1 The Constitutional provisions.docx

7/29/2019 1 The Constitutional provisions.docx

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IntroductionThis Chapter deals with the following questions:Does the Indian Constitution recognize thefundamental right to health and health care?What are the contours of the right to healthcare?Is the State obliged to provide health carefacilities to all citizens?Does this obligation extend to providing free,cheap or subsidized medical care?What are the obligations of the private healthcare sector?The Indian Constitution and Right to HealthThe Fundamental Rights and Article 21 (Right toLife with Dignity) forms the basis of Right toHealth. Article 21 of the Indian Constitution, afundamental right reads: No person shall bedeprived of his life or personal liberty except

through procedure established by law. Till the1970s the courts, by and large, had interpreted lifeliterally i.e. right to exist- right not to be killed. Inlate 1970s, the Supreme Court began to give anexpanded meaning to the term life appearing in

Article 21. Over the years it has come to be acceptedthat life does not only mean animal existence butthe life of a dignified human being with all itsconcomitant attributes. This would include ahealthy environment and effective health carefacilities. Today, therefore, the Fundamental Rightto Life is seen in a broad context.

Fundamental Rights are enforceable by and largeonly against the State.

The Chapter of Fundamental Rights prescribes the duty and theobligations of the State vis- a- vis the citizens. Thus

when one is talking about right to health and healthcare as a fundamental right we are speaking ofthe States obligation and not the obligation ofprivate players- either individual practitioners orprivate hospitals or nursing homes. This does notmean that private players do not have anobligation to their patients or can behave in a

negligent manner. But these players have noobligation to have a ceiling on their professionalcharges and so no obligation to provide free,subsidized or even cheap treatment. There arecertain exceptions to this principle that will bediscussed later on in this volume. It is in this contextthat privatization of health care needs to be viewed.The Right to Health is inseparable from Right to Life, and the Right to Medical Facilities as a


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concomitant of Rightto Health is also part andparcel of Right to Life. In a welfare state, thecorresponding duty to the right to health andmedical facility lies with the State.Part 3 of the Constitution prescribes theFundamental Rights of the citizens. These rights

are enforceable against the State in a Court of law.This Chapter does not anywhere categorically statethat the right to health or healthcare is afundamental right. However, it does prescribe rightto life as a fundamental right. It is an expandedmeaning given to this term that has allowed theCourts to prescribe that right to health and healthcare is a fundamental right.Part 4 of the Constitution lists the DirectivePrinciples of State Policy. These are the principlesHealthcare Case Law in India 17 Adv. Mihir Desai and Adv. Dipti Chand

which should be followed by the State as the

guiding principles while enacting laws and policiesbut have traditionally been believed not to beenforceable in courts of law. A citizen cannot goto court for enforcing a claim which is purely basedon Directive Principles. The importance of theseprinciples, however lies in the fact that ininterpreting Fundamental Rights the Courts canuse the Directive Principles so as to interpret theserights as much in consonance with the DirectivePrinciples as is possible. The obligation of the Stateto provide health care facilities is set out in theDirective Principles of State Policy. The relevant

provisions of the Directive Principles which cast aduty on State to ensure good health for its citizensare:

Article 38. State to secure a social order for thepromotion of welfare of people-State shall strive to promote the welfare of people

by securing and protecting as effectively as it maya social order in which justice, social, economicand political, shall inform all the institutions of thenational life.State shall, in particular, strive to minimize theinequalities in income, and endeavour to eliminateinequalities in status, facilities and opportunities,

not only amongst individuals but also amongstgroups of people residing in different areas orengaged in different vocations.In other words, no person will be deprived of ahealthy life because he cannot afford it. The Statemust provide facilities that an economically betteroff person can afford out of his own pocket.

Article 39. Certain principles of policy to be


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followed by State- The State shall, in particular,direct its policy towards securinge)that health and strength of workers, men and

women, and the tender age of children are notabused and that citizens are not forced byeconomic necessity to enter avocations

unsuited to their age or strength; andf) That children are given opportunities andfacilities to develop in a healthy manner andin conditions of freedom and dignity and thatchildhood and youth are protected againstexploitation and against moral and materialabandonment.

Article 47. Duty of State to raise the level ofnutrition and the standard of living and to improvepublic health-The State shall regard the raising of the level ofnutrition and the standard of living of its people

and the improvement of public health as amongits primary duties and, in particular, the State shallendeavour to bring about prohibition of theconsumption except for medical purposes ofintoxicating drinks and of drugs which areinjurious to health.Context of Judicial Intervention andEvolving Understanding of Right to HealthTo begin with, the right to health as a fundamentalright grew as an offshoot of environmentallitigation initiated by environmental activistsregarding the environment issues. Undoubtedly the

right to environment was crucial because apolluted environment affects public health. Apollution free environment as a fundamental rightpresupposes right to health as a fundamental right.Logically, the explicit recognition of thefundamental right to health should have precededthe fundamental right to good environment.However, the development of jurisprudence in this

branch has been the reverse. The right tounpolluted environment was recognized as a rightin the first instance and from that followed theright to public health, health and health care.Secondly, the right to health care has also beendebated by the courts in the context of rights ofGovernment employees to receive health care. Anumber of observations of the Court concerningthe importance of these rights are to be found incases dealing with denial or restriction of healthcare facilities for Government employees, and notto the general masses. This is the context of judicialpronouncements on health care.


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The following case law will help in the followingways:To understand the affirmation of right tohealth and health care as a fundamentalright.Healthcare Case Law in India 18 Adv. Mihir Desai and Adv. Dipti Chand

It will give us the growing understandingof different aspects of right to health.It provides tools for those who want to usethem in similar situations.

While dealing with the issue of fundamental rightto health and health care the courts have also dealt

with specific categories such as under trials,convicts and mentally ill persons. The courts haverecognized that imprisonment does not deprive aperson of right to health and health care.

