Environment protection under health law

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ENVIRON

MENT

PROTECT

ION ACT

UNDER

HEALTHLAW

Submitted to

Archita Ba!a"

Submitted B# Burha

Ud Di Sa"aria


2/26

Ac$o%"ed&emet

Firstly, I would like to express my profound sense of gratitude towards the almightyALLAH for providing me with the authentic circumstances which were mandatory for the

completion of my proect!

I feel myself highly delighted, as it gives me incredi"le pleasure to present an assignment

work on #$%I&'$(#$) *&')#+)I'$ A+) $-#& H#AL)H LA.!

I would like to enlighten my readers regarding this topic and I hope I have tried my "est to

pave the way for "ringing more luminosity to this topic!

I am grateful to (s! Archita /ansal who has helped me to venture this proect as well as the

li"rary of Faculty of Law, 0amia (illia Islamia!

I would like to thank all concern for their interest in providing me a good "ack up material!

/urhan d -in 1alaria

/!A!LL!/ 2Hons3 4th1emester

5th

6ear

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Table of Contents

7! Introduction to Health Law 8

9! Introduction to #nvironment *rotection Act in relation to Health Laws :

8! +ontext of 0udicial Intervention and #volving nderstanding of &ight to Health 7;

5! (ahaan +ommittee &ecommendations on #nvironment 77

=! *eople are entitled to ade>uate health care 79

?! +onclusion 98

4! /i"liography 95

Itroductio to Hea"th La%

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Law has had important contri"utions to several pu"lic health achievements "ut, despite this,

the conceptual framework for its effective application has not "een fully explicated!7

(edicine has moved "eyond treating disease to promoting health, which entails policy

interventions and regulations at different levels to "ring a"out "ehavioural changes in

individuals! )his was identified "y the nineteenth century @erman physician Rudolph

Virchowwho said BMedicine is a social science and politics nothing but medicine on a

grand scale.C In the presentDday changing scenario, physicians need to understand the social

implications and the overDarching role of law! .e highlight how a framework of law can "e

developed for promoting pu"lic health goals!

Health and health care need to "e distinguished from each other for no "etter reason than that

the former is often incorrectly seen as a direct function of the latter! Heath is clearly not the

mere a"sence of disease! @ood Health confers on a person or groupCs freedom from illness D

and the a"ility to realiEe ones potential! Health is therefore "est understood as the

indispensa"le "asis for defining a persons sense of well"eing!

)he health of populations is a distinct key issue in pu"lic policy discourse in every mature

society often determining the deployment of huge society! )hey include its cultural

understanding of ill health and wellD"eing, extent of socioDeconomic disparities, reach of

health services and >uality and costs of care and current "ioDmedical understanding a"out

health and illness!

Health care covers not merely medical care "ut also all aspects pro preventive care too! $or

can it "e limited to care rendered "y or financed out of pu"lic expenditure within the

government sector alone "ut must include incentives and disincentives for selfDcare and care

paid for "y private citiEens to get over ill health! .here, as in India, private outDofDpocket

expenditure dominates the cost financing health care, the effects are "ound to "e regressive!

Heath care at its essential core is widely recogniEed to "e a pu"lic good!

Its demand and supply cannot therefore, "e left to "e regulated solely "y the invisi"le had of

the market! $or can it "e esta"lished on considerations of utility maximiEing conduct alone!

' Me!ah *A+ *oodma RA+ ,a-a S+ Mou"to AD+ .ocher PL+ Diet- WH+ et a"/ La%

a! a too" 0or 1re2eti& chroic di!ea!e!3 E41adi& the !1ectrum o0 e5ecti2e

1ub"ic hea"th !trate&ie!/ Pre2 Chroic Di! )6678 '3 A''/ A2ai"ab"e at

htt1399%%%/cdc/&o291cd9i!!ue!9)6679:a96;


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.hat makes for a ust health care system even as an idealG Four criteria could "e suggestedD

First universal access, and access to an ade>uate level, and access without excessive "urden!

1econd fair distri"ution of financial costs for access and fair distri"ution of "urden in

rationing care and capacity and a constant search for improvement to a more ust system!

)hird training providers for competence empathy and accounta"ility, pursuit of >uality care

add cost effective use of the results of relevant research! Last special attention to vulnera"le

groups such as children, women, disa"led and the aged!

Health Law provides a foundation for legal practice in the fields of Individual Health +are

Law and *u"lic Health Law in the India! In so doing, it explores the relationship "etween

law and policy, and examines the legal issues that often arise in the governments attempt to

regulate personal "ehavior and the provision of medical care!

It examines the central tension "etween the states regulatory powers and individual rights in

the context of protecting the pu"lics health! It covers such su"ect areas as federal, state and

local pu"lic health powers the circumstances under which the state can limit the freedoms of

individuals in order to protect citiEens from the conse>uences of their personal lifestyle

choices compulsory screening immuniEation >uarantine and civil commitment criminal

punishment and mandated treatment!

)he reach of pu"lic health law is as "road as pu"lic health itself and "oth have expanded to

meet the needs of society! )he 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 194,

wherein while the right to health was conceived as an individualCs civil right, states were

"ound to provide minimum conditions to ena"le individuals to enoy this right and provide

primary health services in an e>ual 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

realiEation through declared constitutional and legal rights, in particular, through pu"lic

health law!

