Project submitted to:

Dr. Hanumant Yadav

(Faculty of Member of Economics)

Project submitted by:

Devendra Dhruw

Semester III, Roll No. 59

Section C

Date of Submission – 23/10/2017

Hidayatullah National Law University

Raipur, C.G.

1
 DECLARATION

I hereby declare that the project work entitled Laws For Vulnerable Groups submitted to
HNLU, Raipur, is a record of an original work done by me under the guidance of Dr.
Hanumant Yadav sir, Faculty Member, HNLU, Raipur.

Devendra Dhruw

Roll No: 59

Section-C

2
 ACKNOWLEDGEMENT

I would like to sincerely thank the Faculty of Political Science Dr. Hanumant Yadav Sir for
giving me this project on the topic, “Laws for Vulnerable Groups”. This has widened my
knowledge on the relevant topic. His guidance and support has been instrumental in the
completion of this project..

I’d also like to thank all the authors, writers, social workers, for their outstanding and
remarkable works, views, ideas, and articles that I have used for the completion of my
project.

My heartfelt gratitude also goes out to the staff and administration of HNLU for the
infrastructure in the form of our library and IT lab that was a source of great help in the
completion of this project.

I also thank my friend Nirvikalp Shukla for his precious inputs which have been very helpful
in the completion of this project.

Devendra Dhruw

Semester-III, B.A. LL.B. (Hons.)

Roll no - 59

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 TABLE OF CONTENTS

Objectives.....................................................................................................................5

Introduction……….......................................................................................................6

Vulnerable Groups ......................................................................................................7

Various Vulnerable Groups in India……………………………………….…...........8

 Women’s and Girls……………………………………………..…………….8

 Structural Discrimination…………...…………………………...……………9
 Vulnerability of Children and Aged………………………………………..11
 Vulnerability Due to Disability…………………………………..…………12
 Vulnerability Due to Migration…...…………………………………...……14
 Vulnerability Due to Stigma and Discrimination………………...…………15

What Constitutes Violation of Right to Health for Vulnerable Groups?...................16

Scope and Limitations of the Indian State Vis-a-Vis Right to Health………...……17

Conclusion…………………………………………………………………...……...19

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 Objectives

 To know about the Vulnerable Groups.

 To discuss about the Vulnerable Groups in India.
 To know about the constitutional provisions for Vulnerable Groups.

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INTRODUCTION:

Human Rights are the basic right which is being provided by every constitution of every
State and every individual in this globe born with the inherent right of Human Right. They
are most basic right which an individual can ask to have from its nation. They have never
given away any kind of unfairness towards any individual or group of people or they haven’t
been any discrimination made on the basis of caste, sex, religion etc with any individual
under any nation. . They only sponsor the welfare and well-being of all persons with equal
behaviour.. However, the socio-economic, political and cultural diversities, prevailing in each
state across the world, and politics of the nation states, take away the free effect of human
rights to a certain number of people.1

The major problem faced by every developing nation is that the large number of human
sector falls under the poverty line. They are deprived of adequate access in the basic needs of
life such as health, education, housing, food, security, employment, justice and equity which
also include issues related to  sustainable livelihood, social and political participation of the
vulnerable groups exists as the major problem in the developing nations.

All social groups should have equal access to the services provided by the State and equal
opportunity should be provided for their upward economic and social mobility. The
government of every nation should also ensure that should not be any sort of discrimination
against any section of our society. In India, certain social groups such as the SCs, STs, OBCs
and Minorities have in the past been deprived and vulnerable for human rights. There are
certain other groups which may be discriminated against and which suffer from handicaps
and the groups include persons with disabilities, older persons, street children, beggars and
victims of substance abuse. Our Constitution contains various provisions for the enlargement
of such marginalized groups, for instance, Article 341 for SCs, Article 342 for STs, Article
340 for OBCs, Article 30 which provides the right to minorities to establish and administer

1
http://www.legaldesire.com/constitutional-rights-and-safeguards-provided-to-the-vulnerable-groups-in-
india/

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educational institutions, and various other statutes.2 Their individual and collective growth,
however, cannot be ensured without improving their surroundings and providing clean
drinking water, toilets and educational opportunities.