Case LawRight to Health and Health Care

Public Health is States Priority: In one ofthe earliest instances of public interest litigations -Municipal Council, Ratlam vs. Vardhichand& Ors,1 the municipal corporation was prosecuted

by some citizens for not clearing up the garbage.The corporation took up the plea that it did nothave money. While rejecting the plea, the SupremeCourt through Justice Krishna Iyer observed: TheState will realize that Article 47 makes it aparamount principle of governance that steps aretaken for the improvement of public health as

amongst its primary duties.Right to Health is a Fundamental Right: In1991, in CESC Ltd. vs. Subash Chandra Bose,(AIR 1992 SC 573,585) the Supreme Court reliedon international instruments and concluded thatright to health is a fundamental right. It wentfurther and observed that health is not merelyabsence of sickness:The term health implies more than an absence ofsickness. Medical care and health facilities not onlyprotect against sickness but also ensure stablemanpower for economic development. Facilities

of health and medical care generate devotion anddedication to give the workers best, physically as

well as mentally, in productivity. It enables theworker to enjoy the fruit of his labour, to keep himphysically fit and mentally alert for leading asuccessful economic, social and cultural life. Themedical facilities are, therefore, part of socialsecurity and like gilt edged security, it would yieldimmediate return in the increased production or


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at any rate reduce absenteeism on grounds ofsickness, etc. Health is thus a state of completephysical, mental and social well being and notmerely the absence of disease or infirmity. In thelight of Arts. 22 to 25 of the Universal Declarationof Human Rights, International Covenant on

Economic, Social and Cultural Rights and in thelight of socio-economic justice assured in ourConstitution, right to health is a fundamentalhuman right to workmen. The maintenance ofhealth is a most imperative constitutional goal

whose realisation requires interaction by manysocial and economic factors.

People are entitled to adequate health care:Mahendra Pratap Singh vs. Orissa State 2The petitioner, an ex-sarpanch of Pachhikote GramPanchayat approached the court for issuance ofappropriate writ commanding the opposite parties

to take effective measures to run Primary HealthCentre at Pachhikote within Korei block in thedistrict of Jaipur by providing all amenities andfacilities for proper running of the said healthcentre. The Government of Orissa decided to opencertain primary health centres in different areasin 1991-92 subject to fulfilment of certainconditions, on basis of demands of the local peopleand public at large.The conditions fulfilled were as follows:(i) The local people should provide minimumone acre of land duly pledged in favour of

the Panchayat Samiti for the MedicalInstitution within a period of one monthfrom the date of issue of this order.(ii) The local people should provide permanent

buildings for the medical institutions as wellas for the staff within six months from thedate of issue of this order.The court noted:Great achievements and accomplishments in lifeare possible if one is permitted to lead an acceptablyhealthy life. Health is lifes grace and efforts are to1 1980 Cri LJ 10752AIR 1997 Ori 37

Healthcare Case Law in India 19 Adv. Mihir Desai and Adv. Dipti Chandbe made to sustain the same. In a Country likeours, it may not be possible. To have sophisticatedhospitals but definitely villagers of this Country

within their limitations can aspire to have aPrimary Health Centre. The Government isrequired to assist people, and its endeavour should

be to see that the people get treatment and lead ahealthy life. Healthy society is a collective gain and


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no Government should make any effort to smotherit. Primary concern should be the PHC andtechnical fetters cannot be introduced assubterfuges to cause hindrances in theestablishment of health centre.The judgment stated that the gram panchayat was

agreeable to offer of the gram panchayat buildingfor running of the health centre. If the building

was still available, the same could be utilised forthe purpose of running of the PHC, till the new

building was completed. The Government eitherdiverts the staff from Korei or make suitablearrangement for running of the PHC in the

building of Pachhikote Gram Panchayat.Necessary arrangement would be made within aperiod of three months from that day. This isperhaps the only judgement commending the rightto health for a general population.

Health and Health Care of Workers is anessential component of right to life: InCERC vs. Union of India,3 the Supreme Court

was dealing with the rights of workers in asbestosmanufacturing and health hazards related to it(See Chapter 8). The Court was dealing essentially

with private employers involved in asbestos miningand industry. To begin with, the Court noted thatthe right to health and health care of a worker is acomponent of the fundamental right to lifeguaranteed under Article 21 of the Constitution ofIndia. The Court observed:

Article 38(1) lays down the foundation for humanrights and enjoins the State to promote the welfareof the people by securing and protecting, aseffectively as it may, a social order in which justice,social, economic and political, shall inform all theinstitutions of the national life. Art. 46 directs theState to protect the poor from social injustice andall forms of exploitation. Article 39(e) charges thatthe policy of the State shall be to secure the healthand strength of the workers. Article 42 mandatesthat the States shall make provision, statutory orexecutive to secure just and humane conditionsof work. Article 43 directs that the Slate shallendeavour to secure to all workers, by suitablelegislation or economic organisation or any other

way to ensure decent standard of life and fullenjoyment of leisure and social and culturalopportunities to the workers. Article 48-A enjoinsthe Slate to protect and improve the environment.

As human resources are valuable national assetsfor peace, industrial or material production,


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national wealth, progress, social stability, descentstandard of life of worker is an input. Art. 25(2) ofthe UDHR ensures right to standard of adequateliving for health and well being of the individualincluding 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 andfavourable conditions of work ensuring safe andhealthy working conditions.The right to health to a worker is an integral facetof meaningful right to life to have not only ameaningful existence but also robust health and

vigour without which worker would lead life ofmisery. Lack of health denudes his livelihood.Compelling economic necessity to work in anindustry exposed to health hazards due to indigenceto bread winning to him and his dependents should

not beat the cost of the health. and vigour of theworkman. Facilities and opportunities, as enjoinedin Article 38, should be provided to protect thehealth of the workman. Provision for medical testand treatment invigorates the health of the workerfor higher production or efficient service. Continuedtreatment, while in service or after retirement is amoral, legal and constitutional concomitant dutyof the employer and the State. Therefore, it must

be held that the right to health and medical care isa fundamental right under Article 21 read with

Articles 39(c), 41 and 43 of the Constitution and

make the life of the workman meaningful andpurposeful with dignity of person. Right to lifeincludes protection of the health and strength ofthe worker is a minimum requirement to enable aperson to live with human dignity. The State, be it3 (1995) 3 SCC 42

Healthcare Case Law in India 20 Adv. Mihir Desai and Adv. Dipti Chand

Union or State Government or an industry, publicor private, is enjoined to take all such action which

will promote health, strength and vigour of theworkman during the period of employment andleisure and health even after retirement as basicessentials to live the life with health and happiness.

