India's Healthcare in a Globalised World: Healthcare Workers’ and Patients’ Views of Delhi’s Public Health Services

INDIA’S HEALTHCARE IN A
GLOBALISED WORLD:
Healthcare Workers’ and Patients’
Views of Delhi’s Public Health Services
A Collaboration Between
Hospital Employees Union
Jobs with Justice
Society for Labour and Development

July, 2007
Published by:
Society for Labour and Development
G-40, Jangpura Extn.
New Delhi-110 014
Tel. : 24322622
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Content of this report can be reproduced with due acknowledgement to this
Publication.

Acknowledgements i
Executive Summary iii
1. Motivation for Worker-Patient Study 1
2. Methodology of the Study 5
3. Health Policy in India 9
4. State of Health Care in Delhi 16
5. Health Sector and New Labour Jurisprudence 24
6. Right to Health in India: Arguments for Justice and Enforceability 30
7. Healthcare Reform Movement in the United States 36
8. Patients’ View of Delhi’s Public Health Services 44
9. Workers’ View of Delhi’s Public Health Services 52
10. Findings and Recommendations 71
References 77
Contents

Acknowledgements
Chapter One
This report is a collaboration between the Hospital Employees Union (HEU), Jobs
with Justice (JwJ) and the Society for Labour and Development. This is the first
time that a study is being done that includes both workers’ and patients’
perspectives in healthcare in India. The collaborative effort builds on the
Hospital Employees Union’s experience with historic healthcare union struggles
in Delhi and Jobs with Justice’s experience with fighting for decent healthcare
through coalition building among healthcare unions and patient communities
in the United States.
Rajiv Agarwal, the General Secretary of HEU and also an eminent labour lawyer,
must be commended for his openness to new perspectives and new ways of
working at a time when the labour movement is on the retreat. Without his
support, this research would not have taken place.
We are grateful to Fred Azcarate and Sarita Gupta of JwJ and to Tim Waters of
the United Steel Workers who is also a Board Member of JwJ for being committed
supporters of this effort.
We are extremely fortunate to have had two excellent and experienced
researchers conduct the research. They are Selvaraj Sakthivel and Nawab
Wahabul Haque. Sakthi, the Senior Researcher and the primary architect of the
project, brought to it his deep understanding and experience as well as his
commitment to social justice. Haque is an outstanding Field Researcher and
conducted 500 surveys, under discouraging and difficult circumstances in the
exhausting heat of Delhi’s summer, with a rigour that is hard to find.
Sakthi is the primary author of the report and it has benefited from his sharp
analysis and sympathy with ground realities. He has also demonstrated patience
and commitment in working with a union, which operates differently from a
research organization.
Sanjoy Ghose, advocate in the Supreme Court, wrote the chapter on legal
jurisprudence. His clear and intelligent analysis of how the judicial process has
rolled back legislated labour rights, gives us a concrete idea of the tasks before
us.
Bobby Kunhu, a long-time activist on healthcare in India, a lawyer and an
educator, wrote the chapter on the arguments for the right to healthcare, from
the perspective of justice and enforceability. His thoughts give us ideas on how
to move forward for such a campaign.
Acknowledgements
i

Acknowledgements
Sarita Gupta, National Executive Director of Jobs with Justice in Washington,
D.C. wrote the chapter on healthcare reform in the USA. She has played a key
role in developing Jobs with Justice’s work in healthcare reform through coalition
building between healthcare workers and patients’ communities; JwJ’s own
lessons from doing this work are useful to reflect on.
This report would not be in existence without the time given to us by the workers
and patients of Delhi’s public health facilities. We are extremely grateful for
their participation and are committed to building an inclusive and equitable
healthcare agenda.
I am honoured to have coordinated this project. As Secretary of HEU in Delhi
and the International Organizer of JwJ, this project has enriched my
understanding of how partnership with local organizations, based on equality
and mutual reciprocity, is the only way for global or international labour rights
work to ultimately find its feet on the ground.
Anannya Bhattacharjee
Secretary, Central Committee of Hospital Employees Union
International Organizer, Jobs with Justice
ii

viiExecutive Summary
In India, indeed around the world, governments are increasingly abdicating their
responsibilities towards their peoples and cutting back on basic services that
citizens should be entitled to from their governments. Health, education,
sanitation, water, and electricity are becoming profit making ventures rather
than government services.
The healthcare industry is the world’s largest industry with global revenues of
an estimated 2.8 trillion USD. India is expected to become a major player due
to its high population, cheap labour, and skilled workforce. Yet, with India’s
insignificant coverage of social health insurance coupled with declining public
expenditure and growing corporatization, household healthcare spending has
skyrocketed over the years. India is notorious as a developing economy where
household out-of-pocket spending is extremely high. Two of the main reasons
for untreated ailments are lack of facilities and the runaway cost of private health
care.
Health workers and patients are two sides of the coin called the healthcare
service. The organizations partnering in this research project believe that
workers and patients need to come together in addressing the issue of
healthcare including working conditions and quality, accessibility, and adequacy
of services. This study is the first attempt by a union taking leadership to bridge
this divide in India. It focuses on urban healthcare in Delhi, not forgetting
however, that the vast majority of Indians live in rural areas.
People’s health is central to the nation’s prosperity and well-being. We face a
huge crisis today which can only be solved by bringing together communities
that access healthcare, workers who provide them, and governments and
administrations that control the delivery systems, along with human rights
groups, legal experts, scholars, medical professionals, and policy makers. The
right to healthcare, labour rights and human rights are integrally linked. We
hope this study will help begin such conversations.
The study is based on a survey of public health care institutions in Delhi. It
was conducted during June-August 2006 with the use of two questionnaires,
one for the patients visiting the health care units and the other for the health
workforce in these institutions. The total number of questionnaires was
restricted to 500. Most of the hospitals under the Municipal Corporation of Delhi
(MCD) and the Delhi Government were covered under the survey. In addition,
we also visited smaller dispensaries/primary health centres/sub-centres.
Chapter One
Executive Summary
Background
Objective and
Methodology
iii

viii Executive Summary
In order to understand the health care status of the country and the National
Capital Territory of Delhi, we use secondary sources such as the Sample
Registration System (SRS) of the Registrar General of India; Directorate of Health
Services, Delhi; Health Information of India; Central Bureau of Health
Intelligence; and Government of India, and Delhi’s budget documents. This
report also makes use of the National Sample Survey Organisation (NSSO). In
order to understand legal and international issues, other sources used are legal
cases, international human rights documents and activist documents.
Chapter One explains the motivation for the study and the impact of neo-liberal
policies on healthcare.
Chapter Two explains the methodology of the study including the healthcare
facilities covered and the breakdown of respondents.
Chapter Three traces the trajectory of India’s healthcare policies from
independence till today, the gaps between responsible policies and vision and
ground realities, and the impact of global frameworks like TRIPS and GATS on
healthcare policies.
Chapter Four describes the status of healthcare in Delhi, including the various
institutions and authorities, and the current trends in healthcare financing and
provision under neo-liberal policies. It focuses on healthcare facilities as well
as associated issues like drug policies and diagnostics.
Chapter Five provides an analysis of the state of labour laws in India in the
light of recent judgements from the Supreme Court, and their implications for
the hospital industry.
Chapter Six provides a framework for developing a case for the Constitutional
right to health.
Chapter Seven gives us a look into the healthcare crisis in the United States.
The US government and multinationals are at the forefront of privatization and
corporatization across the globe. Jobs with Justice shows us the other face of
America – where people have some of the poorest health conditions in the
developed world and are fighting for just, accessible and affordable healthcare.
The Jobs with Justice struggle for healthcare has revealed important lessons,
which the chapter describes.
Delhi’s health care faces many of the same problems as the rest of the country,
in spite of being the capital region. Delhi’s growth is enormous as are the
attendant inequities.
Chapter Eight and Nine gives us an analysis of Delhi’s public healthcare
institutions, based on our survey of workers and patients.
Structure of the
Report
iv

ixExecutive Summary
We have found that:
A significant portion of patients’ out-of-pocket spending goes into paying
for drugs and expensive diagnostic services. Services such as diagnostics
which used to be free, have been outsourced to private companies that
charge high fees. Opportunities for corruption have increased because
medical practitioners often get commissions from the diagnostics services
for recommending patients to them.
Departments such as security, kitchen, laundry and cleaning have been
partially or fully contractualised. Contract workers are hired for performing
tasks that were previously done by regular and permanent workers. The
study shows the dire situation of these workers, in terms of all aspects of
labour standards. 81% of contract workers are found among the lower paid
workers such as ward boys / ayahs, security guards, sweepers, etc. Labour
contracting has implications for both the quality and cost of the services
as well as the working conditions of the service providers.
Workers are poorly managed. Inadequate hiring of staff, preferential
treatments, and unprofessional supervision result in arbitrary practices.
Corruption takes hold as political influence and bribery keeps the poor
management practices firmly in place. The end result is that patients are
subjected to overcrowding, long waits, absent workers, bribery, disrespect
and rudeness. Workers face high workload, mismatch between job and
skills, unfilled vacancies, corruption, lack of professional supervision, and
low morale.
Social discrimination appears to be institutionalized within the public health
facilities. Three fourth of the patients using public health facilities belong
to lower castes or socially disenfranchised groups. Nearly sixty percent of
the patients asserted that the healthcare staff is not polite and respectful,
which is partly the result of social discrimination based on caste, class
and economic status. Among the workers or service providers, the survey
shows that the same class and caste form the majority of the lower end
workers such as ward ayahs, ward boys, safai karamcharis (cleaners), and
so on, while the upper castes dominate the higher end. This caste break
up is directly related to the level of exploitation as lower classes of workers
are subjected to more discriminatory practices.
The infrastructure of the public health institutions is shockingly poor. Over
25 percent of patients find the drinking water unclean and over half of
them find no water in the toilets. The presence of rats, inadequate supplies
and malfunctioning equipment add insult to injury for both workers and
patients. Both patients and service providers face poor sanitation,
dangerous risk of further infection and illness from exposure to hospitals,
and low morale.
The patients’ communities and the public in general that use the public
health services do not have avenues through which they can voice their
opinions and in fact have little awareness of rights and responsibilities of
governments.
v