The Constitution of India guaranteed to all the people of India the civil, political, economic,
social, and cultural rights for their realization by all sections of the polity without any kind of
discrimination. However, due to poverty, customary and cultural practices prevailing in the
country, there have  not much opportunity offered to various groups and which lead to
deprive them of beig treated equally as the other sections of the society. There are various
disadvantaged groups of people such as women, children, Scheduled Castes, Scheduled
Tribes, Linguistic Minorities, Religious Minorities, Sexual Minorities etc. In order to expand
their rights, the Constitution of India has provided a number of concessions to protect them
from exploitation by other groups.

VULNERABLE GROUPS:

The meaning of vulnerable is highly evasive. There does not any specific definition of this
word or rather this term hasn’t been anywhere specifically defined in any statute precisely.
Vulnerable groups are those groups of people who may find it difficult to lead a comfortable
life, and lack developmental opportunities due to their disadvantageous position.  However,
in common understanding, people who are easily susceptible to physical or emotional injury,
or subject to unnecessary criticism, or in a less valuable position in any society may be
defined as vulnerable people. Further, due to adverse socio-economical, cultural, and other
practices present in each society, they find it difficult many a times to exercise their human
rights fully.

Vulnerable groups are the groups which would be vulnerable under any circumstances (e.g.
where the adults are unable to provide an adequate livelihood for the household for reasons of
disability, illness, age or some other characteristic), and groups whose resource endowment is
inadequate to provide sufficient income from any available source.3

In India there are multiple socio-economic disadvantages that members of particular groups
experience which limits their access to health and healthcare. Besides there are multiple and

2
http://www.legalservicesindia.com/article/article/vulnerable-groups-in-india-status-schemes-constitution-of-
india-1079-1.html
3
http://www.unipune.ac.in/university_files/1Human%20Rights%20of%20Vulnerable%20&%20Disadvantaged
%20Groups_211212.pdf

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complex factors of vulnerability with different layers and more often than once it cannot be
analysed in isolation. The present document is based on some of the prominent factors on the
basis of which individuals or members of groups are discriminated in India, i.e., structural
factors, age, disability and discrimination that act as barriers to health and healthcare. The
vulnerable groups that face discrimination include- Women, Scheduled Castes (SC),
Scheduled Tribes (ST), Children, Aged, Disabled, Poor migrants, People living with
HIV/AIDS and Sexual Minorities. Sometimes each group faces multiple barriers due to their
multiple identities.4 For example, in a patriarchal society, disabled women face double
discrimination of being a women and being disabled.

VARIOUS VULNERABLE GROUPS IN INDIA:

(i).Women and Girls:

Women and girls are the most essential  part of our society as there cannot be any society
exist without them but there are many sectors where they are not considered as humans also
and for them their does not exists the concept of human rights as they are not  aware about
their rights. The scenario in the developing countries is quite different as the society is
changing day by day and as we are adopting each other cultures and in a modern era they are
getting aware of about their human rights and they are in a more disadvantageous position
due to abject poverty, other social, cultural, and derogatory customary practices adopted in
each country. Women face double discrimination being members of specific caste, class or
ethnic group apart from experiencing gendered vulnerabilities as they have little control on
the resources . In India, early marriage and childbearing affects women’s health adversely.
About 28 per cent of girls in India get married below the legal age and experience pregnancy.
These have serious repercussion on the health of women. Maternal mortality is very high in
India. The average maternal mortality ratio at the national level is 540 deaths per 100,000 live
births. It varies between states and regions, i.e., rural-urban. The rural MMR is 617 deaths of
women age between 15-49 years per one lakh live births as compared to 267 maternal deaths
per one lakh live births among the urban population and the end result of that is the death
ratio is quite high.5 A large percentage of women is reported. In India, social norms and
cultural practices are embedded in a highly patriarchal social order where women are

4
http://fi.ge.pgstatic.net/attachments/33376_8c7cb59047bd4d6896adaa2729fe8bd8.pdf
5
http://fi.ge.pgstatic.net/attachments/33376_8c7cb59047bd4d6896adaa2729fe8bd8.pdf

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expected to hold on to strict gender roles about what they can and cannot do and to have
received no antenatal care and there are various institutions which have delivered lowest
among women from the lower economic class as against those from the higher class. During
infancy and growing years a girl child faces different forms of violence like infanticide,
neglect of nutrition needs, education and healthcare. As adults they face violence due to
unwanted pregnancies, domestic violence, sexual abuse at the workplace and sexual violence
including marital rape and honour killings. In the case of internal migration in India,  they
suffer greater vulnerability due to reduced economic choices and lack of social support in the
new area of destination.