The health and strength of the worker is an integralfacet of right to life. Denial thereof denudes the

workman the finer facets of life violating Art. 21.The right to human dignity, development ofpersonality, social protection, right to rest andleisure are fundamental human rights to a

workman assured by the Charter of HumanRights, in the Preamble and Arts. 38 and 39 of theConstitution. Facilities for medical care and health


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against sickness ensures stable manpower foreconomic development and would generatedevotion to duty and dedication to give the workers

best physically as well as mentally in productionof goods or services. Health of the worker enableshim to enjoy the fruit of his labour, keeping him

physically fit and mentally alert for leading asuccessful life, economically, socially andculturally. Medical facilities to protect the healthof the workers arc, therefore, the fundamental andhuman rights to the workmen.Therefore, we hold that right to health, medicalaid to protect the health and vigour of a worker

while in service or post retirement is a fundamentalright under Article 21, read with Articles 39(e), 41,43, 48A and all related to Articles and fundamentalhuman rights to make the life of the workmanmeaningful and purposeful with dignity of person.

The Court also held that the right is available notjust against the State but also against privateemployers. The Court observed:It would thus be clear that in an appropriate case,the Court would give appropriate directions to theemployer, be it the State or its undertaking orprivate employer to make the right to lifemeaningful; to prevent pollution of work place;protection of the environment; protection of thehealth of the workman or to preserve free andunpolluted water for the safety and health of thepeople. The authorities or even private persons or

industries are bound by the directions issued bythis Court under Article 32 and Article 142 of theConstitution.

Right to Health Care of governmentemployees is integral to right to life: InState of Punjab vs. Mohinder Singh Chawla4,

which dealt with right to medical treatment ofGovernment employees, the Supreme Courtobserved:It is now settled law that right to health is integralto right to life. Government has constitutionalobligation to provide the health facilities. If theGovernment servant has suffered an ailment

which requires treatment at a specialised approvedhospital and on reference whereat the Governmentservant had undergone such treatment therein, itis but the duty of the State to bear the expenditureincurred by the Government servant. Expenditure,thus, incurred requires to be reimbursed by theState to the employee. The High Court was,therefore, right in giving direction to reimburse the


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expenses incurred towards room rent by therespondent during his stay in the hospital as aninpatient.

Environment Pollution is linked to Healthand is violation of right to life with dignity:In T. Ramakrishna Rao vs. Hyderabad

Development Authority,5 the Andhra PradeshHigh Court observed:Protection of the environment is not only the dutyof the citizens but also the obligation of the Stateand its all other organs including the Courts. Theenjoyment of life and its attainment and fulfilmentguaranteed by Article 21 of the Constitutionembraces the protection and preservation ofnatures gift without which life cannot be enjoyedfruitfully. The slow poisoning of the atmospherecaused by the environmental pollution andspoliation should be regarded as amounting to

violation of Article 21 of the Constitution of India.It is therefore, as held by this Court speakingthrough P.A, Choudary, J., in T. Damodar Raoand others vs. Special Officer, MunicipalCorporation of Hyderabad, AIR 1987 AP 171,Healthcare Case Law in India 21 Adv. Mihir Desai and Adv. Dipti Chand4 1997 2 SCC 83

5 Writ Petition 36929/1998 T. Ramakrishna Rao vs. Hyderabad Urban Development Authority decided on 20.7.2001

the legitimate duty of the Courts as the enforcingorgans of the constitutional objectives to forbid allactions of the State and the citizens from upsettingthe ecological and environmental balance. In

Virender Gaur vs. State of Haryana, 1995 (2)

SCC 577, the Supreme Court held thatenvironmental, ecological, air and water pollution,etc., should be regarded as amounting to violationof right to health guaranteed by Article 21 of theConstitution. It is right to state that hygienicenvironment is an integral facet of the right tohealthy life and it would not be possible to live withhuman dignity without a humane and healthyenvironment. In Consumer Education andResearch Centre vs. Union of India, (1995) 3SCC 42, Kirloskar Brothers Ltd. vs. EmployeesState Insurance Corporation, (1996) 2 SCC 682=

AIR 1996 SC 3261, the Supreme Court held thatright to health and medical care is a fundamentalfight under Article 21 read with Article 39(e), 41and 43, In Subhash Kumar vs. State of Bihar,

AIR 1991 SC 420 = (1991) I SCC 598, the SupremeCourt held that right to pollution-free water andair is an enforceable fundamental right guaranteedunder Article 21. Similarly in Shantistar Builders

v. Narayan Khimalal Totame, (1990) 2 SCJ 10 =


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AIR 1990 SC 630 = 1990 1 SCC 520, the SupremeCourt opined that the right to decent environmentis covered by the right guaranteed under Article21. Further, in M.C. Mehta vs. Union of India,(1987) 4 SCC 463 = AIR 1988 SC 1037, RuralLitigation and Entitlement Kendra v. State of U.P.,

AIR 1987 SC 359, Subhash Kumar vs. State of Bihar(supra), the Supreme Court imposed a positiveobligation upon the State to take steps for ensuringto the individual a better enjoyment of life anddignity and for elimination of water and airpollution. It is also relevant to notice as per the

judgment of the Supreme Court in VincentPanikurlangara vs. Union of India, AIR 1987 SC990 - (1987) 2 SCC 165, Unnikrishnan, JP vs.State of A.P., AIR 1993 SC 2178 - (1993) 1 SCC645, the maintenance and improvement of publichealth is the duty of the State to fulfil its

constitutional obligations cast on it under Article21 of the Constitution.

Adequate and Quality medical care is partof Right to Health and Right to Life: The

Allahabad High Court in S.K. Garg vs. State ofU.P.6was dealing with conditions of publichospitals. The Petition had been filed raisingconcerns about the pitiable nature of servicesavailable in public hospitals in Allahabad.Complaints were made concerning inadequacy of

blood banks, worn down X- ray equipment,unavailability of essential drugs and unhygienic

conditions. The Court appointed a Committee togo into these aspects and report back to the Court.The High Court held:In our opinion, the allegations in the petition areserious. The Supreme Court in ConsumerEducation and Research Centre and others v.Union of India and others. 1995 (3) SCC 42 and inState of Punjab and others v. Mohinder SinghChawla and others. 1997 (2) SCC 83 has held thatthe right to health is a part of the right to lifeguaranteed by Article 21 of the Constitution. It isindeed true that most of the Government Hospitalsin Allahabad are in a very bad shape and needdrastic improvement so that the Public is givenproper medical treatment. Anyone who goes to theGovernment Hospitals in Allahabad will finddistressing sanitary and hygienic conditions. Thepoor people, particularly, are not properly lookedafter and not given proper medical treatment.Consequently, most people who can afford it go toprivate nursing homes or private clinics. There are