x Executive Summary
Labour organizations have not yet developed the practices required to
address the severe crisis the workers face today, let alone the patients
with whom they have either no contact or an antagonistic relation. Workers
appear to want to be part of organizations like unions in order to improve
their professional lives. However, higher end workers are more organized
than the lower end workers and this speaks to the need for building better
cohesion among hospital workers and better organizations. Contract
workers are a growing part of the workforce and any formation of workers
at any level has to address their issues.
The hospital and the larger governmental administration have failed to
deliver to the public under the mandate given to them. As public health
services for the vast majority suffer, they look to further gutting them,
shifting public resources into private hands, and making conditions more
insecure for workers and patients alike.
Local politicians play a significant role in intervening negatively in
administration practices at various points. Often enough, their intervention
may supersede management priorities and public interest.
Unwise and unjust macro policies have a major impact on healthcare: these
include judicial efforts to roll back labour protection and push hospitals
out of the realm of labour laws; drug policies that reduce the production
of essential drugs and make drugs a source of profit rather than cure;
inadequate primary health care centres which put an additional burden on
the public hospitals; and a total lack of social health insurance which can
have catastrophic consequences for household budgets.
Chapter Ten gives the major findings and recommendations of the report. It
recommends that representatives from communities that access healthcare,
workers who provide them, and government and management (public or private)
that control the delivery systems must develop a consultative, accountable, and
transparent process so that an effective and affordable healthcare system can
be built. Tripartite systems of grievance solving, transparent and enforceable
standards, and avenues for promoting public participation are essential.
Coordinated and strategic multi-stakeholder platforms and initiatives must
eventually lead to a movement for public accountability and build power for
the constitutional right to healthcare in India.
Findings and
Recommendations
vi

Motivation for Worker-Patient Study 1
In India, indeed around the world, governments are increasingly abdicating their
responsibilities towards their peoples and cutting back on basic services that
residents of a nation should be entitled to from their governments. Health,
education, sanitation, water, electricity, and so on are becoming profit making
ventures rather than government services.
The healthcare industry is the world’s largest industry with global revenues of
an estimated 2.8 trillion USD. India is expected to become a major player due
to its high population, cheap labour, and skilled workforce. India is already
the sixth most privatized country in the world, in terms of healthcare. Yet, only
ten percent of the market potential of this industry has been tapped.
The Hospital Employees Union in Delhi, a public sector health workers union,
is witnessing the disintegration of public health services and its effect on
workers. Across India, people’s health organizations have protested the gross
inadequacies of the healthcare system. However, although unions and people’s
health organizations are dismayed by this growing crisis, the two rarely engage
in a dialogue. Hospital unions limit their responsibilities to traditional workers’
issues like wages and benefits and people’s health organizations focus on the
communities that are served.
However, health workers and patients are two sides of the same coin. The
organizations partnering in this research project believe that workers and
patients need to come together in addressing the issue of healthcare including
working conditions, quality of services, accessibility of services, adequacy of
services, and so on. This study is the first attempt by a union to bridge this
divide. The study focuses on urban healthcare in Delhi, not forgetting however,
that the vast majority of Indians live in rural areas.
Chapter One
Introduction
Neo-liberal IndiaNeo-liberal economic policies, since the 1980s, have uprooted welfare states
across the globe, diminishing the role of the state in the delivery of basic
services and support to its people. The dominance of the market in all spheres
of economic and social life is the core philosophy of the new economic policies.
Healthcare in India would have to be re-defined by an alliance between many
sectors: unions and workers, patients, mass organizations, social justice
organizations and human rights groups, scholars, medical professionals, and policy
makers. The right to healthcare, labour rights, and human rights are integrally
linked. We hope this study will help begin such conversations.

Motivation for Worker-Patient Study2
The role of the state is restricted to minimal intervention such as–regulation and
adjudication in times of disputes between different market players. Otherwise,
state intervention in the economic sphere is considered to be a distortion.
The guiding principles behind the invisible hand of the market are price and
profit. Economic liberalization aims at removing all obstacles in the cross-border
movement of trade and investment but places hurdles in the movement of
people between countries, particularly on unskilled workers. However, even
skilled professionals such as, say, physicians and nurses originating from Asia,
are discriminated against in the United Kingdom where there is an obvious
preference for European health professionals. Division of and discrimination
against labour is one of the cornerstones of the neo-liberal regime across the
world. The result is growing inequality between the developed and developing
world, between skilled and unskilled workers, and between the rich and poor
within countries
India jumped on the bandwagon of liberalization in the early 1990s. Since then,
numerous market-oriented economic policies have been put in place. One of
the contentious issues in the ongoing reform process has been labour market
flexibility. The reformers argue that the current labour laws and state
interventions in India are responsible for the slow growth of the economy and
are the reasons for low investment and employment in the country.
The employers essentially seek ‘hire and fire’ polices and a free hand in
controlling trade union activities. Under these conditions, the employers are
not bound by either employment regulations or social security provisions like
provident fund and pension rules. The main target of reform-seekers is
abrogation of key provisions of the Industrial Disputes Act, 1947 (IDA, 1947).
In spite of the hype about restrictive labour laws, the Indian economy has been
growing at a scorching pace of over seven percent in the last three years.
Investment and employment have accelerated quite dramatically irrespective of
labour market reforms. Covert liberalization of the labour market is already
underway. Firms are increasingly dispensing with permanent workers and
replacing them with temporary or contractual workers. This is taking place in
both the private sector as well as the public sector “either through outsourcing
to other firms or directly recruiting more and more such ‘flexible’ workers.”1
Retrenchment and closure of units is happening without much successful
resistance from trade unions. In fact, recent evidence points to the decline in
the closure of units due to labour-led strikes and an increase in employer-led
lock-outs because of reasons such as non-payment of power tariff, non-payment
of loans, etc.
It is observed that ninety two percent of Indian workers are engaged as informal
workers. There is hardly any job security, social security is a misnomer and
minimum wage provisions are invariably breached. Effectively, the provisions
of IDA, 1947 are in force in less than eight percent of units in India, out of
which a significant share is accounted for by public sector jobs. Impromptu1 Sharma (2005).

Motivation for Worker-Patient Study 3
labour market flexibility is already taking place in a significant way. In fact,
“the fear of losing jobs has impelled unions to accept relocation, downsizing,
productivity linked wages, freezes in allowances and benefits, voluntary
suspension of trade union rights for a specific period and commitment to
modernization” (Sharma 2004; Papola and Sharma 2005).
One often hears about the phrase ‘reforms with a human face.’ This implies
that while economic reforms are carried out on market principles, the social
sectors get special attention from policy-makers. This would mean higher
spending on health, education, water supply, sanitation and a protective net
for those who lose jobs in the process of structural adjustment.
However, health sector reforms typically involve privatization of provisioning
as well as financing. This essentially means that health care delivery, both
inpatient and outpatient treatment, is left to the market forces. As far as
financing is concerned, tax-funded government financing of the health sector
is replaced by out-of-pocket payments, borne by households and firms. The
preventive and promotive aspects of health care are supposedly handled by
the public sector and curative care is left to the private sector.
While policy-makers rhetorically promise to enhance the share of public
spending in social sectors like health, evidence in the last one decade or so
points to declining government expenditure. Public health expenditure (both
central and state government) as a percentage of GDP was well over one percent
(the highest ever) in the mid-1980s but declined to less than one percent in
the mid-1990s and since then has remained stagnant at that level.
Given the insignificant coverage of social health insurance in the country,
coupled with declining public expenditure, household out-of-pocket spending
has skyrocketed over the years. Out-of-pocket (OOP) spending is an inefficient
and unjust finance mechanism. Only those who can afford to pay can utilize
the health care system in a timely manner. Therefore, access to health care is
limited by ability-to-pay. When this happens in the backdrop of a crumbling
and dilapidated health infrastructure, households are in danger of falling into
a deep debt trap.
Neo-liberal policies
and Healthcare
Catastrophic health expenditure can devastate not only the poor but even the
middle class population, plunging them below poverty line. Many developing countries
are caught up in the triple-burden of disease: old and new infectious diseases
refuse to die down while life-style diseases are increasing. New infectious diseases
like HIV/AIDS, non-infectious diseases such as cancer, heart disease, diabetes, etc.
can plunge households without insurance into a deep financial hole.
As a result of the gradual withdrawal of the state from the health sector, health
care delivery is rapidly and significantly falling into the hands of profit-seeking
private players. Households are increasingly being forced to seek care from

Motivation for Worker-Patient Study4
private health facilities. Nearly eighty percent of outpatient care and around
sixty percent of inpatient (hospitalization) services were in the private domain
in the year 2004, according to National Sample Survey (NSS, 2006) data.
Moreover, over the years, certain services in public health facilities have been
either privatized or contracted out to private parties due to which patients who
seek treatment from public hospitals/centres are forced to pay out-of-pocket
for the services. These services mainly include drugs and diagnostics. This
results in significant cost to the patient because drugs account for seventy to
eighty percent of outpatient expenditure and forty five to fifty percent of
inpatient treatment.
Two vital policy decisions in recent years have grave implication for the costs
of medical care. For one, the private health insurance industry is now allowed
to operate in the Indian health care market in the post-liberalization era. Yet,
evidence all across the world points to the fact that medical costs invariably
escalate when private insurance is introduced. Secondly, the product patent
regime has come into force in India, and is expected to push up drug prices
quite considerably. Therefore, access to drugs, which has not been a significant
issue so far, is emerging as a big threat to health security in the country.
Parts of healthcare services that are gradually being privatized/contractualised
include diagnostics, nursing, cleaning (ward boys/ayahs, sweepers), kitchen,
laundry, ambulance services, security, electrical works, etc. Apart from
increasing the financial burden of households, privatization and
contractualisation of services have severely affected working conditions of health
workers.
Another vital issue that is adding to the deterioration of India’s public health
services is the significant erosion of skilled labour, such as, physicians, nurses,
dentists and pharmacists who are gradually heading towards the private health
care system. Given the heavy workload in public sector health care institutions
and the higher pay and incentive package offered by the private sector,
dissatisfied and demoralised skilled talent is moving from the former to the
latter. An associated cost of this process is that the government is losing the
returns on its investment in educating these professionals.