Major schemes for Women– · Indira Gandhi Matritva Sahyog Yojana (IGMSY) · Rajiv
Gandhi Scheme for Empowerment of Adolescent Girls (RGSEAG) · Swadhar Yojna · STEP
(Support to Training and Employment Programme for Women) (20th October 2005) · Stree
Shakti Puraskaar Yojna · Short Stay Home For Women and Girls (SSH) · UJJAWALA : A
Comprehensive Scheme for Prevention of trafficking and Rescue, Rehabilitation and Re-
integration of Victims of Trafficking and Commercial Sexual Exploitation · General Grant-
in-Aid Scheme in the field of Women and Child Development.

STRUCTURAL DISCRIMINATION (Scheduled Castes, Scheduled Castes, Dalits,

Scheduled Tribes)

Every society is curtailed with different groups and every group has its own rules, regulations
and norms. There is no such particular definition and essentials elements that will be
considered as norms. The norms can be understood as things which act as structural barriers
giving rise to various forms of inequality.  Structural norms are attached to the different
relationships between the subordinate and the dominant group in every society. A group’s
status may for example, be determined on the basis of gender, ethnic origin, skin colour, etc.
The Access to health and healthcare for the subordinate groups is reduced due to the
structural barriers. The concept of Structural discrimination can be understand as the rules,
norms, which are generally being  accepted approaches and behaviors in institutions and
other social structures that amounts to certain obstacles for subordinate groups to the equal
rights and opportunities possessed by dominant groups. Such discrimination may be visible

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or invisible, and it may be intentional or unintentional. The right to health obliges
governments to ensure that “health facilities, goods and services are accessible to all
especially the most vulnerable group or marginalized section of the population, in law and in
fact, without discrimination. In India, members of gender, caste, class, and ethnic identity
practice structural discrimination as an impact on their health and access to healthcare.
Among the Scheduled Castes and the Scheduled Tribes the most vulnerable are women,
children, aged, those living with HIV/AIDS, mental illness and disability. These groups face
rigorous forms of discrimination that denies them access to cure and prevents them from
achieving a better health status. In India, Girl child and women from the marginalized groups
are more vulnerable to violence. The dropout and illiteracy rates among them are high. Early
marriage, trafficking, forced prostitution and other forms of exploitation are also reportedly
high among them. Further, there is a flawed, inflexible notion that they lack merit and are
incompatible for formal employment and due to the lack of access to fixed sources of income
and high incidence of wage labour associated with high rate of under-employment and low
wages SC households are often faced with low incomes and high incidence of poverty. In
2004–05, about 36.80% of SC persons were BPL in rural areas as compared to only 28.30%
for others (non-SC/ST)6

Constitutional aspect of these vulnerable groups:

There are various constitutional provisions which are dealing with the problem of
discrimination on the basis of Caste. They are as follows:

Art. 15(4) : Clause 4 of article 15 is the fountain head of all provisions regarding
compensatory discrimination for SCs/STs. This clause was added  in  the  first amendment to
the constitution in 1951 after the SC judgment in the case of Champakam Dorairajan V. State
of Madras[3]. It says thus, “Nothing in this article or in article 29(2)  shall  prevent the state
from  making any  provisions for the advancement of any socially and economically
backward classes of  citizens or for Scheduled Castes and Scheduled Tribes.” This clause 
started the  era of  reservations in India.

The  basic  aim or objective of  making  these  articles  is to  make  the  socially  and 
economically  people to  fall  in the  same  category as  the  other  sections of the society is
treated and make them feel comfortable about their position in the society. In the case of 
Balaji V. State of Mysore, the SC held that reservation cannot be more than 50%. Further,
6
http://fi.ge.pgstatic.net/attachments/33376_8c7cb59047bd4d6896adaa2729fe8bd8.pdf

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that  Art. 15(4)  talks  about  backward classes and not backward castes thus caste is not the
only criterion for backwardness.

