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MEANING OF HEALTH

Different cultures have their own concept of health. The most ancient definition of health is
the ‘absence of disease’. In some cultures, health and harmony are considered equivalent, harmony
being defined as “being at peace with the self, the community, God and cosmos.” The World
Health Organization, 1948 has in its Constitution defined health as follows: “Health is a state of
complete physical, mental and social wellbeing and not merely an absence of disease or
infirmity.” This statement is amplified to include the ability to lead a “socially and economically
productive life.” The WHO definition of health is therefore considered by many as an idealistic
goal than a realistic proposition. It refers to a situation that may exist in some individuals but not
in everyone all the time; it is not usually observed in groups of human beings and in communities.
Some consider it irrelevant to everyday demands, as nobody qualifies as healthy, i.e. perfect
biological, psychological and social functioning. Hence the definition has been criticized in many
ways.

HEALTH LAW

For all aspects of health, there are binding rules that govern the rights and responsibilities of
governments, health workers, companies, civil society and a country’s population. Together these
rules make up the legal framework, or legal architecture for health. They take many forms
including: statutory laws, regulatory and administrative laws, contracts, case law, and customary
laws. Who is involved in making these rules, and the form they take, differs from country to
country. Thus we can say, that it is the branch of law dealing with various aspects of health care,
including the practices of caregivers and the rights of patients.

Health laws are used to formalize commitment to goals, such as the goal of universal health
coverage, creating a drive for action. To enable cooperation and achieve health goals, people use
law to create different organizations (such as hospitals) and relationships (such as contracts for
providing health services). In turn, organizations (whether health ministries, the private sector or
civil society) have mandates, policies and strategies based on legal rules that guide their work.
There are also many rules that structure what health organizations and individuals should do, and
what they may not do. This interaction between different health laws results in health system
functions being carried out and health products and services being delivered.

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EVOLUTION AND DEVELOPMENT OF HELTH CARE SYSTEMS

There is a popular phrase in the Indian society: “Pahelu Sukh Te Jate Narya”. To enjoy the life,
a good health is a condition precedent. Human health care remain the first priority among others
in whole world. Various systems of medicine evolved over the centuries and have continued to be
practiced widely in India and elsewhere. Development and growth of medicine or science of life,
was adjuvant with the growth and evolution of Indian civilization and culture.

AYURVEDA

Ayurveda is referred to as Mother of all healing. It is considered to be an oldest form of health care
in the world. . It is found in the Rig Veda and Atharva Veda describing various diseases and its
treatment by various plants and other materials. The most important and massive ancient
compilation of the School of Medicine is known as Charka Samhita. It contains several chapters
dealing at length with therapeutic or internal medicine. About 600 drugs of plant, animal and
mineral origin are described in it. Another equally exhaustive ancient compilation, Sushruta
Samhita exists relating to school of surgery. It deals primarily with various fundamental principles
and theory of surgery.

SIDDHA SYSTEM

Siddha system is another oldest system of medicine in India. The term Siddha means achievements
and the persons who practiced this type of medicine and achieved results were called Siddhars.
The principles and doctrines are similar to Ayurveda. This system of health care is prevalent in
Tamilnadu and some other parts of South India. It is an ancient traditional system of Indian
medicine developed by 18 Siddhars. According to the tradition, it was Shiva who unfolded the
knowledge of Siddha system of medicine to his concert Parvati who handed it down to Nandi Deva
and the Siddhars. This system believes that all objects in the universe including human body are
composed of five basic elements namely, earth, water, fire, air and sky. The food and the drugs are
all also made of these five elements. The Siddha system is capable of treating all types of diseases
other than emergency cases. It is effective in treating all types of skin problems particularly
Psoriasis, STD, urinary tract infections, diseases of liver and gastro intestinal tract, general
debility, postpartum anemia, diarrhea and general fevers in addition to arthritis and allergic
disorders.

