A General overview of the implications of liberalisation for the education sector 1

CMDR Monograph Series No. - 7

HEALTH AND THE INDIAN CONSTITUTION

Prof. K. Raghavendra Rao and Prof. P.R. Panchamukhi

CENTRE FOR MULTI-DISCIPLINARY DEVELOPMENT RESEARCH Jubilee Circle, DHARWAD-580001, Karnataka, India Ph : 091-0836-447639, Fax : 447627 E-mail : [email protected] 2 CMDR Monograph Series No. - 5

PREFACE

The Centre for Multi-disciplinary 1) ‘Constitutional Parameters of Health Development Research (CMDR) is a Economy’ written by Prof. K. social science research institute in a Raghavendra Rao a noted political moffusil area of Karnataka and it is scientist and sponsored by the Indian Council of 2) ‘Health in the Indian Constitution’ by Social Science Research (ICSSR), New Dr. P.R.Panchamukhi. Delhi. The Centre aims at undertaking It is necessary to examine the analytical studies of conceptual and policy constitutional provisions relating to significance on the socio economic and different aspects of the social sector with cultural issues using multi-disciplinary a view to understanding the state’s role perspectives and micro level information. as well as the role of the citizens with As a part of its publication regard to the social services. The programme the Centre has initiated a present monograph intends to highlight CMDR monograph series consisting of the constitutional provisions relating to both invited contributions and the the health sector. research studies completed at the Centre. CMDR expresses its grateful We are happy to present seventh in thanks to contributors particularly to the monograph series under the title Prof.K.Raghavendra Rao, Professor “Health and the Indian Constitution”. Emeritus, Mangalore University, for his This monograph consists of two studies. analytical contribution to the CMDR They are : monograph series.

P.R.Panchamuki Director, Centre for Multi-Disciplinary Development Research HEALTH IN THE INDIAN CONSTITUTION

Prof. P.R. PANCHAMUKHI

The Constitution of India which depending upon the needs. This also adopted by the Constituent Assembly on indicates the readiness of the Indian the 26th November 1949, came into force system to make the changes, whenever on the 26th January 1950. Indians were required. hankering for freedom “to shape their Apart from outlining the Fundamental own destiny, to pursue their long Rights, Directive Principles and Funda- proclaimed aims and aspirations and to mental Duties of the citizens, the create the national institutions that Constitution highlights the necessity of would facilitate the fulfillment of their the integration of the social and aims.” 1 It appears that the desire for economic rights with the political complete freedom and development freedom. In this sense, the Indian with equity and justice, which the Constitution eminently indicates the Indians were looking forward all Indian state being a welfare state. As through the period before the Pt. Jawaharlal Nehru said, “Political Independence, gets an opportunity for freedom is only a means to an end, the full expression in the form of the end being the raising of the people to constitutions. Therefore, the Indian higher levels and hence, the general Constitution is unique both from the advancement of humanity.” It is this point of view of its contents and also for philosophy which is reflected in the its size and form. It is said that the Indian Indian Constitution in terms of its Constitution is the longest and most different schedules and the contents of detailed Constitution in the world, the these schedules. original Constitution containing as Even though health, as a sector, many as 395 articles and 8 schedules does not appear in many places of the touching upon different aspects of socio- Indian Constitution, there are indirect economic, political and other aspects of and tacit references to health of the life of the people. It is unique in another people and the role the state has to play sense also, viz. very large number of in the development of health of the amendments have been introduced in the people. In the following paragraphs, an Indian Constitution form time to time attempt is made to analyse the various

