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Table of Contents

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Introduction to Health Law................................................................................01


Introduction to Environment Protection Act in relation to Health Laws06
Context of Judicial Intervention and Evolving Understanding of Right to Health.07
Mahajan Committee Recommendations on Environment..08
Right to Health is a Fundamental Right..09
People are entitled to adequate health care..09
Conclusion20
Bibliography.21

Introduction to Wild life protection act with relation to Health Law

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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 behavioral 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.
Health and health care need to be distinguished from each other for no better reason than that
the former is often incorrectly seen as a direct function of the latter. Heath is clearly not the
mere absence of disease. Good Health confers on a person or groups freedom from illness and the ability to realize one's potential. Health is therefore best understood as the
indispensable basis for defining a person's sense of wellbeing.
The health of populations is a distinct key issue in public policy discourse in every mature
society often determining the deployment of huge society. They include its cultural
understanding of ill health and well-being, extent of socio-economic disparities, reach of
health services and quality and costs of care and current bio-medical understanding about
health and illness.
Health care covers not merely medical care but also all aspects pro preventive care too. Nor
can it be limited to care rendered by or financed out of public expenditure within the
government sector alone but must include incentives and disincentives for self-care and care
paid for by private citizens to get over ill health. Where, as in India, private out-of-pocket
expenditure dominates the cost financing health care, the effects are bound to be regressive.
Heath care at its essential core is widely recognized to be a public good.
Its demand and supply cannot therefore, be left to be regulated solely by the invisible had of
the market. Nor can it be established on considerations of utility maximizing conduct alone.
1 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. Available at
http://www.cdc.gov/pcd/issues/2004/jan/03_0033.htm (accessed on 10 July
2008).
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What makes for a just health care system even as an ideal? Four criteria could be suggestedFirst universal access, and access to an adequate level, and access without excessive burden.
Second fair distribution of financial costs for access and fair distribution of burden in
rationing care and capacity and a constant search for improvement to a more just system.
Third training providers for competence empathy and accountability, pursuit of quality care
add cost effective use of the results of relevant research. Last special attention to vulnerable
groups such as children, women, disabled and the aged.
Health Law provides a foundation for legal practice in the fields of Individual Health Care
Law and Public Health Law in the India. In so doing, it explores the relationship between
law and policy, and examines the legal issues that often arise in the government's attempt to
regulate personal behavior and the provision of medical care.
It examines the central tension between the state's regulatory powers and individual rights in
the context of protecting the public's health. It covers such subject areas as: federal, state and
local public health powers; the circumstances under which the state can limit the freedoms of
individuals in order to protect citizens from the consequences of their personal lifestyle
choices; compulsory screening; immunization; quarantine and civil commitment; criminal
punishment; and mandated treatment.
The reach of public health law is as broad as public health itself and both have expanded to
meet the needs of society. The scope of the right to health and its correlation with the right to
healthcare was first outlined in the Universal Declaration of Human Rights in 1948,
wherein while the right to health was conceived as an individuals civil right, states were
bound to provide minimum conditions to enable individuals to enjoy this right and provide
primary health services in an equal and fair manner. It is important to note that while the right
to health is considered an inherent human right, the right to healthcare is its progressive
realization through declared constitutional and legal rights, in particular, through public
health law.
The Constitution of India has provided guarantees and policy directives in Part III
(Fundamental Rights) and Part IV (Directive Principles of State Policy) for the right to
health and healthcare.

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The Supreme Court of India has articulated in several landmark judgments like in case of
Consumer Education and Resource Centre v. Union of India2; State of Punjab and Others
v. Mohinder Singh3, that the right to health is integral to the right to life under Article 21 of
the Constitution of India. While on the one hand, the right to health is guaranteed as a
fundamental right, the Constitution also imposes a positive duty on the State under Article 47
to raise the level of nutrition and the standard of living and to improve public health to ensure
the right to healthcare. Thus, as endorsed in the Declaration of Alma Ata in 1978, the
attainment of the highest possible level of health becomes the key worldwide social goal. The
Constitution of South Africa too, in its Bill of Rights, expressly declared access to healthcare,
food, water and social security, besides emergency medical treatment, as the fundamental
rights of individuals (Article 27 of the Constitution of South Africa).
Public health law could be defined as the study of the legal powers and duties of the State, to
ensure conditions for people to be healthy with collaboration from multiple stakeholders (e.g.
healthcare professionals, business, community, media and academe)4. Unlike at the turn of the
century, today the field of public health has expanded from areas of communicable diseases
and environmental sanitation to address enlarged health concerns, for instance, chronic
diseases and mental health as well as provide services to create a healthy environment 5.
Eminent scholar Frank Grad observed that public health law does not come in a neat
legislative package, but consists of many types of legislations which have little in common
except for the benign purpose of advancing public health. 6 The preservation of public health