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UNANI TIBB – THE GREEK SYSTEM

Unani system of medicine is also the oldest one of medicine in the world. It is still popular &
practiced in India & other parts of the world. The scientists and experts of different countries have
contributed in development of Unani system. Unani medicine was originated in Greece and
Hippocrates (Buqrat 460-377 BC) was its founder, the great philosopher & Physician. He was the
first Unani Physician who opened the education of Medicine to all communities, so he is known
as the father of medicine. It was brought to India from West Asia around 10th Century A.D. by
the Muslim rulers and in 1351 AD by Arabs. The first known Hakim was Zia Mohd Masood
Rasheed zangi. Unani Medicine was accepted by the masses due to its efficacy and non-toxicity
of the drugs. After independence in 1964 Govt, of India constituted Unani pharmacopeia
Committee consisting of Unani experts and scientist with a view to maintain uniformity in the
standards of drugs and to prescribe standards for compound formulations. It also prescribed the
tests for identity, purity, efficacy and quality of the drugs. In order to develop high standards of
education and research in Unani Medicine National Institute of Unani Medicine was established
at Bangalore in 1983. Now the Unani is an established Indian System of Medicine

YOGA

Yoga has its origins in the Vedas, the oldest record of Indian culture, thousand years ago. Its
founders were great Saints and Sages. The great Yogis gave rational interpretation at their
experiences about Yoga and brought a practically sound and scientifically prepared method within
every one’s reach. Yoga philosophy is an Art and Science of living in tune with Brahmand – the
Universe. It was systematized by the great Indian yogi Patanjali in the Yoga Sutra as a special
Darshana. Patanjali’s Yoga Sutra is certainly the most significant book which has touched almost
all the aspects of human life. Maharishi Patanjali is called the “Father of Yoga”.

HOMEOPATHY

The word ‘Homeopathy’ is derived from two Greek words, Homois meaning similar and pathos
meaning suffering. Homeopathy simply means treating diseases with remedies, prescribed in
minute doses, which are capable of producing symptoms similar to the disease when taken by
healthy people. It is based on the natural law of healing- “Similia Similibus Curantur“ which
means “likes are cured by likes”.

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Homeopathy entered India in 1839 when Dr. John Martin Honigberger was called to treat Maharaja
Ranjit Singh, the ruler of Punjab, for paralysis of vocal cords and oedema. The Maharaja was
relieved of his complaints and in return he received valuable rewards and later on was made
officer-in-charge of a hospital. Dr. Honigberger later on went to Calcutta and started practice there.
This royal patronage helped the system to have its roots in India.

NATUROPATHY

The word “Naturopathy” has been coined by Dr. John Scheele in the year 1895 and was
propagated and popularized in the western world by Dr. Benedict Lust. Nature Cure movement
gained momentum in India as Mahatma Gandhi, “Father of the Nation” became much interested
in this system and included it in his programmes. He also established a Nature Cure Hospital in
Uruli Kanchan, Distt. Poona, Maharashtra which is still functioning. The credit of making Water
cure world famous goes to Vincent Priessnitz (1799-1851) who was a farmer and called
as “Father of Naturopathy”.

ACUPRESSURE

It is an ancient healing art, developed in Asia over 5000 years ago. It is done by using fingers to
press key points on the surface of the skin to stimulate the body’s natural self-curative abilities.
When these points are pressed, they release muscular tension and promote the circulation of the
blood and the body’s life force energy to aid healing.

MAGNETIC- THERAPY

Magneto therapy is being increasingly used by practitioners and patients. This simple method is
an effective addition when a large part of the body is affected. It is one of the oldest natural methods
of therapeutic treatment and can be applied in many cases of acute and chronic pain as well as
many illnesses without any side effects. Many people are turning to natural therapy as an
alternative to traditional allopathic treatment with drugs and chemicals.

ALLOPATHY

Allopathy is also known as the Modern System of Medicine, developed in the West. A system,
which treats a disease with drugs having opposite effects to the existing symptoms. Each
successive discovery and development in Allopathy, is the result of extensive research. Each new

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remedy has helped alleviate pain and suffering and increased the life span of people. Medical
research continues at a brisk pace, identifying unknown diseases and searching for their cures.