Methodology of the Study 5
The twin objectives of the study are to understand
working conditions of the health workforce in Delhi’s public health care
institutions (health care institutions under the Municipal Corporation of
Delhi and the Delhi Government) and
access to and quality of health care services in Delhi from the patients
point of view.
The study is based on a survey of health care institutions in Delhi (a list of
health care institutions covered by the survey is provided in the following
pages). The survey was conducted during June-August, 2006 with the use of
two questionnaires, one for the patients visiting the health care units and the
other for the health workforce in these institutions. The total number of
questionnaires was restricted to 500. Almost all hospitals under MCD and Delhi
Government were covered under the survey. In addition, we visited smaller
dispensaries/primary health centres/sub-centres.
The conditions and problems associated with the health workforce vary from
doctors to ward boys. Therefore, due care has been taken to cover all types of
workers in the health care institutions, such as doctors, nurses, pharmacists,
ISM (Indian Systems of Medicine) practitioners, diagnostic personnel, ward
boys/ayahs, sweepers, clerks, cooks, laundry workers, drivers, security
personnel, lift operators, etc.. The sample distribution of workforce covered and
their respective number of samples are depicted in the following Chart 1. The
total number surveyed among the health workforce of Delhi was 400.
Chart 2 brings together the sample distribution and number of samples
administered among the patients visiting these health care institutions. The
number of samples administered among both inpatients and outpatients were
50 each, covering all institutions mentioned below (in all 100 patients were
surveyed). The survey covered all types of wards in hospitals/dispensaries,
such as general ward, special ward, maternity ward, emergency care, etc. Since
the conditions of treatment vary from allopathy to ISM (homeopathy, ayurveda,
unani, siddha, etc.) the sample design was structured to include both allopathy
and ISM systems, and the number of samples differs according to the weight
of each.
Among the health workforce, the survey collected data relating to socio-
economic characteristics, employment particulars, working conditions of the
workers, wage/salary structure, case-load handled by the employees/workers,
Chapter Two
Survey Design of
Data Collection

Methodology of the Study6
particulars of union activity among different sections of workers, workers’
knowledge of privatization/contractualisation, etc.
On the other hand, the questionnaire administered among the patients includes
socio-economic data of the patients, particulars of medical treatment received
as inpatient of a hospital in the last one year (365 days), particulars of treatment
received as outpatient of a hospital/dispensary in the last one year (365 days),
number of facilities available/availed, the quality of service available/availed
by the patients and other conditions of hospitals/dispensaries.
Chart 1
TTTTType ofype ofype ofype ofype of WWWWWorkorkorkorkorkererererersssss
(Samp(Samp(Samp(Samp(Sampllllleeeees)s)s)s)s)
1) Allopathy Doctors (7)
2) Nurses (15)
3) ISM Doctors/Nurses (7)
4) Diagnostic Personnel (10)
5) Pharmacists (7)
6) Ward Boys/Ayahs (35)
7) Sweepers (30)
8) Clerks (15)
9) Cooks (7)
10) Washerman (7)
11) Security Personnel (15)
2) Nurses (15)
4) Diagnostic Personnel (10)
5) Pharmacists (8)
7) Sweepers (30)
8) Clerks (15)
9) Cooks (10)
10) Washerman (5)
11) Drivers (8)
12) Administrative Assistants(8)
13) Security Personnel (15)
2) Nurses (10)
4) Pharmacists (5)
6) Sweepers (20)

Methodology of the Study 7
In order to understand the health care status of the country and the National
Capital Territory, we draw data from the Sample Registration System (SRS) of
the Registrar General of India. Specific data relating to the number of health
care institutions are obtained from the Directorate of Health Services, Delhi. In
addition, various issues of Health Information of India, Central Bureau of Health
Intelligence, Government of India, and Delhi’s budget documents (Demand for
Grants) for respective years were used in this report. The report also draws
substantially from unit level household data of quinquennial consumer
expenditure surveys (50th
round of NSS- 1993-94 and 1999-00). This data helps
us in understanding the level and growth of out-of-pocket health expenditure
in the country as well as in the National Capital Territory of Delhi.
This report also makes use of the decennial survey by the National Sample
Survey Organisation (NSSO) on the issue of morbidity and health care in India,
conducted in the 60th
round of NSS, during 2004. The 60th
round survey covers
aspects that are part of the earlier health care surveys, such as, 42nd
round
(1986-87) and 52nd
round (1995-96). The survey covers broad areas such as
morbidity and utilization of the curative health care services including maternity
care and immunization, outpatient and inpatient treatment of ailing persons,
expenditure incurred on treatment of ailments and the problems of the elderly.
The 60th
round survey of NSS was carried out by interview method using a
recall period for short-term duration ailments at fifteen days preceding the date
of survey; the reference period for hospitalized treatment was 365 days
preceding the date of enquiry. The 60th
survey spans the period January-June,
2004, and is spread over two sub-rounds of three months each.
Secondary Data
Source
Chart 2

Methodology of the Study8
The NSSO adopted a two-stage stratified sampling design, in which First-Stage-
Units (FSUs) were villages and blocks in rural and urban areas respectively,
while the Second-Stage-Units (SSUs) were households from chosen rural villages
and urban blocks. The number of FSUs covered by the central sample were
4,755 and 2,668 (7,663 and 4,991 during 1995-96) for respective village and
urban blocks. As far as SSUs are concerned, the number of households
surveyed were 47,302 and 26,566 (71,284 and 49,658 during 1995-96)
respectively for rural and urban areas.
Delhi Government Hospitals
1. Ram Manohar Lohia Hospital
2. Deen Dayal Upadhyaya Hospital
3. G.B.Pant Hospital
4. Guru Tegh Bahadur Hospital
5. Lal Bahadur Shastri Hospital
MCD Hospitals
1. Hindu Rao Hospital
2. Kasturba Hospital
3. Ratan Babu TB Hospital
4. Maharishi Dayanand Hospital
5. Swami Dayanand Hospital
Dispensaries
1. East Patel Nagar Dispensary
2. Kalidas Hospital Gulabi Bagh. (Homoepathic)
3. Laxmi Nagar Dispensary (Homoepathic)
4. Sadipur Dispensary
5. Zakhira Dispensary (MCD)
6. Seemapuri Dispensary (Homoeopathic)
7. Jahangirpuri Dispensary (Homoepathic)
8. Kalkaji Dispensary
9. Hindu Rao Dispensary (MCD)
10. Patpar Ganj Dispensary
11. Krishna Nagar Dispensary (Homoepathic)
12. Wazirpur Dispensary (MCD)
13. Karampura Dispensary
14. Malaviya Nagar Dispensary
15. Seelampur Dispensary
16. Hauz Khas Dispensary (MCD)
List of Hospitals/
Dispensaries
Surveyed for the
present study

Health Policy in India 9
Chapter Three
The post-colonial economies of the 1950s viewed the state as the dominant
mode of development. The state was supposed to play a leading role in shaping
the national health system by ushering in proactive policies and strategies.
The Bhore Committee of 1946 had set the stage in recognizing the role of state.
The state was to take the lead in health provisioning and financing. The Bhore
Committee derived its essence from the model of Britain’s National Health
Service (NHS) which is predominantly state-run. Unfortunately, India’s public
health care system is deviating from this lead role as the state has begun to
withdraw from health care services since the 1980s and more specifically from
the early 1990s, with the initiation of privatization-liberalisation-globalisation
policies. Today, India’s health care services are driven substantially by private
provision and financing.
Tracing the
Trajectory of
Health Policy in
India
Post-colonial vision
The first two FiveYear Plans (1951-56 and 1956-61), based on the Bhore
Committee report, emphasized the development of basic health infrastructure
and skilled personnel. But the notable development that took place during the
First Five Year Plan was the launching of vertical programmes under which
disease-wise programmes and targets were fixed. These included: control
programme on malaria, tuberculosis, filariasis, leprosy and venereal diseases.
By creating such a vertical programme, the integration of the health system
suffered.
However, the third plan (1961-66) witnessed a major shift of focus from
preventive health services towards family planning. Intensification of the family
planning programme (essentially population control programme) reached its
peak during the National Emergency (1976-77). During this period, in the name
of family planning, forcible population control methods were adopted.
Another shift in focus towards universal health services and against vertical
programmes was articulated in 1978 at Alma Ata where the World Health
The Bhore Committee recommended a health care system catering to the economically and
socially deprived and vulnerable sections of society. The structure of health services envisaged
was strong primary level care with referral linkages to secondary and tertiary care. Since
access to drugs is a crucial component of any health system, the Bhore Committee strongly
urged the then government to invest heavily in developing an indigenous pharmaceutical
industry. It strongly advocated the principle of universality and equality in access to
health services as large sections of the people were living in abject poverty.