2 AIR 1995 SC 636


3 AIR 1997 SC 1225
4 Gostin LO. Legal foundations of public health law and its role in meeting future
challenges. J Roy Ins Pub Health 2006;Suppl 1:815.
5 Grad FP. The constitutional and legal sources of public health powers and the
place of public health in Government. The Public Health Manual. 3rd edn.
Washington, DC: American Public Health Association; 2004:10.
6 Grad FP. Public health law: Its form, function, future, and ethical parameters. Int
Dig Health Legis 1998;49:1939.
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is among the most important goals of governments and law can serve as an effective tool not
only at the individual level but also at a larger community level.7
Within the framework of the Constitution of India, public health is a subject for the states to
legislate. However, very few states in India have crafted public health legislations. At the
national level, the archaic 112-year-old Epidemic Diseases Act, 1897 is an example of the
nature of laws dealing with public health emergencies. There are also some policing
provisions in legislations such as the Indian Penal Code that date back to 1860, which seek to
protect the publics health in the face of an epidemic. The post-Independence laws were more
progressive and addressed various issues concerning public health, albeit in a piecemeal
manner, for which the Constitution laid a strong foundation under Part III (Articles 14, 15,
17, 21, 23, 24), which are mandatory and Part IV (Articles 38, 39, 41, 42, 47, 48A, 51(c),
51A), which are directives. However, the need for a comprehensive public health law has
always been felt. The Ministry of Health and Family Welfare, Government of India has
proposed drafting this much needed law (The National Health Bill, 2009) for consideration
by Parliament.
Preservation of public health through enforcement and enactment of appropriate laws is one
of the most important goals of governments. The public health law approach posits that the
government has both the power and the duty to regulate private behaviour in order to promote
public health.8 Law, therefore, emerges as a tool in public health to be used, where
appropriate and after due process, in promoting and protecting public health goals. However,
achieving a just balance between the powers and duties of the State to defend and advance the
publics health while ensuring protection of the constitutional rights of individuals poses an
inevitable challenge for public health law.
The basic issue in delineation and realization of health rights is the existence of conflicting
constitutional and legal rights. In the Indian context, health rights emanate from the
fundamental protection envisioned under Article 14 (equality before law and equal
protection of all laws) and Article 21 (right to life) of the Constitution of India, in essence
7 Gostin LO (ed). Public health law and ethics: A reader. California:University of
California Press; 2002. Available at http://www.publichealthlaw.net/reader/
(accessed on 20 May 2008).
8 Gostin LO. Public health law: Power, duty, restraint. Berkeley: University of
California Press; 2000.
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obligating the State with a positive duty to eliminate any adverse conditions in the enjoyment
of a dignified life and ensuring complete protection of the laws.
However, the most common challenge to health rights ride on the claims of fundamental
freedoms granted to every citizen under Article 19. Though this may be overcome by a
common legal principle of Sic utere tuo ut alienum non ledas that would support restrictions
vis--vis enjoyment of the fundamental freedom to the extent it impacts on anothers
enjoyment of life, property and well-being.

Health is a state of complete physical, mental and social well-being and not merely the
absence of disease or infirmity. The enjoyment of the highest attainable standard of health is
one of the fundamental rights of every human being without distinction of race, religion, and
political belief, economic or social condition. The health of all peoples is fundamental to the
attainment of peace and security and is dependent upon the fullest co-operation of
individuals and States. The achievement of any State in the promotion and protection of
health is of value to all. Unequal development in different countries in the promotion of
health and control of disease, especially communicable disease, is a common danger.
Healthy development of the child is of basic importance; the ability to live harmoniously in a
changing total environment is essential to such development. The extension to all peoples of
the benefits of medical, psychological and related knowledge is essential to the fullest
attainment of health. Informed opinion and active co-operation on the part of the public are
of the utmost importance in the improvement of the health of the people. Governments have a
responsibility for the health of their peoples, which can be fulfilled only by the provision of
adequate health and social measures.
- WHO Constitution