RIGHT TO HEALTH: AN INTERNATIONAL LEGAL PERSPECTIVE

The right to health is a fundamental human right recognized and protected under international law.
It is enshrined in various international instruments and treaties, reflecting the global consensus on
the importance of ensuring access to healthcare services and promoting the well-being of
individuals and communities. Some of the key international legal instruments providing right to
health either explicitly or implicitly are as follows:

1. Universal Declaration of Human Rights, 1948 (UDHR)

2. International Covenant on Economic, Social, and Cultural Rights, 1966 (ICESCR)
3. Convention on the Rights of the Child, 1989 (CRC)
4. ILO Convention No. 155 - Occupational Safety and Health Convention, 1981
5. Convention on the Elimination of All Forms of Discrimination against Women, 1979
(CEDAW)
6. International Convention on the Elimination of All Forms of Racial Discrimination, 1965
(CERD)
7. Convention on the Rights of Persons with Disabilities, 2006 (CRPD)
8. Declaration of Alma-Ata, 1978
9. Sustainable Development Goals, 2015 (SDGs)

Key Principles or Elements

The right to health is a fundamental human right recognized in international law. It has evolved
over time, with principles of universality, non-discrimination, accessibility, and quality at its core.

i. Universality and Equality: The right to health is universal, meaning it applies to all
individuals without discrimination. States are obliged to ensure that healthcare services are
accessible, available, and of high quality for everyone within their jurisdiction, regardless
of race, gender, ethnicity, economic status, or any other characteristic.
ii. Non-Discrimination: States must take measures to eliminate discrimination in healthcare
access and provision. This includes addressing disparities in healthcare outcomes and
addressing the root causes of discrimination, such as social and economic inequalities.

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iii. Accessibility: The right to health includes the right to access healthcare services without
discrimination, financial barriers, or other obstacles. States are expected to ensure that
healthcare facilities, goods, and services are physically and economically accessible to all.
iv. Availability: States must ensure the availability of essential healthcare services, including
healthcare facilities, trained healthcare professionals, medicines, and medical equipment.
They must also take steps to prevent healthcare shortages and maintain a functioning
healthcare infrastructure.
v. Quality: Healthcare services must be of a high quality, meaning they should be safe,
effective, and culturally appropriate. This includes regulating healthcare providers and
facilities to ensure standards are met.
vi. Participation and Accountability: States should involve individuals and communities in
healthcare decision-making and policy development. They must also establish mechanisms
for accountability, allowing individuals to seek redress if their right to health is violated.

International legal Framework

1. Universal Declaration of Human Rights, 1948 (UDHR): The right to health is rooted in
the Universal Declaration of Human Rights, adopted by the United Nations General
Assembly in 1948. Article 25 of the UDHR states that "Everyone has the right to a standard
of living adequate for the health and well-being of himself and of his family, including food,
clothing, housing, and medical care."
2. International Covenant on Economic, Social, and Cultural Rights, 1966 (ICESCR): The
ICESCR, adopted in 1966 and in force since 1976, is a key international treaty that recognizes
the right to health. Article 12 of the ICESCR explicitly recognizes "the right of everyone to
the enjoyment of the highest attainable standard of physical and mental health." It obliges
states to take steps to improve public health, prevent and control diseases, and provide
medical care.
3. Convention on the Rights of the Child, 1989 (CRC): The CRC, adopted in 1989,
emphasizes the right to health of children. Article 24 of the CRC recognizes the right of the
child to the enjoyment of the highest attainable standard of health and requires states to take
measures to reduce child mortality and ensure access to necessary health care.
4. ILO Convention No. 155 - Occupational Safety and Health Convention, 1981: This
convention sets out the general principles and framework for occupational safety and health