)he Constitution of !ndia has provided guarantees and policy directives in "art !!!

(Fundamental Rights) and "art !V (Directive Principles of State Policy) for the right to

health and healthcare!

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)he 1upreme +ourt of India has articulated in several landmark udgments like in case of

Consumer Education and Resource Centrev! Union of India2State of Punjab and Others

v!Mohinder Singh3,that the right to health is integral to the right to life under #rticle $1 of

the Constitution of !ndia! .hile on the one hand, the right to health is guaranteed as a

fundamental right, the +onstitution also imposes a positive duty on the 1tate under Article 5?

to raise the level of nutrition and the standard of living and to improve pu"lic health to ensure

the right to healthcare! )hus, as endorsed in the Declaration of #lma #ta in 19%, the

attainment of the highest possi"le level of health "ecomes the key worldwide social goal! )he

+onstitution of 1outh Africa too, in its /ill of &ights, expressly declared access to healthcare,

food, water and social security, "esides emergency medical treatment, as the fundamental

rights of individuals 2Article 9? of the +onstitution of 1outh Africa3!

*u"lic health law could "e defined as the study of the legal powers and duties of the 1tate, to

ensure conditions for people to "e healthy with colla"oration from multiple stakeholders 2e!g!

healthcare professionals, "usiness, community, media and academe35!nlike at the turn of the

century, today the field of pu"lic health has expanded from areas of communica"le 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

&minent scholar 'ran( )rado"served that pu"lic health law does not come in a neatlegislative package, "ut consists of many types of legislations which have little in common

except for the "enign purpose of advancing pu"lic health!=)he preservation of pu"lic health

) AIR ' SC ;

; AIR ' SC '))

7 *o!ti LO/ Le&a" 0oudatio! o0 1ub"ic hea"th "a% ad it! ro"e i meeti& 0uture

cha""e&e!/ > Ro# I! Pub Hea"th )668Su11" '3?'/

*rad FP/ The co!titutioa" ad "e&a" !ource! o0 1ub"ic hea"th 1o%er! ad the

1"ace o0 1ub"ic hea"th i *o2ermet/ The Pub"ic Hea"th Maua"/ ;rd ed/

Wa!hi&to+ DC3 America Pub"ic Hea"th A!!ociatio8 )6673'6/

*rad FP/ Pub"ic hea"th "a%3 It! 0orm+ 0uctio+ 0uture+ ad ethica" 1arameter!/ ItDi& Hea"th Le&i! '?873';/

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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 "ut also at a larger community level!?

.ithin the framework of the +onstitution of India, pu"lic health is a su"ect for the states to

legislate! However, very few states in India have crafted pu"lic health legislations! At the

national level, the archaic 779DyearDold #pidemic -iseases Act, 74:? is an example of the

nature of laws dealing with pu"lic health emergencies! )here are also some BpolicingC

provisions in legislations such as the Indian *enal +ode that date "ack to 74=;, which seek to

protect the pu"licCs health in the face of an epidemic! )he postDIndependence laws were more

progressive and addressed various issues concerning pu"lic health, al"eit in a piecemeal

manner, for which the +onstitution laid a strong foundation under *art III 2Articles 75, 7


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o"ligating the 1tate with a positive duty to eliminate any adverse conditions in the enoyment

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 citiEen under Article 7:! )hough this may "e overcome "y a

common legal principle of Sic utere tuo ut alienum non ledasthat would support restrictions

visDDvis enoyment of the fundamental freedom to the extent it impacts on anotherCs

enoyment of life, property and wellD"eing!

!ealth is a state of complete physical" mental and social ell#being and not merely the

absence of disease or infirmity. $he en%oyment of the highest attainable standard of health is

one of the fundamental rights of every human being ithout distinction of race" religion" and

political belief" economic or social condition. $he 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. $he achievement of any State in the promotion and protection of

health is of value to all. &nequal development in different countries in the promotion of

health and control of disease" especially communicable disease" is a common danger.

!ealthy development of the child is of basic importance' the ability to live harmoniously in achanging total environment is essential to such development. $he etension to all peoples of

the benefits of medical" psychological and related noledge is essential to the fullest

attainment of health. *nformed 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. +overnments have a

responsibility for the health of their peoples" hich can be fulfilled only by the provision of

adequate health and social measures.

* +H, Constitution

!uman health and quality of life are at the centre of the effort to develop sustainable human

settlements. ,e ... 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" maing particular efforts to rectify inequalities relating

to social and economic conditions ..." ithout distinction as to race" national origin" gender"age" or disability.

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+ood health throughout the life span of every man and oman" 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 drining

ater" sanitation" and universal access to the idest range of primary health#care services...'

to eradicate ma%or diseases that tae a heavy toll of human lives" particularly childhood

diseases' to create safe places to or 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.

*t is therefore essential to tae a holistic approach to health" hereby both prevention and

care are placed ithin the contet of environmental policy....-

* Habitat #genda- paras. /0 and 1$

!ealth and development are intimately interconnected. oth insufficient development

leading to poverty and inappropriate development ... can result in severe environmental

health problems.... $he primary health needs of the orld/s population ... are integral to the

achievement of the goals of sustainable development and primary environmental care....

