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Submitted by:
Fourth Year, Section A

Submitted to:


1. Acknowledgement..3
2. Introduction4
3. Historical Development..7
4. Post-Independence Development.10
5. Bhore Committee..11
6. Mudaliar Committee.13
7. Other Committees and Legislations.16
8. International Legal Dimensions of Health19
9. Constitutional Provisions..23


I wish to express my heartfelt thanks to all those who have helped me in making
this project. I take this opportunity to express my profound gratitude and deep
regards to my teacher for her exemplary guidance, monitoring and constant
encouragement throughout the course of this project. The blessing, help and
guidance given by him time to time shall carry me a long way in the journey of
life on which I am about to embark.
I also take this opportunity to express a deep sense of gratitude to the staff of
Jamia Millia Islamia, New Delhi, for their cordial support, valuable information
and guidance, which helped me in completing this task through various stages. I
am obliged for the valuable information provided by them in their respective
fields. I am grateful for their cooperation during the period of my assignment.
Lastly, I thank almighty, my parents, brother, sisters and friends for their
constant encouragement without which this assignment would not be possible.


The Indian Constitution provides a framework for a welfare/socialist pattern of

development. While civil and political rights are enshrined as Fundamental
Rights that are justiciable, social and economic rights like health, education,
livelihoods etc. are provided for as Directive Principles for the State and hence
not justiciable. The latter comes under the domain of planned development,
which the State steers through the Five Year Plans and other development
policy initiatives.
Post-independence India adopted a development paradigm that aimed at
creating limited entitlements to a wide range of resources for the underserved
people. While this was critical to Indias economic development it also
contributed substantially to the growth of private capital. The State also actively
participated in the productive sectors of the economy, especially capital goods
industry. This often subsidized inputs for private sector growth. In the social
sector the approach was not very different.
The development paradigm adopted by the political leadership and the state had
a social dimension, but also supported private sector growth. To take two
examples, while private pharmaceutical industry got a lot of subsidy and

support for its growth, drug price control helped keep the prices on a leash.
Similarly, while production of doctors contributed largely to the development of
private markets in the health sector, the government evolved a system of limited
entitlements for healthcare through a primary healthcare system in rural areas,
and district and town hospitals and dispensaries in urban areas. However, the
development approach was never rights-based and hence the limited
entitlements that were made under different development programmes,
including healthcare, had a limited impact. The contribution of the Five Year
Plans to the social sectors has been abysmally poor; less than onefifth of the
Plan resources have been invested in this sector. Health, water supply and
education are the three main sub-sectors under social services.
Within the States development strategy the health sector has always been a
weak link. For the political class it had little value because at one level the
private health sector, at least for non-catastrophic care, was already well
entrenched and was reasonably accessible, and at another for the poor masses
non-catastrophic healthcare attention was way below in their priority list, what
with the struggle for basic survival. The political class invested in development
where they could maximize their political returns; their concern was for votebanks and hence the focus of development programmes (not rights) was in
rural development, infrastructure development and development through
reservations. Rural development programmes helped direct agricultural

growth with the goal of achieving self-sufficiency in basic food production. In

reality the middle and the rich peasantry benefited and the small peasantry and
landless remained under the illusion that their turn in development was next.
Infrastructure development helped create space and conditions for their growth,
and the reservation policies appeased the oppressed minorities.
With this kind of a development strategy key social development issues like
health, education, and housing got sidelined and never became political issues
which would drive the development strategy. Planned development without a
rights based approach can only yield limited results and outcomes. For issues to
become sustainable political agendas, they must be contextualised in the rights
domain. The right to health and healthcare too cannot be realized through the
current development agenda. It has to be constituted as an independent right,
like the right to life in Article 21 of the Constitution of India and/ or through a
legislative mandate with clear resource commitments.