Finally in the case of Indra Sawhney V. Union of India, SC upheld the decision given under
Balaji V. State of Mysore that reservation should not exceed 50% except only in special
circumstances. It further held that it is valid to sub-categories the reservation between
backward and more awkward classes. However, total should still not exceed  50%. It  also 
held  that  the  carry  forward  rule  is  valid as long  as  reservation  does not  exceed 50%.

Art. 15(5): This clause was added in 93rd amendment in 2005 and allows the state to make
special provisions for backward classes or SCs or STs for admissions in private educational
institutions, aided or unaided.

VULNERABILITY OF CHILDREN AND AGED

Mortality and morbidity among children are caused and compounded by poverty, their sex
and caste position in society. All these will lead to  have penalty on their nutrition intake,
access to healthcare, environment and education. The factors which directly impacts are as
follows: food security, education of parents and their access to correct health information and
access to health care facilities. The important causes of death among children from poor
families is Malnutrition and chronic hunger which include Diarrhoea, acute respiratory
diseases, malaria and measles and  most of which are either avoidable or treatable with low-
cost intervention. The vulnerability among the elderly is not only due to an increased
incidence of illness and disability, but also due to their economic dependency upon their
spouses, children and other younger family members. According to the 2001 census, 33.1 per
cent of the elderly in India live without their spouses.

Child faces discrimination and disparity access to nutritious food and gender based
aggression is evident from the falling sex ratio and the use of technologies to get rid of or
abolish the girl child. Surrounded by children the health indicators vary between the different
social groups. High mortality and morbidity is reported among children from Scheduled
Castes, Scheduled Tribes and Other Backward Classes as compared to the general population.
Infant mortality is higher among the rural population (Rural-62, Urban 42 per one thousand
live births in the last five years, National Family Health Survey 3, Fact Sheets). The injection

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coverage is very poor among children who live in rural India. Injection coverage among
children between 12-23 months who have received the suggested vaccines is only 39 per cent
in rural India in contrast to 58 per cent in urban India. In India, children’s vulnerabilities and
practice to violations of their protection rights remain spread and multiple in nature. The
manifestations of these violations are various, ranging from child labour, child trafficking, to
commercial sexual exploitation and many other forms of violence and abuse. With an
estimated 12.6 million children engaged in hazardous occupations. In India, however there is
a huge gap in the industry-specific and exposure-specific epidemiological evidence. Most of
the studies are small-scale and community-based studies and the population is growing
promptly and is emerging as a serious area of concern for the government and the policy
planners. According to data on the age of India’s population, in Census 2001, there are a little
over 76.6 million people above 60 years, constituting 7.2 per cent of the population. The
number of people over 60 years in 1991 was 6.8 per cent of the country’s population.

 Constitutional provisions of this group:

Art. 19 A: Education up to 14 yrs has been made a fundamental right. Thus, the state is
required to provide school education to children so as to maintain the integrity of the
principle under which these laws are made and also to maintain the equal treatment of child
under the constitution and in the eyes of law as well as society.

In  the  case of  Unni  Krishnan V. State of AP[5], SC  held  that  right  to education for
children between 6 to 14 yrs  of  age  is a fundamental  right as it  flows  from  Right  to  Life.
After  this decision, education  was made a  fundamental  right  explicitly through  86th 
amendment  in 2002. Art. 24: Children have  a fundamental  right  against exploitation and it
is prohibited to employ children below 14 yrs of age in factories  and  any  hazardous 
processes. Recently the list of  hazardous processes has  been update  to  include domestic,
hotel, and  restaurant  work. Several PILs have been filed in the benefit of children. For
example, MC Mehta V. State of TN[6} SC has held that children cannot be employed in
match factories or which are directly connected with the process as it is hazardous for the
children.

