is being encouraged
to actively involve itself in almost all sectors of the economy. The accessibility of the
public health services has become very poor especially in the rural areas of the country.
There is a need to play a dominant role of the private health sector and the high health
care expenditure. This must be addressed by the planners, policy makers, funders, NGO‟s
researchers among others175.
173
Ibid., p. 592
174
Ibid
175
Ibid., p. 593
5
3.7.3 Other Effects of Globalisation
Few more effect of globalization of health sectors are pointed below.
i. The private health sectors become unaffordable for the vast majority of the
poor.
ii. The high cost of health care makes the poor more marginalized.
iii. Non availability of basic amenities for the majority of the people.
iv. Poor nutritional status and poor availability of public services.
v. Unregulated and unaccountable private health sector alone with
strengthening of market forces and helplessness of the consumer against
various odds.
vi. These problems require depth research on the interaction of globalization
with national health laws.
vii. Priority within the health sector need to be changed
viii. Regulatory intervention and monitoring of the government in the private
sector and market.
ix. Legislation should be enacted where there is no legislation
x. Hence countries will benefit if they become internationally competitive
and switch from domestic production for self sufficiency.
xi. Some more stringent laws should be made to reform the health conditions
of labours.
xii. To ensure that efforts to liberalise trade to do not override social policy
objectives such as global health equity countries need to combine
considerable expertise in economics and law.
xiii. Interacting with other nations and multinationals in ways that they may
not have experienced.
xiv. There is a need for integrated thinking, bringing health together effectively
with other policy areas in the context of globalization.
xv. Improve government spending in health
xvi. State should facilitate and strengthen the health laws
5
xvii. Government should make provisions for regulatory institution for
continuous monitoring of health measures adopted by employers
xviii. Government should encourage national specific researches.
xix. Promote Indian traditional knowledge for medical purpose.
xx. Adopt more health and safety measure for poor.
xxi. An approach to reliable health objectives that simultaneously promotes
merits of globalization.
Harmonious interaction between globalization and health may help revitalize the
health areas and offer new avenues for developing countries as well as advance human
well being in globalised world176.
3.7.4 Agreements on Trade and Health
There are five multilateral agreements on trade under the world trade organization
that are relevant for health.
i. General Agreement on Tariffs and Trade(GATT)

ii. The Agreement on Technical Barriers to Trade(TBT)
iii. The Agreement on the Application of Sanitary and Phytosanitary
Measures(SPS)
iv. The General Agreement on Trade in Service(GATS)
v. Trade Related Aspects of Intellectual Property Rights(TRIPS)
TRIPS agreement though intended to strengthen the incentives to create new

knowledge made patented drugs more expensive and restricted the ability of poor
countries to obtain medicines by prohibiting access to the cheaper generic drugs. This
was despite containing a measure to allow countries to manufacture drugs locally under
conditions of a public health emergency. TRIPS imposes minimum standards in seven
areas of intellectual property including patent, copyright, trademarks, geographical
indication and industrial design and the third World countries previously exempted
medicines, agriculture and other products from national patent laws but with TRIPS
176
See, Supra note, 168, p. 76
5
almost all knowledge based production is subject to tight intellectual property
protection177 .
Third world countries and least developed countries were advised to adjust their
laws to confirm with TRIPS by 2000 and 2016 respectively. In the area of health and
medicine, wider and stringer IPR protection will affect the practice of medicine and the
spread of medical knowledge. This will restrict access to free flow of knowledge for the
public good. The TRIPS obligate member States to protect data and undisclosed
information of commercial value. In the case of pharmaceuticals and new chemicals,
strict data confidentiality may hinder or prohibit prompt action. Protection of commercial
information could pose a problem to governments in terms of their ability to regulate
contracted out services in health care. Strengthening IPRs can further limit access to
information and the citizen‟s right to know the basic of decision made by a doctor178.
3.8 Conclusion
Although today many factors in society may lead to ill health, there are two main
root causes: poverty and hunger. Despite rapid economic development in recent years,
poverty persists in many States, disproportionately affecting persons belonging to
marginalized and vulnerable groups such as ethnic minorities, immigrants, indigenous
peoples, women and the rural population. Disparities in income and in the employment of
an adequate standard of living continue to widen the gap between the rich and the poor.
In some States, the number of people living in extreme poverty has even increased. The
absence of a poverty line which would enable States to define the extent of poverty and to
monitor and evaluate progress in alleviating poverty is deeply regrettable. Poverty is also
one of the main social determinants of health.
The causes of the current food crises are numerous and hotly debated in the
International community. One hard fact stands out is that the food prices are too high for
the poorest nations and people in the world do not afford adequate nourishment. As a
177
M L Narasaiah, Globalisation and International Trade, (Discovery Publishing House, New Delhi, 2007)
pp. 75-76
178
Upenndra Dhar, Globalisation and Economics Development 1sted ( Shyam publishers and Distributors,
Jaipur, 2013),pp. 85-86
5
result, food insecurity and hunger are on the increase, leading inevitably to ill health and
in many cases to death. Unless these two important obstacles to health and wellbeing can
be tackled and overcome with success in the short, medium and long term, the health of
millions of people will suffer irreparably. This is an intolerable situation, calling for
immediate action. To eradicate these determinants each and every State shall have
International co-operation for the full enjoyment of the right by everyone.
This is possible by effectively implementing, monitoring, and regulating the