In the field of Indian medical history, historians have paid more attention to the
Indian systems of medicine, their scientific and technological aspects and their
relationship with the Indian philosophies. Although such writing on Indian
medicine have provided some very useful insight into the way medicine was
practised, a systematic exploration of medical care provision and the rules and
legislation on it, is yet to be undertaken.
The earliest Indian civilisation known to us is the Indus Urban Culture of 3000
to 2000 BC. The archaeological evidence show that these cities had wellplanned drainage system, almost all houses had bathrooms, many houses had
latrines and most houses had wells for water supply. The renowned medical
historian Henry Sigerist believed that public health facilities of Mohenjo Daro
were superior to those of any other community of the ancient Orient.
Unfortunately, we do not have much evidence on the way these societies were
governed and the kind of entitlements provided by the state or the community to
the individuals and the households. However, the extent of development of
public health system points to some kind of state or community planning which
enabled the citizens to get entitlement to hygienic public health arrangements.

The written evidence of the state's involvement and the regulatory function is
available from the Kautilya's Arthashastra. Kautilya considered famine as a
bigger calamity than pestilence and epidemics, as the remedies can be found for
the diseases. He believed that the king should order the physicians to use
medicine to counter epidemics. The Arthashastra also makes mandatory for the
doctor to report to the state whenever the doctor is called to a house to treat a
severely wounded person. This also applied to treating the one suffering from
unwholesome food or drink. Such immediate reporting was mandatory in order
not to get accused by the crime committed by such patients. If the doctor failed
to provide information to the state, he would be charged with the same offence
committed by such patient.
The known text books of Ayurvedic medicine took many centuries in getting
fully compiled. In this process (which also required meeting of scholars and
practitioners) the state extended support from time to time. It is suggested that
these texts emerged in real fixed form in the first five hundred years AD.
Around the 12th century AD the Muslims brought their own physicians with
them and thereby introduced a new system of medicine knows as Unani. Jeffery
has suggested that in this period, "successful practitioners were those who
served successful rulers and, either through regular service or because of some
special healing act were granted an area of land. These grants may have been
supposed to fund specifically medical activities -a dispensary or a small medical

school- or they may have been grants to the man and his heirs, even if they
ceased practicing medicine." Reddy has documented medical relief in Medieval
South India and noted that both state and religious institutions often subsidised
and supported medical care.


The independence in 1947 inagurated a new phase of development of organised

health care services creating more entitlement for the people. Along with that,
the state also embarked on enactment of new laws, modification of the colonial
laws and the judiciary developed case laws to consolidate people's entitlement
of health care and to an extent, the rights. This development took place on the
basis of numerous recommendations made by various committees. In this
section we will briefly review reports of some of the committees while in
subsequent sections we will examine in detail provisions of laws enacted.

Committees on Health Services and their recommendations on health laws:

At the time of independence, and the first few years of planning, the task
confronting the country was to create physical and institutional infrastructure
for the rapid development or modernisation of India.



The Bhore Committee Report while emphasising the need for rapid socioeconomic development for the success of its health care plan, did not want the
medical practice to remain confined to its traditional role of curative care and
simply wait for the socio-economic development to improve the health status of
the people. It made comprehensive recommendation in order to orient the
medical practice to actively aid in the improvement of health status. Thus, it
suggested that "preventive and curative work should be dovetailed into each
other in order to produce the maximum results."
The Bhore Committee functioned in the post war situation of global
radicalisation and in India, the success in making the colonial government in
deciding to leave, had created an atmosphere of high level of concern for
making the basic necessities available to people.
Three important characteristics of the report are:
(1) The holistic and comprehensive way of analysing the situation. Thus it deals
with the health sector in its entirety, bringing in its framework all components,
from the community level service to the tertiary care; curative, preventive and
promotive health care; the social and economic changes necessary for achieving

better health status for the people; and the health care services available in the
govenment, private and voluntary sectors. Such a holistic analytical approach is
conspicuous by its absence in the reports of most of the subsequent committees.
(2) It formulated a national level time bound plan for the development of
comprehensive health service with the central concern of making it accessible to
the masses of people. While the report suggests interim measures (e.g. use of
less qualified health workers, the community based informal providers etc), it is
very clear in calling them temporary measures necessitated by the situation of








underdevelopment, not to adapt to it. For its aim was clearly for making
available organised health care system supported by the state so that people
don't have to suffer from the vagaries of the market. Given the greater influence
on it of the development of health care in Europe and the USSR, its
understanding of comprehensive health care was accorded a fundamental
importance within the state supported health care system in the rural areas.
(3) It was thorough in its recommendations. Almost all areas, including many of
those not falling directly within the purview of health ministry and
administration, but are important for improving health status of the people, were
identified for recommendation. This is also reflected in its greater dealing on the
legislative and legal framework needed for the developing health care services
in India.