Human health and quality of life are at the centre of the effort to develop sustainable human
settlements. We ... commit ourselves to ... the goals of universal and equal access to ... the
highest attainable standard of physical, mental and environmental health, and the equal
access of all to primary health care, making particular efforts to rectify inequalities relating
to social and economic conditions ..., without distinction as to race, national origin, gender,
age, or disability.
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Good health throughout the life span of every man and woman, good health for every child ...
are fundamental to ensuring that people of all ages are able to ... participate fully in the
social, economic and political processes of human settlements.... Sustainable human
settlements depend on ... policies ... to provide access to food and nutrition, safe drinking
water, sanitation, and universal access to the widest range of primary health-care services...;
to eradicate major diseases that take a heavy toll of human lives, particularly childhood
diseases; to create safe places to work and live; and to protect the environment.... Measures
to prevent ill health and disease are as important as the availability of appropriate medical
treatment and care.
It is therefore essential to take a holistic approach to health, whereby both prevention and
care are placed within the context of environmental policy....
- Habitat Agenda, paras. 36 and 128

Health and development are intimately interconnected. Both insufficient development


leading to poverty and inappropriate development ... can result in severe environmental
health problems.... The primary health needs of the worlds population ... are integral to the
achievement of the goals of sustainable development and primary environmental care....
Major goals ... By the year 2000 ... eliminate guinea worm disease...; eradicate polio... By
1995 ... reduce measles deaths by 95 per cent...; ensure universal access to safe drinking
water and... Sanitary measures of excreta disposal...; By the year 2000 [reduce] the number
of deaths from childhood diarrhoea ... by 50 to 70 per cent...
- Agenda 21,Chapter 6, paras. 1 and 12

Introduction to Environment Protection Act in relation to Health Laws


Pollution refers to any undesirable change in the physical, chemical or biological
characteristics of our environment, i.e. air, water, and soil that may or will adversely affect
humans or other species and life support systems of our biosphere directly or indirectly.
Usually we try to forget the social and psychological environment when we talk of
environmental pollution. Diet, alcohol use, risk behavior, crime, and many other similar
factors could be considered as environmental. For the basic understanding the major causes
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of pollution as Fossil Fuel consumption, Motor transport, Modern agriculture and Industries.
Protection of environment is directly protecting peoples health. The government has enacted
number of legislations in this direction from time to time such as the Destructive Insect &
Pest Act, 1914; Wild Life (Protection) Act, 1942; The Atomic Energy Act, 1962; The Water
(Prevention and Control of Pollution) Act, 1974; The Air (Prevention and Control of
Pollution) Act, 1981; The Environment (Protection) Act, 1986; The Motor Vehicles Act,
1988.
The right to healthy, clean and pollution-free environment has its origin in the human right to
Health because in order to have a healthy body one needs clean environment. There are, of
course a number of additional reasons why we need of a good environment, namely
conservation of natural resources, maintaining bio diversity and protecting wild life.
I would like to address the following:

Has the right to healthy environment vis a vis health been recognized in India?
What has been the role of the judiciary and the legislature in furthering the right to
healthy environment?

According to the Constitution of India it is the duty of the state to protect and improve the
environment and to safeguard the forests and wildlife of the country. It imposes a duty on
every citizen to protect and improve the natural environment including forests, lakes, rivers,
and wildlife. A reference to the environment has also been made in the Directive Principles
of State Policy as well as the Fundamental Rights. The Department of Environment was
established in India in 1980 and in 1985, became the Ministry of Environment and Forests.
The constitutional provisions are backed by a number of laws acts, rules, and notifications.
The EPA (Environment Protection Act), 1986 came into force soon after the Bhopal Gas
Tragedy and is considered an umbrella legislation as it fills many gaps in the existing laws.
Subsequently number of related laws Nine Environment and Health Advocate Vijay
Hiremath have come into existence as the problems began rising, for example, the Handling
and Management of Hazardous Waste Rules was passed in 1989.
In India, the judicial recognition of the fundamental right to healthy environment preceded
the recognition of the right to health. A large chunk of public interest litigation in the last 20
years has revolved around environmental issues. In this Chapter, we are confining ourselves

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mainly to those judicial decisions that touch upon right to health care and not merely right to
health.
Logically, the explicit recognition of the fundamental right to health should have preceded the
fundamental right to good environment. However, the development of jurisprudence in this
branch has been the reverse. The right to unpolluted environment was recognized as a right in
the first instance and from that followed the right to public health, health and health care.
Secondly, the right to health care has also been debated by the courts in the context of rights
of Government employees to receive health care. A number of observations of the Court
concerning the importance of these rights are to be found in cases dealing with denial or
restriction of health care facilities for Government employees, and not to the general masses.
This is the context of judicial pronouncements on health care.
The following case law will help in the following ways:

To understand the affirmation of right to health and health care as a fundamental right.
It will give us the growing understanding of different aspects of right to health.
It provides tools for those who want to use them in similar situations.

