RIGHT TO HEALTH IN THE CORONA TIMES

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RIGHT TO HEALTH- After having established that the Right to Health is a fundamental right under Article 21 of the Constitution of India, the efficacy of the right is still questioned in the times of the pandemic. This Article shall consider balancing the Right to Dignity with Right to Health in the ‘Corona times’ by analysing the cost of the COVID tests in India in comparison to other countries.

INTRODUCTION

The Supreme Court of India has enumerated that the Right to Health is, in fact, a human right, from which no derogations are possible and the State has to make adequate arrangements for increasing the standard of living through the providing quality healthcare services to all of its individuals. The Directive Principles of State Policy also under Article 47 bears the same testimony. The fundamental origin of the Right to Health originates from the culmination of the idea of Right to live with human dignity. 
Human dignity, as enshrined for the first time, in the Universal Declaration of Human Rights (UDHR), 1948 gave a way forward for developing intercourse around the dialogue on ‘Human Right’ and ‘Human Dignity’[1]. After the UDHR, few constitutional provisions of countries like Germany and Italy mentioned the use of ‘Human dignity’ in their constitution. In a similar fashion, countries like Hungary and Switzerland also have a key bearing of the words ‘Human Dignity’ and are also prevalent in the ‘Nice Charter of Rights of the European Union’. Kant, the fundamental proponent of Human Dignity, mentioned that human beings should not be used as a means, but means to an end. Hence, justifying the spirit of human dignity. 
 
In India, although the Constitution of India, does not explicitly mentions the usage of the terms, ‘Human Dignity’; through Judicial Activism, the Supreme Court of India has in many instances held that the right to life means “something more than survival or animal existence and would include the right to lie with human dignity”. Right to Dignity and Right to Health are complementary to each other. Although the evolution of Right to Dignity and Right to Health has arisen over the course of years, one cannot be made a supreme right and both of them have to be read while reading cumulatively Article 21. 
In the Corona-times, what is appalling to see is that the Right of Health is compromised by the State because of a few factors, economic consideration to be one reason for it. There are two reasons for making such an observation. Firstly, there have been many reports surfacing that there is under testing of Covid-19 tests in India. In a country of a billion population, less than 1% of the population is tested for corona-virus. The reason for under testing is that the country has limited testing which makes the test “all the more novel in its approach”.
 
To test the patients for the virus, there have been parameters used by the doctors and nursing staff[2]. Some of them are, people who have been in touch with an infected person or those who have travelled to high-risk countries, or health workers managing patients with severe respiratory disease and developing Covid-19 symptoms[3]. To have a solution for under-testing or maybe to save costs, it was decided to test the patients, using ‘pool testing’[4]. In the process of ‘pool testing’, several samples from a pool of samples will be checked based on swabbing of the nose and throat. A negative test result would mean that all the people tested are negative. But if the result is positive, every individual has to be separately tested for the virus[5].  Although the ICMR states that India is equipped to test more tests, the viability of a statement is questioned considering that only people with a history of foreign travel or who have been associated with such people are tested for the virus[6]. 
 
Secondly, only a few private labs in India which have been granted permission by the ICMR are allowed to test for Covid-19. On 8th May 2020, it was reported that India has a dismissal number of 453 labs to test for the virus. Of these, 332 are government labs and 121 are private labs[7]. The notification by the Ministry of Health and Family Welfare has ordered the maximum cost of testing the sample should not exceed Rs 4500/-, which may include Rs 1500/- as a screening test for suspect cases and an additional Rs 3000/- for a confirmation test[8]. The ICMR has also petitioned for the subsidizing of the rate at this hour of a national health emergency[9].  
 
There have also been reports surfacing that the private industries are charging exorbitant prices from the people. Interviews and conversations conducted of the supplies suggest the fact that the cost of a single kit costs only Rs 1500/-. The total cost price should not exceed Rs 1800/-. Former Vice-President of the Society for Scientific Values, N Raghuram claims that the test can be done for Rs. 600 only. Although the Indian government and the domestic pharmaceutical industry have started indigenisation of the kits, there is still a lot which needs to be done in lowering the price of an essential test[10]. Although the Supreme Court has observed that the private labs cannot charge more than Rs 4500/- from people who are from the Economically Weaker Section, yet, this observation fails to understand that many middle-class families and lower-class families will not be able to access the test, because of the cost involved. A nuclear family of four members would have to get tested together for the Virus.
This would cause at least Rs 18000/-. It is also pertinent to note that the cost is not inclusive of the other ancillary tests which the private labs may subject the person to, and does not involve the cost of the treatment at all. In metropolitan cities, where the majority of the people are dependent on salaries for their survival, a test costing of 10,000/- or more (for the family), would severely paralyse the economic structure of a family. In a population of billion, this is bound to affect a majority of them. Moreover, the cost of the testing facility in private labs is in violation of Article 14 as observed by the Hon’ble Supreme Court in the case of Shashank Deo Sudhi v. Union of India[11]. 
 
In comparison to other countries, regarding the cost of the test, countries like the USA, China, Vietnam, South Korea and Italy are testing people free of cost[12]. The entire expense is borne by the State. Because of the higher cost charged by the private labs in testing, there is a less number of testing taking place, which again undermines the figure of the total number of population affected by Covid-19. The counts of confirmed cases in a country depending on how many tests are being conducted[13]. The exorbitant prices charged by the private labs in India hampers the Right to Health of an individual. 
 

