AUTHOR BY – T S ACHALA / Gujarat National Law University
INTRODUCTION
The Constitution of India is not explicit in providing the right to health as a fundamental right, but the courts have quite liberally interpreted Article 21, as in Bandhua Mukti Morcha v. Union of India to also include and incorporate right to health. The Supreme Court of India has stated that the right to live with dignity is inclusive of protecting a person’s health.
There is an obligation or some sort of expected outcome on behalf of the State in accordance with Directive Principles of State Policy (for example: Article 39 (e), 41, and 47) to take measures regarding the health status of workers, access to public assistance etc. An outline of obligations, expectations or standards does not create enforceable or legal rights unless they can be realised through some litigation or via enactments.
When it comes to certainty on remedy, it may also be inherently unhelpful, e.g., Section 27 of the Drugs and Cosmetics Act 1940 states: Any person who manufactures a spurious drug or an adulterated drug shall – a person who manufactures this as a quasi-state body, seldom punished.
In India, having access to high-quality healthcare is a privilege rather than a fundamental right. This is counter-intuitive in a country that runs a public healthcare system. In fact, as much as access to healthcare is a privilege, waiting for ambulances in rural areas or perhaps being denied access to life-saving medicines in government hospitals only makes evident the widening gap in healthcare between the haves and have nots. In fact, healthcare is more than just hospitals and doctors; but rather, dignity and access, quality and equity. Now, privileged access—which is often determined by one’s wealth, location, and social capital—is the most salient factor in one’s ability to survive.
India Const. Art. 21 Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161. India Const. Art. 39(e). India Const. Art. 41.
HEALTHCARE SYSTEMS: PUBLIC V. PRIVATE
Healthcare in India is a two-tiered structure. One tier consists of the elite class hospitals that offer top-tier services, charged at prices that halt care access for patients who are not elites.
The other tier is the public hospital, which is severely understaffed and underfunded. The National Health Profile (2022) states the doctor-patient ratio in public hospitals is 1:11,000, which is a fraction of the WHO’s recommendation, which is 1:1000.
While people with insurance or money to pay for treatment use private hospitals, at least 65% of the people in India use government hospitals; however, to add to the tiered access, some patients, when prescribed medication in public hospitals, are required to buy the drugs from private pharmacies for “out-of-stock” notices or given expired medication from government schemes leading them to loss of life depending on severity.
The 2019 study carried out by Brookings India found that approximately 70% of Indians use private health systems for outpatient services and about 58% for inpatient services, generally paying catastrophic out-of-pocket healthcare costs. Such reliance on the private sector stems from our belief— and too often the evidence—that public hospitals offer poor quality healthcare. For the poor, this leads to cycles of debt, delayed treatment or no treatment.
Many government hospitals also demonstrate a lack of accountability, delay in service delivery, and inconsistency in staff attendance. Patients often encounter medicine shortages, poor hygienic conditions in wards, and outdated diagnostic material. The human costs associated with the lack of accountability are lives lost from avoidable deaths, prolonged conditions, and generations entrenched in the lack of emergency funds to pay medical debt.
While there are government programs such as the Ayushman Bharat – Pradhan Mantri Jan Arogya Yojana (AB-PMJAY) approved by the Supreme Court, there are discrepancies for some patients in the process. A National Health Authority audit noted multiple instances of fraud, including medical bills for patients that did not exist, and surgeries that were not performed. While the program seeks to provide care for over 500 million citizens who are poor, actual access is lopsided and often stolen by middlemen and a lack of awareness.
Central Bureau of Health Intelligence, National Health Profile 2022, Ministry of Health and Family Welfare, Government of India (2022). Press Information Bureau, Public Healthcare Utilisation Statistics, Ministry of Health and Family Welfare (2021). Neeraj Kaushal & Avani Kapur, State of Health in India: A District-Level Analysis, Brookings India (2019).
GAP BETWEEN HEALTHCARE POLICIES AND IMPLEMENTATION
India has multiple flagship national health schemes, like Ayushman Bharat, Jan Aushadhi Yojana, and the National Health Mission, which are to provide accessible and equity-based healthcare to populations that are low-income or disenfranchised. But different models administer and enforce the same in different manner.
In 2023, multiple Jan Aushadhi locations were flagged for producing non-standard medicines, as reported in The Hindu (2023) and Indian Express. The reports stated that antibiotics and painkillers supplied were ineffective, and in some cases, harmful. In addition, systems of accountability and regulatory action remain underdeveloped in these schemes.
For example, the Jan Aushadhi Scheme is intended to deliver low-cost generic medications to patients through government-operated pharmacies. Evidence suggests that a number of these pharmacies have poor stock management, out-of-date medications, and lack the basic medications they are supposed to provide. Even more concerning, there have been allegations of lower efficacy of medicines supplied at subsidised rates and a lack of consistency in their quality.
The Drugs and Cosmetics Act, 1940 controls the quality of medications in India, however, gaps in enforcement and corrupt procurement practices provide a way for low-quality medications to proliferate within the public sector. In many tragic examples, patients have died as a result of ineffective and or contaminated medications provided by the government in order to potentially assist their welfare. In such circumstances a potential welfare provision has instead become a serious public health risk.
Furthermore, the lack of oversight in outsourced contracts for services, including pathology labs, hospital catering, ambulance services and others, has allowed malpractices to go unrecognised. An example of contracted out health services malpractices is contained within a report from the CAG, which was tabled in Parliament in 2021 that identified glaring anomalies in state-run hospitals in Maharashtra where the vendors provided defective equipment and poor quality medications that had not been qualified by appropriate testing, prior to being provided to patients in state-run hospitals.