1. Gramville Austin. Indian Constitution Corner Stone of a Nation 1972. pp. 27 4 CMDR Monograph Series No. - 5 aspects of the Indian Constitution so far residence etc. could not be barred from as the health sector is concerned. seeking employment in the state-run health care institutions. Obviously, this HEALTH IN THE PREAMBLE TO clause would be meaningful only in the THE CONSTITUTION : case of those who are eligible for The Preamble to the Constitution employment in the state-run health care which gives a broad direction for the institutions. Indian Republic, refers to social, Even though there is equality of economic and political justice and also opportunity for employment, the state equality of status and of opportunity. can prescribe the necessary qualifications, Under the term Social Justice, one can which among other things may include bring in the question of access to health mental excellence and physical fitness. care facilities and the principle of justice In this sense, the mental and physical involved in the equality of access to health level is taken as a qualifying these facilities. In the same way, condition for entry into the jobs in the equality of status and of opportunity state-run institutions. may be taken to refer to the equality of Clause No.19 u/s ‘Right to practice of the medical profession, Freedom’ refers to the right of the access to the medical educational citizens to practice any profession or to institutions etc. In order to improve the carry on any occupation, trade or citizens’ socio-economic and health status. business. Thus, in the case of the eligible citizens, there is no restriction on the REFERENCE TO HEALTH UNDER practice of medical profession to carry FUNDAMENTAL RIGHTS : on the occupation in any part of the The above objectives are articulated country. in further details under the section The chapter on Fundamental Rights entitled Fundamental Rights For refers to the Right Against Exploitation example: Provision No. 16, under the under Article 24. It is said that no child Fundamental Rights refers to equality of below the age of 14 years shall be opportunity for all citizens in matters employed to work in any factory or mine relating to employment or appointment or in any other hazardous employment. to any state-run health care institutions. This also indicates the responsibility of In the same way, 16.2 forbids any the state to consider the health status of type of discrimination in respect of the young citizens children, while giving employment of office under the state. employment to them. Thus, citizens of any religion, race, Thus, health status and physical caste, sex, descent, place of birth, fitness in the case of some occupations A General overview of the implications of liberalisation for the education sector 5 are considered as the precondition for policy to be followed by the state refer to employment. It may also imply that, the the health and development of the health status or physical conditions of people. For example, it is said that the the job seekers are considered as state shall, in particular, direct its policy restricting the right of employers to towards securing “that the citizens, men employ or even the right of the citizens and women equally have the right to an to seek employment. Since these rights adequate means of livelihood, that the are justceable, the state gets an authority health and strength of workers, men and to impose its preferences on the citizens women and the tender age of children in the interest of maintaining good are not abused and that citizens are not health conditions in the country. forced by economic necessity to enter the avocations unsuited to their age or HEALTH UNDER THE strength : That children are given DIRECTIVE PRINCIPLES : opportunities and facilities to develop in Under Part IV of the Constitution a healthy manner, and in conditions of outlining the Directive Principles of freedom and dignity and that childhood State Policy, there are a number of tacit and youth are protected against references to the health development of exploitation and against moral and the people. In fact, the fundamental material abandonment.” Such policy rights and the Directive Principles clearly show responsibility and a constitute a conscience of our concern that the state should have Constitution. It is true that the Directive towards physical and psychological Principles of State Policy are not health of the Indian citizens irrespective justiceable suggesting that the state can of their social economic and demo- excuse itself from implementing the graphic circumstances. Clause No.41 various provisions under the head of under the Directive Principles states as Directive Principles. However, the follows : contents of the Directive Principles “The state shall, within the limits of which indicate the concern and the its economic capacity and development commitment of the Indian Constitution make effective provision for securing for social welfare and equality, do the right to work, to education and to provide a definite direction for the public assistance in cases of unemploy- policy making in the country. Clause ment, old age, sick-ness and disablement No.38 under the Directive Principles and in other cases of un-deserved want.” refers to the state requiring to secure a The provision also shows that, as social order for the promotion of welfare far as possible the state should strive to of the people. Certain principles of assist the citizens by physical and 6 CMDR Monograph Series No. - 5 financial provision in the situations of communities are highly prone to disease old age sickness and disablement. on account of the poor nutrition intake. Hence, under this ‘mandate’ the state is The same problem is seen in the case of required to provide the public health and women of the socio-economically medical care-preventives as well as deprived sections of the population. The curative and promotional services in the Directive Principles of State Policy field of health. prescribes as the duty of the state to raise Under Clause No.42 of the the level of nutrition and the standard of Directive Principles, there is a reference living and to improve public health. to the provision for just and human Under Clause No.47 in the chapter on conditions of work and maternity relief. Directive Principles, it is said that the This implies that it is not simply the state shall record the raising of the level sickness or disablement which requires of nutrition and standard of living of its the state to intervene but it is also under people and the improvement of public the normal situations of work and the health as one of its primary duties. It is, normal experiences of the citizens under in this context that the state is required to certain circumstances that the state take steps to bring about ‘Prohibition’ of should provide the needed assistance. the consumption except for medical Thus, the state has to intervene to secure purposes of intoxicating drinks and of for these citizens, proper conditions in drugs, excessive doses of which are the place of work. Such conditions of injurious to health. This indeed is a work should be available to all citizens clear-cut articulation of the fraternal role irrespective of their gender, region, of the state in protecting the health of the language, community, race etc. Even citizens according to the Indian though it is a normal occurrence for Constitution. This implies a positive women, the maternity puts upon them interference of the state with the great stress and mental tension, Under consumer sovereignty. Such intervention these circumstances also, the state needs or restriction of the freedom of the to provide the succors and relief. This citizens is required in the case of what may take the form of financial assistance are known as the public goods or merit for anti-natal and post-natal care and goods, with regard to which, not only the providing the facilities for such care. effects for the consumer from the use of Due to a number of factors – these goods are injurious but there are historical, socio-economic, genetic etc., also negative externalitie for other all the citizens do not have the same citizens. With regard to intoxicating level of nutritional status and hence, drinks, drugs, smoking etc. which lead health status. It is observed that the to such injurious effects for the children of the socio-economically deprived consumers and to these other than their A General overview of the implications of liberalisation for the education sector 7 consumers as well as, the state has to HEALTH UNDER FUNDAMENTAL intervene effectively to contain its DUTIES : consumption. Just as there is a requirement that ANIMAL HEALTH, PLANT HEALTH the state shall have to provide certain AND ENVIRONMENT HEALTH : facilities and services to the citizens, When we are considering the there is mention in the Constitution, of a question of whether the Indian reciprocal requirement in the form of the Constitution has adequate references to fundamental duties of the citizens the issue of development of health, we towards the country. Clause No.51A of are invariably lead to focus our attention the section on Fundamental Duties states on human health. Unfortunately, in the that every citizen of India has the duty to general discussions of health, animal protect and improve the natural health does not receive adequate focus. environment including forests, lakes, The Indian Constitution however, has rivers and wild life and to have appreciated the importance of animal compassion for living creatures. In this health as well. The Constitution also sense, there is a joint responsibility from refers to the preservation and the state as well as the citizens towards improvement of healthy environment the maintenance of human and animal which is so crucial for the improvement health and also the long term issues of health status of all living beings. For relating to the improvement in the health example, under the Clause No.48 of the conditions of the human beings and the chapter on Directive Principles of State animals. Under Chapter 111 of the Policy, there is a reference to the Constitution referring to the state organization of agriculture and animal legislature. In this way, the Constitution husbandry and also improvement of has attempted to avoid the adverse environment and safeguarding of forest implications of unsound mental health in and wild life. It is said that the state shall the collective decision making process. endeavour to organise agriculture and Thus, the question of health and the animal husbandry on modern and issues of decision making and scientific lines and shall, in particular, administration are attempted to be take steps for preserving and improving integrated in the Indian Constitution. the breeds and prohibiting the slaughter of cows and calves and other milch and HEALTH IN THE INDIAN FEDERAL draught cattle. The clause further states SET-UP : that the state shall endeavour to protect and improve the environment and to The seventh schedule of the Indian safeguard the forests and wild life of the Constitution mentions the specific country. responsibilities of different layer of 8 CMDR Monograph Series No. - 5

