In September, the Rajasthan State government introduced the Rajasthan Right to Health Bill, 2022 in the state legislative assembly. As it is still being debated in the legislative assembly and has become a major part of public discourse among health care providers as well as different interest groups, it becomes important to understand its legal dimensions, and more importantly, the short term and long term implications of its implementation. Being the first such legislative action to have come from a state government, the decision carries with it both novelty as well as gathered knowledge from past attempts at the same.

Where can a right to health be located?

Article 21 of the Constitution protects and upholds the right to life and liberty. Courts have often taken a progressive stance in expanding the scope of the right to life to include the right to health. In State of Punjab and Ors versus Mohinder Singh Chawla (1996), the Supreme Court proclaimed the right to life includes within its fold the right to health, and also pointed out the obligations of the government to provide health services.

Courts have also taken recourse to the Directive Principles of State Policy to highlight the State’s obligations in promoting and protecting the health of its citizens, particularly through Articles 38, 41, 42 and 47 of the Constitution. In State of Punjab versus Ram Lubhaya Bagga (1998), the Supreme Court held that every right had a corresponding duty, and in this case the right to life in Article 21 attracted the State’s duty as mentioned in Article 47 in improving public health standards. In Pashchim Banga Khet Mazdoor Samity versus State of West Bengal (1996), the Supreme Court had further opined that in the interest of improving public health, it is the government’s responsibility to provide medical aid.

Falling under Item 6 of the state list in the Seventh Schedule of the Constitution, the state governments have the duty to ensure the promotion of public health and provision of medical services. In bringing forth the right to health bill, the Rajasthan government has acted on its constitutional mandate by providing health care services to residents of the state, while upholding the values laid out in multiple Supreme Court judgments in the past.

What are the rights and duties prescribed in the Bill?

The preamble of the Bill at the outset makes the intentions of the government clear -promoting health care without causing catastrophic out-of-pocket expenditure. In the twenty rights laid down for state residents in Clause 3 of the Bill, we see principles of equity, justice and good conscience reflected, as were earlier perceived by the Supreme Court in the judgment referred to earlier.

The Bill provides for free and affordable health check-ups, and surgery in both private and public hospitals. It makes it a matter of right for the residents to avail free services as laid down in various insurance schemes. While this goes a long way in codifying what had earlier been perceived as mere expectations, the state takes the burden of providing adequate medical services to the residents.

The Bill goes one step further in in tackling another thorny issue of the right to medical information in medical establishments. Clause 2(i) gives the residents the right to seek information regarding the diagnosis and treatment. At the same time, the Bill makes all such information confidential in nature. The Bill has also provided rights for health care providers such as exemption from liability in bona fide acts, a safe working environment, and access to protective gears.

The Bill, in giving rights and duties to both sets of stakeholders, has sought to balance the counterclaims that could have made the implementation of a Right to Health Act problematic. While the residents have enough incentives and protection to seek medical care and information about the same, health care providers would not be at a disadvantage in doing their duty. If followed in other states, this balance of rights and duties can help in creating a robust health infrastructure and improving overall public health levels.

What are the governmental obligations provided in the Bill?

With rights come duties, and this is visible in Clause 4 of the Bill. The government would be obligated to provide funds, set up institutions, and more importantly, set up grievance redressal systems. The government has the responsibility to coordinate among different departments and offices for adequate and safe drinking water and sanitation.

The Bill has set out the constitution of a state health authority and district health authorities to carry out functions such as formulating plans, assessing preparedness and developing systems for clinical, medical and social audits. The district health authority plays a greater role in the implementation of these plans. In creating this demarcation, the bill relies on the old logic of decentralisation where localised measures and strategies would be more cognisant of the problems and would be better able to provide solutions for the same.

Why is the Bill’s bar on jurisdiction of civil courts controversial?

The provision of this Bill that has received considerable backlash from the public is Clause 14, which disallows any civil court to have jurisdiction in matters where the appellate authority, as mentioned in the bill, has the power to decide matters. It has been argued that these appellate authorities would not have adequate resources or legal expertise to decide complicated matters, and such a blanket ban would go against the principles of justice. It also disallows the seeking of an injunction from any court against the actions carried out under the bill.

This appears to be an arbitrary restriction on the right to go to court. In the absence of any scope for government intervention, it becomes extremely difficult to avoid the threat of executive overreach or arbitrariness. While the intent of the lawmakers might be in good faith to allow matters to be settled quickly without the costs and delays of the court process, it must not bar any recourse to judicial proceedings.

What is the major takeaway from the Bill?

While there is still an absence of clarity on certain aspects of the Bill that require clarifications based on rules and regulations to be released later, the overall mandate of the government seems clear as far as providing affordable medical care to all residents.

Other than a few problematic provisions such as the bar on jurisdiction of court, the Bill appears to be an ideal starting point for making the right to health a more attainable and tangible fundamental right.

(Rachit Prakash Mathur is an undergraduate student at the National Law School of India University, Bengaluru. Courtesy: The Leaflet, an independent platform for cutting-edge, progressive, legal & political opinion.)