While dealing with the issue of fundamental right to health and health care the courts have
also dealt with specific categories such as under trials, convicts and mentally ill persons. The
courts have recognized that imprisonment does not deprive a person of right to health and
health care.
In 1988, Shukri from Bombay filed a writ petition in the Bombay High Court. 9 He
complained that his mother, who was an inmate of Yeravada Mental Hospital, died due to
negligence of the staff. The High Court appointed a committee to look into the affairs at the
Hospital. The Mahajan Committee was appointed to look into the affairs of the Central
Institute of Mental Hygiene and Research, Yerawada, Pune; and to submit a report about the
improvements to be carried out in the Hospital. The Committee had several meetings and
visits to the Hospital, and came out with the Mahajan Committee Report on August 5, 1989.
The Report has taken up 8 specific aspects:
1. environment;
2. patients;
3. staff for the care of the patients;
9 Petition (No. 7560) in Bombay High Court in 1988.
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4.
5.
6.
7.
8.

method of treatment;
conditions at the hospital
internal control;
orientation; and
Arrangement for specialised treatment.

Mahajan Committee Recommendations on Environment10


Immediate steps to be taken to improve the environment conditions by creating a more
humane and pleasing environment wherein the patients can live with human dignity. The
dilapidated buildings to be repaired or reconstructed. Along with additional dormitories or
wards. The essential amenities, such as drinking water and toilet facilities to be provided
inside the wards.

Right to Health is a Fundamental Right:


In 1991, in CESC Ltd. vs. Subash Chandra Bose11, the Supreme Court relied on international
instruments and concluded that right to health is a fundamental right. It went further and
observed that health is not merely absence of sickness:
The term health implies more than an absence of sickness. Medical care and health facilities
not only protect against sickness but also ensure stable manpower for economic development.
Facilities of health and medical care generate devotion and dedication to give the workers
best, physically as well as mentally, in productivity. It enables the worker to enjoy the fruit of
his labour, to keep him physically fit and mentally alert for leading a successful economic,
social and cultural life. The medical facilities are, therefore, part of social security and like
gilt edged security, it would yield immediate return in the increased production or at any rate
reduce absenteeism on grounds of sickness, etc. Health is thus a state of complete physical,
mental and social well-being and not merely the absence of disease or infirmity. In the light
of Articles 22 to 25 of the Universal Declaration of Human Rights, International Covenant
on Economic, Social and Cultural Rights and in the light of socio-economic justice assured
in our Constitution, right to health is a fundamental human right to workmen. The
10 Mahajan committee report available at http://www.camhindia.org (accessed
on April 10th 2007)
11 (AIR 1992 SC 573,585)
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maintenance of health is a most imperative constitutional goal whose realisation requires