Ma%or goals ... y the year 0111 ... eliminate guinea orm disease...' eradicate polio... y

2334 ... reduce measles deaths by 34 per cent...' ensure universal access to safe drining

ater and... Sanitary measures of ecreta disposal...' y the year 0111 5reduce6 the number

of deaths from childhood diarrhoea ... by 41 to 71 per cent...-

* #genda $1- Chapter 0- paras. 1 and 1$

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INTRODUCTION TO

ENVIRONMENT PROTECTION ACTIN RELATION TO HEALTH LAWS

*ollution refers to any undesira"le change in the physical, chemical or "iological

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 "iosphere directly or indirectly!

sually we try to forget the social and psychological environment when we talk of

environmental pollution! -iet, alcohol use, risk "ehavior, crime, and many other similar

factors could "e considered as environmental! For the "asic understanding the maor causes

of pollution as Fossil Fuel consumption, (otor transport, (odern agriculture and Industries!

*rotection of environment is directly protecting peopleCs health! )he government has enacted

num"er of legislations in this direction from time to time such as the -estructive Insect J

*est Act, 7:75 .ild Life 2*rotection3 Act, 7:59 )he Atomic #nergy Act, 7:=9 )he .ater

2*revention and +ontrol of *ollution3 Act, 7:?5 )he Air 2*revention and +ontrol of

*ollution3 Act, 7:47 )he #nvironment 2*rotection3 Act, 7:4= )he (otor %ehicles Act,

7:44!

)he right to healthy, clean and pollutionDfree environment has its origin in the human right to

Health "ecause in order to have a healthy "ody one needs clean environment! )here are, of

course a num"er of additional reasons why we need of a good environment, namely

conservation of natural resources, maintaining "io diversity and protecting wild life!

I would like to address the following

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Has the right to healthy environment %is a %is health "een recogniEed in IndiaG

.hat has "een the role of the udiciary and the legislature in furthering the right to

healthy environmentG

According to the +onstitution 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 citiEen to protect and improve the natural environment including forests, lakes, rivers,

and wildlife! A reference to the environment has also "een made in the -irective *rinciples

of 1tate *olicy as well as the Fundamental &ights! )he -epartment of #nvironment was

esta"lished in India in 7:4; and in 7:4uently num"er of related laws $ine #nvironment and Health #dvocate Via2

Hiremathhave come into existence as the pro"lems "egan rising, for example, the Handling

and (anagement of HaEardous .aste &ules was passed in 7:4:!

In India, the udicial recognition of the fundamental right to healthy environment preceded

the recognition of the right to health! A large chunk of pu"lic interest litigation in the last 9;

years has revolved around environmental issues! In this +hapter, we are confining ourselves

mainly to those udicial decisions that touch upon right to health care and not merely right to

health!

Context of Judicial Intervention and Evolving

Understanding of Right to Health

)o "egin with, the right to health as a fundamental right grew as an offshoot of environmental

litigation initiated "y environmental activists regarding the environment issues! ndou"tedly

the right to environment was crucial "ecause a polluted environment affects pu"lic health! A

pollution free environment as a fundamental right presupposes right to health as a

fundamental right!

Logically, the explicit recognition of the fundamental right to health should have preceded the

fundamental right to good environment! However, the development of urisprudence in this

"ranch has "een the reverse! )he right to unpolluted environment was recogniEed as a right inthe first instance and from that followed the right to pu"lic health, health and health care!

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1econdly, the right to health care has also "een de"ated "y the courts in the context of rights

of @overnment employees to receive health care! A num"er of o"servations of the +ourt

concerning the importance of these rights are to "e found in cases dealing with denial or

restriction of health care facilities for @overnment employees, and not to the general masses!

)his is the context of udicial pronouncements on health care!

)he following case law will help in the following ways

)o 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!

.hile 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! )he

courts have recogniEed that imprisonment does not deprive a person of right to health and

health care!

In 7:44, 1hukri from /om"ay filed a writ petition in the /om"ay High +ourt!: He

complained that his mother, who was an inmate of 6eravada (ental Hospital, died due to

negligence of the staff! )he High +ourt appointed a committee to look into the affairs at the

Hospital! )he (ahaan +ommittee was appointed to look into the affairs of the +entral

Institute of (ental Hygiene and &esearch, 6erawada, *une and to su"mit a report a"out the

improvements to "e carried out in the Hospital! )he +ommittee had several meetings and

visits to the Hospital, and came out with the (ahaan +ommittee &eport on August =! internal control

?! orientation and

4! Arrangement for specialised treatment!

Petitio =No/ 6@ i Bomba# Hi&h Court i '??/

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Mahajan Committee Recommendations on Environment10

Immediate steps to "e taken to improve the environment conditions "y creating a more

humane and pleasing environment wherein the patients can live with human dignity! )he

dilapidated "uildings to "e repaired or reconstructed! Along with additional dormitories orwards! )he essential amenities, such as drinking water and toilet facilities to "e provided

inside the wards!

Right to Health is a Fundamental Right

In 7::7, inCESC "td.vs!Subash Chandra #ose11, the 1upreme +ourt relied on international

instruments and concluded that right to health is a fundamental right! It went further and

o"served that health is not merely a"sence of sickness

$he term health implies more than an absence of sicness. Medical care and health facilities

not only protect against sicness but also ensure stable manpoer for economic development.