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many complaints that the staff of the GovernmentHospitals are often in collusion with the Doctors

who run private nursing homes. and deliberatelydo not look after the patients who come toGovernment Hospitals so that they may be drivento go to private nursing homes and they often

advise patients to go to a particular nursing home.All this needs to be thoroughly investigated. Thisis a welfare State, and the people have a right toget proper medical treatment. In this connection,it may be mentioned that in U.S.A. and Canadathere is a law that no hospital can refuse medicaltreatment of a person on the ground of his poverty6 In S.K.Garg vs. State of U.P. decided on 21.12.98


or inability to pay. In our opinion. Article 21 of theConstitution, as interpreted in a series of judgmentsof the Supreme Court, has the same legal effect.However, nothing has been reported on the followup of this case and details are not available.Can the State be compelled to start hospitals orprimary health care centres?: No direct guidelinesare available on this issue. But somewhat similarcases are cited belowIn Paschim Banga Khet Mazdoor Samiti vs.State of W.B.7 the Supreme Court thoughprimarily dealing with the issue of obligation ofthe State to provide emergency health care topatients made a general observation of significance:Providing adequate medical facilities is anessential part of the obligation undertaken by the

State in a welfare state. The Governmentdischarges this obligation by running hospitals andhealth centres. Article 21 imposes an obligation onthe State to safeguard right to life of every person.In the case ofPeoples Union of Civil Liberties

vs. Union of India8, public interest litigation wasfiled against the Government for backing out of aproject to build a psychiatric hospital-cum-medicalcollege in Delhi. The plan had been approved but

when it was found that over Rs. 40 crores wouldbe the expenditure, the Delhi Administrationexpressed its inability to fund such a project and

the Central Government refused to take on itsresponsibility. The Supreme Court held that settingup of a psychiatric hospital in the capital city wasnecessary. Once land has been earmarked and onprinciple a decision taken that hospital should beshifted and part of it should be converted into ateaching institution while the other part should bea hospital, funding should not stand in way oflocating such a hospital. As it was difficult to fund


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such a huge amount in a single year, it was to betaken up as a continuous project spread over aperiod. Hence, the Central Government and theDelhi Administration were directed to recommenceand finish the project.

Compensation Claims against the

StateBasis of Compensation by the State:Violationof Article 21 by the State will give rise to a claimunder public law remedy.9 The State is also

vicariously liable for acts of its agents or police orGovernment hospitals. The earlier notion was thatking could do no wrong and the State could not

be held liable for the wrongdoings of its servants.Thus, while public servants could be prosecuted orsued for damages for negligence or dereliction ofduty it was not possible for the State to be suedlikewise. In the last 20 years this aspect has

undergone change. This aspect has also been dealtwith in the Chapter 6 but the changed principleneeds to be elaborated here because it flows partlyfrom the fundamental right to health and healthcare.Ordinarily, if a person suffers harm at the handsof a State representative acting in such a capacity,

whether it is a doctor, a policeman or a bureaucrat,apart from criminally prosecuting such anindividual the victim can file a suit for damagesagainst such a person either in the civil court or inthe Consumer Court. Such a case is expensive and

lengthy. Many times the victim or her relatives arenot even aware who caused the injury. Take thecase of a person who dies in hospital because ofthe wrongful administration of an intravenousdrug. The patient or her relatives may not know

which doctor or nurse administered such a drug.Or take a case of an under trial being killed in policecustody. The relatives may never know which ofthe many police officers were responsible for thedeath. In such a case criminal prosecution

becomes difficult because it is always againstmarked individuals.

Healthcare Case Law in India 23 Adv. Mihir Desai and Adv. Dipti Chand7 (1996)4 SCC 378 Decision of the Supreme Court given on 12/11/19919 There are two kinds of civil remedies, viz., public law and private law remedy. Private law remedy involves actionunder torts or contract, whereas in the former, the claim is against the State for a wrong committed by it or personsacting under it. Both remedies exist independent of each other. For instance, in an incident of medical negligence byGovernment doctors, a cause of action may be instituted by invoking writ jurisdiction of SC or HC under Articles 32& 226, respectively. Simultaneously aggrieved person will also be entitled to pursue civil law remedy in torts orcontract against individuals before either Consumer courts or civil courts. (refer chapter 6)

In private establishments there has been a notionof vicarious liability, namely, the master is liable


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for the wrongdoings of his servants and so even ifcriminal prosecution may not be successfullylaunched, once negligence is proved, the hospital

would still be liable to pay damages irrespective ofwhether the actual culprits are identified or not.In the State sector however, the law was different.

While identified individuals could be prosecuted orsued for damages, the State itself or itsinstrumentality, for instance a hospital could not

be sued in torts for the negligence or wrongdoingof its agents or servants. This was on the age-oldpremise that king could do no wrong and thusthe State is not liable for the torts of its servants.Developments in the Last Two DecadesThis doctrine has undergone major change in thelast 20 years in two ways. First, the Supreme Courtheld that if there was a breach of fundamentalrights then the high courts and Supreme Court

were empowered to order the State to compensatethe victim not in the realm of private law paymentof damages for breach of civil rights but in thepublic law realm of payment of compensation for

violation of fundamental rights. Thus, whether theState was or was not liable in torts for actions ofits servants it would be still liable if such actionsamounted to violation of fundamental rights. Onceit was held that right to health and health care is afundamental right then a breach of such a right

by a state functionary would also make the Stateliable for payment of compensation.

