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Big Questions India Needs to Focus on About Implementing a Right to Health 

Ritwik Shukla

10 December 2022

The Government of India has reiterated that the goal for India’s healthcare system is to progressively achieve Universal Health Coverage (UHC). This is the prominent focus of the National Health Policy (2017). Spending, however, has remained below the target 2.5% of GDP. As per the HRMI rights tracker, which measure how well a country is using its income to ensure people’s Right to Health is fulfilled, India ranks 68th out of 144 countries. This means India can achieve a lot more, given its income. India’s ambition to achieve UHC, therefore, needs more impetus. 

A crucial pathway to UHC is establishing health as a right. This could help in mandating a shift in government priorities, locking in multiple governments and political parties to the same objective, setting clear benchmarks and norms which can be used to hold service providers accountable, and guaranteeing access, especially to the most-vulnerable and marginalised. Recently, Rajasthan has passed a Right to Healthcare Act 2022. But it received a lukewarm response as experts and activists argued that it lacked clear implementation timeframes, guidelines, and guarantees for people, with which they can hold the government accountable. 

This experience is informative. Against this backdrop, visioning and framing pathways to UHC require thinking through some big questions on what it takes to actually conceptualise and then implement health as a right. 

What’s in a name? Definitions and implications

Firstly, there is a sharp distinction between health and healthcare. Healthcare covers the provision of medical and health services, which directly deal with the prevention and cure of illness, injury, and disease. On the other hand, health is a broad and varied term, and covers many other things. It covers not just healthcare, but also the underlying determinants of health, such as access to safe drinking water, sanitation, healthy occupational and environmental conditions, and access to health-related information. 

Therefore, the first big question to think about is what should a Right to Health cover? A related question is if the Right to Health should have comprehensive provisions to cover wellness or the act of practicing healthy habits on a daily basis to attain better physical and mental health outcomes. Wellness can also be described as thriving, instead of simply surviving a disease.  

The answer to this, of course, will have to account for the government’s ability to deliver. Should the government choose to focus on health, commitments will be bigger, and therefore more-costly and tougher to deliver on. And if it chooses to focus on healthcare, as the Rajasthan Health Care Act 2022 does, should it cover gender affirming surgeries, elective surgeries, rare diseases, etc. Currently Brazil, in their right to healthcare, publicly covers gender affirming surgeries. Any conceptualisation of a Right to Health or healthcare needs to start with clearly defining the scope, especially in a resource-constrained country like India. 

Health being a state subject remains a federal hot potato

The judiciary has defended the Right to Health as a part of the Right to Life (Article 21 of the Indian Constitution) on several occasions. This does set precedence to create a separate and distinct Act, with clear provisions of what people are entitled to. However, health is a state subject, and therefore it is difficult for the Union government to make a sweeping Right to Health framework for the country. Previous experiences are revealing. 

Despite clear federal boundaries, the Union government has persistently increased its own investments in health (more than a 1.5 times increase between 2014-15 and 2022-23). However, when the Supreme Court of India questioned both Union and state governments on their response to the COVID-19 pandemic, the Union government clearly stated that health is the responsibility of state governments, in contrast to their repeated (and arguably necessary) interventions in the delivery of health services. 

The in-practice muddled status of health in India’s federal landscape can be resolved by moving health from the State List to the Concurrent List of the Constitution. There is precedence for moving subjects from the State to the Concurrent List, such as education

An expert group had submitted to the 15th Finance Commission that, given family planning is part of the Concurrent List, health should be made a Concurrent List subject as well. However, it is important to note that many states have managed well without the Union’s support, and such a move will raise questions of State government autonomy. This could be a step away from a more decentralised form of governance. 

Till then, with health being a state subject, state governments will have to pass their own legislations, as Rajasthan has done. At the moment, Tamil Nadu is also working on creating a Right to Health. 

Biting off more than can be chewed? 

Another question to consider is that a Right to Health with teeth will be complicated in India’s current health landscape.

One criticism of the Rajasthan Right to Healthcare Act is the lack of clear rules and provisions on the exact services that will be provided, in what manner and quality, and timeframe. The current form of the Act falls short of providing guarantees, leading experts and activists to argue that it lacks teeth. But what would it take to provide ‘teeth’? 

An example of ‘teeth’ can be found in the rules for the Right to Education Act (2009). They provide for clear norms such as primary schools being made available within 1 km of any student. A similar rule to establish healthcare centres within a km radius of the seeker may be incredibly costly to execute, given several competing priorities for both Union and state governments. 

At present, the private sector is preferred by almost 50% households. Some of the reasons for not using government facilities include the lack of nearby facilities, absent personnel, inconvenient timings, long waiting times, and poor quality. While the situation has gradually improved over time, most states fall short of WHO norms for the provision of doctors and facilities. Even if funding was not an issue, doctors and healthcare professionals don’t always want to serve in remote areas, leaving several communities underserved. Massive financial incentives may help, but again, will increase costs. The same is true for ambulances for remote areas. 

This begs the question: should the private sector be leveraged and mandated to provide services under any potential right to healthcare? 

Gravy trains or penny pinching? Misaligned incentives for the private and public sector

Given that the private sector forms a large part of the Indian health system, any guarantees given to people may have to bring the private sector in. However, the private sector seeks profit, and will seek the same to deliver in remote areas. So, a guaranteed right to healthcare for citizens which involves the private sector may also require guaranteed profits for the private sector. If prices are unregulated, access becomes the challenge. If prices are regulated, setting prices and deciding who pays the cost (government or citizen) becomes a political quagmire, and will inevitably lead to backlash. 

Related questions are: what are the regulatory mechanisms that can be used to ensure access, quality, and timeliness of healthcare? Given the sheer information asymmetry with medical services at large and the government’s limited monitoring capacity, regulation could be a big question to think about in order to guarantee rights. 

Lastly, one of the biggest hurdles to a potential Right to Health is the sticky wicket of financing. However, having a right itself can spur investments, but implementing a right requires serious deliberation over a vast number of questions, which move beyond just the domain of healthcare provision, to re-imagining what kind of society we want to create. Answering these questions requires multiple stakeholders, and is critical to creating a pathway to UHC. 

Ritwik Shukla is a Senior Research Associate at Accountability Initiative. 

Also Read: India’s Major Challenges in Realising Menstrual Health

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