TO HEALTH AS A BASIC HUMAN RIGHT WITH EMPHASIS ON THE RIGHTS OF MENTALLY ILL

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About Author:
Kapil Tomer
Assistant Professor of Law
IMIRC College of Law
Garh Mukteswar, Panchshell Nagar (Ghaziabad)
kpltomer75@gmail.com

ABSTRACT
In the modern age, we are now living with increasing stress owing to various factors. In the times to come, the stresses and strains will be further cared out, thereby making mental health a very significant issue. According to NIMHANS (National Institute of Mental Health and Neuro Sciences), there are over two crore persons in our country who are in need of treatment for serious mental disorder and about five crore people who are affected by common mental disorder.

In India, the provisions of Article 21 of the constitution have been judicially interpreted to expand the meaning and scope of the right to life to include the right to health and to make the later a guaranteed fundamental right which is enforceable by virtue of the Constitutional remedy under article 32 of the Constitution. It is therefore, imperative that the mentally ill persons receive good quality mental health care and human living conditions not only in any institutions but also in their homes. Some other provisions are also given under the Indian Constitutions which related with the health likes- article 24, 39(e), (f), 47 and some entries under schedule VII in state list.

Thus, mental health is an important component of the overall health of any individual. This was long recognized in ancient India, where in addition to the medical dimension, philosophical, religious, moral and ethical dimensions shaped and provided the ground for normal mental health and contributed to an integrated healing and welfare system for mental illness. The Vedic times provided a broadly conceptualized model of mental health and illness, supported by an ethos of nurturance, support, caring and family responsibility in treatment and rehabilitation of these mental disorders.

During the early Twentieth Century, care of mental ill became mainly limited to institutions which were rife with abuse and discrimination. The attention of both mental health professionals and the courts were drawn to human rights abuses of mentally ill persons within institutions.

Further, The Universal Declaration of Human Rights in 1948 proclaimed the basic human rights for all people, including people with any kind of infirmity. The National Human Rights Commission & lots of legislation have been playing the role of a catalyst to ensure direct action for the protection of the rights of vulnerable sections of society, including the mentally ill.

REFERENCE ID: PHARMATUTOR-ART-1685

INTRODUCTION
This might be the plight of every other person in the society if he has a mental disorder. The family and the society ostracize these people. This is so irrespective of the religious, financial and societal status of persons. It is in this context that the right of mentally ill gain importance especially the right to health. A recent study conducted by National Institute of Mental Health and Neuro Sciences (NIMHANS) has revealed that there are about 7,00,000 mentally ill persons in the state of Karnataka. An indifferent state and an impassionate society care less for these unfortunate mortals and as a result most of them end up in the streets where they lead a life devoid of protection of any constitutional and legal rights. The fact that substantial number of such mentally ill people is woman brings to the fore sexual exploitation and gender related issues which crave for better protection of constitutional, legal and Human Rights by the state.

Example - As area around Bagum Bagh is one of the most known and posh area of Meerut, a lady is often seen begging for food and money. She wears torn and dirty clothes and her hair looks as if she has not had a wash for days together. People who have known her for years say that she used to look healthier some years back. Now, she is mentally ill patient, though mot to extend of being violent and harmful to the people and society. No one knows how she became thus and there is no one to take care of her.

RIGHT TO HEALTH:-
The right to health has been recognized as a basic human right. But the right has not been defined. Health being a condition of person’s body or mind is relative and depends on individuals. Health of a person includes both physical and mental well being. Therefore, the term “Right to Health” may be defined in definite terms. The definitions will include the ambit of the right and the extent to which it may be claimed or enforced.

On the basis of international sources, the right to proper health care in case of mentally ill has been recognized worldwide. In 1991 the general assembly of the UN adopted 25 principles for the protection of persons with mental illness and for the improvement of mental health care. International agreements such as UDHR and ICESCR have express mention of the ‘Right to Health’.  International organizations such as WHO were established to take care of this right of the international community.

INCLUSION OF THE RIGTH IN INDIAN CONSTITUTION:-
The Indian constitution recognizes the right to health. Right to life is interpreted to include right to health, dignity full life etc. also by the Apex court in a number of decisions.

Article 21:-The Indian constitutional article 21 is the heart of the fundamental rights and has received expanded meaning from time to time after the decision of the Supreme Court in Maneka Gandhi vs. Union of India, Art. 21 guarantees a fundamental right to life –a life of dignity to be lived in a proper environment, free of danger of disease and infection.

In M.C. Mehta vs. Union of India, (Popularly known as “Oleum Gas Leak Case”) – The Supreme Court treated the right to live in pollution free environment as a part of fundamental right. Further the A.P. High Court in T. Damodar Rao vs. S.O., Municipal Corporation, Hyderabad, laid down that right to live in healthy environment was specially declared to be part of Art. 21 to the Constitution.

Article 24:- Article 24 of the Constitution speaks about exploitation of child labour. It says that “No child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment” this provisions is certainly in the interest of public health and part of the environment. Further, this article also contents with the health of children.

Article39(e):- that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.

Article39(f):- that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

Art. 39 (e) and 39 (f)- Under Directive Principles of State Policy (DPSP) provide for the protection of the health and strength of children below the age of 14 years.

In people’s Union for Democratic Rights vs. Union of India, the Supreme Court held that the prohibition under Art. 24 could be enforced against any one, be it the State or private individual.  In pursuance of this obligation, parliament enacted the Child Labour (prohibition and Regulation) Act, 1986. The Act prohibits specifically the employment of children in certain industries.

Article 47:- it is the duty of the state to raise the level of nutrition and standard of living and to improve public health. In Tapan Kumar Sadhukhan V. Food Corporation of India, SC held that Food Corporation is an agency of the state. Therefore, it must conform to the letter and spirit of article 47 to improve public health. The state of rice found unsuitable for human consumption could not be sold by the corporation.

Schedule 7 (Entry number 23, 26 and 29 of concurrent list):- The Centre and the States have power to legislate in the matters of social security and social insurance, medical professions, and, prevention of the extension from one State to another of infections or contagious diseases or pests affecting man, animals or plants.

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