Government in a federal framework 84. Duties of excise on tobacco and towards the question of health. Such other goods manufactured or responsibilities are indicated under the produced in India except - Union List, State List and the (a) alcoholic liquors for human Concurrent List. consumption; THE UNION LIST : (b) opium, Indian hemp and other narcotic drugs and narcotics, Court quarantines including but including medical and toilet hospitals connected therewith, seamens preparations containing alcohol and marine hospitals are legitimately put or any substance included in under the Union List implying the sub-paragraph (b) of this entry. responsibilities of the Union Government towards this function. Also HEALTH AND THE STATE LIST : the maintenance and development of the Under the State List, there are direct quality of goods to be exported out of references to the provisions of health India or transported from one state to care facilities. For example, Clause No.6 another even within India are mentioned under the State List refers to public as the concern of the Union health and sanitation, hospitals and Government. This also is legitimate in dispensaries. Clause No.7 refers to the view of the fact that only the Union pilgrimages within India in which case, Government can oversee such issues. the provision of health care facilities The following items related to the health comes under the state responsibilities. services and health status of the people Clause No.8 refers to the intoxicating are also put under the Union List. These liquors, the production, manufacture, items are considered under Clause possession, transport, purchase and sale No.58, 59, 81 and 84. They are etc. of which will have to be overseen by reproduced below: the State Government in the federal framework. Clause No. 10 refers to the 58. Manufacture, supply and distribution burials and burial grounds, cremation of salt by Union agencies; regulation and cremation grounds, proper and control of manufacture, supply maintenance of which is very crucial for an distribution of salt by other human animal health. This also is put agencies. under the State List. 59. Cultivation, manufacture, and sale Interestingly, the plant health this for export of opium. also put under the State List since 81. Inter-state migration; Inter-State agriculture is treated as the state subject. quarantine. Protection of the plants against pests and A General overview of the implications of liberalisation for the education sector 9 prevention of plant diseases is considered the various aspects of physical, mental as State Government’s responsibility and social health care policy, the policy under Clause No. 14 of the State List. with regard to drugs and medicines etc. Similarly, the preservation, protection These clauses are reproduced below : and improvement of stock and 3. Preventing detention for reasons prevention of animal diseases and of connected with the security of the veterinary – training and practice are State, the maintenance of public order, also put under the state responsibilities. or the maintenance of supplies and services essential to the community; Most of the animal, human and persons subjected to such detention. plant health problems are the result of improper water management and 5. Marriage and divorce; infants and absence of clean water supply. The minors; adoption; wills, intestacy entire subject of water is put in Clause and succession; joint family and no. 17 under the State List. Similarly, partition; all matters in respect of fisheries-promotion and fish breeds, which parties in judicial proceedings protection of the fish from diseases is were immediately before the also kept under the state responsibilities. commencement of this Constitution subject to their personal law. Markets and fairs, inns etc. have 16. Lunacy and mental deficiency, implications for the health problems. including places for the reception or The state s required to have an overall treatment of lunatics and mental supervision of fairs, hotels, inns etc. so deficient. that the function of these would not cause health hazards. 18. Adulteration of foodstuffs and other goods. The state has the prerogative of 19. Drugs and poisons, subject to the levying excise duties on alcoholic provisions of entry 59 of List with liquors for human consumption, opium, respect to opium. Indian hemp and other narcotic drugs and narcotics. With this, the state has an 91. (20A. Population control and family instrument of control of the consumption planning). of these items which have powerful 24. Invalidity and old age pensions and implications for the human health. maternity benefits. 92. (25. Medical education and universities, CONCURRENT LIST : subject to the provisions of entries The following items are included 63,64,65 and 66 of List I; vocational under a Concurrent List – List III of the and technical training of labour.) Indian Constitution. These items refer to 25. Medical and other professions. 10 CMDR Monograph Series No. - 5