Health Policy in India10
Organisation (WHO) initiated the World Health Assembly. The Alma Ata
Declaration brought back the primacy of Primary Health Care. The goal of “Health
for All by 2000” by the Alma Ata Declaration and the ICMR/ICSSR report (1980)
were a watershed in the development policies. The National Health Policy of
1983 incorporated some of the suggestions made at Alma Ata and made
comprehensive and universal provision of health services the main focus.
Unfortunately, the policy remains on paper till date. In actual practice, the
country witnessed re-introduction of programme-driven policies and verticality.
The emphasis then shifted towards technical health interventions that gave
primacy to immunization, oral rehydration, breastfeeding and anti-malarial drugs.
Although the entry of the private sector in health services was happening
gradually, it sped up greatly from the early 1990s. The withdrawal of the state
from health services is almost complete now. The sharp and substantial decline
in state funding of the health sector (both at central and state level) which was
initiated in the early 1990s as part of ‘fiscal disciplining’ under structural
adjustment policies of the government is still underway.
In spite of this development, the intention of the National Health Policy (NHP),
2002 cannot be faulted. It underscores the imperative of moving away from
vertical programmes towards programme integration. The NHP, 2002 calls for
strengthening health infrastructure, provision of universal health services,
decentralization through panchayati raj institutions and private health care
regulation.
The present government has launched a National Rural Health Mission (NRHM).
The main resolve of this Mission is to set right the basic health care delivery
system in the country.
Today’s Promises
The NRHM adopts a synergistic approach involving an inter-sectoral model with nutrition,
sanitation, hygiene and safe drinking water along with good health as integral
components. This is to be achieved with District Health Plans, outlined by the District
Health Missions. The NRHM is expected to initially cover only 18 states that have
dismal public health indicators and/or weak infrastructure.
The NRHM proposes to integrate all National Disease Control Programmes for
improved programme delivery, launch new initiatives to control increasing life-
style diseases, strengthen the disease surveillance system and bring the Indian
System of Medicine (ISM) into the mainstream. It intends to stem the decline
of public expenditure and increase it from one percent of GDP to two to three
percent of GDP in a few years, reduce regional imbalances in health
infrastructure, strengthen existing Primary Health Centres (PHCs) and Community
Health Centres (CHCs) and provide CHCs with thirty to fifty beds for every
1,00,000 population for curative care.
The NRHM also aims to professionalise the governance of healthcare, by

inducting management and financial personnel into the health system at the
district level, upgrade capacity-building of panchayati raj institutions so that
public health services could be managed efficiently in a more de-centralised
manner, and introduce ASHAs (Accredited Social Health Activists), who would
interface between the public health system and community.
In terms of private sector delivery and insurance, the NRHM would encourage
public-private partnerships (PPPs) keeping in view public health goals, seek
regulation of the rapidly growing private sector health care, and ensure proper
access, affordability and accountability of health care, by putting in place a
social health insurance system for effective and viable risk pooling.
Lack of motivation plays a negative role in the mismanagement of the health
workforce. Mismatch of skills is widely prevalent. It is commonplace to note
postgraduate medical students recruited and placed at PHCs where their skills
are of little relevance. Transfers of health workers are often arbitrary and
misused by politicians and the ruling class, justifying the image of the overall
health system as inefficient and corrupt.
Absenteeism from the workplace is another major impediment to public health
care. Although absenteeism is a major issue among all levels of health
personnel, it is worst among doctors. Health personnel, particularly the doctors,
are often known to moonlight and engage in private practice. Apart from the
moral and ethical issues involved, moonlighting breeds inefficiency and
corruption in the system.
Globally, the drug industry is one of the most manipulated sectors leading to
mega profits. Recognizing the importance of the drug industry and the
complications arising out of manipulations, the industry is subject to controls
and regulations. A host of policy instruments are exercised to rein in drug prices
from rising to unreasonable levels. Such controls take the following forms: cap
on mark-up, fixed margins to wholesalers/pharmacists, price freezes,
reimbursements, contributions to insurance premium, etc.
India’s tryst with statutory control on drugs dates back to 1962. However, owing
to criticism from the industry (then controlled largely by MNCs with the domestic
industry having hardly any market share), the then government made changes
in the statutory control. Subsequently, the government identified a list of 18
essential drugs and referred them to the Tariff Commission. The Drug Price
Control Order, the first of its kind, was introduced in 1970. It was meant to
keep the prices of drugs at affordable levels while ensuring that the manufactu-
rers received reasonable returns. The then Order applied to 347 bulk drugs.
In 1975, a broad-based drug policy was formulated on the recommendations of
the Hathi Committee Report. The government announced the Drug (Price Control)
Policy, 1979 whose key objectives were to:
i) ensure adequate drug availability;
Policies to
Regulate Human
Resources/Drugs/
Medical
Technology
Lack of policies for
human resource
development
Drug Control
Policies

ii) provide drugs at affordable prices;
iii) achieve self-sufficiency in production and self-reliance in drug technology.
However, over the years the controls are being gradually dismantled and the
number of bulk drugs that were under price control has been brought down to
a minimum level.
Medical Device
Technology
Global Health
Policy Changes
Trade Related
Intellectual
Property Rights
(TRIPS under WTO)
In 1979, 347 bulk drugs were under the Price Control Order; the number came
down to 142 in 1987. Drastically pruning the list further, the Drug Price Control
Order of 1995 sought to limit the control list to just 76 drugs which account for
just one-fourth of the total market.
Along with gradual reduction in the number of drugs under price control, certain
procedures were greatly simplified and coverage of price-controlled drugs
underwent enormous changes over the years.
With the spread of information technology, medical device technology is gaining
momentum across the globe. However, medical device technology has huge
costs associated with it. The misuse of such technology often raises not only
ethical and moral questions, but has significant social ramifications. The classic
case is the misuse of sonography for sex determination tests of the fetus.
Several Indian states such as the north Indian states of Punjab, Haryana and
Delhi has been witnessing rapid and substantial decline in sex ratios. Recent
evidence from the capital’s poshest south Delhi colonies reported one of the
worst sex ratios of less then eight hundred females per one thousand males.
Therefore, it is pertinent on the part of regulatory authorities to stamp out such
practices. Although there is a policy of regulation of diagnostics for sex
determination of the fetus, at the ground level there have been no tangible
results so far.
With the spread of private health insurance in India, medical bills are escalating.
The problem of over-use and unnecessary medical tests, even for apparently
simple health problems, is resulting in bloated medical costs. This problem is
exacerbated by the outsourcing of such tests in public health facilities. The
collusion between medical practitioners, diagnostic service providers and the
insurance companies is clearly leading to high medical costs. It is well-known
that many medical practitioners in both the public and private sectors have
informal contracts with private providers of diagnostic services that yield them
a commission on each referral made to the concerned diagnostic service
provider.
The Patents Act, 1970 which has been instrumental in encouraging and
developing the indigenous drug industry and containing medicine prices, is
under threat since the establishment of WTO in 1995. Under the TRIPS, WTO
member countries including India are supposed to change over to a more
stringent patent regime. The TRIPS requires member countries to change their

legislation in such a way that they grant product patent to the pharmaceutical,
chemical, food and agricultural sectors as well. The period of product patent
rights is to be changed in the Indian case from seven to twenty years.
General Agreement
on Trade in
Services (GATS
under WTO)
The General Agreement on Trade in Services (GATS) is the first of its kind in the
arena of multilateral trade agreements which would cover trade in services such
as health services of nurses, doctors, etc.
Health services under WTO broadly cover the following:
a) Professional Services – to include medical and dental services; services
provided by midwives, nurses, physiotherapists and para-medical
personnel; and
b) Health Services – to include hospital services; human health services and
social services.
Trade in services under the GATS is covered under four items called Modes.
I) Cross-border Supply or Outsourcing (Mode 1): This is outsourced health
work from developed countries to developing countries such as
telemedicine, medical transcription, teleradiology, telepathology, etc. Given
India’s strength in high technical skills including information technology
and in the backdrop of successful BPO operations, there appears to be
enough potential to tap the global market for such services. Alongside,
the pharmaceutical business is also exploring research and development
capacities in India.
II) Consumption Abroad or Medical Tourism (Mode 2): In the Indian context,
this is medical/health tourism. With the phenomenal expansion in world
class private corporate hospitals in India in recent years, along with the
emergence of the Indian System of Medicine, medical tourism has attracted
substantial business and is likely to grow rapidly in the coming years. In
view of India’s strength in relatively low cost but high quality health
services for people from developed economies, medical tourism is expected
to garner big business and attract significant foreign exchange earnings.
Apart from foreign business that high end health services attract, places
like Kerala attract domestic tourists as well to cater to Indian systems of
medicine, such as, naturopathy, siddha, ayurveda, etc..
Since the 1970s, India had been following a process patent regime. While a process
patent is provided to the inventor of drugs using an innovative process, the product
patent, on the other hand, hands out monopoly power to the innovator for the
product itself. This allows for the innovator company to indulge in monopoly prices
and profit for a 20-year long period. The provision of compulsory licensing (under the
new dispensation) can be harnessed only when there is a clear case of national
disaster or emergency.