After Bhore Committee, the Mudaliar Committee produced a well-researched

and comprehensive report. Since one of its objectives was to follow-up
recommendations of the Bhore Committee and developments in health care a
decade after independence, its scope was vast and it made detailed
recommendations. We will not go into merits of its major recommendations, but
concentrate on what it said on the
Public Health Act: The Mudaliar Committee followed up the recommendation
of the Bhore Committee for formulating a comprehensive and consolidated
public health act in all sincerity It formulated a draft of Model Public Health
Act, a document containing 57 chapters and 300 typed pages. This draft model
act is less known and even less accessible. However, it appears to be a very
comprehensive document. Although many of its recommendations are apparent
in the administrative set up of the directorates of health services, many others
are not acted upon at all. It is also surprising that all subsequent committees,
whose recommendations introduced many frequent changes in the health care
set up, have also failed to take their recommendations to logical conclusion by


enriching this model draft of the act. It claimed that the draft act, for the first
time, aims at legislating the social machinery to provide for the people a
reasonable standard of health care in the curative, preventive, promotive and
rehabilitative fields. "The Draft Act aims at being the legislative counterpart to
implement fully the recommendations made in the Bhore Committee and
Environmental Hygiene Committee reports and has envisaged a comprehensive
and integrated Health Services covering all the essential fields."
The draft act tried not only to legislate for provision of medical relief, but also
tried to establish standards for such service, a task inadequately addressed to in
the subsequent reports and studies. It also provided responsibilities and powers
to the local authorities. The state authorities were made to assist the local
authorities in provision of finances and technical know-how. However, it also
gave powers to the state authorities to supersede local authorities in certain
situations. It proposed that one third of the income of municipal authorities and
one fifth income of non municipal local authorities to be earmarked for public
health purposes.
Interestingly, the draft act did not confine itself to the government and local
health facilities. It included in the purview of legislation the private nursing
homes and sanitoria. This was to be done by (1) licensing and (2) by
maintenance of their standards. Thus, it seems to have made an attempt to


rationalise the public/private mix of health care services under appropriate

regulation and standards.
Another remarkable feature of the draft act was that it provided an outline of
standards and other particulars for incorporation in rules and by-laws. This was
the first and perhaps the only attempt at formulating a comprehensive
legislation covering the government, local bodies and private health care



It is really unfortunate that most of the committees appointed after the Mudaliar
Committee report was released paid scanty attention to legislating, their
recommendations. This is seen in reports of the Committees such as Mukherjee
Committee (1966) on basis health services, Ajit Prasad Jain Committee (1968)
on hospitals, Srivastava Committee and so on.
Firstly, all such committees were given terms of reference, which were very
specific and narrow. Thus, they did not carry out comprehensive survey of
health care in all sectors.
Secondly, all such committees, even in the area of their inquiry, did not take a
holistic view. For example, the Jain committee did a commendable job in
devising hospital standards, but they restricted themselves only to the public
sector hospitals and did not even make any attempt to formulate standards for
hospitals and nursing homes in the private sector. It even did not say that the
standards recommended by it should be applied uniformly to all hospitals,
irrespective of they being in public, private or NGO sector. This exclusive
preoccupation with the public sector health facility, without systematically
relating it to the private facilities and streamlining both of them under the single


system standards to be met, pervade reports of almost all subsequent

Thirdly, all of them assumed that since the recommendations were only for the
public sector facilities, an administrative measure to implement them was
sufficient. None of them made concrete recommendation to the Central Council
of Health to legislate their specific recommendations in order to have a
permanent impact and a compulsion on the part of the state. As a result, the
implementation was always tardy, at the will or absence of will, of the state.
The citizen has no way to use any legislated policy to pressurise the government
through democratic legal action
Fourthly, all committees ignored the need for people's initiative for the
implementation of the recommendations. No recommendations have ever been
made to give concrete rights to citizens, save for the exhortations for
community participation, advisory committees of elected panchayati or other
representative etc. All of them uniformly failed in defining the minimum
quantity of health care that the health care institutions of government were
obliged to deliver, and none talked in terms of giving people legal right to have
such minimum quantity of health care.
Lastly, in many recommendations the legal implications were ignored in favour
of the supposed immediate need for improving the situation. For instance, the
use of health workers (uni-purpose, multi-purpose, Village Health Guides) in