interaction by many social and economic factors.
People are entitled to adequate health care:
In case of Mahendra Pratap Singh vs. Orissa State12, The petitioner, an ex-sarpanch of
Pachhikote Gram Panchayat approached the court for issuance of appropriate writ
commanding the opposite parties to take effective measures to run Primary Health Centre at
Pachhikote within Korei block in the district of Jaipur by providing all amenities and
facilities for proper running of the said health centre. The Government of Orissa decided to
open certain primary health centres in different areas in 1991-92 subject to fulfilment of
certain conditions, on basis of demands of the local people and public at large.
The conditions fulfilled were as follows:
1. The local people should provide minimum one acre of land duly pledged in favour of
the Panchayat Samiti for the Medical Institution within a period of one month from
the date of issue of this order.
2. The local people should provide permanent buildings for the medical institutions as
well as for the staff within six months from the date of issue of this order.
The court noted:
Great achievements and accomplishments in life are possible if one is permitted to lead an
acceptably healthy life. Health is lifes grace and efforts are to be made to sustain the same. In
a Country like ours, it may not be possible. To have sophisticated hospitals but definitely
villagers of this Country within their limitations can aspire to have a Primary Health Centre.
The Government is required to assist people, and its endeavour should be to see that the
people get treatment and lead a healthy life. Healthy society is a collective gain and no
Government should make any effort to smother it. Primary concern should be the PHC and
technical fetters cannot be introduced as subterfuges to cause hindrances in the establishment
of health centre.
The judgment stated that the gram panchayat was agreeable to offer of the gram panchayat
building for running of the health centre. If the building was still available, the same could be
utilised for the purpose of running of the PHC, till the new building was completed. The
12 AIR 1997 Ori 37
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Government either diverts the staff from Korei or makes suitable arrangement for running of
the PHC in the building of Pachhikote Gram Panchayat.
Necessary arrangement would be made within a period of three months from that day. This is
perhaps the only judgement commending the right to health for a general population.
In CERC vs. Union of India,13 the Supreme Court was dealing with the rights of workers in
asbestos manufacturing and health hazards related to it. The Court was dealing essentially
with private employers involved in asbestos mining and industry. To begin with, the Court
noted that the right to health and health care of a worker is a component of the fundamental
right to life guaranteed under Article 21 of the Constitution of India. The Court observed:
Article 38(1) lays down the foundation for human rights and enjoins the State to promote the
welfare of the people by securing and protecting, as effectively as it may, a social order in
which justice, social, economic and political, shall inform all the institutions of the national
life. Art. 46 direct the State to protect the poor from social injustice and all forms of
exploitation. Article 39(e) charges that the policy of the State shall be to secure the health
and strength of the workers. Article 42 mandates that the States shall make provision,
statutory or executive to secure just and humane conditions of work. Article 43 directs that
the Slate shall endeavour to secure to all workers, by suitable legislation or economic
organisation or any other way to ensure decent standard of life and full enjoyment of leisure
and social and cultural opportunities to the workers.
Article 48-A enjoins the Slate to protect and improve the environment. As human resources
are valuable national assets for peace, industrial or material production, national wealth,
progress, social stability, descent standard of life of worker is an input. Art. 25(2) of the
UDHR ensures right to standard of adequate living for health and well-being of the individual
including medical care, sickness and disability, Article 2(b) of the International Convention
on Economic, Social and Cultural Rights (ICESCR) protects the right of worker to enjoy just
and favourable conditions of work ensuring safe and healthy working conditions. The right to
health to a worker is an integral facet of meaningful right to life to have not only a
meaningful existence but also robust health and vigour without which worker would lead life
of misery. Lack of health denudes his livelihood. Compelling economic necessity to work in
an industry exposed to health hazards due to indigence to bread winning to him and his
13 (1995) 3 SCC 42
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dependents should not beat the cost of the health. and vigour of the workman. Facilities and
opportunities, as enjoined in Article 38, should be provided to protect the health of the
workman. Provision for medical test and treatment invigorates the health of the worker for
higher production or efficient service. Continued treatment, while in service or after
retirement is a moral, legal and constitutional concomitant duty of the employer and the State.
Therefore, it must be held that the right to health and medical care is a fundamental right
under Article 21 read with Articles 39(c), 41 and 43 of the Constitution and make the life of
the workman meaningful and purposeful with dignity of person. Right to life includes
protection of the health and strength of the worker is a minimum requirement to enable a
person to live with human dignity. The State, be it Union or State Government or an industry,
public or private, is enjoined to take all such action which will promote health, strength and
vigour of the workman during the period of employment and leisure and health even after
retirement as basic essentials to live the life with health and happiness..
Therefore, we hold that right to health, medical aid to protect the health and vigour of a
worker while in service or post retirement is a fundamental right under Article 21, read with
Articles 39(e), 41, 43, 48A and all related to Articles and fundamental human rights to make
the life of the workman meaningful and purposeful with dignity of person.
The Court also held that the right is available not just against the State but also against private
employers. The Court observed: It would thus be clear that in an appropriate case, the Court
would give appropriate directions to the employer, be it the State or its undertaking or private
employer to make the right to life meaningful; to prevent pollution of work place; protection
of the environment; protection of the health of the workman or to preserve free and
unpolluted water for the safety and health of thepeople. The authorities or even private
persons or industries are bound by the directions issued by this Court under Article 32 and
Article 142 of the Constitution.
In Case of Municipal Council Ratlam vs. Vardichand and Ors14 is a crucial case because for
the first time the Supreme Court prescribed that in matters concerning public health financial
inability was no ground for State authorities not to carry out their duties. The Apex Court
held that,

