As a signatory to the Alma Ata Conference 1978, India had set several goals to be achieved by the year 2000. Access to basic health services was affirmed as a fundamental human right in the Declaration of Alma-Ata and it was said that the attainment of the highest level of public health was to become the most important worldwide social goal. Unfortunately however, 36 years later, the public health policy in India remains grossly inadequate. If anything, there is an ever-widening gap between the access to quality healthcare in the urban areas as compared to the rural areas.

The concept of public health has also changed over time and is no longer confined merely to environmental sanitation and communicable diseases. Today it includes growing health concerns such as chronic diseases and mental health as well. Within the framework of the Constitution, although the States bear the primary responsibility to introduce public health legislations, very few States have drafted any laws pertaining to public health. However, several health legislations have been enacted piecemeal at the Central level including the Environment Protection Act, 1986; Mental Health Act, 1987; Constitution (73rd and 74th) Amendment) Act, 1992; Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995; Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act , 2003; Protection of Women from Domestic Violence Act, 2005, Food Safety and Standards Act, 2006, Disaster Management Act, 2005 etc. Although the post-independence & recent public health laws are progressive in comparison to the prior provisions, a comprehensive public health framework remains elusive to India till date.

Archaic and often obsolete laws continue to remain on the statute book despite having outlived their utility. Approximately, 174 laws were passed before 1900 and at least 199 laws are over a century old. In 1998, a committee set up by the then Prime Minister Atal Behari Vajpayee recommended the repeal of 1300 acts out of the 2500 central acts in force, however, only 415 of the recommended laws were repealed.

The present Government has asked each union ministry to assess the laws governing their respective fields and submit all amendments to the law ministry for necessary action. The Repealing and Amending Bill, 2014 was introduced in July 2014. This Bill seeks to repeal 36 enactments which include several antiquated health acts, such as the 1898 Indian Lepers Act, the 1897 Epidemic Diseases Act, etc. However, repealing the old acts and introducing the new acts should be done in tandem to avoid legal ambiguity.

In the meantime the Hon’ble Supreme Court of India has passed several judgments emphasizing the importance of public health for the growth of the nation. On several occasions, the Supreme Court of India has urged the Government to give credence to the right to health and treat it as an important and inextricable part of the fundamental right to life. The National Human Rights Commission has also demanded that a comprehensive health law must be enacted by the Government of India.

Therefore, to bring about effective social change, we must ensure that the public health legislations collectively promote public health goals. There is a pressing need to conceptualize an over-arching legal framework with a symbiotic collaboration between the State and multiple stakeholders such as healthcare professionals, media, business, community and academicians in order to meet national health goals. A laudable effort was made by the Ministry of Health and Family Welfare when they proposed the National Health Bill, 2009 to address the various aspects of health care rights, delivery and related matters. The Bill includes the peoples’ right to health and healthcare, the obligations of the government and private institutions, core principles on rights and obligations and the institutional structure for implementation and monitoring, to ensure health rights for everyone. The Bill, once enacted, is expected to realise greater levels of professionalism, standards of care and accountability.

This Bill had adopted a very clear ‘rights based’ approach to health. The concept of ‘core’ obligations as opposed to other ‘comparable’ obligations derive their legitimacy from the International Covenant on Economic, Social & Cultural Rights (ICESCR) [General Comment 14 of Article 12]. In the Bill, the policy makers have delineated the duties of the State towards providing the ‘right to health’ to everyone and have also made provisions for a grievance redressal mechanism. The Bill considers the socio, economic, cultural determinants of health holistically with the bio-medical aspects. It also elaborates on the Users’ rights to healthcare which include the right to choice, rational healthcare, reproductive and sexual healthcare, autonomy, medical records and data, confidentiality, privacy etc. However, despite the attempt to make the Bill an overarching legal framework governing public health related laws at the Centre and State levels, there remains scope to make it more robust and thorough prior to its enactment into law. The drafting and language of this Bill emphasizes a ‘top down’ approach to the right to public healthcare, with direction flowing downwards from a centralized authority. A ‘bottom-up’ approach may be more useful in making sure the provisions of the Bill can be implemented, accounting for a more flexible, decentralized approach and sensitivity to local conditions. The Bill makes a vague reference to ‘affordable’ health care and the health burden for different demographic groups such as women, children, etc. are not accounted for. Local / private systems of healthcare are unregulated in the proposed framework and community health has been overlooked.

Regrettably, until the legislature achieves a composite public health policy, the onus would remain upon the judiciary to bring about necessary changes through ‘public interest litigations’ and ‘suo moto’ cognizance in matters of public health policy