providing primary curative preventive and promote health care were

recommended and implemented without creating legislative framework. Thus
they are still there without having any legal locus standi. Except the Auxiliary
Nurses who are provided registration with the nursing councils, the rest of such
paramedical workers have no such independent legal existence except being the
employees of the state. While the state has not seriously suffered due the
consumer apathy and difficult access to legal recourse, it is an open question as
to the legality of work carried out by them without any immediate supervision
by the professional staff at the sub-centres. The acute crisis in this field is faced
by, NGOs who employ such staff and do not have resources and partial
immunity that such health workers enjoy in the government sector.




India joined the UN at the start on October 30th 1945 and on December 12th
1948 when the Universal Declaration of Human Rights (UDHR) was
proclaimed, India was a party to this. The formulation of Indias Constitution
was certainly influenced by the UDHR and this is reflected in the Fundamental
Rights and the Directive Principles of State Policy. Most of the civil and
political rights are guaranteed under the Indian Constitution as Fundamental
Rights. But most of the Economic, Social and Cultural Rights do not have such
a guarantee. The Constitution makes a forceful appeal to the State through the
Directive Principles to work towards assuring these rights through the process
of governance but clearly states that any court cannot enforce them.1
The experience of governance in India shows that both Fundamental Rights and
Directive Principles have been used as a political tool. While the Fundamental
Rights are justiciable, and on a number of occasions citizens and courts have
intervened to uphold them, there have also been numerous instances where even

Article 37 pertaining to the application of the principles contained in Part IV of the constitution

states, The provisions contained in this Part shall not be enforceable by any court, but the principles
therein laid down are nevertheless fundamental in the governance of the country and it shall be the
duty of the State to apply these principles in making laws

the courts have failed either because the ruling government has steamrolled
them or the court orders have been ignored. In case of the Directive Principles it
is mostly political mileage, which determines which of the principles get
addressed through governance. For instance, Article 466 has been implemented
with a fair amount of seriousness through the policy of reservations for
scheduled caste, tribes and other backward castes/classes because it is the most
powerful tool for success in Indias electoral politics. But Articles 41, 42 and
47, which deal with social security, maternity benefits and health, respectively,
have been addressed only marginally.
At the global level the International Covenant on Economic, Social and
Cultural Rights (ICESCR) mandates right to health through Article 9 and
Article 12 of the covenant:
Article 9
The States Parties to the present Covenant recognize the right of everyone to
social security, including social insurance.
Article 12
1. The States Parties to the present Covenant recognize the right of everyone to
the enjoyment of the highest attainable standard of physical and mental health.


2. The steps to be taken by the States Parties to the present Covenant to achieve
the full realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirthrate and of infant mortality
and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational
and other diseases;
(d) The creation of conditions, which would assure to all medical service and
medical attention in the event of sickness.
Also Articles 7 and 11 include health provisions:
The States Parties ... recognize the right of everyone to ... just and favourable
conditions of work which ensure ... safe and healthy working conditions; ... the
right to ... an adequate standard of living.
India ratified this Covenant on 10th April 1979, and having done that became
obligated to take measures to assure health and healthcare (among others) as a
right. As per Articles 2 and 3 of this covenant States ratifying this treaty are
obligated to:
Article 2


1. Each State Party to the present Covenant undertakes to take steps,

individually and through international assistance and cooperation, especially
economic and technical, to the maximum of its available resources, with a view
to achieving progressively the full realization of the rights recognized in the
present Covenant by all appropriate means, including particularly the adoption
of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee that the
rights enunciated in the present Covenant will be exercised without
discrimination of any kind as to race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.
3. Developing countries, with due regard to human rights and their national
economy, may determine to what extent they would guarantee the economic
rights recognized in the present Covenant to non-nationals.
Article 3
The States Parties to the present Covenant undertake to ensure the equal right of
men and women to the enjoyment of all economic, social and cultural rights set
forth in the present Covenant.



