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Report No. 167

1.6. Constitutional directives and jurisprudence of health for all.-

Justice V.R. Krishna Iyer in his article "Part I: To Paris With Tears: The National Pharmaceutical Policy And The Jurisprudence Of Health For All" appeared in the book "Conquest By Patent: On Patent Law And Policy" published by National Working Group on Patent Laws, holds that social justice is the sweeping promise made in the Preamble to the Indian Constitution. The term "Social Justice", whatever its semantic variables, its human essence does take in the right to life for everyone including the basic satisfactions and progressive elimination of inequality in standards of life. Life is nothing without health. Slyinoza said that the first requisite of a gentleman is to be healthy animal.

And visitable existence, lifelessly alive, is inanimate. Justice Iyer views that the State shall democratice the right to "medicare" and "medicaid" as within the reach of the backward, the indigent and the lowliest, the lost and the last of Indian humanity. This is the preambular prescription of equality, fraternity and justice. For what is fraternity if some die of disease without medicine while others have no fellow-feeling and solidarity enough to salvage him with money or medicine? What is justice, in its dimensions of good health, if the poor suffer fatal illness without remedy while the rich win the battle having the wherewithal.

What is "health equality", among rumble patients, the unfortunate sick sink because the State does not deliver medicines at easy cost and within quick access while the fortunate few purchase relief through costly recipes, they can afford and are within reach. The inevitable conclusion is that the States tryst extends to ensuring access to essential drugs by practical supply and service systems at realistic prices and places whereby no person shall perish or famish if stricken by curable disease.

1.6.1. Though Article 21 of the Constitution merely mandates the State not to deprive any person of life or liberty "except according to procedure established by law", the profound humanism of this provision has been examined for dynamic judicial illumination in various cases. For example, in Olga Tellis case, AIR 1986 SC 180, it was observed:-

"It would be sheer pedantry to exclude the right to livelihood from the content of the right to life."

1.6.2. Justice Iyer observes if "livelihood is part of life", freedom from disease is a fortiorari integral to life. The right to health thus falls squarely within the larger right to life, especially when read in the context of social justice, equality and the like guarantee in a democratic socialist republic. He poses where a person, critically ill but capable to cure given a life-saving drug in time, has only a phoney right to life if therapeutics for him is a teasing illusion if pharmaceuticals are beyond his purchase? Similarly, Directive Principles of the State policy enshrined in Article 39 ordain that the health and strength of workers, men and women, be secured and under Article 47, that the level of nutrition of the people and public health shall be raised.

These show great concern for the physical well being of the weaker sections of the society. In Vinscent v. Union of India, AIR 1987 SC 990, it was held that the raising of the level of nutrition and the standard of living of its people besides the improvement of public health is the primary duty of the State and is of high priority perhaps one at the top. It is settled in CERC v. Union of India, 1995 (1) SCALE 354, para 24 that the expression "life has a much wider meaning which includes right to livelihood and better standards of life". Article 21 derives its life and breath from the Directive Principles of State Policy.

1.6.3. Justice Iyer propounds that law and policy must be geared to the goal of making life saying and essential pharmaceuticals accessible to the indigent and illiterate unfortunates. Disease deprives a person of his right to life, even liberty. Only medicines cure illnesses. So the State plays with life if by oblique policy it fails to make medicines available or permits marking up of market prices so as to put it beyond common people's means to buy.

The State, with power to control prices and regulate supplies of drug may sacrifice the lives of the poor millions in favour of the profit hungry giant corporations by legislative pharmaceuticals liberalism or laissez faire. Further, the procedure of price fixation of essential pharmaceuticals, without reasonable, fair or just consideration of the likelihood of the little Indian being priced out by the corporate, especially the transnational, manufacturer deliberately manipulating the market, is an unconstitutional exercise.



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