28. Charities and charitable institutions. the plants in the Indian nation. The 29. Prevention of the extension from concept of health for all needs to cover one State to another of infectious or the health of all living entities. It seems contagious diseases or pets affecting the Indian Constitutions has exhibited its men, animals or plants. appreciation of such a comprehensive 30. Vital statistics including registration perception of health for all. It is true that of births and deaths. as in the case of universal elementary education, there is no stipulation of the 93. (33. Trade and commerce in, and the time period so far as demand of the goal production, supply and distribution of) of health for all is concerned. However, (b) foodstuffs, including edible the Constitution makers have also oilseeds and oils. appreciated the need for flexible and CONCLUDING OBSERVATIONS : pragmatic approach in not specifying any time frame for reaching the goals. From the above discussion, it is The Constitution which is an articulation clear that the Indian Constitution of the nation’s intentions and endeavors expresses its deep concern for human, should be interpreted so in the case of animal, plant and aquatic health in India. the goal of health for all as well, It can also be seen that in the Indian otherwise, unrealistic time stipulation Federal Set-up, different layers of for the goals would only arouse high Government have been vested with expectations and their nonrealization different responsibility towards various would only lead to frustration. This is aspects of health. There seems to be a particularly true when we are clear socio-economic rationale and considering a comprehensive concept of administrative expediency in assigning health for all inclusive of human, plant these responsibilities. The Constitution and animal and aquatic health, covering also stipulates certain duties for the not only physical health but also mental citizens towards contributing to the health. It may, however be desirable to promotion of health in the country. indicate some concrete steps of action There might be a number of deviations with time stipulations at least with in the actual practice from the regard to some of action with time Constitutional provision. It should be stipulations at least with regard to some admitted however, that a proper items-certain non negotiable in the recognition of the need for such health sector. Which items are the deviations in practice may be considered nonnegotiable in the health sector has to as a useful basis for the changes in the be however decided from time to time Constitutional required for the development and hence may form part of the of the health of the citizens, animals and collective decision making. A General overview of the implications of liberalisation for the education sector 11

APPENDIX matters relating to employment or appointment to any office THE CONSITUTION OF INDIA under the State. Main provisions of the Constitution, (2) No citizen shall, on grounds directly or indirectly referring to Health only of religion, race, caste, PREAMBLE sex, descent, place of birth, residence or any of them, be WE, THE PEOPLE OF INDIA, ineligible for, or discriminated having solemnly resolved to constitute against in respect of, any India into a (SOVEREIGN SOCIALIST employment or office under the SECULAR DEMOCRATIC REPUBLIC) State. and to secure to all its citizens : (3) Nothing in this article shall JUSTICE, social, economic and prevent Parliament from making political ; any law prescribing, in regard LIBERTY of thought, expression, to a class or classes of employ- belief, faith and worship ; ment or appointment to an office EQUALITY of status and of (under the Government of, or opportunity; and to promote among any local or other authority them all. within, a State or Union territory, FRATERNITY assuring the any or Union territory) prior to dignity of the in-dividual and the such employment or appointment. 2[unity and integrity of the (4) Nothing in this article shall Nation] ; prevent the State from making IN OUR CONSTITUENT ASSE- any provision for the reser- MBLY this twenty-sixth day of vation of appointments or posts November, 1949, do HEREBY ADOPT, in favour of any backward class ENACT AND GIVE TO OURSELVES of citizens which, in the THIS CONSTITUION. opinion of the State, is not adequately represented in the FUNDAMENTAL RIGHTS services under the State. Right to Equality (5) Nothing in this article shall affect the operation of any law 16. Equality of opportunity in matters which provides that the of public employment. incumbent of an office in (1) There shall be equality of connection with the affairs of opportunity for all citizens in any religious or denominational 12 CMDR Monograph Series No. - 5