Facilities of health and medical care generate devotion and dedication to give the orers/

best" physically as ell as mentally" in productivity. *t enables the orer to en%oy the fruit of

his labour" to eep him physically fit and mentally alert for leading a successful economic"

social and cultural life. $he medical facilities are" therefore" part of social security and lie

gilt edged security" it ould yield immediate return in the increased production or at any rate

reduce absenteeism on grounds of sicness" etc. !ealth is thus a state of complete physical"

mental and social ell#being and not merely the absence of disease or infirmity. *n the light

of 8rticles 00 to 04 of the &niversal Declaration of !uman Rights" *nternational 9ovenant

on :conomic" Social and 9ultural Rights and in the light of socio#economic %ustice assured

in our 9onstitution" right to health is a fundamental human right to ormen. $he

maintenance of health is a most imperative constitutional goal hose realisation requires

interaction by many social and economic factors.-

'6 Maha:a committee re1ort a2ai"ab"e at htt1399%%%/camhidia/or& =acce!!ed

o A1ri" '6th )66@

'' =AIR ') SC ;+?@

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!eo"le are entitled to ade#uate health care

In case of Mahendra Prata$ Singh vs! Orissa State12, )he petitioner, an exDsarpanch of

*achhikote @ram *anchayat approached the court for issuance of appropriate writ

commanding the opposite parties to take effective measures to run *rimary Health +entre at*achhikote within orei "lock in the district of 0aipur "y providing all amenities and

facilities for proper running of the said health centre! )he @overnment of 'rissa decided to

open certain primary health centres in different areas in 7::7D:9 su"ect to fulfilment of

certain conditions, on "asis of demands of the local people and pu"lic at large!

)he conditions fulfilled were as follows

7! )he local people should provide minimum one acre of land duly pledged in favour of

the *anchayat 1amiti for the (edical Institution within a period of one month from

the date of issue of this order!

9! )he local people should provide permanent "uildings for the medical institutions as

well as for the staff within six months from the date of issue of this order!

)he court noted

@reat achievements and accomplishments in life are possi"le if one is permitted to lead an

accepta"ly healthy life! Health is lifeCs grace and efforts are to "e made to sustain the same! In

a +ountry like ours, it may not "e possi"le! )o have sophisticated hospitals "ut definitely

villagers of this +ountry within their limitations can aspire to have a *rimary Health +entre!

)he @overnment is re>uired to assist people, and its endeavour should "e to see that the

people get treatment and lead a healthy life! Healthy society is a collective gain and no

@overnment should make any effort to smother it! *rimary concern should "e the *H+ and

technical fetters cannot "e introduced as su"terfuges to cause hindrances in the esta"lishment

of health centre!

)he udgment stated that the gram panchayat was agreea"le to offer of the gram panchayat

"uilding for running of the health centre! If the "uilding was still availa"le, the same could "e

utilised for the purpose of running of the *H+, till the new "uilding was completed! )he

@overnment either diverts the staff from orei or makes suita"le arrangement for running of

the *H+ in the "uilding of *achhikote @ram *anchayat!

') AIR ' Ori ;

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$ecessary arrangement would "e made within a period of three months from that day! )his is

perhaps the only udgement commending the right to health for a general population!

In CERC vs! Union of India,78the 1upreme +ourt was dealing with the rights of workers in

as"estos manufacturing and health haEards related to it! )he +ourt was dealing essentially

with private employers involved in as"estos mining and industry! )o "egin with, the +ourt

noted that the right to health and health care of a worker is a component of the fundamental

right to life guaranteed under Article 97 of the +onstitution of India! )he +ourt o"served

Article 84273 lays down the foundation for human rights and enoins the 1tate to promote the

welfare of the people "y securing and protecting, as effectively as it may, a social order in

which ustice, social, economic and political, shall inform all the institutions of the national

life! Art! 5= direct the 1tate to protect the poor from social inustice and all forms of

exploitation! Article 8:2e3 charges that the policy of the 1tate shall "e to secure the health

and strength of the orers! Article 59 mandates that the 1tates shall make provision,

statutory or executive to secure %ust and humane conditions of or-. 8rticle ;< directs that

the Slate shall =endeavour to secure to all orers" by suitable legislation or economic

organisation or any other ay to ensure decent standard of life and full en%oyment of leisure

and social and cultural opportunities to the orers!

Article 54DA enoins the 1late to protect and improve the environment! As human resources

are valua"le national assets for peace, industrial or material production, national wealth,

progress, social sta"ility, descent standard of life of worker is an input! Art! 9uate living for health and wellD"eing of the individual

including medical care, sickness and disa"ility, Article 92"3 of the International +onvention

on #conomic, 1ocial and +ultural &ights 2I+#1+&3 protects the right of worker to enoy ust

and favoura"le conditions of work ensuring safe and healthy working conditions! )he right to

health to a worker is an integral facet of meaningful right to life to have not only a

meaningful existence "ut also ro"ust health and vigour without which worker would lead life

of misery! Lack of health denudes his livelihood! +ompelling economic necessity to work in

an industry exposed to health haEards due to indigence to "read winning to him and his

dependents should not "eat the cost of the health! and vigour of the workman! Facilities and

opportunities, as enoined in Article 84, should "e provided to protect the health of the

workman! *rovision for medical test and treatment invigorates the health of the worker for

'; ='@ ; SCC 7)

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higher production or efficient service! +ontinued treatment, while in service or after

retirement is a moral, legal and constitutional concomitant duty of the employer and the 1tate!

