Why access to healthcare needs to be a fundamental right

The constitutional right to health is critical to breaking discriminatory structures that will otherwise continue to perpetuate inequality in all spheres of life.

Gulabo lay her head in my lap, pleading, “Bhaiyaji, mujhe bacha lo!” (Brother, please save me!), and soon after took her last breath. Just two days ago, I had freed her and her family from intergenerational bondage at a brick kiln in Mahendragarh, Haryana. She died of severe tuberculosis and malnutrition. Overcome by anger and grief after I had cremated Gulabo’s body, I walked up the road till I reached the chamber of the erstwhile senior judge of the Supreme Court of India, Justice P N Bhagwati.

Two years after this meeting, the landmark judicial order of 1984 in Bandhua Mukti Morcha v. Union of India established that with respect to workers, the constitutional right to life is inclusive of the right to health. At the time, I served as the general secretary of Bandhua Mukti Morcha. Justice Bhagwati was moved by the plight of Gulabo and many others in situations similar to slavery, and brought to light the limitations of the country’s healthcare systems to serve its poorest.

This reality is starker today. Forty years after Gulabo, innumerable children are still dying from lack of healthcare. Amidst the pandemic, the frantic cries for oxygen, hospital beds, medicine and even a place to cremate their own, laid bare our failure to extend dignity in both life and death. Now, compound this with the loss of income, debt, food insecurity, and illiteracy. That is the situation of lakhs of families in India today. That said, the most profound loss is of people’s faith in the ability of the country’s healthcare system to protect them. It is the primary responsibility of elected representatives to reinstate this faith.

The right to equality guaranteed under Article 15 upholds non-discrimination on the basis religion, race, caste, gender, place of birth, etc. However, the dismal investment in public health for decades has made healthcare a privilege available to a few. The constitutional right to health is critical to breaking discriminatory structures that will otherwise continue to perpetuate inequality in all spheres of life, including education, opportunity, wealth, and social mobility.

The judicial interpretation of the right to life and liberty under Article 21 in several judgments as inclusive of health was crucial, but has its limitations. The universal access to healthcare is now as achievable as it is indispensable. The rights of people are not stagnant, and must evolve as the country evolves. Ayushman Bharat is an ambitious scheme with great potential, but there is a difference between a rights and a service-delivery model of development. If health is a fundamental right, it will give a spine to the entire health ecosystem, empower doctors and healthcare workers, and ensure transparency, inclusivity, and accountability. Moreover, it will pave the way for special legislation, capable institutions, increased budgets, medical training and research, wellness and prevention, and outreach of services; thereby instilling immense confidence and positivity amongst the citizens.

The right to education too had long been upheld as implicit to the right to life before the constitutional amendment that established it as fundamental in its own right. Now, the primary school enrolment rate is over 95 per cent, a target believed to be impossible 15 years ago. While there is much left to attain in terms of quality of education, learning outcomes, infrastructure, teacher education, and social parity, the progress is measurable. When it comes to healthcare, however, entire life-savings of families are lost if even one member falls seriously ill. This is unacceptable.

We need a fundamental shift in our approach to healthcare. Instead of viewing it as spending, we have to see it as a high-yield investment that can considerably cut down future out-of-pocket costs and also increase output. The evidence is before us today. As we scramble to deal with a monumental health crisis with a crumbling healthcare system, we are witnessing its grave economic impact. If the current healthcare model does not change, we risk finding our children in the same situation.

Our collective suffering can be translated into long-lasting change. In the past few weeks, I have written to urge the Prime Minister, and every Member of Parliament to consider this recommendation. Many MPs have come forward in unity. The universal access to healthcare is now as achievable as it is indispensable.

This is the time for a constitutional amendment to make health a fundamental right. India is facing a defining moment in its history, and our children will pay the price for our choices today. At this point, I am reminded of Gandhiji’s talisman: “Whenever you are in doubt, or when the self becomes too much with you, apply the following test. Recall the face of the poorest and the weakest man (woman) whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him (her).” Let this be our guiding light.

The writer is a Nobel laureate

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