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policies, programs, and practices. It emphasizes the responsibility of employers and

governments to ensure the safety and health of workers in the workplace. The convention
underscores the importance of protecting workers' physical and mental health.
5. Convention on the Elimination of All Forms of Discrimination against Women, 1979
(CEDAW): CEDAW recognizes the right of women to access healthcare services, including
family planning, and calls on states to eliminate discrimination in the field of healthcare.
(Art.12)
6. International Convention on the Elimination of All Forms of Racial Discrimination,
1965 (CERD): CERD, in Article 5(e)(iv), requires states to ensure the right to public health,
medical care, social security, and social services for all without discrimination based on race,
color, or national or ethnic origin.
7. Convention on the Rights of Persons with Disabilities, 2006 (CRPD): Article 25 of the
CRPD recognizes the right of persons with disabilities to the highest attainable standard of
health without discrimination and calls for access to healthcare on an equal basis with others.
8. Declaration of Alma-Ata, 1978: The Declaration affirms the crucial role of primary health
care, which addresses the main health problems in the community, providing promotive,
preventive, curative and rehabilitative services accordingly (Art. VII). It stresses that access
to primary health care is the key to attaining a level of health that will permit all individuals
to lead a socially and economically productive life (Art. V) and to contributing to the
realization of the highest attainable standard of health.
9. Sustainable Development Goals, 2015 (SDGs): The United Nations' Sustainable
Development Goal 3 (SDG 3) explicitly aims to "ensure healthy lives and promote well-
being for all at all ages." Achieving this goal involves not only addressing health issues but
also addressing the social determinants of health, such as poverty, inequality, and access to
clean water and sanitation.

Right to Health vis-à-vis Indian Constitution

Right to health is not included directly in as a fundamental right in the Indian Constitution. The
Constitution maker imposed this duty on state to ensure social and economic justice. Part fourth
of Indian Constitution which is DPSP imposed duty on States. If we only see those provisions then
we find that some provisions of them has directly or indirectly related with public health. The
Constitution of India does not provides for the right to health as Fundamental Right. The

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Constitution directs the state to take measures to improve the condition of health care of the people.
Thus the Preamble to the Constitution of India, inter alia, seeks to secure for all its citizens justice-
social and economic. It provides a framework for the achievement of the objectives laid down in
the Preamble. The Preamble has been amplified and elaborated in the Directive Principles of State
Policy.

Directive Principles of State Policy

Under Chapter IV of the Constitution, the Directive Principles of State Policy (DPSP) have the
ideals of the right to health under:
 Article 38: It imposes liability on State that states will secure a social order for the
Promotion of welfare of the people but without public health we cannot achieve it. It
means without public health welfare of people is impossible;
 Article 39(e): Protecting the health and strength of people from abuse especially
workers;
 Article 39(f): Giving children facilities and opportunities to develop in a healthy
manner;
 Article 41: Imposes duty on State to provide public assistance in cases of sickness and
disability;
 Article 42: Ensuring just and humane conditions of work;
 Article 47: Raising the nutrition levels, improving the standard of living, and
considering the improvement of public health as the state’s primary duty; and
 Article 48A: Protecting and improving the environment.
Fundamental duty
Just as international conventions have put the supply of safe water and the prevention of pollution
as obligations of the States towards the right to health, the Constitution of India has also put a
similar fundamental duty on its citizens. As per Article 51A(g), protecting and improving the
environment is a fundamental duty. Safe water, a sanitary environment, and a non-polluted climate
are essential to the right to health. Protecting and improving the environment is an essential action
plan.
Panchayat, Municipality and Health
Not only the State but also Panchayat, Municipalities liable to improve and protect public health.
Article 233G states that “the legislature of a state may endow the panchayats with necessary power

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and authority in relation to matters listed in the eleventh Schedule”. The entries in this Schedule
having direct relevance to health are as follows:
11. Drinking
23. Health and Sanitation including hospitals, Primary Health Centers and Dispensaries.
24. Family Welfare.
25. Women and Child Development
26. Social welfare including welfare of the handicapped and mentally retarded.
Article 243-W/12 Schedule finds place in part IXA of the constitution titled “The Municipalities”:
5. Water Supply for Domestic industrial and commercial purpose.
6. Public health, sanitation conservancy and solid waste management.
9. Safeguarding the interest of weaker sections of society, including the handicapped and
mentally retarded.
16. Vital statistics including registration of births and deaths.
17. Regulation of slaughter houses and tanneries.
Right to Health as a Fundamental Right under Article 21
The DPSP are only the directives to the State. These are non-Justifiable. No person can claim for
non-fulfulling these directives. But the Supreme Court has brought the right to health under the
preview of Article 21. The role of Indian Supreme Court in protecting the health of the public at
large is noteworthy. The Supreme Court has repeatedly observed that the expression “life” in
Article 21 means a life with human dignity and not mere survival or animal existence (Francis
Coralie Mullin vs The Administrator, Union Territory of Delhi AIR 1981 746). Right to life has a
very broad scope which includes right to livelihood, better standard of life, hygienic conditions in
the workplace & right to leisure. Right to Health is, therefore, an inherent and inescapable part of
a dignified life. Article 21 should also be read in tandem with the directive principles of state
policy, cited above, to truly understand the nature of the obligations of the state in this respect.

