VI. International Human Rights and the Indian Legal Framework

International Human Rights Law

International Commitments to Reduce Maternal Mortality

India has participated in several international conferences and United Nations (UN) General Assembly sessions, adopting resolutions that specifically address women's right to sexual and reproductive health, including maternal health. Maternal mortality reduction is an important goal towards achieving this right. Hence along with the international community, India has made some crucial commitments regarding maternal mortality reduction. Key among these are the 1994 International Convention on Population and Development (ICPD), the 1995 Beijing Fourth World Conference of Women, the 1999 UN General Assembly special session reviewing the ICPD resolutions, and the 2000 UN General Assembly session adopting the Millennium Declaration, and the 2008 UN high-level event on the Millennium Development Goals.

Maternal mortality reduction itself should be monitored using two targets-ensuring a 75 percent reduction in MMR levels by 2015 compared with 1990 levels and providing universal access to sexual and reproductive healthcare services to all women.

In-country Obligations of States

India is a party to several international human rights treaties that create binding obligations on the Indian central and state governments. Those with particular relevance to maternal health are the International Covenant on Economic, Social and Cultural Rights (ICESCR),[391] the International Covenant on Civil and Political Rights (ICCPR),[392] the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),[393] and the Convention on the Rights of the Child (CRC).[394] The obligations on states set out in these treaties to implement human rights guarantees can be divided into obligations to respect, protect, and fulfill the right.[395]

The Indian Supreme Court has held that the implementation of the obligations in these treaties is not conditional upon being incorporated in domestic legislation. Hence district level and state level authorities have the freedom to take measures to directly comply with India's international obligations. Likewise, Indian courts also have the freedom to direct governments to take measures to implement these binding international obligations.[396]

The right to life

Article 6 of the ICCPR sets out that everyone "has the inherent right to life," which shall be protected by law. It guarantees that no one shall be arbitrarily deprived of life.  The UN Human Rights Committee which oversees the implementation of the ICCPR has advised states that the right to life should not be considered in a restrictive manner but requires states to adopt a range of positive measures to protect deprivation of life.[397] For example, in its General Comment No. 6 on the right to life, the Human Rights Committee noted that that it would be desirable for states to take positive measures to reduce infant mortality and to increase life expectancy.[398]In light of the states obligation to ensure equality between men and women, governments must take at least equivalent steps to prevent maternal death as to prevent death from disease. The Human Rights Committee has specifically said that when reporting on the right to life protected by article 6, states "ought provide data on birth rates and on pregnancy- and childbirth-related deaths of women... States parties should give information on any measures taken by the State to help women prevent unwanted pregnancies, and to ensure that they do not have to undergo life-threatening clandestine abortions."[399]

In examining states' obligations on the right to life, the Human Rights Committee has often commented on health-related risks to the right to life. It specifically noted that where life expectancy of women is shorter than that of men that this should be addressed;[400] and has on many occasions expressed its concern about  the existence of very high levels of maternal mortality which it has identified as often arising as a result of clandestine abortions, early marriage, or practices such as female genital mutilation.[401]The Human Rights Committee has specifically noted that abortions in unsafe conditions, imperil "the life and health of the women concerned, in violation of Articles 6 [right to life] and 7 [freedom from torture and inhuman treatment] of the Covenant."[402] Likewise the Committee has said that where there is a high maternal mortality, that in order to protect the right to life, the state should "[ensure] the accessibility of health services...ensure that its health workers receive adequate training...[and] help women avoid unwanted pregnancies...by strengthening its family planning and sex education programmes."[403]  

Another positive obligation is to investigate potential violations of the right to life promptly, thoroughly, and effectively through independent and impartial bodies. As the Human Rights Committee has noted, in certain circumstances the failure to take appropriate measures and exercise due diligence to prevent, investigate, or redress harm caused by acts of private persons or entities, may give rise to a violation of the right to life.[404]

The right to sexual and reproductive health, including maternal health

Article 12 of the ICESCR guarantees the right to the highest attainable standard of health. The UN Committee on Economic, Social and Cultural Rights (CESCR), which oversees implementation of the ICESCR, has affirmed that states are required to take measures to improve child and maternal health, sexual and reproductive health services, including access to family planning, pre- and post-natal care, emergency obstetric services and access to information, as well as to resources necessary to act on that information.[405] It recommends that states remove all barriers to women's access to reproductive health services.[406] Importantly, the committee has said that the obligation to ensure reproductive, maternal, and child health care is of "comparable priority" to the non-derogable core obligations under the Covenant.[407] The UN Special Rapporteur on the right to health has also consistently stated that the right to health includes the right to sexual and reproductive health, including maternal health.[408]

The right to health includes the right to health care and the right to the underlying determinants of health.[409]Underlying determinants of health include food and nutrition, access to safe and potable water, adequate sanitation, sufficient quantity of hospitals, clinics and other health-relatedbuildings, trained medical and professional personnel receiving domestically competitive salaries,and essential drugs.[410]

Under article 12 of the CEDAW, states should take "all appropriate measures" to eliminate discrimination against women in the field of health and ensure equal access to healthcare services. In particular, states should ensure "appropriate services" in connection with "pregnancy, confinement and postnatal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation."  The CEDAW Committee has called on states parties to take steps under the right to health in particular to "prioritize the prevention of unwanted pregnancy through family planning and sex education and reduce maternal mortality rates through safe motherhood services and prenatal assistance."[411]

According to its obligations under article 24 of the CRC, states have to ensure "appropriate pre-natal and post-natal health care for mothers."