Subsequently, of course the Courts have also heldthat the doctrine that State is not liable for the tortsof its servants is no more applicable in the presenttimes and the State is also liable in torts.The cases cited below illustrate that medicalnegligence was considered a violation ofindividuals right to health.In State of Tripura vs. Amrita Bala Sen,10the Division Bench of Gauhati High Court wasconcerned with a case where two persons who wereadmitted to a Government hospital for cataractoperation lost an eye each due to the operation. A

Writ Petition was filed directly in the high courtby these two persons claiming compensation fromthe State. The Division Bench found that the facts

were quite clear and negligence of the doctors wasapparent on the face of the record. The Courttherefore directed the State to pay to each of thesepersons compensation of Rs. 60,000/- withinterest. The State argued that the concernedindividuals should be asked to file a civil suit in


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local courts (which would have been timeconsuming and also expensive) rather thanapproaching the High Court directly. But the Courtrejected this contention and held that when thefacts were clear, there was no need for the highcourt in cases of state negligence to ask the

complainants to go through long-winded legalproceedings and could itself direct compensation.In Marri Yadamma vs. State of AndhraPradesh11 the deceased was an under trial whodied of congestive cardiac failure. The Court heldthat under trials have the right to adequatemedical care. The petition was filed by his spousealleging negligence on part of the jail authoritiesand jail doctor in not providing appropriatetreatment on time or referring to a specialist todetermine the root cause of the ailment.The deceased was in the jail for a span of nearly

six months during which he complained ofabdominal pain, giddiness, vomiting etc. No effort

was made to diagnose the cause of the deceasedcondition. On 25/1/1995 he complained of acuteabdominal pain and was admitted from in the jailhospital. On 29/1/1995 he was shifted to aGovernment hospital where he breathed his laston 30/1/1995. The post-mortem report showedthat left and right lungs were congested and pleuralcavities were normal, the heart was massivelythickened and the aortic valves were fibrosed,aoratic opening was dilated and the stomach was

found empty. The cause of death was noted asbeing due to congestive cardiac failure associatedwith aortic valve disease.The High Court observed that the condition of thedeceased at the time of his death was such that it10 2005 1 GLR 711AIR 2002 AP 164


could have developed over a period of time andnot immediately. Thus, it was abundantly clearthat no care or caution was taken by theRespondents to get the deceased examined by aSurgeon or a specialist, even though he had often

complained of various ailments. Further, the highcourt cast doubts over the genuineness of themedical record maintained by the jail hospital. Ifthe cause of death of the deceased was congestivecardiac failure associated with aortic valve, thenthe deceased must have complained about someform of heart ailment one or two months prior tohis death. As the jail authorities had suppressedoriginal records this fact remained in question.


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The high court stated that on arrest a prisonermerely loses his right to free movement. All otherrights, including the right to medical treatmentremains intact and it cannot be violated. The jailauthorities had infringed a fundamental right ofthe deceased therefore the State was liable to

compensate his widow as a public law remedy foran amount of Rs.2 lakh.In Noorunissa Begum vs. District Collector,Khammam12 the Petitioners husband died in jaildue to negligence on the part of the jail authoritiesin providing timely medical care and attention. Onan inquiry it was found that few days prior to thedeath, he had complained of chest pain and on thefatal day when he collapsed there was a delay ofnearly four hours to arrange for an escort to takehim to a government hospital. There was nohospital or medical facility within the jail premises.

The jail authorities defended allegations ofnegligence in discharge of their duty on the groundthat under Andhra Pradesh Prisoners (Attendancein Court) Rules, 1977, no prisoner could be takenout of prison without armed police escort, and thatthe delay in shifting the deceased to the hospital

was due to delay in arranging armed police forceescort.The high court reiterated the law laid down bySupreme Court in Parmanand Katara case whereinit was stated that no state action or provision oflaw can intervene in ensuring timely treatment to

a person in need of medical care, and held the jailauthorities negligent and the State liable to payRs.1,50,000 as compensation to the Petitioner.Further, the high court also directed the State toconsider the proposal to include Rule 10-A in

Andhra Pradesh Prisoners (Attendance in Court)Rules, 1977 that had been pending before it, anddecide upon it within a time frame.13 Rule 10-Aread as:Escort for persons confined in a prison requiringtreatment in a hospital outside the prison, and fromsuch hospital to the prison, shall be undertaken bythe police. If such a prisoner is admitted as inpatientin any hospital, his custody during theperiod of such confinement shall be undertaken

by the police.

Rights of Government Employees toReceive Health CareThe following case law refer to the issues andpolicies of reimbursement of medical expenditureeither during service or after retirement from


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service and uphold the fact that adequate medicalcare is an employees right to live with dignity.In the State of Punjab vs. Mohinder SinghChawla,14 the Respondent was suffering from aheart ailment, which required replacement of twoheart valves. Since the facility for such treatment

was not available in the State hospital, the StateMedical Board granted permission for treatmentin AIIMS, New Delhi. Later the Respondentapproached concerned authorities forreimbursement of medical expenditure. The

Appellants rejected the claim on expenditure onHealthcare Case Law in India 25 Adv. Mihir Desai and Adv. Dipti Chand12AP HC dt. 27/6/200113As a rule, power of judiciary cannot stretch into the arena of legislature. It cannot direct Parliament or statelegislature to pass enactment, however, in the instant case High Court acted to the contrary. The fact that theproposal of Inspector-General of Prisons and Director of Correctional Services, Hyderabad was already in existence toinsert Rule 10-A, gave legitimacy to the directions of High Court. In the absence of the same and in consideration ofthe limitation of judicial review, it is unlikely High Court would have passed such an order.14 (1997) 2 SCC 83

room rent paid to the hospital because of a changein the State policy for employees and ex-employeesthat excluded expenses incurred on diet, stay ofattendant and stay of patient in hotel/hospital.Thus, the issue before SC was the extent of Statesresponsibility to provide medical facilities to itsemployees. The State justified its policy on theground that the ancillary expenses saddled it withneedless heavy burden that limited its capacity toprovide treatment for general patients.The Supreme Court held that the rent of room foran in-patient is an integral part of the expenses

incurred on medical treatment, and could nottherefore, be excluded. Though the Court agreedthat greater allocation was required to be madefor general patients, it was the States constitutionalobligation to bear the expenses for the governmentservant while in service or after retirement.Surjeet Singh vs. State of Punjab15. Incircumstances where the state-run hospitals lackedexpertise to treat a specific ailment, the RespondentStates health policy ruled that its employees andex-employees could receive medical treatment innon-Government hospitals so specified in thepolicy that would be reimbursed. However, suchemployees and ex-employees were required tomake a prior application to a Board constituted todecide whether the treatment was available in theRespondent State hospitals. Such advance noticeapplied even to emergency cases.The instant appeal arose out of the refusal toreimburse expenditure incurred abroad at the rateof one of the hospital identified under the State


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Health Policy for open heart surgery. TheAppellants case was that on a personal visit abroad,he suddenly fell ill and had to undergo open heartsurgery at a very short notice, and so, could notcomply with the clauses under the State HealthPolicy on requisite intimation.

