Legal India
The Right to Health Care- Why, What & How- A Policy Brief for Public Discussion . Though written in the context of Tamil Nadu, this book would be of equal relevance to all activists and academics working for the achievement of Right to Health. The reason we chose to write in such a context-specific manner is to draw attention to how the context of both health systems and existing legal frameworks would greatly influence what goes into specific laws. The book also flags what are the systemic changes required for being to be able to effectively deliver healthcare as an entitlement and how this closely relates to the attainment of Health for All. Taken together, this book is more like a manifesto for the attainment of the right to health. This publication also informs the conceptual background of this web-portal.
“Sources of Legal Recognition of Health Rights” : the provide brief details of the International and National legal instruments that provide oblige governments to provide a legal framework for the Right to Health Including the Right to Healthcare. (This is the same note as given in the annexure 1of the Resource Collectives “Right to healthcare” publication linked earlier.
These are important reference documents for those actively working on developing legal frameworks are for those studying the same.
First is the first draft bill for a National Health Act, 2009 that was drafted under the leadership of the NHSRC in year 2008-09 and went through extensive discussions and inputs from both civil society and some legal experts. It was a start, but it did not go far- both because of changed political situation ( viz the transition from UPA-1 to UPA 2) and internal criticisms and its own weaknesses.
State Laws:
Health is a state subject. There are four types of legislation that they enact and which we cover here. These are the Right to healthcare which is about access to medical services. The second are the public health laws that relate to the underlying social determinants of healthcare. The third are also public health laws but mainly related to Pandemic Management. And the fourth are the clinical establshments acts for regulation of the Private Sector.
Right to Healthcare Laws:
There are two states that have enacted a Right to Health Care. The first of these is the Right to Health Act, Assam, 2012, as adopted by the Government of Assam. The Right to Health Act, Assam, 2012, as adopted by the Government of Assam. It draws heavily on the draft national bill, but was a non-starter for the rules were never framed. Then history repeats itself and we present the Right to Health Act, Rajasthan, 2022 as adopted by the Government of Rajasthan. Here too the rules were not framed, but unlike in Assam it attracted far more of a supportive public response and a hostile professional response. To discuss the problems of this Act, we enclose one commentary published in Scroll and give links to two others.
Public Health Laws:
We then have a full section on public health laws. These are laws concerning the underlying determinants of health, which also can be referred to as the proximate social determinants of health. These include:
1. Tamil Nadu Public Health Act, 1939
2. Andhra Pradesh Public Health Act, 1939
3. Madhya Pradesh Public Health Act, 1949
4. Puducherry (Public) Health Act, 1973
5. Goa, Daman, Diu, Public Health Act, 1985
6. Kerala Public Health Act, 2023
The last of these is a recent renewal made by merging the earlier existing Travancore-Cochin Public Health Act of 1955, and the Malabar Public Health Act, which was earlier part of the Madras Presidency. Of these Acts, the pioneering Act and the prototype of subsequent public health acts is the Tamil Nadu Public Health Act. We have presented one conversation on the TN Public Health Act and one power point presentation by a domain expert, to help readers get a quick understanding of what these Acts are about.
Clinical Establishments Acts:
There is also another series of acts related to regulation of private health sector. One of these is the Act adopted by the Union Government called the Clinical Establishments Act, 2010. This is adopted under a constitution provision where the centre can make a legislation on behalf the states if four or more states request the centre to do so. As of now 11 states and all Union Territories (except Delhi) have adopted India’s Clinical Establishments Act, 2010, including Sikkim, Mizoram, Arunachal Pradesh, Himachal Pradesh, Uttar Pradesh, Bihar, Jharkhand, Rajasthan, Uttarakhand, Assam, and Haryana. Some states have chosen to enact state laws of their own instead of adopting the central act. These include :
Kerala Clinical Establishments Act and Rules.
Tamil Nadu’s Clinical Establishments Act.1997 with Amendments.
West Bengals Clinical Estabilishments Act and Rules.
Other states that have adopted their own state-specific clinical establishments Act are Maharashtra, Andhra Pradesh, Odisha, Delhi, Manipur, Nagaland, Madhya Pradesh, Punjab.
Pandemic-Response related public health laws.
In the aftermath of the Covid Pandemic, the Supreme Court intervened asking states to make appropriate public health laws. A newsreport of the Supreme Court intervention is attached.
Largely in response to this, four states adopted laws that mainly enable epidemic and pandemic response. These are also called public health laws, but their scope is limited. These include
The Uttar Pradesh Public Health And Epidemic Diseases
Control Act, 2020
Karnataka Epidemic Diseases Act, 2020
At the central level the Government Of India has introduced an Epidemic Diseases Amendment Bill, 2021 in Rajya Sabha. This is to amend the earlier Epidemic Disease Act of 1897. Not sure whether this has been passed.
Covid-19 Related Legal issues
Coming from macro-issues to specific aspects we enclose an interesting comment on an intervention by India’s Supreme Court in the pandemic response titled Human Rights and State Policy in the COVID-19 Pandemic: Adjudication as Accountability published in India in Transition: Centre for Advanced Studies in India: U. Penn, Politics: Special COVID-19 Series; June 7, 2021.
This is also the topic of discussion in the interview published in the Times of India-May 26th, 2021,“ on Everyone has an entitlement to vaccination against covid 19” This was an Interview of Sundararaman by Rema Nagarajan and it describes the changes in Indian policy towards universal vaccination and calls for addressing the equity challenges.
