Right to health and speedy justice

Article submitted by Vahini, SASTRA DEEMED TO BE UNIVERSITY.

Abstract:

The access to health care is a basic necessity that the government has to provide to every citizen of the country. The Constitution of India guarantees everyone the Right to physical and mental health. Article 21 of the Constitution provides protection of life and personal liberty which can be deprived only according to procedure established by law. The Right to live with human dignity is derived from the Directive Principle of state policy, therefore includes protection of health as held by Supreme Court in Bandhua Mukti Morcha V Union of India1.

The Constitution guarantees equality of law and equal protection of laws lies in the hands of the legal system. The institution of justice and speedy trial are universally accepted to be the facets of the Right to life under the constitution. Equal access to justice is not just a mandate provision as per Part III of the constitution, but also amounts to good governance under Part IV of the Constitution. Every citizen of the country has access to speedy justice and trial as a part of Right to life and personal liberty.

Right to Speedy Justice:

The English landmark document magna carta was the first to mention Right to Speedy trial. Speedy trial is the way to prevent miscarriages of justice. This concept ensures speedy disposal of cases so that judiciary can be more effective to impart justice at the earliest. In Sheela Barse V Union of India2, the court reaffirmed Speedy trial to be fundamental right. The legislature, executive and judiciary are three pillars of social restraint and order in India. Increased growth in population and technology have resulted in increased workload on the Judiciary system which requires effective and speedy disposal of cases.

In Babu Singh v State of U.P3, Justice Krishan Iyer remarked, “Our Justice even in grave system, suffers from slow motion syndrome which is lethal to fair trial”. The entire community is concerned with criminals being punished within reasonable time and the innocent being absolved from the wrong accusation. Safeguarding and protection of this Right will ensure that people do not lose faith and hope in the legal system of the country, protection of not just victim and accused, but also to prevent undue imprisonment prior to the trial, to minimize public accusation and limit the possibilities of delay in justice as it will affect the accused to defence himself. Without free and fair Trial, the Rule of law will cave in. Large section of population finds it difficult to approach the judicial system due to many socio-economic factors. The ratio of number of cases to number of courts is very low. Lack of infrastructure, disproportion in the strength of the judges, improper budget allocation, awareness, change in the global factors, lack of accessibility is some of the prime reasons for delayed justice or speedy trial.

There are many international conventions that emphasize on the importance of Right to speedy trial. International convention of civil and Political Right, 1966 and European Convention of Human rights, 1950 speak for this right. When the time consumed in the disposal of a case is exceeding the reasonable time, it is delay in justice. As per factual data, the gap between the expected and actual time taken to dispose cases is widening because of the low number of judges and adjournments of courts on insubstantial grounds. The delay can be either due to the delay in the court system which is the time period from instituting the case until the end of the trial or due to professional courtesy of lawyers in the courts. Judiciary is an Independent system, but at the same time, it is accountable too. In Machander V State of Hyderbad4, the court had refused to send the case back to trial because of a five-year delay between the commission of the offence and final judgement.

Anita Kushwa V Pushap Sudan5, the Supreme Court identified four aspects that adds up to the essence of justice- Adjudicatory, reasonable access, speedy, affordable mechanisms. Right to speedy trial is not a fact but a constitutional reality. In Abdul Rehman V RS Nayak6, it was observed that the court only can decide whether the Right to speedy trial has been denied or not. A famous former British Prime Minister quoted “Justice delayed is justice denied”, Bhopal case tragedy case7 is a landmark case in India. Instance of gross delay by the judiciary, Union Carbide factory due to its negligence resulted in devasting lives of more than 5 lakh people and the after-effects of this continue to disrupt the lives of people that still reside in that area. The Case has been protracted for years and only 7 employees have been punished. Adding on to this, the company reduced its compensation and there are still numerous victims who are yet to receive compensation for the damages caused to them.

Alternative dispute settlement like mediation, settlement through Lok Adalat and time scheduling will help speedy disposal of cases and effective management of time. The State has to guard the fundamental right of the people to ensure speedy trial and avoid delayed justice. This right is in public interest of the people as it is not just a personal law but also an important societal interest.

Right to Health:

The Right to health is not expressly a guaranteed right by the constitution. Due to absence of an explicit provision of Right to health under the constitution, the Supreme court in Bandhu Mukti V Union of India8 observed the Right to health under Article 21 that which guarantees Right to Life. However, there are many references in the constitution to public health that lay attention on the role of the government in providing basic health care to every citizen of the country. The Directive Principles of state policy in Part IV of the constitution provide a basis for Right to health. Article 39(E) states that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.

Article 47 of the constitution ensures that the state raise the nutrition levels and improve the public health. Not just the state, but also the panchayats and municipalities should enhance the Public health as per Article 243(G). In 2019, under the 15th finance commission recommended that Right to health be declared as a Fundamental Right. There was also a recommendation to change the subject of health sector from the State list to the Concurrent List, but this recommendation to shift the health sector will result in centralisation of public health. The 7th Schedule of the constitution under the state list provides for public health, sanitation, Hospitals. The State government can adopt, enact any public health regulation as per the requirement, but it will be accountable to the central government.

The Public health requires a lot of measures to ensure that each and every citizen of the country can afford, access, and avail medical facility. It is necessary that government plays a significant role in ensuring that people have access to this Right from remote to urban areas. India has a long way to develop in the health sector. Deficiency in public health is due to limited technical expertise and fiscal constraints. The dependency of state on the central for monetary reasons continues to be a major challenge. But bringing this subject under the concurrent list will lead to institutional constraints and excessive bureaucracy. Uniform policy or plans will not provide the necessary results as specific attention to every remote corner of India is a challenge.

The principle of solidarity in context of right to health can guarantee equal access to public health provision to all. In this pandemic situation, many marginalised communities in our country have been facing a lot of problems due to the minimal and lack of health facilities available, but the government have taken steps to ensure that necessary care is given to these sections of people. The constitution through Directive Principles of state policy ensures that the State provide basic health care.

Inference:

Lord Hewet said, “as it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.” One of the most important duties of a welfare state is to provide judicial as well as non-judicial dispute mechanisms so that every citizen has equal access as to the resolution of their legal disputes. The development of the nation is equally dependent on the dynamism of the judicial system. Public health is a vital function of the centre and state, and hence it needs to be protected. But, at the same time, a legislatively guaranteed right will make access to health legally binding and ensure accountability.

Citations:

AIR 1984 SC 802

JT 1986 13(1986 SCALE(2)230)

1965 AIR 146(1965 SCR (2) 771)

AIR 2016 SC 3506

833 of 1990

1992 AIR 248

1997) 10 SCC 549