III) Commercial Presence or FDI in Health (Mode 3): India already allows foreign
commercial presence because it allows hundred percent foreign direct
investment in health – a liberal policy compared to the restricted practices
of other countries.
IV) Presence or Movement of Natural Persons or Labour Migration (Mode 4):
This facilitates Indian health professionals (doctors, nurses, pharmacists)
to move to most of the developed economies, where there exist severe
shortages of skilled personnel. The shortages that exists now and are likely
to rise are due to the ageing workforce in the developed economies.
However, there are several and significant impediments to the free
movement of labour. For instance, recent policy pronouncements in
Britain’s NHS suggest that the recruitment policy for nurses in Britain is
likely to be biased against non-Europeans. Britain’s NHS is likely to provide
first preference to British nurses, followed by Europeans, thereby signaling
a non-tariff barrier in health care services.
The pace of urbanization in India has been phenomenal, particularly in the last
one decade, in terms of urban population and area. According to Census 2001,
over one-fourth of the Indian population (28 percent or285 million) lives in urban
areas, growing rapidly at a pace of 3.12 percent per annum as against rural
population growth of 1.79 percent per annum. It is estimated that a mega city
like Delhi has witnessed a massive 4 percent growth and with it the slum
population has grown by 5-6 percent.
Urban Health
Hazards
The phenomenal expansion in urban population is due to various reasons: i) ever
enlarging boundaries of cities; ii) significant inward migration into cities in search
of jobs; iii) natural rise in urban population. The slum population which is a reflection
of urban poverty has been rising rapidly. Estimates suggest that as a proportion of
total poverty, the urban component of poverty has risen to almost 25 percent in the
mid-1990s as against 15 percent in the early 1970s.
India’s urban areas are increasingly becoming vulnerable to the ‘triple burden
of disease.’
While infectious disease like cholera, malaria, diarrhea, dengue, etc.
continue, new infectious diseases are emerging due to complete neglect
of sanitation and clean drinking water. This applies to not only slums, but
also to many middle-class areas. Along with it, under-nutrition continues
to be a major problem which increases the vulnerability of the poor and
working class population.
Rapid urbanization and industrialization is causing an unprecedented rise
in life-style diseases, such as, diabetes, heart diseases, cancers, mental
disorders, etc. Treatments for life-style diseases are not only extremely
costly, but also leads to reduction in productivity, loss of income and

disability. Catastrophic health expenditure is directly linked to life-style
diseases. With little or virtually no universal health insurance, the urban
population including the middle class are left to fend for themselves.
Another problem that urbanization faces is the rise in accidents and
injuries. Delhi, which contains three-fourths of the total cars in the country,
has high mortality and disability rates arising from accidents. India’s urban
health system is unable to cope with the number of cases. The need for
trauma care has only recently been recognized in policy circles; so far it
has been the preserve of the private health care system.
The National Health Policy, 2002 prescribed an organized primary health care
structure in urban areas. Given the diversity and heterogeneity of population
in the urban areas, the need to have different population norms was felt.
National Health
Policy, 2002
The two tiered structure proposed in the NHP-2002 envisaged:
a) a first-tier, in which the primary structure ensure that 100,000 people benefit
from all the national health programmes. The primary health center is supposed
to provide OPD (out patient department) facility and essential drugs; while
b) the second tier is the government general hospital which acts as a referral from
the first-tier.
The funding for the scheme was to come from all three executive machineries:
centre, states and local governments. Recognizing the importance of reducing
mortality arising out of accidents, NHP-2002 envisaged the establishment of
trauma care networks across large urban agglomerations.

State of Health Care in Delhi16
Delhi’s health care faces many of the same problems as the rest of the country,
in spite of being the capital region. Delhi’s growth is enormous as are the
attendant inequities. It too faces a declining share of public health institutions
in both outpatient and inpatient care, an explosion of private facilities and
outsourcing. The absence of a universal social health insurance system and
the alarmingly rising household out-of-pocket (OOP) spending can plunge a
sizeable section of even the well-off into poverty. New and expensive medical
device technology and the rising cost of drugs due to deregulation of price
control are adding to the spiraling cost of healthcare.
Public health facilities suffer from unfilled vacancies and absenteeism of health
workforce, shortage of medicines and supplies, etc. Private insurance is
characterized by adverse selection, moral hazards, cost escalation, skimming,
skimping, etc. Apart from bloating administrative expenses of the insurance
companies, private insurance is an intermediary between households and health
care providers, firms and health care providers, etc. Financially, the
establishment of Third Party Administrators (TPA) has become one more
additional cost burden that insurance holders have to bear.
Delhi boasts of higher mean life expectancy of around 70 years compared to
the national average of roughly 63 years. Delhi’s death rate of 5 per 1000
population is among the lowest in India. The Infant Mortality Rate (IMR) is not
only low in Delhi but falling steadily over the years. In 2002, IMR in Delhi was
30 as against 63 per 1000 live births in India. Another striking feature of Delhi’s
health status is its Total Fertility Rate which is 1.6, in fact, lower than Kerala’s
1.8 and well below the national replacement rate. (SRS, 2002)
Further, from the 1998-99 National Family Health Survey, we observe that 84
percent of mothers received at least one ante-natal check-up, and 73.1 percent
received three ante-natal check-ups in Delhi, while 78 percent of mothers
received iron and folic acid supplementation. It is interesting to note that 59
percent of births in Delhi were delivered in medical facilities and 35 percent
were delivered in the respondent’s own home. Among births delivered at the
respondent’s home, 19 percent were assisted by a health professional and 76
percent by a traditional birth attendant.
Delhi’s health system is characterized by multiple public and private providers
of health care. It is estimated that Delhi, with a total population of over one
and a half crores (15,000,000), has 2183 hospitals, 932 dispensaries and roughly
550 registered nursing homes and 1560 unregistered nursing homes.
Chapter Four
Introduction
Health Status of
Delhi
Health Care
Institutions in
Delhi

State of Health Care in Delhi 17
The Department of Health and Family Welfare in the state is the major player
with its network of over 30 hospitals (including 3 ISM&H hospitals), 174
allopathic dispensaries, 70 mobile van dispensaries, 433 school health clinics,
20 Ayurvedic dispensaries, 62 homoepathic dispensaries and 8 Unani
dispensaries.
In the private sector, as of 2004, there were 550 registered private hospitals
and nursing homes with 12,000 hospital beds. Delhi also has a strong network
of charitable non-profit institutions. (Delhi Human Development Report (DHDR),
Draft Report).
The public health system in Delhi falls under multiple organs since the state is unique in
the sense that the administration falls under the control of both the state and central
government. The most important are:
Delhi Government’s Department of Health and Family Welfare
Municipal Corporation of Delhi (MCD)
New Delhi Municipal Council (NDMC)
Central Government
Table 4.1
Number of Health Care Institutions in Delhi
Sl. Organization Hospi- No. of Dispen- Allopa- Homoeo Ayur Unani SHS MHS MCWC Total
No. tals Beds saries thic
1 Delhi Govt 31 6388 378 180 51 12 0 63 72 0 378
2 MCD 15 3625 274 37 14 99 15 0 0 109 274
3 NDMC 2 200 45 11 12 10 12 45
4 ESIC 4 1000 34 34 34
5 Central Govt. 10 3840 99 84 11 3 1 99
6 Autonomous 6 2994 0 0
7 Defence 3 1850 1 1 1
8 DVB 0 24 24 24
9 DJB 0 15 14 1 15
10 DTC 0 27 27 27
11 SBI 0 9 9 9
12 RBI 0 8 8 8
13 Railways 2 466 12 12 12
14 BHEL 0 3 3 3
15 Indian Airlines 0 3 3 3
16 Regd. NH 550 12274 0
17 Unregd. NH 1560 5000 0
Total 2183 37637 932 447 88 125 16 63 72 121 932
Source: Municipal Corporation of Delhi, Government of Delhi.

Table 4.3
Percentage of Spells of Ailments Treated by Source
State Percentage of Source of Treatment
Ailments Treated Government Private
Delhi 95 23 77
India 89 19 81
Source : Government of India (2004), Morbidity, Health Care and the Condition of
the Aged, January-June.
Note : Ailments treated (non-institutional) during 15 days preceding the survey in urban
areas.
The recent national survey on health care by NSSO (2004) indicates that nearly
15 percent of all illnesses go untreated in India. Two of the main reasons for
untreated ailments are lack of facilities and the runaway cost of private health
care. Although inaccessibility to medical facilities was responsible for little over
11 percent of untreated ailments in rural areas of the country, financial reasons
accounted for well over 25 percent. In urban areas too, the cost of over-heated
private health care was responsible for 20 percent of untreated ailments.
Utilisation of
Health Care
Institutions in
Delhi
Untreated Illnesses
Table 4.2
Percentage Distribution of Untreated Spells of Ailments
by Reason for No Treatment
Reason for No Treatment Rural Urban
2004 1995-96 1986-87 2004 1995-96 1986-87
No Medical Facility 12 9 3 1 1 0
Lack of Faith 3 4 2 2 5 2
Long Waiting 1 1 0 2 1 1
Financial Problem 28 24 15 20 21 10
Ailment Not Serious 32 52 75 50 60 81
Others 24 10 5 25 12 6
All 100 100 100 100 100 100
the Aged, January-June
Privatisation of
Outpatient Care
The health care survey of NSSO (2004) further reveals that government health
care facilities cater to only one-fifth or 20 percent of the total outpatient
population (non-hospitalised cases) in India. However, state-wise analysis
demonstrates growing insecurities as more and more people are pushed towards
the expensive and unregulated private health care market, as shown in Table
4.3. The picture in Delhi is gloomiest where the government’s share in
outpatient care has fallen quite sharply and is at less than one-fourth of the
total outpatient care. The neglect of urban public health care nationwide is
clearly palpable as the share of government institutions has declined drastically,
most notably in the southern states.

Out of every 1000 persons, 11 were hospitalized in the state of Delhi during
2004, which is far less than the all-India average of 31 for urban and 23 for
rural (NSSO, 2006).
Privatisation of
Inpatient Care
Table 4.4
Number (Per 1000) of Hospitalised Cases Treated in
Public and Private Hospitals
State Government Hospital Private Hospital
Delhi 373 627
India 382 618
Note : Number of hospitalized during 365 days preceding the survey in urban areas.
Evidence from the National Sample Survey, 2004 indicates that the majority of
people are now utilizing the private sector for inpatient care as well. As can be
seen in Table 4.4, the share of public hospitals in hospitalization is little over
one third of the total hospitalization cases.
Financing is the most critical element of a health system. While public financing
is most equitable, a system that relies heavily on household OOP is most
inequitable. India is notorious for having the highest out-of-pocket expenditure
among the developing economies.
Estimates suggest that 71 percent of the health spending
in India is contributed by the private sector, of which
households spend 69 percent (National Health Accounts,
2001-02). During 2001, India spent an estimated 4.8
percent of its GDP on health care; households spent an
estimated 3.3 percent of GDP. Of the total health
expenditure in the country, the central, state and local
governments spent 7.2 percent, 14.4 percent and 2.2 percent
respectively. Altogether public expenditure accounted for
less than 25 per cent of total health expenditure.
Health Care
Finance
While social insurance, largely by the Employees’ State Insurance Scheme (ESIS)
and the Central Government Health Services (CGHS) accounts for around 2.36
percent of health expenditure in India, the share of private insurance is
estimated at less than one percent of the total health budget.