The Supreme Court held that the Appellant hadthe right to take steps in self-preservation. He didnot have to stand in a queue before the MedicalBoard. The State could not insist that its employeesshould be treated only at a recognized Governmentinstitution when the state policy permittedtreatment in private hospitals so earmarked.Therefore, a government employee could claimreimbursement at such rates as are applicable tothe identified private hospitals.In Devindar Singh Shergil vs. State ofPunjab16 dealt with a retired government

employee. The Appellant, a retired governmentofficial, who had approached the PostgraduateInstitute of medical Sciences (PGI), Chandigarhfor kidney treatment, was declined admission asno accommodation was available. Due tomalignant growth of kidney, the Appellantimmediately left for UK and got himself treated.Later he filed his claim for reimbursement of theentire amount but the Medical Board sanctionedan amount that would have been incurred if the

Appellant was treated at PGI, which equalled toRs. 20,000.

The Supreme Court dealt with the issue as to whythe petitioner should not be reimbursed for medicalexpenses to the extent of the expenditure whichmay have been involved for his treatment/operation if carried out in any of the recognizedinstitutions/hospitals in India. Since the AIIMS

was one such recognized hospital under the StatePolicy, the Supreme Court held that the Appellant

was entitled to reimbursement at the AIIMS rateand further, as an admitted fact, if the Appellant

would have been treated in India he would havebeen entitled to reimbursement of expenses onmedical consumable, pharmaceutical items,therefore, he would also be entitled toreimbursement of such expenditure. TheRespondent State was directed to pay Rs.22, 000as per AIIMS rates for surgery and Rs.73, 000/-for expenditure incurred on medicines.In State of Punjab vs. Ram Lubhaya Bagga17though the Supreme Court observed that the Statehad an obligation to provide health care facilities


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Healthcare Case Law in India 26 Adv. Mihir Desai and Adv. Dipti Chand15 (1996) 2 SCC 33616 (1998) 8 SCC 55217 (1998) 4 SCC 117

to government employees and to citizens, theobligation was only to the extent of its financialresources for fulfilling the obligation.

The State Health Policy for its employees and exemployeespromulgated in 1991 provided forreimbursement of medical expenses incurred eitherin earmarked hospitals or at other hospitals, at therate prevailing in such specified hospitals.18 Thispolicy imposed a heavy financial burden on theState and it issued a new policy under which there

was no impediment or procedural hurdle inreceiving treatment at any hospital but thereimbursement of medical expenses was to berestricted to such rates as fixed by the Director,Health and Family Welfare, Punjab for similar

treatment or the actual expenditure, whicheverwas less. The instant petition was filed challengingthis change in State policy.The Appellants justified the change on the groundthat under the earlier policy the bulk of the budget

was spent on a few elites for such treatments likeheart ailment etc. to the detriment of a largenumber of other employees as the State was notin a position to reimburse them out of theremaining funds. Hence, the facility ofreimbursement of full charge at designatedhospitals was withdrawn.

SC held that Court cannot question the proprietyof a policy decision unless it is arbitrary and violatesany constitutional rights. So far as theconstitutional obligation of the State, it mustprovide for basic infrastructure for maintainingand improving public health. The State renders thisobligation by opening Government hospitals andhealth centres, but in order to make it meaningful,it has to be within the reach of its people, as far aspossible, to reduce the queue of waiting lists, andit has to provide all facilities for which an employeelooks for at another hospital. At the same time noState has unlimited resources to spend on any ofits project. That is why it approves its projects tothe extent it is feasible. The same holds good forproviding medical facilities to its citizens includingits employees. The provision of facilities cannot beunlimited. It has to be to the extent finances permit.

Article 41 of the Constitution also acknowledgesthe limited means of the State to serve the publicand states that the State shall, within the limits of


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its economic capacity and development, makeeffective provision for securing the right to work,to education and to public assistance in cases ofunemployment, old age, sickness and disablement,and in other cases of undeserved want. Hence, theprinciple of fixation or rate and scale under the

new policy was justified and could not be held asinfringing right to life.K.P. Singh vs. Union of India19was a case filed

by retired government employees against theprocedural difficulties in the Central GovernmentHealth Scheme (CGHS) for pensioners to receivingtimely treatment and reimbursement ofexpenditure incurred on such treatment. ThePetitioners grievances were:For the purpose of reimbursement of claimsrelating to medicine that were outside the CGHSformulary, CGHS beneficiaries other than retired

government employees and freedom fighters couldprocure such medicines directly from a registeredchemist and claim reimbursement on the strengthof a filled-in pro forma of the service head of theirrespective ministry, department or office. While incase of retired beneficiaries under the Scheme,such medicines had to be indented by the CGHSdispensary concerned. The indentation process wastedious and time consuming and so, medicinescould not be taken in time.Secondly, a beneficiary of the Scheme wouldreceive reimbursement only at a rate approved by

the CGHS however, such rates were not updatedfrom time to time. Further, rates of CGHS did notconsider that in some towns or cities, like that ofthe petitioner, there were no government hospitalstherefore, retired employees had no option but toreceive treatment at private hospitals that wereexpensive causing a heavy burden on their meagrepockets.Healthcare Case Law in India 27 Adv. Mihir Desai and Adv. Dipti Chand18 In Surjeet Singh case, Appellant was reimbursed at the rates of AIIMS even though he was treated abroad; or inDevindar Singh Shergil case, where the Appellant was reimbursed at the rate prevailing at AIIMS even though therewere other hospitals specified in State Health policy that were cheaper than AIIMS19 (2001) 10 SCC 167

SC directed Respondents to issue circulars to the

effect that in case of emergency, medicines thatare outside the CGHS formulary could be obtainedimmediately from the local chemist concerned onthe basis of an authority slip from the CMO inchargeof the CGHS dispensary. However, theSupreme Court refused to grant any relief vis-visthe rate of reimbursement as it was not withinits power to dictate policy to State, though it maydirect the State to review its rates and issue


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appropriate directions.In Kamlesh Sharma vs. MunicipalCorporation of Delhi,20 the case was filedagainst the order of the Respondent by which itrejected the Petitioners claim for reimbursementof expenditure incurred on medication for her

husband. The Petitioners husband was earlier aGovernment servant and covered by the StateHealth Policy and was being treated at one of thehospitals earmarked under the said policy. Duringthe course of the treatment certain medicines wereurgently required which were out of stock andtherefore, were purchased by the Petitioner fromoutside. Petitioner was not reimbursed for themedicines purchased from outside. Respondent

justified the impugned order on the ground that itwas government policy to provide medicine to itspensioners but not to reimburse for purchases

made from outside. The office order on whichRespondents relied read as:

All medicines etc. including diagnostics facilitiesas is required for treatment of patients (pensionersand their families) will be provided free of chargeat the Hospitals /Dispensaries. However, in no casereimbursement of expenditure incurred by apensioner on treatment will be made.The policy of the Respondent to the extent it refusedreimbursement was challenged as beingunreasonable and arbitrary, and liable to be struckdown as unconstitutional. The high court held the

policy to the extent it refuses reimbursement asunconstitutional. However, it also clarified that itsorder should not be understood as whittling downthe right of the Respondents to frame or formulatea policy including one providing restriction orceiling on reimbursement of expenses as long asthe said policy is not violates Articles 14 and 21.In other words, the courts cannot adjudicate onthe propriety of government policy unless it isdiscriminatory or violates right to life. The judiciarycannot step into the shoe of Government and issuepolicies. The court will refuse to entertain mattersthat are solely filed on the basis that a more

beneficial policy could have been issued.

Cases on Rights against various StateAuthoritiesThe case law cited below refer to the differentexecutive wings of the Government such as therailways, the police, and to the entitlement tomedical and health care to those who are withintheir jurisdiction or custody. Ram Datt Sharmas


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case and Dr. Sarosh Mehtas case are excellentexamples of judicial activism where detaileddirections effectively amounting to law making

were given.In Ram Datt Sharmas case,21 the RajasthanHigh Court dealt with responsibility of the railways

in providing health care facilities to its passengers.The complaint was that neither in the trains noron the platforms was adequate medical facilitiesprovided and this caused tremendous hardship tocommuters, especially on long distance trains. Thecourt held that the right to health care was afundamental right of all citizens, includingpassengers, and made the following directions:(i) Instructions shall be issued by Railway Boardto Zonal Railway to keep reserve a Coupe offour births in long distance train that shallcarry sign board MEDICAL FACILITIES

with symbol of Red Cross. Visible symbol ofRed-cross shall also be displayed out side thecompartment. Team of one Medical Officer,one made nurse and one attendant shall boardtrain and travel in it after a distance of 500Kms. or as directed by the Railway Board theteam already travelled shall be replaced byHealthcare Case Law in India 28 Adv. Mihir Desai and Adv. Dipti Chand20 Delhi High Court judgment dated 3/10/200221AIR 2005 RAJ 317

another team. The Coupe shall be equippedwith Oxygen Cylinder, life saving drugs andinjections.

(ii) In every compartment of train, it shall beprominently notified that MedicalCompartment is attached with the train toprovide medical assistance to the passengersfree of cost by a competent doctor andcomplaint book is available with the Train-GUARD.(iii) Due publicity that Medical facilities areavailable to the passengers in all the longdistance trains, shall be given on all thePlatforms. This information shall also bedisplayed on national Television and

broadcast on All India Radio. People ofCountry shall also be made aware through thenews papers.(iv) Chemist facilities shall be provided on thestation premises keeping in mind thequantum of passengers traffic.(v) The Union of India and Railway Board shallensure compliance of this order within sixtydays from today.


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Similarly, in Dr. Sarosh Mehta vs. GeneralManager, Central Railways22 the issue was theliability of Suburban Railways in Mumbai inproviding health care facilities for travellers,especially in view of frequency of accidents. Some

very important directions were issued:

(i) The Railways shall notify an emergencytelephone number and shall publicize thesame in all compartments, stations and otherplaces. The calls made to the said numbershall be monitored by a special cell situatedin the control room which shall be open for24 hours. The personnel of such cell shallimmediately contact nearest Station Master/s at the place of the accident. Such cell shallmaintain records of the calls received as wellas follow up reports.(ii) Free parking for an ambulance outside all

stations to be provided by Railways and theState Government wherever parking isavailable.(iii) The ambulance/taxi should be called by theStation Master or his representative.(iv) Sanction of funds for (a) Hammals/Portersand (b) Ambulance/taxi for transporting the

victim from the accident spot to the hospitaland if shifting of victim to the other hospitalas required.(v) Immediate shifting of accident victim tonearest hospital (Private or Government).The

list of the ambulance services and the hospitalsubmitted by Mr. J.P. Cama, learned counselfor the petitioner, shall be made available toall the Station Masters.(vi) Minimum Two lightweight folding orcollapsible stretches in all Stations and theyare to be cleaned after every use. Onerechargeable torch on every station,disposable sterilized hand gloves and first aid

box at each station.(vii) Printed format of Memo of reporting accident

by Station Master to the GovernmentRailway Police.(viii)Walkie Talkie in all trains in Central Railwayuntil Train Management System isintroduced.(ix) A Committee consisting of Divisional MedicalOfficers of each Railway, Dean of MunicipalHospital and Additional Commissioner ofPolice should monitor that the guidelines are

being followed. One doctor nominated by


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Association of Medical Consultants be alsoincluded in the Committee. Committee willalso hear the complaints. The Committeeshould submit its six monthly report to theGeneral Manager of each Railways. TheCommittee should meet at least once in

two months. All concerned persons would beat liberty to file or lodge complaints beforethe Committee for preventive measures andthose complaints shall be looked into by theCommittee as expeditiously as possible.

As regards plan of action for Station Masters andGovernment Railway Police, the court issued thefollowing directions.(i) Helpline number to be displayed in all coachesand all stations.(ii) On receipt of information about accident, thefollowing action:

Healthcare Case Law in India 29 Adv. Mihir Desai and Adv. Dipti Chand22 Writ Petition No. 2405 of 2001 in the Bombay High Court. Order passed on various dates but the main order is dated6thOctober, 2004

(a) If an accident takes place in between theStations, information to be sent to the ControlRoom about the accident;(b) After locating of the accident site, the ControlRoom should inform to the concerned StationMaster and he should make announcement forhammal/porters, GRP and call ambulance/taxi;(c) As soon as the announcement is heard,hammals and GRP should rush to the Station

Managers Office, taking the stretcher from theoffice, go to the accident site by the fastest modeavailable i.e. by train or by walking to reachthe accident site at the earliest.(d) After lifting the victim, the victim is to be

brought by train or through the passing train/ambulance/taxi to the Station.(e) Meanwhile, the ambulance/taxi will be keptready at the Station so that the victim isimmediately shifted to the nearest hospital,

whether private or government.(f) Simultaneously care will be taken to stop the

bleeding by the trained person of railway/GRP.(g) All the possible efforts will be made to informthe relatives of victim about the accidentimmediately by GRP/Station Master.(h) The complete data of the accident be madeavailable in the control room.(i) The available data of the accident will be kept

before the coordinating Committee to takenecessary steps to suggest measures for the


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improvement and better dealing with theaccidents.(j) Every accident victim should be shiftedimmediately.(k) If the name of the victim is known, then thename should be announced on the public

announcement system.Subsequently, on February 8, 2006, the High Courtpassed the following order:

We perused the Affidavit of Dr. (Mrs.) MohuaHalder, Sr. Divisional Medical Officer, MumbaiCentral, Western Railway and the Affidavit of Mr.