14 AIR 1980 SC 1622


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A responsible Municipal Council constituted for the precise purpose of preserving


public health and providing better finances cannot run away from its principal duty
by pleading financial inability. Decency and dignity are non-negotiable facets of
human rights and are a first charge on local self-governing bodies. Similarly,
providing drainage system not pompous and attractive, but in working condition
and sufficient to meet the needs of the people cannot be evaded if the municipality is
to justify its existence.
Ratlam is a town in Madhya Pradesh. The town had the Ratlam Municipal Council, as its
local self-governing body. Sanitation in Ratlam was pathetic as the drains overflowed. The
municipality was oblivious to its obligation towards human wellbeing and was directly guilty
of breach of duty and, of public nuisance and active neglect. The sub-Divisional Magistrate,
Ratlam, was moved to take action under Section 133 CrPC to abate the nuisance by ordering
the municipality to construct drains to wash the filth and stop the stench. The magistrate
made the direction sought and scared by the prospect of prosecution under Section 188 IPC,
for violation of the order under Section 133 CrPC, the municipality rushed from court to
court till; it reached the Apex Court as the last refuge of lost causes.
The Sessions Court held the order as unjustified but the High Court of Madhya Pradesh
upheld the order of the Divisional Magistrate, Ratlam. The Municipal Council, Ratlam argued
that though it was their statutory obligation to build proper drains, there was financial
inability. The Court held, the plea of the municipality that notwithstanding the public
nuisance financial inability validly exonerates it from statutory liability had no juridical basis.
The criminal procedure code operates against statutory bodies and others regardless of the
cash in their coffers, even as human rights under Part III of the Constitution have to be
respected by the State regardless of budgetary provision. Likewise, Section 123 of the Act has
no saving clause when the municipal council is penniless. Otherwise, a profligate statutory
body or pachydermic governmental agency may legally defy duties under the law by urging
in self-defence a selfcreated bankruptcy or perverted expenditure budget. That cannot be. The
Supreme Court also held that it was not just a matter of the health of a private individual; but
the health, safety and convenience of the public at large was at stake.
The Supreme Court while passing the judgment in this matter partially modified the order of
the magistrate and also asked the Municipal Council, Ratlam to carry out the following
orders,
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1. We direct the Ratlam Municipal Council (R1) to take immediate action, within its
statutory powers, to stop the effluents from the Alcohol Plant flowing into the street.
The State Government also shall take action to stop the pollution. The sub-Divisional
Magistrate will also use his power under Section 133 CrPC, to abate the nuisance so
caused. Industries cannot make profit at the expense of public health. Why has the
magistrate not pursued this aspect?
2. The Municipal Council shall, within six months from today, construct a sufficient
number of public latrines for use by men and women separately, provide water supply
and scavenging service morning and evening so as to ensure sanitation. The Health
Officer of the Municipality will furnish a report, at the end of the six-monthly term,
that the work has been completed. We need hardly say that the local people will be
trained in using and keeping these toilets in clean condition. Conscious cooperation of
the consumers is too important to be neglected by representative bodies.
3. The State Government will give special instructions to the Malaria Eradication Wing
to stop mosquito breeding in Ward 12. The sub-Divisional Magistrate will issue
directions to the officer concerned to file a report before him to the effect that the
work has been done in reasonable time.
4. The municipality will not merely construct the drains but also fill up cesspools and
other pits of filth and use its sanitary staff to keep the place free from accumulations
of filth. After all, what it lays out on prophylactic sanitation is a gain on its hospital
budget.
5. We have no hesitation in holding that if these directions are not complied with the
sub-Divisional Magistrate will prosecute the officers responsible. Indeed, this Court
will also consider punishing for contempt in case of report by the sub-Divisional
Magistrate of willful breach by any officer.
The Court also held that the State should be guided by the paramount principle of Art. 47 of
the Constitution of India which states that, improvement of public health should be one of the
primary duties of the state.
In the case of Bombay High Court in Citizens Action Committee, Nagpur vs. Civil Surgeon,
Mayo (General) Hospital, Nagpur and Ors 15, put in detail the responsibilities of the
Municipal Corporation, in marinating the civic hospital and the other basic amenities in the
city. The high court in its order stated that, we cannot but emphasize that the hospitals have
their own role to play. Hospitals are the necessities of modern life and they have to respond to
15 AIR 1986 Bom 136
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the needs of any growing city. Hardly any option can be speedy out or any excuse permissible
so as to afford an alibi when the matters concern the authorities would bestow urgent
attention on every facet of the problem of public health and effectively. The Citizens
Action Committee approached the Nagpur bench of the Bombay High Court asking the court
to intervene as the overall condition of the civic amenities such as roads, sanitation and public
health was deteriorating considerably.
The court issued notice to all the concerned authorities and asked them to file their say. Two
fact finding reports of the citizens were also given to the court. The court largely based its
finding on the reports and the affidavits filed by the citizens. There were three hospitals that
were being run by the state. Overcrowding in all these hospitals had reached dangerous
levels. Trespassers and visitors also burdened the hospitals. Even the staff of the hospitals
was housed in poor conditions and they were living in unhygienic conditions.
The court held that as per Art. 47 of the Constitution of India it is the duty of the state to
provide for proper facilities for public health. The court set up an Investigative and Remedial
Measures Suggestive Committee (I. R. M. S. C.) to look into the matter.
In the case of High Court of Madhya Pradesh in Hamid vs. State of M.P.16 held that the
citizens have right to clean and safe drinking water. The court stated, Under Article 47 of the
Constitution of India, it is the responsibility of the State to raise the level of nutrition and the
standard of living of its people and the improvement of public health. It is incumbent on State
to improve the health of public providing unpolluted drinking water. State in present case has
failed to discharge its primary responsibility. It is also covered by Article 21 of the
Constitution of India and it is the right of the citizens of India to have protection of life, to
have pollution free air and pure water.
The court also held that the state was liable to pay for the damages caused by the
consumption of the polluted water. Hamid Khan a lawyer filed a petition before the High
Court of Madhya Pradesh, regarding the quality of water supplied through the hand pumps in
the district of Mandla. The water being supplied contained high amount of fluoride causing
damages such as skeletal flurosis and dental flurosis to a number of people.
The High Court held that under Article 47 of the Constitution of India, it is the responsibility
of the State to raise the level of nutrition and the standard of living of its people and the
16 AIR 1997 MP 191
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improvement of public health. It is incumbent on State to improve the health of public