It is clear that the Indian health care system is dominated by the private sector,
both in terms of provisioning and financing. NSS data on household consumer
expenditure suggests that households spend about 11 percent of their non-
food consumption expenditure on health. On account of such an iniquitous
financing system, catastrophic health expenditure plays havoc on households
in both poor and middle-income groups, as the vast majority of the Indian
population is not covered by any social insurance schemes. Ninety three percent
of India’s workforce is informal in nature, with meagre earnings and little access
to a network of institutional mechanisms.
Financing of health care is also rapidly falling under the private sector in India.
In fact, the extent of this problem has reached serious proportions. It is
estimated that three percent of GSDP is spent as health expenditure by a state
in India. Ninety percent of this expenditure is borne by households whereas
the share of public spending to total health care expenditure is a paltry 8
percent. High reliance on out-of-pocket expenditure of households reflects an
extremely iniquitous system of health finance. Given high poverty levels, the
poor face a greater risk of falling ill because of poor nutrition, unhealthy living
and working conditions etc. and are forced to spend disproportionately on
health care than the well-to-do. Access to health care becomes heavily
dependent on ability to pay. With virtually no social insurance and a dilapidated
and decaying public health system, the predatory private health system wreaks
havoc on the most vulnerable.
Chart 4.1
National Health Accounts, 2001-02

Further, the above table demonstrates that Delhi’s per capita household
expenditure is little over Rs. 1000, which is just above the average per capita
expenditure for India as a whole. It is evident from the data that the difference
between India’s average per capita public expenditure on health and that of
private expenditure is quite wide. However this is less true of Delhi. Per capita
public expenditure on health in Delhi is double the national average. This is
due to the fact that most of the outpatient as well as inpatient services in public
hospitals in Delhi are being gradually contracted out — services like
diagnostics, drugs, etc. which drive overall expenditure. In other words,
although these costs may appear as public expenditure since they occur through
the public hospitals, in reality, the cost is actually borne by private individuals
or patients. The other reason why private per capita expenditure on health in
Delhi is lower than the all-India average is due to the fact that access to public
facilities in terms of transportation is not an issue in the national capital region.
Table 4.5
National Health Accounts
Public and Private Health Expenditure, 2001-02
State Public Expenditure Private Expenditure Total Expenditure
Health Expenditure in (Rs. ‘000)
Delhi 5,942,856 8,672,248 14,615,104
India 214,391,018 818,104,032 1,032,495,050
Per Capita Expenditure in Rs.
Delhi 426 622 1,048
India 207 790 997
Source : National Health Accounts, India, 2001-02
Table 4.6
Average Medical and Other Expenditure Per Treated Person
During 15 Days by Source of Treatment
State Expenditure By Source of Treatment Other Total
Government Private All Expenditure Expenditure
(in Rs)
Delhi 11 381 392 11 403
India 7 299 306 20 326
Note : Ailments treated (non-institutional) during 15 days preceding the survey in urban
areas.

Similarly, mean expenditure per episode of hospitalization in Delhi is
comparatively higher than the average all-India spending. The Table 4.8
demonstrates the seriousness of the extremely high household spending that
a person has to incur during an episode of hospitalization. Moreover, the mean
expenditure per hospitalization is not only high at Rs. 10,000 but the loss
incurred due to per episode of hospitalization is also high. The financial burden
that illness imposes on households in terms of productivity and income loss is
likely to be greater among the lower income groups, as they possess little or
virtually no property to fall back upon in times of crisis. This causes
indebtedness and further impoverishment.
Drugs and medicines form a substantial part of household OOP expenditure on
health. Estimates from the 55th
Consumer Expenditure Survey reveal that three-
fourths of the OOP health expenditure is spent on drugs in rural and urban
India. The break-up of drug expenditure in outpatient and inpatient care shows
the following: the share of drugs to total outpatient treatment in rural India is
as high as 83 percent while in urban India it is 77 percent. The respective
share of drugs in inpatient care in rural and urban India was roughly 56 and 47
percent. In contrast, both central and state expenditure on procuring drugs
amounts to as little as about 10 percent of the health budget.
At the same time, production priorities of the drug industry do not serve the
interests of the majority. Irrational, non-essential and hazardous drugs have
flooded the market.
Table 4.7
Average Medical Expenditure Per Hospitalisation Case (in Rs)
Type of Hospital Rural Urban
2004 1995-96 1986-87 2004 1995-96 1986-87
Government 3238 2080 3877 2195
Private 7408 4300 11553 5344
All 5695 3202 8851 3921
the Aged, January-June
Table 4.8
Average Medical and Other Expenditure Per Hospitalisation
During 365 Days by Source of Treatment (In Rs.)
State Expenditure By Source of Treatment Other Total
Government Private All Expenditure Expenditure
Delhi 3,847 14,065 10,568 338 10,906
India 3,877 11,553 8,851 516 9,367
Note : Per Hospitalisation Case during 365 days preceding the survey in urban areas.
Access to
Essential Drugs
and Medicines

Worldwide, drug prices are subject to controls and regulations. In India, Drug
Price Control Order (DPCO) is essentially based on sales turnover, market
turnover of companies, etc. rather than the criteria of ‘essentiality’. Over the
years, the number of bulk drugs under control has been slashed from 347 in
1979 to 76 drugs in 1995. The new draft policy (Cabinet Note) on drugs offers
some hope, as all 345 essential drugs (under the National Essential Drugs List)
are to be brought under price control. The drug industry, both domestic and
foreign, is opposed to such a policy. Interestingly, the domestic industry tends
to side with civil societies when it comes to the TRIPS agenda, as it affects
their bottom line.
Both the volume and cost of diagnostic services have shot up in recent times.
Medical practitioners in both the public and private sector have informal
contracts with diagnostic service providers. Through these ‘informal contracts’,
each of the referrals made by medical practitioners yields them a commission.
Overuse of medical equipment, particularly in the corporate hospitals, has
become the norm, with the pressure to recoup large investments in the new
medical devices. A recent study (Varshney, 2004) notes the lop-sided
distribution of medical technology: 63 percent of the sample MRIs were located
in five major cities (Bangalore, Chennai, Delhi, Hyderabad and Mumbai) whose
population accounts for 4.5 percent of India’s population.
The exclusive growth strategy followed since the early 1990s has only widened
the socio-economic divide. On the other hand, an inclusive policy initiative calls
for affordable, accessible and decentralized public health services, be it primary,
secondary or tertiary care.
The main national trends of healthcare are also reflected locally in Delhi. Both
outpatient and inpatient care is dominated by the private sector. The
consequence is that the escalating medical costs are borne by households
directly. Contracting out services that are in the realm of public sector healthcare
to private companies escalates the cost of healthcare for households.
The lack of regulation of private healthcare facilities leads to questionable
quality, corruption and unnecessary inflation of costs. Along the same lines, a
pharmaceutical industry and policy that is based on corporate profit rather than
health needs leads to production of non-essential drugs and escalating costs.
Diagnostic
Services
Conclusion
In 1999, out of the top ten drugs sold in the country, two belong to the category of
irrational vitamin combination and cough syrup, while the other drug is a useless liver
drug. Ten of the top 25 medicines sold in the market belonged to either one of these
categories: blood tonic, cough expectorant, non-drug analgesics, nutrients, liver drugs, etc.
which fall under the category of hazardous, irrational and non-essential drugs (National
Commission on Macroeconomics and Health, 2005).

Health Sector and New Labour Jurisprudence24
Globalisation has led to an increased interest in the health care sector as a
source of revenue and profit. There has been a rise in foreign investment in
the health sector and health insurance, a rise in health tourism (with price
differential in operative procedures attracting foreign patients to Indian
hospitals), increasing “contractualisation”/hiving off of non-core services and
increasing hostility to the use of collective bargaining mechanisms such as
strikes in hospitals.
The hospital industry has faced certain challenging fundamental tests. The issue
of whether a “hospital” is an “industry” at all (and therefore ruled by labour
laws in India) has been a vexed question with contrary judgements pronounced
by various courts. The Supreme Court in the Safdarjung Hospital Case2 held
that a “hospital” did not fall within the definition of “industry”.
Then, the Supreme Court finally settled the issue in the Bangalore Water
Supply’s Case3 holding that a “hospital” was an “industry.”
The Parliament responded by amending the definition of “industry”4 and
clarifying that the definition of “industry” would not include “hospitals or
dispensaries”. At the same time, a bill had been introduced in the Lok Sabha5
to provide for a separate enactment to deal with hospitals. However, the Lok
Sabha bill lapsed. The Parliamentary amendment also was not notified by the
Government. Till date, the Court’s position from the Bangalore Water Supply’s
case holds the field6 and hospitals remain an industry ruled by the Industrial
Disputes Act.
Chapter Five
Regulation of
Labour Laws in
the Hospital
Industry
1 This chapter is written by Sanjoy Ghose, advocate in Delhi. The substratum of this paper is influenced from another
publication of the author titled “The Supreme Court and New Industrial Jurisprudence” (2007) Lab IC 1 (Jour).
2 (1970)1SCC735
3 (1978)2SCC213.
4 Industrial Disputes (Amendment) Act, 1982 (Act 46 of 1982)
5 The Lower House of Parliament. A bill introduced in the lower house of parliament lapses with the dissolution of the
house.
6 The Court in Union of India v Shree Gajanan Maharaj Sansthan (2002)5SCC44