institution or any member of or prevent the State from the governing body thereof making any laws, or prevent the shall be a person professing a State from making any law, in particular religion or belonging so far as such law imposes to a particular denomination. reasonable restrictions on the exercise of the right conferred NOTES by the said sub-clause in the interests of (the sovereignty and Art. 16(1) guarantees equality of integrity of India). The security opportunity to all citizens in the matters of the state, public order, decency of appointment in State services. It does or morality, or in relation to not, however, prohibit the State from contempt of court, defamation prescribing the necessary qualifications or incitement to an offence.) and selective tests for recruitment for Government services. The qualifications Right against Exploitation prescribed may, besides, mental 24. Prohibition of employment of children excellence, include physical fitness, in factories, etc. sense of discipline, moral integrity, loyalty to the State. Where the No child below the age of fourteen appointment requires technical years shall be employed to work in any knowledge, technical qualifications may factory or mine or engaged in any other be prescribed. The character and hazardous employment. antecedents of candidates may be taken into consideration for appointment in Government services. Banarsidas V. PART IV State of U.P.A.I.R. 1956 S.C.520. DIRECTIVE PRINCIPLES OF STATE Right to Freedom POLICY NOTES 19. Protection of certain rights regarding The Fundamental Rights and the freedom of speech, etc. Directive Principles constitute the (1) All citizens shall have the right - ‘conscience’ of our Constitution. There is no conflict between the Directive (g) to practice any profession, Principles and the Fundamental Rights. or to carry on any occupation, They are complementary to each other. trade or business. It can be said that the Directive (2) Nothing in sub-clause (a) of Principles prescribe the goal to be clause (1) shall affect the attained and the fundamental rights lay operations of any existing law, down the means by which that goal was A General overview of the implications of liberalisation for the education sector 13 to be achieved. It is not necessary to of production to the common sacrifice either of them for the sake of detriment; the other, Minerva Mills V. Union of (d) that there is equal work for both India (1980) 3S.C.C.625. men and women; 38. State to secure a social order for (e) that the health and strength of the promotion of welfare of the people. workers, men and women and [(1)] The State shall strive to promote the the tender age of children are welfare of the people by securing not abused and that citizens are and protecting as effectively as it not forced by economic necessity may a social order in which, justice, to enter avocations unsuited to social, economic and political, shall their age or strength; inform all the institutions of the (f) that children are given opportu- national life. nities and facilities to develop in [(2)] The State shall, in particular, strive a healthy manner and in to minimise the inequalities in conditions of freedom and income, and endeavor to eliminate dignity and that childhood and inequalities in status, facilities an youth are protected against opportunities, not only amongst exploitation and against moral individuals but also amongst groups and material abandonment. of people residing in different areas or engaged. 41. Right to work, to education and to public assistance in certain cases. 39. Certain principles of policy to be followed by the State. The State shall, within the limits of its economic capacity and development, The State shall, in particular, direct make effective provision for securing its policy towards securing - the right to work, to education and to (a) that the citizens, men and women public assistance in cases of equally, have the right to an unemployment, old age, sickness and adequate means of livelihood ; disablement, and in other cases of (b) that the ownership and control underserved want. of the material resources of the community are so distributed as 42. Provision for just and humane best to sub serve the common conditions of work and maternity good ; relief. (c) that the operation of the economic The State shall make provision for system does not result in the securing just and human conditions of concentration of wealth and means work and for maternity relief. 14 CMDR Monograph Series No. - 5

47. Duty of the State to raise the level CHAPTER III – THE STATE of nutrition and the standard of LEGISLATURE living and to improve public health. General The State shall regard the raising of the level of nutrition and the standard of Disqualification of Members living of its people and the improvement 191. Disqualifications for memberships. of public health as among its primary (b) If he is of unsound mind and duties and, in particular, the State shall stands so declared by a competent endeavor to bring about prohibition of court. the consumption except for medical purposes of intoxicating drinks and of SEVENTH SCHEDULE drugs which are injurious to health. [Article 246] 48. Organization of agriculture and animal husbandry. List 1 - Union List The State shall endeavor to organize 28. Port, quarantine, including hospitals agriculture and animal husbandry on connected therewith; seamen’s and modern and scientific lines and shall in marine hospitals. particular, take steps for preserving and 51. Establishment of standards of improving the breeds, and prohibiting quality for goods to be exported out the slaughter, of cows and calves and of India or transported from one other milch and draught cattle. State to another. (48A. Protection and improvement of 58. Manufacture, supply and distribution environment and safeguarding of of salt by Union Agencies: regulation forests and wild life. and control of manufacture, supply The State shall endeavour to protect distribution of salt by other agencies. and improve the environment and to 59. Cultivation, Manufacture and sale safeguard the forests and wild life of the for export of opium. country.) 81. Inter-State migration; inter-state FUNDAMENTAL DUTIES quarantine. 51A. Fundamental duties. 84. Duties of excise on tobacco and It shall be the duty of every citizen other goods manufactured or of India - produced in India except - (a) to protect and improve the natural (a) alcoholic liquors for human environment including forests, consumption; lakes, rivers and wild life, and to (b) opium, Indian hemp and other have compassion for living creatures. narcotic drugs and narcotics, A General overview of the implications of liberalisation for the education sector 15