)herefore, it must "e held that the right to health and medical care is a fundamental right

under Article 97 read with Articles 8:2c3, 57 and 58 of the +onstitution and make the life of

the workman meaningful and purposeful with dignity of person! &ight to life includes

protection of the health and strength of the worker is a minimum re>uirement to ena"le a

person to live with human dignity! )he 1tate, "e it nion or 1tate @overnment or an industry,

pu"lic or private, is enoined 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 "asic essentials to live the life with health and happiness!

)he health and strength of the worker is an integral facet of right to life! -enial thereof

denudes the workman the finer facets of life violating Art! 97! )he right to human dignity,

development of personality, social protection, right to rest and leisure are fundamental human

rights to a workman assured "y the +harter of Human &ights, in the *ream"le and Arts! 84

and 8: of the +onstitution! Facilities for medical care and health against sickness ensures

sta"le manpower for economic development and would generate devotion to duty and

dedication to give the workers "est physically as well as mentally in production of goods or

services! Health of the worker ena"les him to enoy the fruit of his la"our, keeping himphysically fit and mentally alert for leading a successful life, economically, socially and

culturally! (edical facilities to protect the health of the workers arc, therefore, the

fundamental and human rights to the workmen!

)herefore, 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 97, read with

Articles 8:2e3, 57, 58, 54A and all related to Articles and fundamental human rights to make

the life of the workman meaningful and purposeful with dignity of person!

)he +ourt also held that the right is availa"le not ust against the 1tate "ut also against private

employers! )he +ourt o"served It would thus "e clear that in an appropriate case, the +ourt

would give appropriate directions to the employer, "e it the 1tate 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! )he authorities or even private

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persons or industries are "ound "y the directions issued "y this +ourt under Article 89 and

Article 759 of the +onstitution!

In +ase ofMunici$a% Counci% Rat%amvs! &ardichand and Ors1'is a crucial case "ecause for

the first timethe 1upreme +ourt prescri"ed that in mattersconcerning pu"lic health financial

ina"ility was no ground for 1tate authorities not to carry out theirduties! )he Apex +ourt

held that,

>8 responsible Municipal 9ouncil constituted for the precise purpose of preserving

public health and providing better finances cannot run aay 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 oring condition

and sufficient to meet the needs of the people ? cannot be evaded if the municipality is

to %ustify its eistence>.

&atlam is a town in (adhya *radesh! )he town had the &atlam (unicipal +ouncil, as its

local selfDgoverning "ody! 1anitation in &atlam was pathetic as the drains overflowed! )he

municipality was o"livious to its o"ligation towards human well"eing and was directly guilty

of "reach of duty and, of pu"lic nuisance and active neglect! )he su"D-ivisional (agistrate,&atlam, was moved to take action under 1ection 788 +r*+ to a"ate the nuisance "y ordering

the municipality to construct drains to wash the filth and stop the stench! )he magistrate

made the direction sought and scared "y the prospect of prosecution under 1ection 744 I*+,

for violation of the order under 1ection 788 +r*+, the municipality rushed from court to

court till it reached the Apex +ourt as the last refuge of lost causes!

)he 1essions +ourt held the order as unustified "ut the High +ourt of (adhya *radesh

upheld the order of the -ivisional (agistrate, &atlam! )he (unicipal +ouncil, &atlam argued

that though it was their statutory o"ligation to "uild proper drains, there was financial

ina"ility! )he +ourt held, the plea of the municipality that notwithstanding the pu"lic

nuisance financial ina"ility validly exonerates it from statutory lia"ility had no uridical "asis!

)he criminal procedure code operates against statutory "odies and others regardless of the

cash in their coffers, even as human rights under *art III of the +onstitution have to "e

respected "y the 1tate regardless of "udgetary provision! Likewise, 1ection 798 of the Act has

'7 AIR '?6 SC '))

' ( P a & e


18/26

no saving clause when the municipal council is penniless! 'therwise, a profligate statutory

"ody or pachydermic governmental agency may legally defy duties under the law "y urging

in selfDdefence a selfcreated "ankruptcy or perverted expenditure "udget! )hat cannot "e! )he

1upreme +ourt also held that it was not ust a matter of the health of a private individual "ut

the health, safety and convenience of the pu"lic at large was at stake!

)he 1upreme +ourt while passing the udgment in this matter partially modified the order of

the magistrate and also asked the (unicipal +ouncil, &atlam to carry out the following

orders,

7! .e direct the &atlam (unicipal +ouncil 2&73 to take immediate action, within its

statutory powers, to stop the effluents from the Alcohol *lant flowing into the street!

)he 1tate @overnment also shall take action to stop the pollution! )he su"D-ivisional

(agistrate will also use his power under 1ection 788 +r*+, to a"ate the nuisance so

caused! Industries cannot make profit at the expense of pu"lic health! .hy has the

magistrate not pursued this aspectG

9! )he (unicipal +ouncil shall, within six months from today, construct a sufficient

num"er of pu"lic latrines for use "y men and women separately, provide water supply

and scavenging service morning and evening so as to ensure sanitation! )he Health

'fficer of the (unicipality will furnish a report, at the end of the sixDmonthly term,

that the work has "een completed! .e need hardly say that the local people will "e

trained in using and keeping these toilets in clean condition! +onscious cooperation of

the consumers is too important to "e neglected "y representative "odies!