International law apart, as discussed earlier, provisions within the Indian

Constitution itself exist to give the people of India right to healthcare. Articles
41, 42 and 47 of the Directive Principles2 enshrined in Part IV of the
Constitution provide the basis to evolve right to health and healthcare:
Article 41- Right to work, to education and to public assistance in certain cases:
The State shall, within the limits of its economic capacity and development,
make effective provision for securing the right to work, to education and to
public assistance in cases of unemployment, old age, sickness and disablement,
and in other cases of undeserved want.
Article 42- Provision for just and humane conditions of work and maternity
relief: The State shall make provision for securing just and humane conditions
of work and for maternity relief.

The courts are much more aware of and attentive towards their obligation to implement socio-

economic uplift programmes and to ensure decent welfare for all. The state has a duty to all citizens to
adhere to that part of the Constitution, which describes the directive principles as fundamental to the
governance of the country. The courts have therefore been using the directives as an instrument to
determine the extent of public interest in order to limit the extension of fundamental rights. In doing
so they have upheld a number of statutes on the grounds of public interest, which in other
circumstances may have been nullified.

Article 47- Duty of the State to raise the level of nutrition and the standard of
living and to improve public health: The State shall regard the raising of the
level of nutrition and the standard of living of its people and the improvement of
public health as among its primary duties and, in particular, the State shall
endeavour to bring about prohibition of the consumption except for medicinal
purposes of intoxicating drinks and of drugs which are injurious to health.
Thus social security, social insurance, decent standard of living, and public
health coupled with the policy statements over the years, which in a sense
constitutes the interpretation of these constitutional provisions, and supported
by international legal commitments, form the basis to develop right to health
and healthcare in India. The only legal/constitutional principle missing is the
principle of justiciability. In the case of education the 93rd amendment to the
Constitution has provided limited justiciability. With regard to healthcare there
is even a greater need to make such gains because often in the case of health it
is a question of life and death. As stated earlier, for a small part of the working
population right to healthcare through the social security/social insurance route
exists. This means that such security can be made available to the general
population too. That a few people enjoy this privilege is also a sign of
discrimination and inequity that violates not only the non-discrimination
principle of international law, but it also violates Article 14 of the Constitution,
Right to Equality, under the chapter of Fundamental Rights.


With regard to the question of justiciability of international law, like Britain,

India follows the principle of dualism. This means that for international law to
be applicable in India, it needs to be separately legislated. Since none of the
international human rights treaties have been incorporated or transformed into
domestic laws in India, they have only an evocative significance and may be
used by the Courts or petitioners to derive inspiration. Thus on a number of
occasions many of these human right treaties ratified in India, have been used
by the Indian Courts in conjunction with Fundamental Rights.3 International law
has its importance in providing many principles but in Indias case, there is
substantial leeway within our own legal framework on right to health and
healthcare. The emphasis needs to shift to critical principles as laid down in the
directive principles. This is the only way of bringing right to health and
healthcare on the national agenda, even as the support of international treaties
will play a role in cementing this demand.

In a judgment on sexual harassment at the work place, in which the CEDAW and Beijing

Declaration was invoked, the Supreme Court outlined this approach as follows Any international
convention not inconsistent with the fundamental rights and in harmony with its spirit must be read
into these provisions to enlarge the meaning and content thereof, to promote the object of the
constitutional guarantee (Vishaka v/s State of Rajasthan, writ petition number 666-70 of 1992, quoted
in Toebes, 1998)


Public health law focuses on the nexus between law, public health and the legal
tools applicable to public health issues. Though there have been consistent
interventions to address public health concerns in the past, there exists a need
for a contemporary framework to appropriately use modern legal tools for
complex health challenges. We identify a checklist of imperative indicators to
assess whether public health legislations would be an effective form of
intervention to bring about the desired social change.
Law has had important contributions to several public health achievements but,
despite this, the conceptual framework for its effective application has not been
fully explicated.1 Medicine has moved beyond treating disease to promoting
health, which entails policy interventions and regulations at different levels to
bring about behavioural changes in individuals. This was identified by the
nineteenth century German physician Rudolph Virchow who said: Medicine is
a social science, and politics nothing but medicine on a grand scale. In the
present-day changing scenario, physicians need to understand the social
implications and the over-arching role of law. We highlight how a framework of
law can be developed for promoting public health goals.