Art. 45: Urges the state to provide early childhood care and education for children up to 6 yrs
of age. Age and high levels of economic  reliance  combine to create high levels of
vulnerability to chronic poverty. While old age pension schemes are in place neither the small

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amounts made available nor the aggravated form of accessing them make this a resolution to
the trouble of chronic poverty between the elderly. With the high incidence of chronic
ailments and health care needs of the elderly, declining family size, migration and breakdown
of traditional family structures that provided support, this group of the population is
extremely vulnerable to poverty.

VULNERABILITY DUE TO DISABILITY

Disability poses greater challenges in obtaining the needed range of services. Persons with
disabilities face several forms of discrimination and have compressed access to education,
employment and other socioeconomic opportunities. The percentage of disabled inhabitants
to the total inhabitants is about 2.13 per cent. There are two broad categories of disability,
one is acquired which means disability acquired because of accidents and medical reasons
and the other is disability since the origin of birth. According to the National Sample Survey
Organisation Report (58th Round), about one-third of the disabled population have disability
since their birth and there are various interstate and interregional differences in the disabled
population. The disabled face various types of barriers while looking for access to health and
health services. In the middle of those who are disabled women, children and aged are more
vulnerable and need attention. Five out of ten leading causes of disability and premature
death worldwide are due to psychiatric conditions which also include deadly diseases like
Depression and anxiety are the most common mental disorders. The other area of concern is
the mental health of women and the elderly. Neurotic and stress connected cases are allegedly
higher among women than men, though among men there is exposure of higher number of
cases of serious illness. In spite of such proportion of mental illness, the health care
necessities for persons with mental illness are very poor in India. People with mental illness
face severe forms of human rights violations. There is social stigma attached to mental
illness. Women with mental illness are subjected to physical and sexual abuse both within

13
families and the institutions. Psychiatric medicines are complete only in a few primary health
centres, community centres and district hospitals. Services like child guidance and
rehabilitative services are also obtainable only in mental hospitals and in big cities. Several
states do not have mental hospitals. The Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act 1995, commonly referred as the PWD Act
came into force on Feb. 7, 1996. Mental illness has been considered in the Act, but there is no
reference to any provision within the Act to be given or set aside for people with mental
illness.

Constitutional provisions of this group:

The  Constitution of  India ensures equality, freedom, justice and  dignity of all individuals
and implicitly mandates an inclusive  society  for  all  including  the  persons  with 
disabilities. The Constitution  in the schedule of subjects lays  direct  responsibility of   the 
empowerment of  the  persons  with  disabilities on the State Governments Therefore, the
primary responsibility to empower  the  persons  with  disabilities  rests  with  the State 
Governments.

Under  Article 253  of the Constitution read with item No. 13 of the Union List, the

Government of India enacted “The  Persons  with  Disabilities (Equal  Opportunities, 
Protection  of  Rights  and  Full  Participation) Act, 1995”, in the  effort  to  ensure  equal 
opportunities  for  persons  with  disabilities  and  their  full  participation  in  nation-building.
The  Act  extends  to  whole  of  India  except  the  State of  Jammu and  Kashmir. The 
Government  of Jammu &  Kashmir  has  enacted  “The  Persons  with  Disabilities  (Equal 
Opportunities,  Protection  of  Rights  & Full  Participation  Act, 1998.”

VULNERABILITY DUE TO MIGRATION

 Migrants and their denial of human rights have to be understood from the dynamic
contradictions within and across countries—from skilled and voluntary migrants at one end
of the variety to the poor and unskilled migrant population on the other end designed to be
excluded from the fabric of the host nation.  The correlation of human rights and migration is