8! )he 1tate @overnment will give special instructions to the (alaria #radication .ing

to stop mos>uito "reeding in .ard 79! )he su"D-ivisional (agistrate will issue

directions to the officer concerned to file a report "efore him to the effect that the

work has "een done in reasona"le time!

5! )he municipality will not merely construct the drains "ut 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

"udget!

su"D-ivisional (agistrate will prosecute the officers responsi"le! Indeed, this +ourt

will also consider punishing for contempt in case of report "y the su"D-ivisional

(agistrate of willful "reach "y any officer!

' ( P a & e


19/26

)he +ourt also held that the 1tate should "e guided "y the paramount principle of Art! 5? of

the +onstitution of India which states that, improvement of pu"lic health should "e one of the

primary duties of the state!

In the case of#omba( )igh Court in Citi*ens +ction Committee, -ag$urvs! Cii% Surgeon,

Ma(o /enera%0 )os$ita%, -ag$ur and Ors1, put in detail the responsi"ilities of the

(unicipal +orporation, in marinating the civic hospital and the other "asic amenities in the

city! )he high court in its order stated that, we cannot "ut emphasiEe that the hospitals have

their own role to play! Hospitals are the necessities of modern life and they have to respond to

the needs of any growing city! Hardly any option can "e speedy out or any excuse permissi"le

so as to afford an ali"i when the matters concern the authorities would "estow urgent

attention on every facet of the pro"lem of pu"lic health and effectivelyM! )he +itiEens

Action +ommittee approached the $agpur "ench of the /om"ay High +ourt asking the court

to intervene as the overall condition of the civic amenities such as roads, sanitation and pu"lic

health was deteriorating considera"ly!

)he court issued notice to all the concerned authorities and asked them to file their say! )wo

fact finding reports of the citiEens were also given to the court! )he court largely "ased its

finding on the reports and the affidavits filed "y the citiEens! )here were three hospitals that

were "eing run "y the state! 'vercrowding in all these hospitals had reached dangerous

levels! )respassers and visitors also "urdened the hospitals! #ven the staff of the hospitals

was housed in poor conditions and they were living in unhygienic conditions!

)he court held that as per Art! 5? of the +onstitution of India it is the duty of the state to

provide for proper facilities for pu"lic health! )he court set up an Investigative and &emedial

(easures 1uggestive +ommittee 2I! &! (! 1! +!3 to look into the matter!

In the case of High +ourt of (adhya *radesh in )amid vs!State of M.P.1held that the

citiEens have right to clean and safe drinking water! )he court stated, nder Article 5? of the

+onstitution of India, it is the responsi"ility of the 1tate to raise the level of nutrition and the

standard of living of its people and the improvement of pu"lic health! It is incum"ent on 1tate

to improve the health of pu"lic providing unpolluted drinking water! 1tate in present case has

failed to discharge its primary responsi"ility! It is also covered "y Article 97 of the

' AIR '? Bom ';

' AIR ' MP ''

'? ( P a & e


20/26

+onstitution of India and it is the right of the citiEens of India to have protection of life, to

have pollution free air and pure water!

)he court also held that the state was lia"le to pay for the damages caused "y the

consumption of the polluted water! Hamid han a lawyer filed a petition "efore the High

+ourt of (adhya *radesh, regarding the >uality of water supplied through the hand pumps in

the district of (andla! )he water "eing supplied contained high amount of fluoride causing

damages such as skeletal flurosis and dental flurosis to a num"er of people!

)he High +ourt held that under Article 5? of the +onstitution of India, it is the responsi"ility

of the 1tate to raise the level of nutrition and the standard of living of its people and the

improvement of pu"lic health! It is incum"ent on 1tate to improve the health of pu"lic

providing unpolluted drinking water! 1tate in present case has failed to discharge its primary

responsi"ility! It is also covered "y Article 97 of the +onstitution of India and it is the right of

the citiEens of India to have protection of life, to have pollution free air and pure water!!!

)he court also held that the people affected due to the contaminated water should "e treated

at the expense of the 1tate! It also added that the 1tate should "ear the expenses of any

surgery might "e re>uired!

)he 1tate 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 "e put in place! )he

Allaha"ad High +ourt in case of am%aati vs! ot4a% and Ors15, ordered the "rick klin

owners to follow the norms laid down "y the government very strictly and also ordered the

government to set up a fund for the moderniEation of the "rick kilns as the traditional "rick

klins were causing a lot of air pollution!

)he 1upreme +ourt inMur%i S. 6eoravs!Union of India and Ors17, recogniEed the harmful

effects of smoking in pu"lic and also the effect on passive smokers, and in the a"sence of

statutory provisions at that time, prohi"ited smoking in pu"lic places such as,

7! auditoriums,

9! hospital "uildings,

8! health institutions,

5! educational institutions,

' MANU9UP96?9)666

'? AIR )66) SC 76+ MANU9SC966;9)66'

' ( P a & e


21/26

?! pu"lic office,

4! *u"lic conveyances, including the railways!