A sound public health law infrastructure establishes the powers and duties of
government to prevent disease and injury, and to promote the health of the
people.4 It is important to assess the probability of the proposed legislation
being a successful intervention in addressing population risks. Given the
paradox of purposes and perspectives, the feasibility of the proposed law can be
analysed from the support of policy-makers, enforcement officials, civil society
and the public at large, besides the opposition from quarters that have vested
interests in its non-implementation.
Apart from support for the law, the cost of implementing the law should also to
be considered. Implementation may require strong political commitment,
requisite infrastructure, capacity, technical and professional competencies as
well as ancillary support structures, besides an overall conducive environment
to obtain the desired results.
Last but not the least, it is essential to build broad guidelines for monitoring
implementation of legislations since evaluation becomes a tool for future
decision-making. It must be taken into account as to how reliably one can
monitor the impact and unforeseen negative consequences of the proposed
legislation. In this regard, besides the institutional mechanisms and capabilities
of the State, the role of civil society as the fourth pillar of democracy is central.5

Gostin LO. Public health law in a new century. Part 1. JAMA 2000;283:283741.

Reddy KS. Role of civil society organizations in tobacco control: From research to policy to public





The ability of civil society organizations to gauge and their capacity to monitor
is critical to the successful implementation of any law. Apart from them, the
media and various other forums also help to create awareness of various public
health risks, both among the general public and policy-makers.
However, the process of monitoring and evaluation might be hampered due to
insufficient data collection. One of the glaring examples is the increasing need
to monitor accurately the imbalance in Indias child sex ratio. Although The
Pre-Conception and Pre- Natal Diagnostic Techniques (Prohibition of Sex
Selection) Act was introduced in 1994 with an aim to disrupt the supply side of
Indias discriminatory regime, the effectiveness of the legislation in terms of
implementation has faced serious questioning. Difficulties arise in monitoring
its effectiveness due to imperfect databases. Many local statistics originate from
authorities who are eager to advertise progress in sex-ratio levels. These data
are often ambiguous or incomplete, as they are based on unreliable sources,
with samples that are often too small to allow for significant interpretation.6
The indicators that we have provided, structured into a framework, seek to
illustrate the dynamic nature of the relation-ship between public health law and
the broader cultural and societal factors. While law can drive social change,


Guilmoto CZ. Characteristics of sex-ratio imbalance in India and future scenarios. Available at


progressive laws are unlikely to be implemented until the dominant cultural

mores are sufficiently favourable. While a checklist of criteria is required to
evaluate whether a particular law is effective as a tool for intervention, it is also
dependent on and has to respond to shifts in ideological, political, health and
economic conditions.
There is need for public health law to realize the urgency of regulating the
modifiable patterns of behaviour among people to strengthen the capacity of the
community against public health risks involving, in particular, use of tobacco,
diet and exercise. However, it is important to highlight that such legislations
might have limitations and the level of effectiveness and enforcement can affect
a laws effectiveness in achieving the intended public health goals.7 Laws
should, therefore, not be used in isolation but as one of several tools for the
attainment of public health goals.

Mensah GA, Goodman RA, Zaza S, Moulton AD, Kocher PL, Dietz WH, et al. Law as a tool for

preventing chronic diseases: Expanding the spectrum of effective public health strategies. Prev
Chronic Dis 2004;1:A11


Public Health Law Or The Interrelationship Of Law And Public Health

Administration- Robert H. Hamlin
Right to Health and Health Care: Theoretical Perspectives- Ravi Duggal
Public Health Law In India: A Framework For Its Application As A Tool
For Social Change- S. Hazarika, A. Yadav, K. S. Reddy, D. Prabhakaran,
T. H. Jafar, K. M. Venkat Narayan
Laws And Health Care Providers: A Study of Legislation and Legal
Aspects of Health Care Delivery- Amar Jesani
Legislation and Health Promotion in India- Jugal Kishore