National Health Authority, Audit Report on AB-PMJAY, Government of India (2021). Jan Aushadhi Drugs Fail Quality Tests in 8 States, The Hindu (2023); Generic Drug Quality Concerns Surface Again, The Indian Express (2023) The Drugs and Cosmetics Act, No. 23 of 1940, India Code (1940).
ECONOMIC INEQUALITY AND HEALTHCARE
Economic inequality means inequity in health outcomes. According to Oxfam’s India Inequality Report (2023) the richest 20% in India consume 50% of health resources and the poorest 20% consume only 5%.
This inequity plays out concretely in:
The infant mortality rates and maternal mortality rates in rural and urban India, access to surgical procedures or diagnostic modalities, and recovery rates from treatable diseases such as TB or COVID-19.
Notably, the deaths of children in Gorakhpur’s BRD Hospital (2017) due to insufficient oxygen illustrate the repercussions of delay and disregard for human life, especially among those without recourse.
Having better economic and financial conditions poses a disparity in accessing quality healthcare leading to a situation warranting life. Having better financial conditions therefore can be the difference between life and death.It determines whether a child gets an MRI on time, whether a cancer patient receives chemotherapy, and whether a pregnant woman is able to get the best treatments and to be able to give birth in a secure and safe environment.
According to a Lancet study, India had the highest globally due to poor quality of care, with over 1.6 million recorded deaths in 2016.Those in lower-income brackets suffer higher rates of delays, misdiagnoses, and fatalities.
Compounding the suffering is the fact that often rural and underrepresented communities have no specialists, no diagnostic centres and even no basic emergency care. A simple infection will be manageable in a metro city within hours; thus in tribal regions, it could be life-threatening just based on the time taken to arrive at a facility.
Comptroller and Auditor General (CAG), Report No. 5 of 2021: State Finances and Healthcare Infrastructure in Maharashtra, tabled before Parliament, March 2021. Oxfam India, Survival of the Richest: The India Supplement (2023), https://www.oxfamindia.org/knowledgehub/workingpaper/india-inequality-report-2023. Gorakhpur Hospital Tragedy: Over 60 Children Die Due to Oxygen Shortage, The Hindu (Aug. 2017); also see Comptroller and Auditor General of India, Performance Audit on Health Infrastructure in Uttar Pradesh, Report No. 3 of 2019
STRENGTHENING LEGAL AND REGULATORY MECHANISMS
The structure of regulation must be re-framed. Including steps to:
Strengthen the application of the Clinical Establishments (Registration and Regulation) Act, 2010 to standardise care and apply to public facilities.
Bring procurement of essential drugs within the ambit of regulators such as the National Pharmaceutical Pricing Authority (NPPA), possibly to impose more frequent audits or penalties.
Establish fast-track consumer courts to contest medical negligence or defective drugs especially where treatment is provided in public facilities.
In Paschim Banga Khet Mazdoor Samity v. State of West Bengal, the Supreme Court acknowledged that exclusion and delay were serious violations of Article 21. States must make sure that there are fundamental minimum criteria in their health systems.
ROLE OF TRANSPARENCY AND COMMUNITY MONITORING
Community-based monitoring and social audits, which are part of the National Health Mission, can be rebooted and expanded. Making medicine quality test results, spending related to budgets and delivery in hospitals public can strengthen trust and create a safe environment for patients to report breakdown of services.
The Right to Information Act, 2005, can be an important instrument for information and accountability purposes. Citizens can ask questions. However, responses to RTIs often do not come, are delayed or simply do not adequately provide the information requested. It can be transformative to have access to information through the RTI and to grievance redressal through a program like Ayushman Bharat.
Kruk, M.E. et al., Mortality Due to Low-Quality Health Systems in the Universal Health Coverage Era: A Systematic Analysis of Amenable Deaths in 137 Countries, 392 Lancet 2203 (2018). The Clinical Establishments (Registration and Regulation) Act, No. 23 of 2010, India Code (2010).
RECOMMENDATIONS TO PROMOTE EQUITABLE HEALTHCARE
To achieve healthcare justice, a number of recommendations are made would be to achieve the following:
Independent Regulatory Oversight: equivalent to SEBI or TRAI, limited to audits of healthcare schemes and drug quality.
Whistleblower Protection: The people working in healthcare services will be encouraged to report quality lapses without fear of retribution.
Legal Aid for Victims: Legal aid services for victims (i.e., medical negligence within the government scheme) are incorporated into a legal aid office wing of NALSA.
Statutory Right to Health: The right to health services must translate into a dedicated health law to give enforcement to the right to essential health services.
Mental Health and Human Rights
CONCLUSION
While India’s constitution promises equality for all, we have far to go to achieve that dream. While there have been admirable legal advances, public health initiatives, and a resolve toward equity, what becomes important is what happens, i.e. what we deliver, when it comes to inequities overall, and in health care in particular.
Healthcare cannot be an act of charity; it must be an unassailable right equally accessible in quality for every member of the citizenry, rich or poor. The prescriptive notion that the poor must be content with “whatever is free” is not only immoral – it is unconstitutional.
The deaths and damage inflicted by expired medications, or the denial of access, are neither accidental nor acts of fate — they are failures of governance, law and compassion. Until the State assumes full accountability, and the law values the life of a poor person as much as a rich person, unequal survival will endure — silently, and fatally. If we want to address this correctly, we will need strong legislation, clear regulation, public accountability, and a new governance philosophy: from welfare to recognised, rights-based service provision. The future of health care justice in front-line India will be based not on our statements through policy, but on our output through law, and to whom it is delivered.
About the Author