In 8. Rama9rishna Raovs!)(derabad 6ee%o$ment +uthorit(,7:the Andhra *radesh High

+ourt o"served

*rotection of the environment is not only the duty of the citiEens "ut also the

o"ligation of the 1tate and itCs all other organs including the +ourts! )he enoyment of

life and its attainment and fulfilment guaranteed "y Article 97 of the +onstitution

em"races the protection and preservation of natureCs gift without which life cannot "e

enoyed fruitfully! )he slow poisoning of the atmosphere caused "y the environmental

pollution and spoliation should "e regarded as amounting to violation of Article 97 of

the +onstitution of India!

It is therefore, as held "y this +ourt speaking through ".#- Choudar2- 3., in 8. 6amodar Rao

and othersvs!S$ecia% Officer, Munici$a% Cor$oration of )(derabad2:,the legitimate duty

of the +ourts as the enforcing organs of the constitutional o"ectives to for"id all actions of

the 1tate and the citiEens from upsetting the ecological and environmental "alance!

In &irender /aur vs! State of )ar(ana21, the 1upreme +ourt held that environmental,

ecological, air and water pollution, etc!, should "e regarded as amounting to violation of right

to health guaranteed "y Article 97 of the +onstitution! It is right to state that hygienic

environment is an integral facet of the right to healthy life and it would not "e possi"le to live

with human dignity without a humane and healthy environment!

In Consumer Education and Research Centrevs! Union of India22,ir%os9ar #rothers "td.

vs!Em$%o(ees; State Insurance Cor$oration23, the 1upreme +ourt held that right to health

and medical care is a fundamental fight under Article 97 read with Article 8:2e3, 57and 58, In

' Writ Petitio ;)9'? T/ Rama$ri!ha Rao 2!/ H#derabad Urba

De2e"o1met Authorit# decided o )6//)66'

)6 AIR '? AP ''

)' ' =)@ SCC

)) ='@ ; SCC 7)

)6 ( P a & e


22/26

Subhash umar vs! State of #ihar2', the 1upreme +ourt held that right to pollutionDfree

water and air is an enforcea"le fundamental right guaranteed under Article 97! 1imilarly in

Shantistar #ui%dersv!-ara(an hima%a% 8otame2,the 1upreme +ourt opined that the right

to decent environment is covered "y the right guaranteed under Article 97! Further, in M.C.

Mehta vs! Union of India2, Rura% "itigation and Entit%ement endra v!State of U.P!9?,

Subhash umar vs!State of #ihar27, and the 1upreme +ourt imposed a positive o"ligation

upon the 1tate to take steps for ensuring to the individual a "etter enoyment of life and

dignity and for elimination of water and air pollution! It is also relevant to notice as per the

udgment of the 1upreme +ourt in &incent Pani9ur%angara vs! Union of India2 '6 G AIR '6 SC ;6 G '6 ' SCC )6

) ='?@ 7 SCC 7; G AIR '?? SC '6;

) AIR '? SC ;

)? =!u1ra@

) AIR '? SC 6 ='?@ ) SCC '

;6 AIR '; SC )'? =';@ ' SCC 7

)' ( P a & e


23/26

to health haEards should not "e at the cost of the health and vigour of the worker! Facilities

and opportunities, as enoined in Article 84, should "e provided to protect the health of the

worker! )he provision for medical test and treatment invigorates the health of the worker for

higher production or efficient service! )he +ourt further held that continued treatment, while

in service or after retirement is a moral, legal and constitutional concomitant duty of the

employer and the 1tate! )herefore, it must "e held that the right to health and medical care is

a fundamental right under 97 read with Article 8:2c3, 57 and 58 of the constitution to make

life of the workman meaningful and purposeful with dignity of person!

&ight to life includes protection of the health and strength of the worker and is a minimum

re>uirement to ena"le a person to live with human dignity! )he 1tate 2+entral and 1tate3

government or an industry, pu"lic or private, is enoined 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 "asic essentials to live the life of health and

happiness! )he 1upreme +ourt went on to o"serve that the right to human dignity,

development of responsi"ility, social protection, right to rest and leisure are fundamental

human rights to a worker assured "y the +harter of Human &ights, in the *ream"le and Arts!

84 and 8: of the +onstitution!

)he health of the worker ena"les him to enoy the fruit of his la"our, keeping him physically

fit and mentally alert for leading a successful life, economically, socially and culturally!

(edical facilities to protect health of the workers are, therefore, the fundamental and human

rights of the workmen!

)he court also held that in an appropriate case, the court would give directions to the

employer, "e it the duty of the 1tate 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! )his was an important o"servation "ecause ordinarily, under its +onstitutional

urisdiction the 1upreme +ourt gives directions only to 1tate authorities and not to private

individuals or employers!

)he employer is vicariously lia"le to pay damages in the case of occupational diseases, here

in this case as"estosis! )he #mployees 1tate Insurance Act and .orkmenCs +ompensation

Act provide for payment of mandatory compensation for the inury or death caused to the

worker while in employment! 1ince the Act does not provide for payment of compensation

)) ( P a & e


24/26

after the cessation of employment, it "ecomes necessary to protect such persons from the

respective dates on cessation of their employment!