COST OF HEALTHCARE AND RIGHT TO HEALTH

It is not the corona-times which has left a staggering impact of the cost of accessibility of healthcare in India. The National Pharmaceutical Pricing Authority (NPPA) has pointed out in 2018 that private hospitals and Delhi and National Capital Region (NCR) have a margin as high as 1192%[14]. A bench of the judges comprising Justices Madan B. Lokur, Kurian Joseph and Deepak Gupta had observed that people were not getting medical treatment because of the huge cost involved[15]. As a result, it raises a question on the correlation between the cost of healthcare and Right to Health. As a welfare state, the State’s duty is not to be confined by the black letter of the law but rather to implement a strategy where there is more accessibility of healthcare regime in the country. For instance, in Italy, The National Health Service (NHS) covers all of its citizens and legal foreign residents. The coverage is huge and WHO has ranked Italy in the top 10 countries for quality healthcare services[16]. The reason for a worldwide accepted ‘publicly funded health care’ is that the country spends more than 9.1% of their GDP on their healthcare[17]. Between 2008-2020, the public health expenditure in India has remained between 1.2%-1.6% of GDP[18]. Among the South Asian countries, the spending by the Indian Government is very low in comparison to countries like Maldives, China, and Sri Lanka[19]. 
 

CONCLUSION

In the long run, the Centre should consider spending a sizable amount of the GDP in developing scientific laboratories and research centres which would attract investment in India. Likewise, the State Government should also consider upgrading the technologies and hospitals in rural areas and providing accessible coverage to insurance which has a sizable spending limit to get proper treatment. Because after all, the improvement of public health is one of the goals of a welfare State.  All of these can go a long way, in balancing the Right to Dignity and Right to Life. 

References

  1. European Commission For Democracy Through Law, https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-STD(2003)037-e (last visited Jun 08, 2020).
  2. Soutik Biswas Biswas Soutik, Coronavirus: Why is India testing so little?, BBC News, March 20, 2020, https://www.bbc.com/news/world-asia-india-51922204 (last visited Jun 11, 2020).
  3.  Id. 
  4. Soutik Biswas Biswas Soutik, Why next few weeks are critical in India virus war, BBC News, April 13, 2020, https://www.bbc.com/news/world-asia-india-52265061 (last visited Jun 11, 2020).
  5.  Id
  6. India grossly under-tested on coronavirus; urgent steps needed to ramp up testing, , https://www.businesstoday.in/latest/trends/india-grossly-under-tested-on-coronavirus-urgent-steps-needed-to-ramp-up-testing/story/398488.html (last visited Jun 20, 2020).
  7. Are India’s Private Labs Overcharging For Covid-19 Tests?, BloombergQuint, https://www.bloombergquint.com/business/are-indias-private-labs-overcharging-for-covid-19-tests (last visited Jun 18, 2020).
  8. NotificationofICMguidelinesforCOVID19testinginprivatelaboratoriesiIndia.pdf, , https://www.mohfw.gov.in/pdf/NotificationofICMguidelinesforCOVID19testinginprivatelaboratoriesiIndia.pdf (last visited Jun 21, 2020).
  9. Id. 
  10. Are India’s Private Labs Overcharging For Covid-19 Tests?, , https://www.bloombergquint.com/business/are-indias-private-labs-overcharging-for-covid-19-tests (last visited Jun 10, 2020).
  11. 2020 SCC OnLine SC 358
  12. Vidya Krishnan, India’s private COVID-19 tests cost highest in South Asia; free in Bangladesh, The Caravan, https://caravanmagazine.in/health/india-private-covid-19-tests-cost-highest-in-south-asia-free-in-bangladesh (last visited Jun 10, 2020).
  13. Coronavirus (COVID-19) Testing – Statistics and Research – Our World in Data, , https://ourworldindata.org/coronavirus-testing (last visited Jun 10, 2020).
  14. Cost of Medical Treatment Exorbitant, Government Must Take Action, Says SC, , The Wire , https://thewire.in/health/cost-of-medical-treatment-exorbitant-government-must-take-action-says-sc (last visited Jun 08, 2020).
  15. Id 
  16. Healthcare & Health Insurance in Italy – International Living Countries, , International Living , https://internationalliving.com/countries/italy/health-care-in-italy/ (last visited Jun 13, 2020).
  17. Italy : International Health Care System Profiles, , https://international.commonwealthfund.org/countries/italy/ (last visited Jun 14, 2020).
  18. Demand for Grants 2020-21 Analysis : Health and Family Welfare, PRSIndia (2020), https://www.prsindia.org/parliamenttrack/budgets/demand-grants-2020-21-analysis-health-and-family-welfare (last visited Jun 15, 2020).
  19. APAC: total health expenditure by country 2017, Statista, https://www.statista.com/statistics/632418/asia-pacific-total-health-expenditure-by-country/ (last visited Jun 18, 2020).
BY- Rahul D Gangurde & Sanjana Bharadwaj
Department of Law, Savitribai Phule Pune University and Alumnus, NALSAR University of Law

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