providing unpolluted drinking water. State in present case has failed to discharge its primary
responsibility. It is also covered by Article 21 of the Constitution of India and it is the right of
the citizens of India to have protection of life, to have pollution free air and pure water...
The court also held that the people affected due to the contaminated water should be treated
at the expense of the State. It also added that the State should bear the expenses of any
surgery might be required.
The State was also directed to closing of hand pumps where the water had excessive amount
of fluoride and that a proper and safe drinking water facility should be put in place. The
Allahabad High Court in case of Kamlavati vs. Kotwal and Ors17, ordered the brick klin
owners to follow the norms laid down by the government very strictly and also ordered the
government to set up a fund for the modernization of the brick kilns as the traditional brick
klins were causing a lot of air pollution.
The Supreme Court in Murli S. Deora vs. Union of India and Ors 18, recognized the harmful
effects of smoking in public and also the effect on passive smokers, and in the absence of
statutory provisions at that time, prohibited smoking in public places such as,
1.
2.
3.
4.
5.
6.
7.
8.

auditoriums,
hospital buildings,
health institutions,
educational institutions,
libraries,
court buildings,
public office,
Public conveyances, including the railways.

In T. Ramakrishna Rao vs. Hyderabad Development Authority,19 the Andhra Pradesh High
Court observed:
Protection of the environment is not only the duty of the citizens but also the
obligation of the State and its all other organs including the Courts. The enjoyment of
17 MANU/UP/0785/2000
18 AIR 2002 SC 40, MANU/SC/0703/2001
19 Writ Petition 36929/1998 T. Ramakrishna Rao vs. Hyderabad Urban
Development Authority decided on 20.7.2001
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life and its attainment and fulfilment guaranteed by Article 21 of the Constitution
embraces the protection and preservation of natures gift without which life cannot be
enjoyed fruitfully. The slow poisoning of the atmosphere caused by the environmental
pollution and spoliation should be regarded as amounting to violation of Article 21 of
the Constitution of India.
It is therefore, as held by this Court speaking through P.A, Choudary, J., in T. Damodar Rao
and others vs. Special Officer, Municipal Corporation of Hyderabad20, the legitimate duty
of the Courts as the enforcing organs of the constitutional objectives to forbid all actions of
the State and the citizens from upsetting the ecological and environmental balance.
In this crucial decision the Supreme Court held that the right to health of a worker is an
integral facet of a meaningful right to life to have not only a meaningful existence but also
robust health and vigour without which the worker would lead a life of misery. The lack of
health denudes his livelihood. Compelling economic necessity to work in an industry exposed
to health hazards should not be at the cost of the health and vigour of the worker. Facilities
and opportunities, as enjoined in Article 38, should be provided to protect the health of the
worker. The provision for medical test and treatment invigorates the health of the worker for
higher production or efficient service. The Court further held that continued treatment, while
in service or after retirement is a moral, legal and constitutional concomitant duty of the
employer and the State. Therefore, it must be held that the right to health and medical care is
a fundamental right under 21 read with Article 39(c), 41 and 43 of the constitution to make
life of the workman meaningful and purposeful with dignity of person.
Right to life includes protection of the health and strength of the worker and is a minimum
requirement to enable a person to live with human dignity. The State (Central and State)
government or an industry, public or private, is enjoined to take all such action which will
promote health, strength and vigour of the workman during the period of employment and
leisure and health even after retirement as basic essentials to live the life of health and
happiness. The Supreme Court went on to observe that the right to human dignity,
development of responsibility, social protection, right to rest and leisure are fundamental
human rights to a worker assured by the Charter of Human Rights, in the Preamble and Arts.
38 and 39 of the Constitution.