14
a depressing one and also has bad experiences all the way through the migratory ‘life cycle’,
in areas of origin, journey or transit and destination. The correlation of health and human
rights has becomes even more complex because of irregular or illegal migration clashes with
the interest of the area of target. All  these things have direct impact on the rights of
individual migrants. India has a large number of international migrants. Neighbouring
countries are the major sources of foundation of the international migrants to India with the
size of these migrants approaching from Bangladesh, followed by Pakistan and Nepal, but all
these  migrants  who  have  entered  the country legally. Migrants and mobile people become
more vulnerable to HIV/AIDS and it creates the situation of encountered and behaviours
possibly occupied in during the mobility or migration that increases vulnerability and risk.
Migrant and mobile people may have little or no access to HIV information, anticipation,
health services. This creates a negatively impact on their  ability  to access  suitable
treatment and care and also there is stigma linked with mental illness due to which they
practice discrimination in many other aspects of their lives which are affecting their various
rights such as right to employment, adequate housing, education etc. There are many who
enter the country illegally and are one of the most vulnerable to abuse and exploitation by
employers, migration agents, corrupt bureaucrats and criminal gangs. In many situations,
migrants do not know what rights they are entitled to and still less how to claim them hence
the cases of abuse go unrecorded. Another area where development is rampant and is forced
labour which takes place in the illicit underground economy and hence tends to escape
national statistics. Illegal migrants often live on the margins of society, trying to avoid
contact with authorities and have little or no legal access to prevention and healthcare
services. They tend to face higher risks of exposure to have unsafe working conditions. Many
frequent they do not approach the health system of the host countries for fear of their status
being discovered. Internal migration of poor labourers has also been on the rise in India.

VULNERABILITY DUE TO STIGMA AND DISCRIMINATION

People living with HIV/AIDS, Sexual Minorities:

There are certain attitudes and perceptions towards certain kinds of illnesses and sexual
orientation which results in discrimination against individuals/groups. This section faces the
stigma and discrimination faced by the People living with HIV/AIDS and Sexual Minorities.
These groups face various kinds of discrimination and have reduced access to healthcare.
Stigma is the supreme barrier of health and healthcare in their context. Negative responses

15
and attitude of the society towards these groups are strongly linked to people’s observation of
the causes of HIV / AIDS and sexual orientation. The rights of People living with HIV/AIDS
are violated when they are deprived of access to have health, education, and services. They
suffer when their close or extended families and friends fail to provide them the support that
they need. India’s National AIDS Control Organization (NACO) estimated in  2005  that
there were 5.206  million  HIV  infections  in  India, of which 38.4 per cent occurred in
women and 57 per cent Stigma refer to attitudes that certain groups are lesser in one or  many
ways  based on  their  membership in a group. The term “discrimination” is used whenever
people are treated negatively, either by treating them differently where  they  should  be
treated  the same or by treating them same where they should be treated in a different way.
Discrimination is  the  breach of  human  rights obligation and which leads to violence,
torture, and exclusion from the society. Treating people equally does not essentially mean
that people should be treated the same and occurred in rural areas. There are many experts
argue that the current figures are gross underestimations and that a significant number of
AIDS cases go unreported. Prevalence estimates are based primarily on guard surveillance
conducted at public sites. The national information system for collecting HIV testing
information from the private sector is very weak. Vulnerability to HIV is also increased by
the lack of power of individuals and communities to minimize or adjust their risk of exposure
to HIV infection and once infected, to receive satisfactory care and support. Some individuals
are more vulnerable to the infection than others. Low status of woman may force a
monogamous woman to engage in exposed sex with her spouse even if he is charming in sex
with others. Similarly youngster girls and boys may be vulnerable to HIV by being denied
access to preventive information, education, and services. Sex workers may have greater
vulnerability to HIV if they cannot access services to prevent, diagnose, and treat sexually
transmitted infections, particularly if they are afraid to come forward because of the stigma
associated with their occupation. There are strong perceptions of the causes of AIDS, routes
of transmission, and their level of knowledge about the illness. These are compounded by the
marginalization and stigmatization on the basis of such attributes as gender, migrant status or
behaviours that may be perceived as risk factors for HIV infection. For example, women
whose husbands have died of AIDS are rejected by their own and their husband’s families
and they are denied property inheritance of their husbands.

Constitutional provisions of this group:

16
Art. 15(1) : The  State shall not discriminate against any citizen on grounds only  of  religion,
race, caste, sex, place of  birth or any of  them.

WHAT CONSTITUTES VIOLATION OF RIGHT TO HEALTH FOR

VULNERABLE GROUPS?

The violation of the right to health of vulnerable groups may result from direct government
action, from failure of the government to fulfil its minimum core obligations and from the
patterns of systematic discrimination. The specific examples of violations of right to health of
vulnerable groups would be:

 Deliberate preservation or twisting of information on the health status of deprived

groups that may have been necessary for the prevention and treatment of illness or
disability.