Health Sector and New Labour Jurisprudence 25
The impact of liberalization of economic policy on the new or more recent labour
jurisprudence of the Supreme Court is perhaps best evident from the orbiter
(passing and legally superfluous remark) of the Court in State of U.P.vs. Jai Bir
Singh8 where the issue of definition of “industry” as per Section 2(j) of the I.D.
Act has been referred for reconsideration to a larger bench, as the Court was
of the opinion that the decision in the Bangalore Water Supply case9 requires
a re-look given the present economic situation of the country.
The above case indicates how the Supreme Court has attempted to interpret
the legislative provisions in the context of economic policy and on the basis of
“trends”. The Court states that the experience of the judges in the apex Court
is not derived from the case in question but from cases regularly coming to the
Supreme Court through the Labour Courts. The Court states that there has been
an over-emphasis on the rights of the workers and an undue curtailment of the
rights of the employers to organize their business.
Trend of the
Supreme Court
With globalization, there has been an increasing demand to re-look at the expansive
definition of “industry” as per the Bangalore Water Supply case. The advocates of
globalization argue that labour laws should be made more flexible, otherwise India would
not be viewed as a favourable investment destination. It is contended that labour laws
somehow encourage industrial indiscipline and impede efficient management. This view
has been echoed in recent judgements of the Supreme Court7.
The new mantra is “exploitation of workers and employers have to be equally checked and
particularly industrial law needs to be so interpreted so as to ensure that neither the employee
nor the employer are in a position to dominate the other”. This is a significant departure from
the “old” jurisprudence which was premised on the assumption that the working class was the
weaker party and, therefore equal treatment of both parties, while formally complying with the
equality mandate, would be offensive to the guarantee of substantive equality enshrined in
Article 14 of the Constitution of India.
The challenge for the health care sector, in such circumstances, is to reinvent
an effective dispute resolution mechanism which would provide for health
workers a measure of job security and access to legal remedies in matters
relating to incidents of service (such as wages, denial of pay parity, duty hours,
etc) as well as occupational hazards (such as sexual harassment in the
workplace).
7 See Hombe Gowda Educational Trust v State of Karntaka (1970)1SCC735
8 (2005)5SCC1 per Dharmadhikari J.
9 (1978)2SCC213.

The Industrial Disputes Act, 1947 has provided a veritable canvas serving as an
outlet for fertile judicial creativity. The most salient principles of industrial
adjudication have evolved more through judicial decisions than by legislation.
Therefore, the importance of the Court in the evolution and development of
industrial jurisprudence cannot be overemphasized.
Take for example the concept of reinstatement of service with back wages in
industrial adjudication10. In the absence of a legal remedy for illegal termination
of a worker, the industrial adjudicator, through judicial exposition, was vested
with the power to direct reinstatement of a worker whose termination was found
to be illegal. The unique power of an Industrial Adjudicator to create, alter,
modify or change a contract of employment was noticed by the Federal Court
in Western India Automobile Association’s Case11 and this principle has been
repeatedly reiterated in decisions of the successor Court in its early years12.
The other unique features of industrial adjudication, such as the inapplicability
of strict laws of procedure and evidence13 as well as the bar on appearance of
legal practitioners,14 were all designed to meet the primary challenge in
industrial adjudication, namely to provide an even playing field for two
fundamentally unequal disputants – workman and management. These features
allowed workers to be able to represent their issues in a process which
otherwise could be prohibitively costly. It is for this reason that the unions
working in health care have been seeking access to the remedies under the ID
Act than having to resort to cumbersome civil suits or writs (in case of public
hospitals).
The attraction of the ID Act remedy lay also in the fact that the Industrial
Adjudicator could grant the remedy of reinstatement and back-wages. The Court,
however in recent cases, has now held that award of back wages is not the
“normal” rule and that the workman would have to establish his
unemployment15. It is indeed a great challenge for labour law practitioners to
establish a proposition in the negative. For example, if workman “X” has to
establish that he is not employed, in theory, he would have to lead the evidence
of every employer and even potential employer in the world to depose that ‘X’
Positive Powers
of Industrial
Adjudication
Supreme Court
Over-rides
Positive Powers
of Industrial
Adjudication
10 Bharat Bank Ltd v Its Employees AIR1950SC188:1950SCR459.
11 1949FCR321.
12 JK Iron and Steel Co v Mazdoor Union AIR1956SC231, See also:
Bidi, Bidi Leaves’ and Tobacco Merchants Association vs. The State of Bombay [1961] 1 S.C.R. 381, N.M.C. Spg. & Wvg. Co.
vs.Textile Labour Association AIR 1961 SC 867.
13 Grindlays Bank Ltd v Central Government Industrial Tribunal 1980SuppSCC420:AIR1981SC606. See also Sindhu
Resettlement Corporation Ltd v Industrial Tribunal of Gujarat AIR1968SC529, (1968)1SCR515, Western India Match Company
v Industrial Tribunal Madras (1962)1LLJ629:(1962)4FLR180.
14 Section 36 ID Act, considered in Paradip Port Trust v Workmen (1977)2SCC339:AIR1977SC36.
15 Departure from the Three Judge decision in Hindustan Tin Works (P) Ltd v Employees (1979)2SCC80 is evidenced in
Hindustan Motors Ltd v Tapan Kumar Bhattacharya (2002)6SCC41, Indian Rly. Construction Co td v Ajay Kumar
(2003)4SCC579, MPSEB v Jarina Bee (2003)6SCC141, Rattan Singh v Union of India (1997)11SCC396.

is not his servant. Certainly, the workman can, on the pain of perjury, depose
on affidavit that he is unemployed. It may well be asked that given the fact
that his affidavit is “self serving”, why should he be believed as regards his
unemployment?
The novelty of industrial adjudication, as stated above, was the fact that a
worker could obtain the relief of reinstatement as well as damages for wrongful
termination quantified in terms of back wages in a case where he was able to
demonstrate that termination was not in accordance with law.
The “new” jurisprudence seems to favour compensation
in lieu of back wages and also confines reinstatement to
the rarest of the rare, thereby reducing what was once
the “norm” into just an exception16. The Court is now
also considering further dilution to make the remedy not
be reinstatement or back wages or compensation, but be
a payment of the notice pay and compensation
contemplated in the provision17.
The ID Act also provides for the facility of collective bargaining and strikes.
This feature should be held precious by health care unions and the management
alike. While the health care unions would have access to facilities such as
collective negotiations and conciliation of disputes, the management could use
the ID Act to deal with the issue of strikes. If the hospitals were removed from
the purview of the ID Act, the mechanism to regulate strikes and bargaining
would also be absent.
The growing problem of health workers arising out of “contractualisation” has
also met with a blow in the SAIL case18 where the Court held that the Writ
Court could not direct absorption of contract workers into the regular workforce.
The case of Uma Devi proved to be even more fatal.
The new jurisprudence on regularisation has been set out in the Constitution
Bench decision in Uma Devi’s case19. The Court has held that no person has
the right to be regularized. Uma Devi arose in the context of writ petitions being
allowed by the High Court directing the regularization of the services of
temporary/daily wage employees. The Supreme Court has not shown
appreciation for the powers of an Industrial Tribunal to intervene in a contract
16 Rolston John v Central Government Industrial Tribunal cum Labour Court 1995Supp(4)SCC549:AIR1994SC131, Central P
& D Institute Ltd v Union of India (2005)9SCC171: AIR2005SC633, Haryana Tourism Corporation Ltd v Fakir Chand
(2003)8SCC248:AIR2003SC4465, MP State Agro Industries Development Corporation Ltd v SC Pandey (2006)2SCC716.
17 State of Punjab v Des Bandhu (2005)6SCC677.
18 (2001)7SCC1
19 (2006)4SCC1.

of employment as noticed by the Federal Court in Western India Automobile
Association20. The Constitution Bench also did not examine the impact of Item
10 of Schedule V of the I.D. Act, which describes as being “unfair labour
practice” the employment of workman as Badli/casual or temporary and
continuing them for years with the object of depriving them of the status and
privileges of permanent workman.
Interestingly, the way the Court dealt with the Uma Devi case does not have
anything to do with the propriety of engaging temporary workers for years on
end and extracting work without making payment at par with regular counter-
parts. The contrast between the “old” jurisprudence and the “new”
jurisprudence is most startling in the obiter (passing remark) of P.K.
Balasubramanyan J. which says that the argument based on Articles 14 and 23
on exploitation and legitimate expectation cannot be accepted as the person
accepts the employment “with open eyes”— although he may not be in a
position to “bargain at arm’s length since he might have been searching for
some employment so as to eke out his livelihood and accepts whatever he
gets.” This may be contrasted with the doctrine propounded by the Court
speaking though P.N. Bhagwati J. (as his Lord Chief Justice then was) in the
ASIAD Workers case21 to the effect that Article 23 would operate even if the
forced labour had its origin in a “voluntary” contract to perform service for
less than minimum wages. This principle of “economic coercion” was applied
in the context of even famine relief work a year later22. What was applicable in
the context of minimum wages in the 1980s, given the passage of time and the
great economic strides made by the nation, would surely apply to living wages
of today.
Therefore, health care workers who have been continued as ad hoc, temporary
or as leave substitutes for years on end are left with little succour.
Yet another aspect is the growing problem of sexual harassment at the
workplace faced by health workers. Presently, the ID Act mechanism offers little
solace to such victims. Under the ID Act mechanism, only complaints of
termination from service can be directly filed by workers, for every thing else,
espousal by a trade union is required. A trade union is sometimes patriarchal
in its attitude and may not be willing to espouse a victim’s cause.
The last aspect is the growing tendency of the Court to favour a “pigeon hole”
approach to the definition of “workman”. The Court has held that unless the
workman is able to bring himself within the categories specified in Section 2
(s) of the ID Act, namely “manual”, “unskilled”, “skilled”, “technical”,
Sexual
Harrassment
Definition of
Workman/Worker
20 Cited supra.
21 Peoples’ Union for Democratic Rights v Union of India (1982)3SCC235.
22 Sanjit Roy v State of Rajasthan (1983)1SCC525:AIR1983SC328

“operational”, “clerical” or “supervisory” he would stand excluded23. In the
health sector, there may be a number of persons (such as trainee doctors) who
may need protection in service but who may fail to qualify under the present
test of “workman”. Also while Bangalore Water Supply’s case is clear that a
research institution is also an industry, there seem to be some recent decisions
which suggest that research activities should be exempted from the purview of
the ID Act.
23 See HR Adyanthya v Sandoz (India) Ltd
(1994)5SCC737, See also MK Tripathi v Senior
Divisional Manager LIC (2004)8SCC387:AIR2004SC4179
Given the judicial trends, unless the current reverses in industrial jurisprudence are
set aside through legislative amendments to the ID Act, the ID Act will cease to be
an effective dispute resolution machinery for the health care sector, and for the
larger world.