but including medical and toilet 28. Markets and fairs. preparations containing alcohol 31. Inns and inn-keepers. or any substance included in sub-paragraph (b) of this entry. 51. Duties of excise on the following goods manufactured or produced in List II- State List the State and countervailing duties Duties of excise on tobacco and at the same or lower rates on similar other goods manufactured or produced goods manufactured or produced in India except - elsewhere in India : 6. Public health and sanitation; hospitals (a) alcoholic liquors for human and dispensaries. consumption; 7. Pilgrimages, other than pilgrimages (b) opium, Indian hemp and other to places outside India. narcotic drugs and narcotics; but not including medicinal and toilet 8. Intoxicating liquors, that is to say, preparations containing alcohol that production, manufacture, possession, or any substance included in transport, purchase and sale of sub-paragraph (b) of this entry. intoxicating liquors. 9. Relief of the disabled and unemployed. List III- Concurrent List 10. Burials and burial grounds; cremations 3. Preventive detention for reasons and cremation grounds. connected with the security of a State, the maintenance of public 14. Agriculture, including agricultural order, or the maintenance of education and research, protection supplies and services essential to against pests and prevention of the community; persons subjected plant diseases. to such detention. 15. Preservation, protection and 4. Marriage and divorce; infants and improvement of stock and prevention minors; adoption; wills, intestacy of animal diseases; veterinary and succession; joint family and training and practice. partition; all matters in respect of 16. Water, that is to say, water supplies, which parties in judicial proceed- irrigation and canals, drainage and ings were immediately before the embankments, water storage and commencement of this Constitution water power subject to the subject to their personal law. provisions of entry 56 of List 1. 17. Lunacy and mental deficiency, 21. Fisheries. including places for the reception or 16 CMDR Monograph Series No. - 5

treatment of lunatics and mental vocational and technical training of deficient. labour 18. Adulteration of foodstuffs and other 27. Medical and other professions. goods. 28. Charities and charitable institutions. 19. Drugs and poisons, subject to the 29. Prevention of the extension form provisions of entry 59 of List I with one State to another of infectious or respect to opium. contagious diseases or pests 91 [20A. Population control and family affecting men, animals or plants. planning.] 30. Vital statistics including registration 24. Invalidity and old age pensions and of births and deaths. maternity benefits. 32. Trade and commerce in, and the 26. Medical education and universities, production supply and distribution of : subject to the provisions of entries (c) Foodstuffs, including edible oilseeds 63, 64, 65 and 66 of List I; and oils. CONSTITUTIONAL PARAMETERS OF HEALTH ECONOMY

