BABATDOR DKHAR 5th YEAR 206122

THE NATIONAL RURAL HEALTH MISSION: A HUMAN RIGHTS PERSPECTIVE

INTERNATIONAL HUMAN RIGHTS LAW

"Nothing rankles more in the human heart than a brooding sense of injustice, Illness we can put up with. But injustice makes us want to pull things down. When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the continued existence of free democracy is not imaginary but very real, because democracy's very life depends upon making the machinery of justice so effective that every citizen shall believe in and benefit by its impartiality and fairness.'' 1

Human rights are fundamental to the well being of a society whether it is a developed or a developing one. The Constitution of India guarantees equal human rights to all its citizens in the form of the fundamental rights and the directive principles of state policy. The Charter and the Universal Declaration of Human Rights provided the human rights components of the contemporary international constitutional order, which have subsequently been expanded by documents such as United Nations Millennium Declaration and Article 68 of the Charter provided for the establishment of a Commission on Human Rights which functioned between 1947 and 2005 but which has since been replaced by the Human Rights Council. 2 India recognizes the international community and the common goal that they are trying to achieve as far as human rights are concerned. It is highly important that these are given the attention that they deserve and rightly so. Article 15 of the Indian Constitution explains and lays down the underlying principles for prohibition of discrimination on the grounds of religion, race, sex, caste and place of birth. The basis for it flows from the fact that the founders and the makers of the Constitution realized the concrete necessity to give human rights the necessary protection in

It is on the basis of these principles that public health and the directive principles shouldering the responsibility of See B. G. Ramcharan; The Protection Role of the UN Human Rights Special Procedures. Martinus Nijhoff, 2008

paving the way for public health in general and the application of the National Rural Health Mission are formulated.
2

India. 3 The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them; also no citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels and places of public or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. 4 The Constitution in the form of its fundamental rights through the protection that it provides to the life and personal liberty of people has the basics and underlying principles of human rights and all that human rights in our context represents. Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. 5 Public health law is the study of the legal powers and duties of the state to assure the conditions for people to be healthy (e. g. to identify, prevent, and ameliorate risks to health in the population) and the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals for the protection or promotion of community health. 6

The Directive Principles of State Policy as contained in Chapter IV of the Constitution of India although not enforceable by any court are nevertheless fundamental in the governance of the country and it shall be the duty of the state to
3 4

See Art 15 of the Constitution of India. (3) Nothing in this article shall prevent the State from making any special provision for women and children.

Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. These are the features of the provisions that are provided for in Art 15 of the Constitution.
5

Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in

imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them
6

See Conceptual Foundations of Public Health Law

apply these principles in making laws. 7 The Directive Principles of State Policy and the Fundamental rights serve as legal grounding and authority for human rights in this country and most importantly for the protection of such human rights. Since the directive principles are not enforceable by any court, it has been advocated that they are not law, much less constitutional law and therefore their non observance by the State does not entail any legal consequences. 8 For the same reason a law giving effect to the directive principles has to observe all the constitutional limitations such as the fundamental rights and in case it violates these limitations, it must be held unconstitutional. 9 All people belonging to the category of Below the Poverty Line, men and women, regardless of means, are a peculiarly handicapped class. The morbid cell which confines them walls them off from the world outside. Legal remedies, public health assistance, are often beyond their physical and even financial reach unless proper public health services and aid are available within the confines of the system as is provided within the context of the National Rural Health Mission in some States in Indian and in other countries. It is now acknowledged throughout the country that the National Rural Health Mission which is needed for the purpose of reaching health and public awareness and social justice to the people cannot afford to remain confined to the traditional or basic form of health awareness oriented aid programme but it must, taking into account the socio-economic conditions prevailing in the country, adopt a more dynamic posture and take within its sweep what may be called strategic health programmes consisting of promotion of health literacy, organization of health aid camps, encouragement of public interest health awareness and holding of public health camps. Every voluntary organization or
7 8 9

See Art 37 of the Constitution of India Shukla. V. N; Constitution of India; 10th edition; Eastern Book Company; Lucknow; p 298 See in particular H. M. Seervai: Constitutional Law of India, Vol. 2, Chap. XVII, (4TH Edn; 1993). Also U. Baxi:

The Little Done, the Vast Undone- Some Reflections on Reading Granville Austins The Indian Constitution, 9 JILI 322, 362 f. n. 110 (1967) and Directive Principles and Sociology of Indian Law- A Reply to Dr Jagat Narain, 11 JILI 245 (1969). For a different view see, M. P. Singh: The Statics and the Dynamics of the Fundamental Rights and the Directive Principles- A Human Rights Perspective, to be published in the Platinum Jubilee Volume of ILS Law College, Pune (2001).

social action group which receives support from the State Govt. has to furnish support from the State Govt. has to furnish whatever factual information is required by the Central Govt. State Govt.,or the Committee for implementing Public Health Aid Schemes or the State Health Aid and Advice Board, but such voluntary organization or social action, group must not be under the control or direction or supervision of the State Government or the State Health Aid and Advice Board because voluntary organizations and social action groups operating these programmes should be totally free from any Governmental control. 10 In our country, the characterization of Public Rural Health and the cultural realities create challenges to the workings of medical science and law. The nature and the scope of the present subject matter is very wide and expansive but has been restricted over the years by different factors and the concerned authorities have not really taken the opportunity and the initiative to extend the rules and provisions and make it more legally binding on the authorities and the affected parties. However, things have started to look brighter as far as the legal nature and the concepts of the National Rural health Mission and the challenges that it poses to medical science and law is concerned. Public health law is given the kind of importance and attention that it deserves. The Directive Principles of State policy serves as the catalyst or more appropriately the legal sanction for the authorization of human rights enforcement. The National Rural Health Mission is one of the most important government programmes that have been implemented in recent times. The National Rural Health Mission takes care of the basic needs and requirements of the section of society that needs it the most and the essence of the enforcement and protection of the most basic of human rights is realized here. The National Rural Health Mission is a government scheme whose primary objective is to provide health care and healthcare services to rural households all over the country. There are altogether 18 states that are part of the National Rural Health Mission scheme of things. They include Arunachal Pradesh, Assam, Bihar, Chhattisgarh, Himachal Pradesh, Jharkhand, Jammu and
10

Centre of Legal Research v Sate of Kerala (1986) 2SCC 706; AIR 1986 SC 1322

Kashmir, Manipur, Mizoram, Meghalaya, Madhya Pradesh, Nagaland, Orissa, Rajasthan, Sikkim, Tripura, Uttarkhand and Uttar Pradesh. Many legal developments have complemented this trend of prioritizing health as an issue and in several of its judgments; the honourable Supreme Court of India has exhorted the Government to accord legal recognition to health rights, viewing them as vital component of the fundamental right to life. 11

As per the National Health Bill, health care means testing, treatment, care, procedures and any other service or intervention towards a therapeutic, nursing, rehabilitative, palliative, convalescent, preventative, diagnostic, research and/or other health related purpose or combinations thereof, including reproductive health care and emergency medical treatment, in any system of medicine, and also includes any of these as a result of participation in a medical research programme. 12 Health care establishment means the whole or part of a public or private institution, facility, building or place, whether for profit or not, that is operated or designed to provide inpatient and/or outpatient health care and a public health care establishment shall accordingly refer to a health care establishment set up, run, financed or controlled by Government or Governments authority or instrumentality. 13 The Government of India and the different state governments have certain general obligations at all times within the maximum limits of their available resources, towards the progressive realization of health and well being of every person in the country:- 14
11

The last two decades have witnessed enactment of several progressive laws at the national level which have

addressed several important determinants of health and some bills are also being drafted on those issues. India is also a signatory to all major international treaties which entail obligations towards health rights in general and for particular groups. Under Article 253 of the Constitution of India, the Indian Government is mandated to honour these international obligations by enacting laws.
12 13

See Sec 2(i) of the National Health Bill 2009; Ministry of Health and Family Welfare See Sec 2(j) of the National Health Bill 2009; Ministry of Health and Family Welfare