Right to Health in India: Arguments for Justice and Enforceability30
Chapter Six
Health is a basic service that the government must provide for its people and
for which it must accept ultimate responsibility. In India, the Constitution,
judgements of the Supreme Court and international treaty obligations together
provide a framework for articulating the “Right to Health” as a fundamental
right of a citizen.
The Constitution The Constitution of India also specifies rights in the form of policy goals (without
provisions for enforceability) in Part IV of the Constitution – these are the
Directive Principles of State Policy. However, Directive Principles only serve as
guiding principles and do not have the
constitutional enforceability of rights
articulated in Part III. Further the
language used under Article 47 of the
Directive Principles indicates that it is a
duty of the state to improve public health
as one of its primary duties and not a
right guaranteed to the citizen.
It is noteworthy that originally issues of
health care and rights based access to it were relegated to the Directive
Principles of State Policy. However, even as Directive Principles, there is no
articulation of a Right to Health as framed within Article 12 of the International
Covenant on Social, Economic and Cultural Rights – “recognize the right of
everyone to the enjoyment of the highest attainable standard of physical and
mental health.” Articulation of health in the Directive Principles of the
Constitution (Articles 42 and 47) is limited to exhorting the state to provide
humane conditions of work, maternity relief, increase the level of nutrition,
standard of living and improve public health.1 It gives a guiding principle on
which the drug policy of the government of India prior to its TRIPS commitments
was based – and drug policies deeply affect the Right to Health.
The Constitution of India provides a framework for
fundamental rights in India. Part III of the Constitution
articulates various rights and Article 32 of the
Constitution provides for direct access to the Supreme
Court of India in the case of violations of these rights.
One can argue for a just and enforceable Right to Health
in India on the basis of these provisions.
1 Article 42, “Provision for just and humane conditions of work and maternity relief- The State shall
make provision for securing just and humane conditions of work and for maternity relief”.
Article 47, “Duty of the State to raise the level of nutrition and the standard of living and to improve
public health----- The State shall regard the raising of he level of nutrition and the standard of living of its
people and the improvement of public health as among its primary duties and, in particular, the State
shall endeavour to bring about prohibition of the consumption, except for medicinal purposes, of
intoxicating drinks and of drugs which are injurious to health”

Right to Health in India: Arguments for Justice and Enforceability 31
Article 21 guarantees an individual’s life or personal liberty against all threats
except through a procedure established by law. The Right to Health was
explicitly read into Right to Life in State of Punjab and others vs. Mohinder
Singh2 and asserts the constitutional and enforceable obligation on the part of
the state to provide health facilities. It is further made clearer in Paschim Banga
Khet Mazoor Samiti v. State of West Bengal3, where non-availability of services
in government health centres
was seen as a violation of
Article 21 and it was held that
“Article 21 imposes an
obligation on the State to
safeguard the right to life of
every person. Preservation of
human life is thus of
paramount importance. The
government hospitals run by
the State and the medical
officers employed therein are
duty-bound to extend medical
assistance for preserving
human life. Failure on the part
of a government hospital to
provide timely medical treatment to a person in need of such treatment results
in violation of his right to life guaranteed under Article 21”. It was ordered
that primary health centres have to be equipped to deal with medical
emergencies, adding that the state cannot use lack of financial recourses to
shirk from its responsibility under Article 21. This has been re-affirmed by the
Supreme Court with respect to provision of primary health centres.4
The argument that Right to Health falls squarely within Article 21 also can be
read from other judgments of the Supreme Court around health issues. Right
to Life has continuously been interpreted to mean a right to a dignified life.
Extending this argument in Bandhua Mukti Morcha5, it was also held to include
adequate nutrition as part of life with dignity. Further, humane working
conditions, health services and medical care were read as an essential part of
the Right to Life guaranteed under Article 21.6 This has been extended to
emergency medical care and an obligation on every doctor, in government or
private practice, to extend his/her services in Paramanand Katara v. Union of
India.7
The Supreme
Court and the
Judiciary
The rights discourse within the Indian judicial paradigm underwent
a huge shift after the state of Emergency in 1977, wherein, the
judiciary, particularly the Supreme Court, started expanding the
notion of rights and creatively using the Right to Life guaranteed
under Article 21 of the Constitution to include various social and
economic rights that have not been expressly mentioned in Part
III of the Constitution of India, making them enforceable as a
matter of justice. The Right to Health featured prominently through
this process and was continuously read into Article 21 through
both the tool of public interest litigation and individual petitions
reading Right to Health into transgressions into Right to Life.
2 AIR1997SC1225
3 AIR1996SC2426
4 Common Cause v. Union of India AIR2005SC4442
5 Bandhua Mukhti Morcha v. Union of India 1997 (10) SCC 549
6 Common Education and Resource Centre v. Union of India 1995 (3) SCC 42
7 1989 (4) SCC 286

Right to Health in India: Arguments for Justice and Enforceability32
Article 738 of the Constitution lays an obligation on the Government of India to
honour and implement its international treaty obligations. The Supreme Court
has clearly enunciated that this obligation has to be fulfilled through executive
and legislative processes.9
India is a signatory to the International Covenant on Social, Economic and
Cultural Rights and Article 12 of the Covenant which calls for the right to the
highest attainable standards of health.10 According to the General Comments
of the Committee for Economic, Social and Cultural Rights (ECOSOC) the Right
to Health requires availability, accessibility, acceptability and quality with regard
to both health care and underlying preconditions of health. The Committee
interprets the Right to Health, as defined in Article 12.1, as an inclusive right
extending not only to timely and appropriate health care but also to the
underlying determinants of health, such as access to safe and potable water
and adequate sanitation, an adequate supply of safe food, nutrition and
International
Treaties
8 Extent of executive power of the Union.————— (1) Subject to the provisions of this Constitution,
the executive power of the Union shall extend— (a) to the matters with respect to which
Parliament has power to make laws; and (b) to the exercise of such rights, authority and
jurisdiction as are exercisable by the Government of India by virtue of any treaty or
agreement: Provided that the executive power referred to in sub-clause(a) shall not, save
as expressly provided in this Constitution or in any law made by Parliament, extend in any
State to matters with respect to which the Legislature of the State has also power to make
laws.
(2) Until otherwise provided by Parliament, a State and any officer or authority of a
State may, notwithstanding anything in this article, continue to exercise in matters with
respect to which Parliament has power to make laws for that State such executive power or
functions as the State or officer or authority thereof could exercise immediately before the
commencement of this Constitution.
9 Visakha v. State of Rajasthan AIR1977SC3011
10 1. The States Parties to the present Covenant recognize the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full
realization of this right shall include those necessary for: (a) The provision for the reduction
of the stillbirth-rate and of infant mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene; (c) The
prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all medical service and medical attention
in the event of sickness.

Right to Health in India: Arguments for Justice and Enforceability 33
housing, healthy occupational and environmental conditions, and access to
health-related education and information, including on sexual and reproductive
health.11
11 The right to health in all its forms and at all levels contains the following interrelated
and essential elements, the precise application of which will depend on the conditions
prevailing in a particular State party:
(a) Availability. Functioning public health and health-care facilities, goods and services, as
well as programmes, have to be available in sufficient quantity within the State party. The
precise nature of the facilities, goods and services will vary depending on numerous factors,
including the State party’s developmental level. They will include, however, the underlying
determinants of health, such as safe and potable drinking water and adequate sanitation
facilities, hospitals, clinics and other health-related buildings, trained medical and
professional personnel receiving domestically competitive salaries, and essential drugs, as
defined by the WHO Action Programme on Essential Drugs.
(b) Accessibility. Health facilities, goods and services have to be accessible to everyone
without discrimination, within the jurisdiction of the State party. Accessibility has four
overlapping dimensions:
Non-discrimination: health facilities, goods and services must be accessible to all, especially
the most vulnerable or marginalized sections of the population, in law and in fact, without
discrimination on any of the prohibited grounds.
Physical accessibility: health facilities, goods and services must be within safe physical reach
for all sections of the population, especially vulnerable or marginalized groups, such as
ethnic minorities and indigenous populations, women, children, adolescents, older persons,
persons with disabilities and persons with HIV/AIDS. Accessibility also implies that medical
services and underlying determinants of health, such as safe and potable water and
adequate sanitation facilities, are within safe physical reach, including in rural areas.
Accessibility further includes adequate access to buildings for persons with disabilities.
Economic accessibility (affordability): health facilities, goods and services must be affordable
for all. Payment for health-care services, as well as services related to the underlying
determinants of health, has to be based on the principle of equity, ensuring that these
services, whether privately or publicly provided, are affordable for all, including socially
disadvantaged groups. Equity demands that poorer households should not be
disproportionately burdened with health expenses as compared to richer households.
Information accessibility: accessibility includes the right to seek, receive and impart
information and ideas concerning health issues. However, accessibility of information should
not impair the right to have personal health data treated with confidentiality.
(c) Acceptability. All health facilities, goods and services must be respectful of medical ethics
and culturally appropriate, i.e. respectful of the culture of individuals, minorities, peoples
and communities, sensitive to gender and life-cycle requirements, as well as being designed
to respect confidentiality and improve the health status of those concerned.
(d) Quality. As well as being culturally acceptable, health facilities, goods and services must
also be scientifically and medically appropriate and of good quality. This requires, inter
alia, skilled medical personnel, scientifically approved and unexpired drugs and hospital
equipment, safe and potable water, and adequate sanitation.
(Committee on Economic, Social and Cultural Rights Twenty-second session 25 April-12
May 2000)

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