In the case of Bandhua Mukti Morcha v. Union of India AIR 1984 SC 812, the Supreme Court
held that although the DPSP are not binding obligations but hold only persuasive value, yet they
should be duly implemented by the State. Further, the Court held that dignity and health fall within
the ambit of life and liberty under Article 21.

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In the case of Paschim Banga Khet Mazoor Samity v. State of West Bengal (1996) 4 SCC 37, the
scope of Article 21 was further widened, as the court held that it is the responsibility of the
Government to provide adequate medical aid to every person and to strive for the welfare of the
public at large.

Further, the Supreme Court in the case of Parmanand Katara v Union of India AIR 1989 S.C. 2039,
held that every doctor at Government hospital or otherwise has the professional obligation to
extend his services with due expertise for protecting life of a patient.

In the subsequent case of Consumer Education and Research Centre V. Union of India AIR 1995
SC 922, held that right to health and medical aid to protect the health and vigor of a worker, both
while in service and post-retirement, is a fundamental right under Article 21.

Further, According to Article 19 (1) (g) of the Indian Constitution, the fundamental right of all
citizens to practice any profession, or carry on any occupation, trade or business is subject to
restrictions imposed in the interest of the general public under Article 19(6). The Hon’ble Supreme
Court in the case of Burrabazar Fire Works Dealers Association and Others v. Commissioner of
Police, Calcutta AIR 1998 Cal. 121, held that Article 19 (1) (g) does not guarantee any freedom
which is at the cost of the community’s safety, health and peace.

Right to Health is a part and parcel of Right to Life and therefore right to health is a fundamental
right guaranteed to every citizen of India under Article 21 of the Constitution of India. We owe
the recognition of this right to the fact that the Supreme Court of India, through a series of judicial
precedents, logically extended its interpretation of the right to life to include right to health.

Therefore, it is the duty of the State to care for the health of the public at large and the Central
Government and various State governments have, rightfully and proactively, taken various
measures to contain the entry and spread of the COVID-19 pandemic.

Statutory Control on Health in India:

The Indian Penal Code and the Code of Criminal Procedure by its various provisions protects the
health of the people. The Indian Penal Code lays down certain principles to determine the criminal
liability of the accused for e.g., General Exceptions. Some of the provisions of the code are

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directly protecting the health of the people and thus lays down punishments for those who are
responsible to affect the health of the people. Section 52 of the Code reads: “Nothing is said to
be done or believed in ‘Good Faith’, which is done or believed without due care and
attention.” Hence in the case of Sukaroo Kabiraj vs. The Empress, wherein Kabiraj who, having
no knowledge of surgery beyond that he had acquired in his practice, operated a man for internal
piles by cutting them out with an ordinary knife, in consequence of which he died from
hemorrhage. It was held as the operation was one so imminently dangerous that even educated
surgeons scarcely ever attempted it, the accused was guilty of an offence punishable under section
304-A of the Indian Penal Code.

THE INDIAN PENAL CODE

Section 84 of the code exempts a man who is mentally unhealthy at the time of commission of
crime. It lays down as “Nothing is an offence which is done by a person who, at the time of doing
it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is
doing what is either wrong or contrary to law”.

Section 88 of the Code exempts medical practitioners who while treating a patient cause death. It
reads as “Nothing which is not intended to cause death, is an offence by reason of any harm which
it may cause, or be intended by the doer to cause, to be known by the order to be likely to cause,
to any person for whose benefit it is done in good faith, and who has given a consent, whether
express or implied, to suffer that harm, or take the risk of that harm.”

