Is Right to Health still a mirage?

| Updated on: Jan 23, 2015

The National Health Policy proposes a model that signals the state’s retreat from providing healthcare

The reference to a ‘National Right to Health (RTH) Act’ in the draft of the National Health Policy (NHP) has generally been welcomed by policy advocates and activists alike.

The NHP says that “the Centre shall enact, after due discussion and on the request of three or more States (..) a National Health Rights Act, which will ensure health as a fundamental right, whose denial will be justiciable. States would voluntarily opt to adopt this by a resolution of their Legislative Assembly...”

Actual draft

In the absence of an actual draft it is not possible to concretely comment on the extent to which such an Act would advance public health goals.

However, a perusal of the NHP draft itself provides some indicators. The proposal to enact an RTH legislation is prefaced in the NHP by several questions.

These include: i) whether the level of economic and health systems development allows us to make denial an offense; ii) Whether a central law is feasible given that health is a state subject; and iii) whether such a law should mainly focus on the enforcement of public health standards on water, sanitation, food safety, air pollution, etc, or on access to healthcare and quality of healthcare.

Clearly, the attempt is to circumscribe the discussions on the Act by questioning its feasibility, given economic and health system constraints, and by proposing that such an Act might merely pertain to adherence to certain (yet unstated) standards in certain areas (water, sanitation, food safety, etc.).

It is important to note that the latter proposal pertains only to standards and not to entitlement to services.

Compromised ambition

The already compromised ambition of the proposed Act may be contrasted with the bold vision of the ‘Universal Declaration of Human Rights’:

“Everyone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and necessary social services”; or the ‘International Covenant on Economic, Social and Cultural Rights’ which recognises “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. Further, the mere enactment of legislation does not translate into real benefits in the absence of an ecosystem that can deliver on the rights enshrined in the legislation.

Real action

For example, the Brazilian Constitution recognised health as a human right and its provision as a duty of the State in 1988.

Yet, progress in actual realisation of benefits was slow in the ensuing decades as the then conservative government was reluctant to frame polices and pledge resources that were necessary.

It was only when a more progressive government was elected to office that there was a concerted attempt to match the language of the Constitutional guarantee with real action.

Closer home, the widely perceived failure of the Right to Education Act, points to the contradiction between a relatively progressive legislation and a neoliberal government that actively promotes cuts on social sector spending.

The NHP provides indications that the Government is reluctant to commit itself to pledging significantly enhanced allocation for healthcare.

It proposes a model of healthcare premised on ‘strategic purchasing’ thereby signalling a retreat of the State from the provision of healthcare services. In such a milieu, even a progressive Right to Health Act might end up as an empty rhetoric.

However, the actual mention of intent regarding a RTH Act in the NHP is a welcome move and can open the way for debates on the progressive realisation of the Right to Health.

(The writer is Co-Convenor,

Jan Swasthya Abhiyan)

Published on January 24, 2018

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