 Impressive discriminatory practices touching the group’s health status and needs. 
Adopting laws and policies that interfere with the rights of the groups, for example,
women’s reproductive rights.

 Failure to protect women against violence is often systematic and serious enough to
require women to seek hospital treatment for injuries and involve other health
difficulty related to violence. When governments fail to take pre-emptive steps to
prevent and treat victims of violence it is tantamount to violation of right.

 Failure of government to provide adequate public health measures against infectious

diseases that affect the disadvantaged groups.

 Government policies and practices creating imbalances in providing health services,

i.e., poor infrastructure in rural areas or predominantly tribal areas. Systematic
discrimination in access to medicines and essential drugs for particular groups, i.e.,
HIV/AIDS drugs, reproductive health services for particular groups like women living
in poverty, in rural areas, belonging to marginalized communities.

17
SCOPE AND LIMITATIONS OF THE INDIAN STATE VIS-A VIS RIGHT TO
HEALTH

The Constitution of India and the other various laws do not accord health and healthcare as
rights to the population in general. While civil and political rights are enshrined as
fundamental rights that are permissible, social and economic rights like health, education,
livelihoods etc. exist as Directive Principles for the State and are hence not permissible.
There are however so many instances in which cases have been filed in the various High
Courts of states and Supreme Court of India on the right to life, Article 21 of the Indian
Constitution or on the various directive principles to demand access to healthcare,
particularly in emergency situations. International safeguard of human rights is only effective
when they are made viable by national protection. The key factors in rights being
operationalised for individuals and groups within a nation are National-level legislation,
policies and enforcement mechanism in which  National laws offer variable degrees of
protection against human rights violation and enables national bodies to hear cases of denial
and enforce the norms. At present there is a problem of justifiability of the Right to health in
Indian Constitution since the same is not protected by national legislation. Though India has
ratified the Treaty on the Economic Social and Cultural Right which covers Right to Health
(Article 12), that cannot be efficiently used to advocate for right to health in India. The
Courts or petitioners can merely derive motivation from the treaties on the cases on
contradiction on right to health but may not be able to use it efficiently to deliver justice. The
international treaties have only an suggestive significance unless protected by national
legislation. Absence of national legislation on right to health in India is the main reason why
it cannot be realized. Health and human rights support in India needs to intensify the attempts
towards transforming the critical principles of the Directive principles on health and work
into independent rights through rigorous judicial activism, i.e., filing Public Interest
Litigations, gathering testimonials for denial on right to health, etc. There needs to be a
concerted move towards making a national legislation on right to health.

18
CONCLUSION:

In the Constitution of India, the three pillars of human rights are

(a). the right to equality including the prohibition of discrimination in any form

(b). the six vital freedoms of citizens (including the right to speech and expression)

(c). the right to life guaranteed to all persons.

These rights have been recognized to be inalienable, unalterable and part of the basic
structure of the Constitution which cannot be abrogated. India’s Supreme Court has
interpreted the right to life as including the right to live with dignity, right to health,
education, human environment, speedy trial and privacy, to name a few. Much of the focus of
governmental activity has been to improve the provision of services through grass-roots local
self-governance institutions, particularly in rural areas. India has taken an important initiative
for the empowerment of women by reserving one-third of all seats for women in urban and
local self-government, bringing over one million women at the grassroots level into political
decision making. India has guaranteed human rights to all persons in India including the
protection of minorities. India has secured their right to practice and preserve their religious
and cultural beliefs as a part of the Chapter on Fundamental Rights. Legislative and executive
measures have been taken for the effective implementation of safeguards provided under
the Constitution for the protection of the interests of minorities. India has been deeply
conscious of the need to empower the Scheduled Castes and Scheduled Tribes and is fully
committed to tackle any discrimination against them at every level. The Constitution of India
abolished “untouchability” and forbids its practice in any form. There are also explicit and
elaborate legal and administrative provisions to address caste-based discrimination in the
country. India stated that at independence, after the departure of the colonizers, all the people,
including its tribal people, were considered as indigenous to India. This position has been

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clarified on various occasions, including while extending India’s support to the adoption of
the United Nations Declaration on the Rights of Indigenous Peoples at the Human Rights
Council and the General Assembly.

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