)he +ourt o"served

$he :mployees State *nsurance 8ct and ,ormen/s 9ompensation 8ct provide for payment of

mandatory compensation for the in%ury or death caused to the orman hile in

employment. Since the 8ct 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. @iquidated damages by ay of compensation are

accepted principles of compensation.

)he +ourt, while allowing the *etition, ordered in respect of As"estos industries

All the industries are directed

7! to maintain and keep maintaining the health record of every worker upto a minimum

period of 5; years from the "eginning of the employment or 7< years after retirement

or cessation of the employment whichever is later

9! the (em"rane Filter test to detect as"estos fi"re should "e adopted "y all the factories

or esta"lishments on a par with the (etalliferrous (ines &egulations, 7:=7 and

%ienna +onvention and rules issued there under

8! all the whether covered "y #mployees 1tate Insurance Act or .orkmens

+ompensation Act or otherwise are directed to compulsorily insure health coverage to

every worker

5! the nion and all the 1tate @overnments are directed to consider inclusion of such of

those small scale factory or factories or industries to protect health haEards of the

workers engaged in the manufacture of as"estos or its ancilliary products and

to send all the workers, examined "y #1I hospital concerned, for reexamination "y the

$ational Institute of 'ccupational Health to detect whether all or any of them are

suffering from as"estosis! In case of positive finding that all or any of them are

suffering from occupational health haEards, each such worker shall "e entitled to

compensation in a sum of rupees one lakh paya"le "y the factory or industry or

esta"lishment concerned within a period of three months from the date of certification

"y the $ational Institute of 'ccupational Health!

); ( P a & e


25/26

Coc"u!io

In the hundreds of cases dealing with the environment, our +ourts have not really dealt so

much with right to health care as the right to health and the impact of environment on health!

.hile dealing with environmental issues the 1upreme +ourt has developed a num"er of

innovative doctrines such as Bpolluter paysC, Bpu"lic trustC, Breversal of "urden of proofC,

Bpreventive principleC, Btrangenerational e>uityC, etc! However, none of them directly deal

with health care! (any might argue that as long as the environment is clean and this leads to

the "etter health of the people it does not matter as it is the result that counts! /ut the notion

of the Bright to healthC does not come clearly through these udgements! It is important to

recogniEe 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 udgements have asked the polluters to compensate the victims!

)he orders of udiciary in the environment cases have made a difference to the environmental

law scenario in the country and also in providing clean environment! In this BdevelopmentC

era where B1pecial #conomic NonesC are, cropping up across the country it is important for

the udiciary to play an proactive role in safeguarding the environment and also looking at the

health aspects of the people living in this country!

)7 ( P a & e


26/26

Bib"io&ra1h#

A )ext"ook 'f (edical 0urisprudence And )oxicology 95th #dition 2#nglish3 95th

#dition

.ater (anagement In 9;9; And /eyond 2#nglish3 &econsidering Law and *olicy -e"ates A *u"lic Health *erspective 2#nglish3

httpOOwww!environmentallawsofindia!comOtheDenvironmentDdefinitionsDandDacts!html

httpOOwww!epa!vic!gov!auOa"outDusOlegislationOactsDadministeredD"yDepa

httpOOwww!legislation!act!gov!auOaO7::?D:9OcurrentOpdfO7::?D:9!pdf

httpsOOwww!coe!intOtOdghlOmonitoringOsocialcharterOActivitiesO*outakidou#L1A!pdf

httpOOwww!nesri!orgOprogramsOwhatDisDtheDhumanDrightDtoDhealthDandDhealthDcare

httpsOOlaw!ucla!eduOcentersOinternationalDlawDandDhumanDrightsOhealthDandDhumanD

rightsDlawDproectOa"outO

httpOOwww!ohchr!orgO-ocumentsO*u"licationsOFactsheet87!pdf
http://www.environmentallawsofindia.com/the-environment-definitions-and-acts.htmlhttp://www.epa.vic.gov.au/about-us/legislation/acts-administered-by-epahttp://www.legislation.act.gov.au/a/1997-92/current/pdf/1997-92.pdfhttps://www.coe.int/t/dghl/monitoring/socialcharter/Activities/PoutakidouELSA.pdfhttp://www.nesri.org/programs/what-is-the-human-right-to-health-and-health-carehttps://law.ucla.edu/centers/international-law-and-human-rights/health-and-human-rights-law-project/about/https://law.ucla.edu/centers/international-law-and-human-rights/health-and-human-rights-law-project/about/http://www.ohchr.org/Documents/Publications/Factsheet31.pdfhttp://www.epa.vic.gov.au/about-us/legislation/acts-administered-by-epahttp://www.legislation.act.gov.au/a/1997-92/current/pdf/1997-92.pdfhttps://www.coe.int/t/dghl/monitoring/socialcharter/Activities/PoutakidouELSA.pdfhttp://www.nesri.org/programs/what-is-the-human-right-to-health-and-health-carehttps://law.ucla.edu/centers/international-law-and-human-rights/health-and-human-rights-law-project/about/https://law.ucla.edu/centers/international-law-and-human-rights/health-and-human-rights-law-project/about/http://www.ohchr.org/Documents/Publications/Factsheet31.pdfhttp://www.environmentallawsofindia.com/the-environment-definitions-and-acts.html