Section 89 of the Code exempts a person who causes any harm when the act is done in good faith
for the benefit of child less than 12 years of age, or of unsound mind, by or by consent of the
guardian or other person having lawful charge of that person. Illustration to this section shows that
A, in good-faith, for his child’s benefit, without his child’s consent, has his child cut for the stone
by a surgeon, knowing it to be likely that the operation will cause the child’s death, but not
intending to cause the child’s death. A is within the exception, in as much as his object was the
cure-of the child.

Chapter XIV of the Code specifically deals with offences affecting the public health, safety,
convenience, decency and morals. On the basis of offences related to public health this chapter can
be divided into three head: Infection, Adulteration and Pollution:

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CHAPTER XIV

Infection Adulteration Pollution

269: Negligently Spreading 272: Food/drink 277: Fouling of water

270: Malignant Spreading 273: Selling such food/drink 278: Atmosphere Noxious

271: Disobeying Quarantine 274: Drug

275: Sale of Such Drug

276: Selling Different Drug or preparation

Section 269 punishes any person who unlawfully or negligently does any act which is, and which
he knows or has a reason to believe to be, likely to spread the infection of any disease dangerous
to life. The punishment provided is up to six months imprisonment with or without fine.

Section 270 deals with malignant act likely to spread infection of disease dangerous to life. It
punishes any person who malignantly does any act which is or for which he has a reason to believe
to likely to spread the infection of any disease dangerous to life. The punishment for such an act
is imprisonment of either description for a maximum term of two years with or without fine.

Section 271 punishes a person who knowingly disobeys a rule of quarantine in existence made and
promulgated by the government. Quarantine relates to a vessel, which is segregated for prevention
of contagious disease.

Section 272 punishes a person who adulterates any article of food or drink making it noxious for
consumption and intending to sell such article as food or drink. The expression noxious means
unwholesome as food or injurious to health. Selling of inferior food is not an offence but selling
something, which is noxious, is an offence and the seller is punishable. It is very important under
this section that an article of food or drink has been adulterated and the intention was to sell such
article as food or drink.

Section 273 punishes a person who knowingly sells or offers or exposes to sell any article of food
or drink which is rendered or has become noxious or is in a state unfit for food or drink. The section
is attracted only if the article is sold as food or drink and it has to be unfit for human consumption.

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Section 274 deals with adulteration of drugs and punishes any person who adulterates a drug or a
medical preparation knowingly that it will be sold or used for any medicinal purpose, as if it had
not gone any adulteration and such adulteration has lessened the efficacy or changed the operation
of the drug or medicine or made it noxious. The section punishes the intentional adulteration of
drugs and medical preparations.

Section 276 punishes any person who sells or offers to sell or exposes to sell or issues from a
dispensary for medicinal purposes any drug or medical preparation as a different drug or medical
preparation and knows of such difference at the time of sell.

Section 277 Whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so
as to render it less fit for the purpose for which it is ordinarily used, shall be punished with
imprisonment of either description for a term which may extend to three months, or with fine
which may extend to five hundred rupees, or with both.

Section 278 punishes any person who voluntarily vitiates the atmosphere in any place so as to
make it noxious to health of persons in general dwelling or carrying business in the neighbourhood
or passing along a public way. The section applies to trades producing noxious and offensive
smells or manufacturing units by which the atmosphere is polluted.

Though the Code was made way back in 1860 and before independence but it still focuses on
various provisions affecting health and more importantly it punishes for affecting public health.

THE CODE OF CRIMINAL PROCEDURE, 1973

The Code of Criminal Procedure, 1973: The Code under Chapter X Section 133 empowers a
District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially
empowered in this behalf by the State Government to make a conditional order on receipt of a
report from a police officer that a trade or occupation or keeping of any goods or merchandise is
injurious to the health or physical comfort to the community, he may order the person causing the
same to desist from carrying on, or to remove or regulate in such manner as may be directed, or to
remove such goods or merchandise or to regulate the same in such manner as he deems fit.

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