Arvind Malkhede, Senior Divisional CommercialManager of the Central Railway Administrationin Mumbai. None of these two Affidavits answersand provides for solution regarding treatment tothe accident victims in the nearest private hospitals.In the Affidavit filed by Arvind Malkhede, it is

stated that all injured persons in railway accidentsare given free treatment in Railway Hospitals, butso far as other hospitals are concerned, Railwaysliability is restricted to free transportation of theinjured persons to the hospital. It is the obligationand the responsibility of the Railways to take theaccident victims to the nearest hospital. If theRailways or Government or Municipal hospital isnot close by, the accident victims need immediatemedical aid and attention at the nearby hospitals.It appears from both the Affidavits that the injuredpersons as a result of untoward incident or other

mishaps are transported from the site of theaccident to the nearest State Government/Municipality hospital at the cost of the Railways.However, it is a fact that many of the Government/Municipality hospitals are at quite a distance fromthe Railway Stations and transporting the victimto nearest State Government/Municipality hospitalmany a time is proved fatal. Obviously, it is theobligation of the Railway authorities (WesternRailway, as well as, Central Railway) that accident

victims are provided treatment in the cases ofemergency in the nearest private hospitals wherethe Government hospital/Municipality hospital isnot within the 5 kilometer radius of the site of theaccident. Having given thoughtful considerationto these aspects, we issue the following furtherdirection:The emergency treatment to the injured person/s,as a result of untoward incident or other mishapsin Railway premises shall be provided at the costof Railway authorities in the private hospitals if


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nearest State Government/Municipality hospitalsis/are in within 5 kilometers of the Railwaypremises where such incident or mishap hadoccurred.In Directorate of Enforcement vs. AshokKumar Jain,23 the Court held that the police are

as much under a statutory obligation to preservethe life of persons under its custody by ensuringmedical care and treatment, and taking intoaccount the condition of their health. However,Healthcare Case Law in India 30 Adv. Mihir Desai and Adv. Dipti Chand23 (1998) 2 SCC 105

the right of such persons cannot be used as shieldto hinder police investigation.In the instant Appeal, documents were recoveredfrom the possession of the Respondent that showedthere was a gross violation of the ForeignExchange Regulation Act (FERA). The Respondentsought anticipatory bail to avoid interrogation onthe ground that he suffered from a serious heartcondition and produced medical records to supporthis plea. The high court passed a conditional orderstating that in case the Directorate considerscustodial interrogation of the Respondentnecessary, it should approach the Director, AIIMSto constitute a Board of cardiologists to examinethe Respondent, and if the said Board forms anopinion that custodial interrogation is not feasiblein that event it will be open to the officials tointerrogate him under the care of doctors at

AIIMS.

The Appellant challenged the condition imposedupon it by the high court. The Supreme Court heldthat the high court was wrong in imposingconditions on the Directorate regarding the mannerin which interrogation of the Respondent was to

be modulated.No doubt investigating officials of the EnforcementDirectorate are duty-bound to bear in mind thatRespondent has put forth a case of delicate healthcondition. They cannot overlook it and they haveto safeguard his health while he is in their custody.But to say that interrogation should be subject to

the opinion of the cardiologists of the AIIMS andthat the officials of the Directorate should approachthe Director of AIIMS to constitute a Board ofCardiologists to examine the Respondent etc.

would, in our opinion, considerably impair theefficient functioning of the investigating authoritiesunder FERA. The authorities should have freedomto chalk out such measures as are necessary toprotect the health of the person who would be


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subjected to interrogatory process. They cannot benailed to fixed modalities stipulated by court forconducting interrogations.D.K. Basu vs. State of West Bengal24 is alandmark case on the rights of arrestees. TheSupreme Court prescribed a number of guidelines

to be mandatorily followed by arrested persons.Two of these directions pertained to health. TheCourt observed:The arrestee should, where he so requests, be alsoexamine at the time of its arrests and major andminor injuries, if any present on his/her body, nust

be recorded at that time. The Inpection memomust be signed both by the arrestee and teh policeofficer effecting the arrest and its copy provided tothe arrestee.The arrestee should be subjected to medicalexamination by a trained doctor every 48 hours

during his detention in custody by a doctor on thepanel of approved doctors appointed by Director,Health services of the concerned State or Unionterritory, Director, Health Services shall preparesuch a panel for all Tehsils and Districts as well.

The Constitutional provisions (Schedule 7 of article 246) are classified into three lists,including a Concurrent list

which both centre and states can govern but with the overriding power remaining with thecentre. The list here

includes original entry numbers Central List: 28.Port quarantine, including hospitals connectedtherewith; seamensand marine hospitals 55.Regulation of labour and safety in mines and oilfields; State List:6.Public health andsanitation; hospitals and dispensaries 9.Relief of the disabled and unemployable; ConcurrentList: 16.Lunacy andmental deficiency, including places for the reception or treatment of lunatics and mentaldeficients 18.Adulterationof foodstuffs and other goods. 19. Drugs and poisons, subject to the provisions of entry 59 of ListI with respect to opium20A.Population control and family planning 23.Social security and social insurance;employment and

unemployment. 24.Welfare of labour including conditions of work, provident funds, employersliability, workmenscompensation, invalidity and old age pensions and maternity benefits 25.Education, includingtechnical education,medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of ListI; vocational andtechnical training of labour.] 26. Legal, medical and other professions 30.Vital statisticsincluding registration of

births and deaths.

Documents

1 The Constitutional provisions.docx