Prof. K. RAGHAVENDRA RAO

The total conceptuality of health form the political process as well as the economy which is implied in the whole unpredictable judicial process. This fact system of regimen of health – its must be kept in mind while examining financing, its administration in relation the constitutional parameters. A broadly to production and distribution, its use formulated and summary statement may patterns and consumption predilections, be made first on the political process as its location within the overall economy- it has been involving in the last forty- cannot be Understood merely by five years up until the recent confining to its economic aspects in the overhauling of the system through narrow sense, not even to the broader privatization, liberalization, framework of political economy. While marketisation and internationalization of the proposal, formulation, design and the polity and the economy. The first is operationalization of the project is that health has not been generally certainly not too narrowly conceived, perceived as a politically heavy-weight limiting itself merely to federal or local or priority item in the political process. finances, supply and demand factors or Seldom have politically significant consumption, production and distribution personnel been asked to handle the variables, and rightly so, it still suffers health portfolio at the Centre or the State from either insufficient attention or levels. The second is that there has been near-total lack of attention to certain really no attempt to generate policy contextual dimensions. These may be perspectives in the domain of health. Of spelled out as- the constitutional frame, course, there have been a plethora of the political system,. The bureaucratic programmes, schemes, strategies and baggage, the socio-cultural determinants packages, but no overall policy and the international environment. In structuring the sense of an integrated this brief note, a review of the statement of a long-ranging nature in the constitutional parameters that are likely matter o health of the people. Over- to impinge systematically both as bureaucratization of the post-colonial constraint and resource, will be polity and the consequent reduction of a attempted. However, it needs to be genuine political involvement, must emphasized that the constitutional have been at the root of heavy parameters do not operate in isolation bureaucratization and an equally heavy 18 CMDR Monograph Series No. - 5 political bracketing-off of health as a perhaps a more important fact is that the priority problem facing the nation. The Constitution as an overall structure lends recent privatization and marketisation, itself to two divergent interpretations- in fact, may tend to bring about a greater one interpretation emphasizing its accentuation of this de-politicization, centralizing and Unitary propulsions though it would also mean a serious de- and the other opposed interpretation bureaucratization of the health domain, emphasizing its federal implications. like many other domains. At the same These two aspects enable the political time, there are limits to the extent of process to gain the upper hand in turning privatization with regard to the the document into a political resources preventive and community aspects of to be used into political game, whether health, though such limits may be less intra-party or inter party. It also politically salient in regard to the empowers the judiciary to move, with curative or diagnostic dimension of greater flexibility and thus give room for health maintenance. One suggestion that what may be described, for want of a the project may take seriously is that it better expression, judicial politics. The should prepare a substantial contextual third fact is that some provisions of the structure, involving a spelling out of constitution are justifiable while others contextual variables, including constitutional or not. For instance, the Chapter parameters, as a setting to its central Directive Principle of State Policy is not concerns. justifiable not enforceable, though the Supreme Court has recently held that the CONSTITUTIONAL PARAMETERS provisions of the Chapter should be kept A detailed consideration of the in mind in handling down judicial constitutional provisions bearing on the decisions. The fourth fact is that there domain of health should be prefaced by are provisions relating to health which one or two broad generalizations. The have only an indirect or implicit bearing first is that our Constitution is so lengthy on it, and others which specifically and so detailed that it has great address the domain of health. Bearing in potentialities for internal contradictions mind these considerations, let us run and ambiguities, and this would enable through the Constitution to locate its the policy-makers (executive or legislative) provisions relevant to health domain. to resort to significant pragmatic/ opportunistic manipulation. Political or THE PREAMBLE bureaucratic skill or advantage is likely This is, no doubt, not a specific to bend the constitutional provisions one provision of the Constitution, and yet is way or the other. The second and an important component as it defines the A General overview of the implications of liberalisation for the education sector 19 overall ethos, framework, goals, equality and liberty, on the one hand, objectives and commitments of the and a potential conflict between justice, people of India from a long historical on the one side, and equality and liberty, perspective. In a sense, the specific on the other. provisions that follow as Articles are supposed to flow from and operationally DIRECTIVE PRINCIPLES OF the general principles stated in the STATE POLICY Preamble. All the broad principles The provisions under this head do enunciated in it have an indirect bearing not have technical enforceability in a on health. Take the characterization of court of law. Objectives and goals which the Indian polity as “Socialist, secular, are not immediately feasible though democratic.” Socialist would mean that desirable are relegated to this part. The health as a necessary human resource state is supposed to keep them in view in should be subject to societal control and formulating its policies and made a public/collective responsibility. programmes, but non-compliance with In a socialist regime, health would be this does not attract judicial action. They regarded as a social responsibility which are thus largely normative stipulations, means in practice the responsibility of left to the will and pleasure of the rulers the State or Government. Secular at any given point of time. However, as dimension would suggest that like all already pointed out, the judiciary has goods, health, should be made available since the 1970s claimed the right to irrespective of distinctions of caste/ make reference to these provisions community/religion. Democratic feature whenever relevant to making a would also move towards this goal, particular decision. Thus, they may be since democracy as a popular polity said to have acquired an indirect and should promote the welfare of the contingent justifiability. people, and welfare would, of course, These provisions comprise Part IV include physical welfare and thus health of the Constitution, containing Articles of the population. The three cardinal 36 to 51. In sum, these provisions principle of justice, Liberty and Equality embody the ideals of economic and imply ultimately that health must be social democracy enshrined in the provided by the public authority as one Preamble. Thus they amount to the of its main charges equally and demand for the establishment of a liberal impartially as one of its main charges welfare state. Achievements with regard equally and impartially to all individuals to the implementation of this Part have and sections. Yet, we can already note been mostly made in terms of Articles here a potential conflict between 39 (b), 40 and 43. The first of these 20 CMDR Monograph Series No. - 5 concerns the land reforms, the second Fundamental Rights by shifting it as an the Panchayat Raj and provisions are ordinary right under the new Article 300 relevant in so far as they imply that A in Chapter IV of Part XII. Thus health as a crucial component in Articles 19 (1) (f) and 31, relating to individual and community welfare right to property were taken out of the should be the responsibility of the local, Part on Fundamental Rights. rural, decentralized political system. Articles 14 to 16 embody the Article 47 is also relevant to health. It principle of equality and its corollary refers to the objective of raising the non-discrimination. But special standard of living of the rural population provisions in favor of weaker sections is in particular, and this has included explicitly stated as not violative of this health and improved sanitation which principle. Equality may be extended to are directly a health category but others include equal access to health services. which have an indirect bearing on But this is an implicit and somewhat health. The latter includes (a) better tenuous link between equality and the housing, (b) better communication, (c) domain of health. Article 17 