14

See Chapter 11 of Obligations of Governments In Relation to Health

(a) Undertake appropriate and adequate budgetary measures, as per the globally accepted norms, to satisfy, the obligations and rights set out herein, throughout ensuring transparency and equity in the allocation, planning and rational allocation and distribution of resources for health and health related issues and concerns (b) Take all measures and steps, for addressing bio medical determinants as well as the underlying socio economic, cultural and environmental determinants of health and well being to ensure the enjoyment of right to health and well being of every person, equally and without any discrimination; (c) Provide free and universal access to health care services and ensure that there shall not be any denial of health care directly or indirectly, to anyone, by any health care service provider, public or private, including for profit and not for profit service providers, by laying down minimum standards and appropriate regulatory mechanism; Provided that notwithstanding the above the Governments have an immediate duty to prioritize the most vulnerable and marginalized persons and groups who are unable themselves to access means for adequate and appropriate health care services, and ensuring them at least the minimum conditions of health care; (d) Ensure comprehensive involvement of civil society, especially vulnerable or marginalized individuals/groups, including by enabling them to effectively articulate their health needs and to participate in all health related decision making process, including in setting health priorities and goals; and in devising, planning, implementing and evaluating the policies and strategies for health and well being at every level; also integrally incorporating their roles and participation in the contents of such policies, strategies and plans; and ensuring demonstrably serious consideration to diverse expert views, in the planning of health care; (e) Where imposition of limitations on right to health of individuals becomes necessary in compelling public health or interest, ensure proportionality of such limitations by adopting the least restrictive alternative, an in any case ensure that they be of limited duration and subject to review against the reference to the rights provided for herein;

(f) Ensure that all their policies, especially the economic, agricultural, industrial, technology related, intellectual properties related, be subject to health and equity impact assessments;
(g) Ensure inter se convergence among programmes of all the sectors related to health and also

inter se integration among all health care related programmes, vertically as well at every level of health care, horizontally; and (h) Take into account its legal obligations regarding the right to health when entering into bilateral or multilateral agreements with other countries, international organizations and other entities, such as development partners, donor organizations and multinational corporations.

Some of the major objectives of the National Rural Health Mission include the following; To Decrease the infant mortality rate and maternal mortality rate To provide access to public health services for every citizen To prevent and control communicable and non communicable diseases To control the population as well as to ensure gender and demographic balance To encourage a healthy lifestyle and alternative systems of medicines

The other objectives include the strengthening of the Panchayati Raj Institutions and the promotion of access to improved healthcare through the Accredited Female Health Activist (A. S. H. A). Also, the strengthening of the already existing Primary Health Centres, Community Health Centres and District health Missions is another very vital objective of the National Rural Health Mission. The National Rural Health Mission seeks the maximum use of Non Governmental Organizations. Family Welfare is another very important aspect of the planning and future of the National Rural Health Mission. The well being of the family and family planning is a part of the big picture of family welfare within the ambit of the National Rural Health Mission. The Union Health Ministry has set up a mechanism for monthly concurrent audit of the National Rural Health Mission

following the performance audit by the Comptroller and Auditor General who called for the rationalization of fund flow arrangement for speedy transfer of funds. By focusing a considerable amount of its resources on the well being and the health of areas that are considered to be rural and not as progressive as the others, both the powers that be at the Centre and these various states are making the protection of human rights a priority. Human rights in any geographical location would have the same facets yet the understanding and execution are different in different places. In the Indian scenario formulation of policies and deliverance of schemes like the National rural Health Mission is an important step in that direction and shows that we are looking at things from a human rights perspective.

BIBLIOGRAPHY

National Health Bill 2009; Ministry of Health and Family Welfare

Pattinson, Shaun, D; Medical Law And Ethics; 1st edition; Sweet and Maxwell; 2006;

Phillips, David, R; Health and Health Care in the Third World; Longman Scientific and Technical; New York; 1990

Shukla. V. N; Constitution of India; 10th edition; Eastern Book Company; Lucknow

H. M. Seervai: Constitutional Law of India, Vol. 2, Chap. XVII, (4TH Edn; 1993).

B. G. Ramcharan; The Protection Role of the UN Human Rights Special Procedures. Martinus Nijhoff, 2008

Gandhi, Sandy, International Human Rights: Origins, Governance and Education, Manoj K. Sinha(ed.) Global Governance, Human Rights and Development

Sinha, Manoj Kumar, Respect of Human Rights in Time of State of Emergency: International and National Perspectives