20 AIR 1987 AP 171


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The health of the worker enables him to enjoy the fruit of his labour, keeping him physically
fit and mentally alert for leading a successful life, economically, socially and culturally.
Medical facilities to protect health of the workers are, therefore, the fundamental and human
rights of the workmen.
The court also held that in an appropriate case, the court would give directions to the
employer, be it the duty of the State or its undertaking or a private employer to make the right
to life meaningful; to prevent pollution of the work place; protect the environment; protect
the health of the worker or to ensure free and unpolluted water for the safety and health of the
people. This was an important observation because ordinarily, under its Constitutional
jurisdiction the Supreme Court gives directions only to State authorities and not to private
individuals or employers.
The employer is vicariously liable to pay damages in the case of occupational diseases, here
in this case asbestosis. The Employees State Insurance Act and Workmens Compensation
Act provide for payment of mandatory compensation for the injury or death caused to the
worker while in employment. Since the Act does not provide for payment of compensation
after the cessation of employment, it becomes necessary to protect such persons from the
respective dates on cessation of their employment.
The Court observed:
The Employees State Insurance Act and Workmens Compensation Act provide for payment of
mandatory compensation for the injury or death caused to the workman while in
employment. Since the Act does not provide for payment of compensation after cessation of
employment, it becomes necessary to protect such persons from the respective dates of
cessation of their employment till date. Liquidated damages by way of compensation are
accepted principles of compensation.
The Court, while allowing the Petition, ordered in respect of Asbestos industries:
All the industries are directed
1. to maintain and keep maintaining the health record of every worker upto a minimum
period of 40 years from the beginning of the employment or 15 years after retirement
or cessation of the employment whichever is later;

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2. the Membrane Filter test to detect asbestos fibre should be adopted by all the factories
or establishments on a par with the Metalliferrous Mines Regulations, 1961 and
Vienna Convention and rules issued there under;
3. all the whether covered by Employees State Insurance Act or Workmens
Compensation Act or otherwise are directed to compulsorily insure health coverage to
every worker;
4. the Union and all the State Governments are directed to consider inclusion of such of
those small scale factory or factories or industries to protect health hazards of the
workers engaged in the manufacture of asbestos or its ancillary products; and
5. The appropriate inspector of factories in particular of the State of Gujarat, is directed
to send all the workers, examined by ESI hospital concerned, for reexamination by the
National Institute of Occupational Health to detect whether all or any of them are
suffering from asbestosis. In case of positive finding that all or any of them are
suffering from occupational health hazards, each such worker shall be entitled to
compensation in a sum of rupees one lakh payable by the factory or industry or
establishment concerned within a period of three months from the date of certification
by the National Institute of Occupational Health.

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Conclusion
In the hundreds of cases dealing with the environment, our Courts have not really dealt so
much with right to health care as the right to health and the impact of environment on health.
While dealing with environmental issues the Supreme Court has developed a number of
innovative doctrines such as polluter pays, public trust, reversal of burden of proof,
preventive principle, trangenerational equity, etc. However, none of them directly deal
with health care. Many might argue that as long as the environment is clean and this leads to
the better health of the people it does not matter as it is the result that counts. But the notion
of the right to health does not come clearly through these judgements. It is important to
recognize this aspect, as it is of utmost important to put across to the common people and the
executive that there is more than one reason to keep the environment clean. However, few of
these judgements have asked the polluters to compensate the victims.
The orders of judiciary in the environment cases have made a difference to the environmental
law scenario in the country and also in providing clean environment. In this development
era where Special Economic Zones are, cropping up across the country it is important for
the judiciary to play an proactive role in safeguarding the environment and also looking at the
health aspects of the people living in this country.

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Bibliography

A Textbook Of Medical Jurisprudence And Toxicology 24th Edition (English) 24th

Edition
Water Management In 2020 And Beyond (English)
Reconsidering Law and Policy Debates: A Public Health Perspective (English)
http://www.environmentallawsofindia.com/the-environment-definitions-and-acts.html
http://www.epa.vic.gov.au/about-us/legislation/acts-administered-by-epa
http://www.legislation.act.gov.au/a/1997-92/current/pdf/1997-92.pdf

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