abolishes wider education and (d) prohibition of untouchability, and it has an indirect intoxicating drinks and drugs. connection with health insofar as the In general, it appears that the poor Article stipulates punishments for record in implementing the objectives in refusing admission to any person the Part IV is more due to lack of funds than public institutions including hospitals to lack of will or motivation. Of course, and dispensaries. there is also involved an overall bias in Article 19 confers on the individual the polity economy towards the urban the right to six freedom-freedom of population and its interests. association, freedom of movement, freedom of residence and settlement, FUNDAMENTAL RIGHTS AND and freedom of profession, occupation, FUNDAMENTAL DUTIES trade or business. But all these freedoms The impact of Fundamental Rights may be restricted reasonably by the in Part III on the subject of health must state, with the judiciary having the be regarded as important, if any, because power to determine what constitutes a Fundamental Rights are justifiable, reasonable restriction. These rights have legally enforceable. One important thing no bearing on the domain of health to note at the outset is that the Janata excepting perhaps in the case of the Government under Morarji Desai freedom to practice any occupation removed by the 44th Amendment, 1978, insofar as this may entail the freedom to the right to property from the list of pursue any occupation relating to the A General overview of the implications of liberalisation for the education sector 21 domain of health. Article 24 prohibiting unity and integrity of India; to defend the employment of children below 14 in the country; promote the spirit of any factory or mine or engaged in any common brotherhood amongst all the other hazardous employment, has a people; preserve the rich heritage of our bearing on the health of the young. It composite culture; protect and improve may appear odd that Articles 25-28, the natural environment; develop the relating to freedom of conscience and scientific temper and spirit of inquiry; free profession, practice and safeguard public property and strive propagation of religion has a bearing on towards excellence in all spheres of the health. Yet potentially this is the individual and collective activity. These case. This is because practicing a Duties are not enforceable by the courts. religion may involve acts violative of Therefore, their function is normative. norms of health or sanitation, since most However, it is likely that in deciding religions have their own notions of a other cases the Courts may find some of healthy body or a healthy way of living. these Duties relevant. Perhaps when However, the Constitution itself clearly deciding cases involving Fundamental states that restrictions may be imposed Rights, the Courts may take into account on this freedom in the interest of health, the fact whether the parties invoking besides public order or morality. them have been guilty of violating the Article 29 and 30 refer to religious Fundamental Duties. From the Health minorities, Article 30 permits a religious point of view, only the Duty to protect minority to establish and administer its and improve the natural environment own educational institutions, and the State seems to be relevant. cannot discriminate against them on the CENTRE – STATE RELATIONS grounds of their being run by a religious community. This Article has some This aspect must be considered as relevance to medical education and the most crucial aspect in any discussion training, and thus a bearing on health. of the political economy of health, since Fundamental Duties came to be the different public authorities- the inscribed in the Constitution as part of Union Central government and the State governments, derive their powers and Article 51 A Part IVA, by the 42nd Amendment of 1976. Ten Duties are functions from the constitutional provisions enumerated as follows: to abide by the defining and regulating these relations. Constitution, respect the National Flag First and foremost, we must focus and National Anthem; cherish and on the distribution of powers as listed in follow the noble ideals of the freedom the constitution. There are three list- struggle; to protect the sovereignty, Union, State and Concurrent. Subjects 22 CMDR Monograph Series No. - 5 listed in List I (Union) are the exclusive implement its health policies and concern of the Union Government, those programmes, the local rural and urban listed in List II (State) are the exclusive governments seem to be no less concern of the State Government and dependent on the State Governments for those in List III (Concurrent) come the resources necessary to carry out their under the joint jurisdiction of both the health responsibilities. This has led to a Union and State Governments. policy formation - policy implementation However, if there is a conflict between gap, that makes the functioning of the union and the State in the exercise of specific public authorities or governmental powers under List III, the stand of the systems/subsystems in the domain of the Union must prevail Further, the health problematic, if no9t chaotic and “residual” powers, that is those not unrealistic. Naturally, the union governments specifically figuring in any of the three which funds health prorammes will find lists automatically belong to the Union. it difficult to resist the temptation to Of the 97 items mentioned in the impose its will on the State governments Union List, only item 84 has some against their will. Sometimes this has led relevance to health domain. It refers to to what may be called political- duties of exercise on medicinal bureaucratic subterfuge by which the preparations containing alcohol or States manipulate the funds radiating opium, Indian hemp and other narcotic from the union to divert them away from drugs. Item 6 in the State List assigns channels originally tied to such funds. unambiguously “Public health, The same phenomenon might be sanitation, hospitals and dispensaries” to occurring on a smaller scale in the case the State jurisdiction. Thus, there is no of the relations between the State question that constitutionally health is governments and the local governments an exclusive concern of the States. But below. This has led to the growing possessing jurisdiction over items is complaint that the autonomy of the over items is not the same thing as States is being eroded and its possessing the financial and political constitutional powers curbed due to the power to make good that jurisdiction in financial clout of the Union through its practice. In fact, the crux of the issue is control over the extra-constitutional just this: inadequacy of resources on the Planning Commission. It is difficult to part of the States to carry our effectively see how this situation can be remedied their policy commitments and programmatic without some basic changes in the commitments in the domain of health. constitutional system-either towards a Just as the States depend on the Union more realistic legalization of the present for various types of grants and loans to system towards a more unitary model or A General overview of the implications of liberalisation for the education sector 23 by drastically curtailing the financial The American example should power of the Union towards a more stimulate us to be less complaining of federal model. No rigid structuring in the erosion of State autonomy in the either of these directions may be feasible Indian system and make us less romantic or even desirable. Even the US federal about the possibility of a problem-free systems, upheld as the most federal of all polity: In fact, a survey of the working of existing federal systems, has found it world’s leading federal systems shows necessary to move towards greater that it is of the essence of federal system centralization. The American author to demonstrate periodical swings Griffith (as cited in God shall, between concentration of powers and Government in the United States, p 114, resources at its two ends- the federating see D.D.Basu, Introduction to the unit and the federation. Ultimately it is Constitution of India Prentice-Hall, New more a matter of political management Delhi, 1991, 13th edition, pp 49-64), has as well as developmental energies than stated,”… Here is an attack on of any simplistic constitutional federalism, so subtle that it is scarcely repairing. Yet some minor constitutional realized… Control of economic life and adjustments may be suggested. Firstly, of these social services (Viz, the political frictions between the Union unemployment, old-age, maternity and and the States in the domain of health child welfare) were the two major may be made more manageable if the functions of a State and local subject of health is shifted to the governments. The first has largely concurrent List. Secondly, the financial passed into national hands; the second structure may be politically and seems to be passing. If these both go, constitutionally re-shaped to enhance, what we shall have left of State autonomy no matter how marginally, the financial will be hollow shell, a symbol…” powers and resources of the States. •