activities not only in the national authorities but also in the private sectors in order to
ensure that the right to health is respected and promoted. Although the health of all
sectors of the population is affected by poor living conditions, an unhealthy and unsafe
environment, together with increasing violence, the most vulnerable and marginalized
groups will always suffer the most from poverty and hunger. Although globalization has
improved the accessibility of health of a common man, yet on account of severe
economic crises affected by globalization, health is still unaffordable to the vast majority
of weaker sections of the society. As a matter of priority, States must address the root
causes which undermine the enjoyment of the right to health in order to promote the well
being and safety of the entire population.
The earnest approach of the British rulers to contain and eradicate the community
affecting diseases and the impetus to public health sanitation and drainage facilities,
coupled with the International Declarations of United Nations and the World Health
Organisation calling for creation of a global environment for a decent living and Health
For All, paved the way for the post independent governments of India, successively for
all these years to formulate and implement adequate health policies in the interest of the
community at large. In spite of the Constitutional mandate, the various Five Year Plans,
National Health Policies from time to time and the various health oriented schemes of
different names and styles, India is lagging far behind in reaching its goal of „Health for
All‟ of its citizens. Unlike the developed countries of the World, India, a developing
country, is reluctant to increase its budgetary proposals actually required to upgrade
existing health care facilities. Lack of will of the governments to seriously implement the
existing laws, health policies and the schemes whole heartedly is another cause for the
5
sad State of affairs prevailing in the public health sector. The aim of attaining social
justice for all its citizens, the concept of equality, the necessity of a dignified standard of
living for all the citizens irrespective of their economic status, sex, religion, cast, creed,
race, have been practically forgotten by the governments which are only content with
Declaration of popular schemes and policies without giving serious attention with the
implementation part of it.
The failure to meet the basic necessities for a decent living, severe wage disparity
of the workers, unemployment, price rise and poverty are the other factors contributing to
the present predicament in the health sector. The governments at the helm of affairs shall
endeavor to implement all the laws and schemes whole heartedly, apart from
concentrating on the health care of the rural population and the vulnerable sections of the
society in urban areas as well. Medical education shall be reoriented to meet the required
health care needs, particularly of the rural population and awareness to this effect shall be
brought about amongst the medical personnel throughout the country. The nationalization
of private hospitals and setting up more Government hospitals and health care centers
with adequate medical personal having social commitments to serve the needy, can
promote health care of all and thereby strengthen the aspiration of social justice enshrined
in our Constitution.

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CHAPTER - III

ANALYSIS OF RIGHT TO HEALTH AS HUMAN RIGHT

Right to health being paramount to a decent living of an individual, it is necessary

3.2 Meaning of Right to Health

The meaning of health however, is a difficult task to define. Therefore many

On 19th June 1946, International Health Conference was inaugurated by Sir

If the question relates to disclosure of information as to whether a particular

i. The law relating to hospital administration, including the maintenance and

3.2.1. Public Health and Private Health

3.3 Determinants of Right to Health

Poverty is not a phenomenon rampant only in developing countries, but also it is

Lack of access health care schemes, privatization of medical facilities and

This impacts in particular, on the poorest categories of the population. In spite of

3.3.2 Food and Nutrition

3.3 .3 Housing and Living Conditions

Women and in particular, migrant women or those belonging to ethnic minorities,

3.3.4 Physical and Mental Violence

However women and children belonging to disadvantaged or marginalized groups

3. 3.5 Safe and Healthy Working Conditions and Healthy Environment

Environmental degradation generally has a strong negative impact on the health

3. 3. 6 Access to Information, Education and Effective Remedies

Access to health related education and information including information on

3. 3. 7 National and International Trade and Financial Agreements

3.4Criteria to Evaluate the Right to Health

3. 5 Right to Health and the Vulnerable Groups of the Society

Some groups or individuals, such as children, women, persons with disabilities or

Similarly, States should adopt positive measures to ensure that specific

Violence against women, both physical and psychological harm or suffering

Accordingly, States should adopt measures to eradicate such transmission

Adolescents‟ right to health is therefore dependent on health care that respects

3.5.3 Persons with HIV/AIDS

States should forbid discrimination on the grounds of health status, including

3.6 Right to Health and International Development

The right to health should be understood as right to the enjoyment of a variety of

3.6.1 The United Nations Charter, 1945

Article 25 is the crucial provision of the Declaration, which expressly recognizes

3.6.3 European Social Charter 1961

Article 11- The Right to Protection of Health

i. To remove as far as possible the causes of ill- health;

Article 13–The Right to Social and Medical Assistance

Article 13(1) States:

3.6.4 International Convention on the Elimination of All Forms of Racial

Much before acceptance of the adoption of the Universal Declaration on Human

The Convention defines racial discrimination as “any distinction, exclusion,

In responding to these reports the concluding observation was issued by the

Committee moreover, considered individual or group communications concerning

3.6.5 International Covenant on Economic, Social and Cultural Rights, 1966

Right to health is interpreted as requiring parties to respect women‟s reproductive

Further, the Committee interpreted the right to health as an inclusive right

3.6.6 Declaration on the Right of Mentally Retarded Persons (DRMRP), 1971

3.6.7 Alma Ata Declaration, 1978

The Declarationof Alma Ata was adopted at the International Conference on

Convention on the Elimination of Discrimination against Women (CEDAW),

Article 2 of the Convention imposes a series of obligations on the State parties to

The Convention provides for the establishment of a Committee on Elimination of

3.6.9 Convention on the Rights of the Child(CRC), 1989,

TheConvention on the Rights of the Child (CRC) came into force on 20

Children are vulnerable to exploitation, beit economic, sexual or both. In