Content of the Obligations

Generally, by undertaking to respect women's right to sexual and reproductive health, including maternal health, states have an obligation not to interfere, either directly or indirectly, with the enjoyment of the right to health.[412] In particular this means that states should abstain from "imposing discriminatory practices relating to women's health status and needs."[413] States should refrain from limiting access to the "means of maintaining sexual and reproductive health,"[414] and "withholding or intentionally misrepresenting health-related information."[415] A state is said to have violated its obligation to respect the said rights when its laws, policies, or actions run contrary to article 12 of the ICESCR, resulting in "bodily harm, unnecessary morbidity, and preventable mortality." Such violations include de jure  or de facto discrimination, deliberate withholding of or misrepresentation of information vital to health protection or treatment, failure to take into account its legal obligations while entering into bilateral or multilateral agreements with other states and international organizations.[416]

Protecting the right to sexual and reproductive health obliges states to take measures preventing third parties from interfering with the enjoyment of the right.[417] To this end, states should take measures to ensure that privatization of the health sector does not constitute a threat to the availability, accessibility, acceptability, and qualify of health facilities, goods, and services.[418] This also means that states should take measures to ensure that medical practitioners and other health related professionals meet appropriate standards of education, skill, and ethical codes of conduct.[419] Failure to regulate the private sector, for instance, amounts to a violation of state's obligation to protect the right to health.[420]

The obligation to fulfill, which once again can be broken down as obligations to facilitate, provide, and promote the right to health, requires states to adopt "appropriate" legislative, administrative, budgetary, judicial, promotional, or "other" measures "towards the full realization" of the right to health.[421] The obligation to fulfill gives rise to a bundle of obligations including the sufficient recognition of the right to health in national political and legal systems, provision of health care, equal access to the underlying determinants of health, appropriate training for doctors and medical personnel, sufficient number of hospitals, clinics, and other health-related facilities with regard to equitable distribution within the country.[422] This includes the obligation to provide for sexual and reproductive health services, including safe motherhood, particularly in rural areas.[423]

The CEDAW Committee has advised states that the duty to fulfill rights places an obligation on them to take appropriate legislative, judicial, administrative, budgetary, economic and other measures to the maximum extent of their available resources to ensure that women realize their rights to health care. It notes that high maternal mortality and morbidity "provide an important indication for States parties of possible breaches of their duties to ensure women's access to health care."[424]States party to CEDAW are required to furnish information to the CEDAW Committee on the how measures they have taken "have reduced maternal mortality and morbidity in their countries, in general, and in vulnerable groups, regions and communities, in particular."[425]States party should also include in their reports how they supply free services where necessary to ensure safe pregnancies, childbirth, and post-partum periods for women. The Committee explicitly noted "that it is the duty of States parties to ensure women's right to safe motherhood and emergency obstetric services and they should allocate to these services the maximum extent of available resources."[426]

The obligation to fulfill also requires the state to play the role of a facilitator, whereby it assists individuals and communities to enjoy the rights guaranteed to them.[427] It should perform the function of a "provider" in cases where individuals or a group are "unable, for reasons beyond their control, to realize that right themselves by the means at their disposal." Finally, the state must function as a "promoter" undertaking actions that "create, maintain, and restore" the health of the population-for example-through research and provision of information, ensuring that health staff are trained and respond to the specific needs of vulnerable or marginalized groups, and supporting people in making informed choices about their health.[428] The obligation to "fulfill" the right to health is violated when states fail to monitor the realization of the right to heath at the national level.[429] Further, "failure to reduce ... maternal mortality rates" is a violation of the obligation to fulfill the right to health.[430] 

The obligation to fulfill the right to health requires states to undertake actions that create, maintain, and restore the health of the population. Such obligations include fostering recognition of factors favoring positive health results, ensuring that health services are culturally appropriate, and that healthcare staff are trained to recognize and respond to the specific needs of vulnerable or marginalized groups.[431]Adolescent girls who become pregnant should have access to health services that are sensitive to their rights and particular needs.[432]Analyzing pregnancy outcomes through investigations of maternal deaths not only allows the state to recognize factors favoring positive health results, but also allows health workers to respond to the specific needs of vulnerable and marginalized groups.

Accountability as a human rights principle

Accountability is central to a human rights approach to health and helps communities and rights-bearers assess how those with responsibilities are discharging their duties. [433] The UN Special Rapporteur on right to health has stated that "without accountability, human rights can become no more than window-dressing." [434]

Accountability has two components-states should develop redressal mechanisms for mistakes or grievances, and correct systemic failures and replicate programs that work. [435] The latter-constructive accountability-is particularly important in the area of health. It helps governments "identify what works, so that it can be repeated, and what does not, so that it can be revised." [436]

Any system of accountability should be "accessible, transparent, and effective," and cover both public and private health sectors. [437]

Accountability: The obligation to monitor "progressive realization"

Accountability is concerned with "ensuring that health systems are improving, and the right to the highest attainable standard of health is being progressively realized, for all, including disadvantaged individuals, communities, and population."[438] Under the ICESCR, states' obligation to fully realize the right to health is subject to progressive realization.[439]

Progressive realization of the right to health generally and maternal health specifically means that states have a specific and continuing obligation to move as expeditiously and effectively as possible towards the "full realization" of these rights.[440]To this end, states have an obligation "to take steps," individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, through positive measures.[441]

Full realization of the right to health, including maternal health, means progressive realization of both aspects of the right to health, that is, the rights to health care and underlying determinants of health. Investigations of maternal deaths at the district level reveal important information about not only the healthcare system but also socio-economic and cultural factors that contribute to the deaths, including some or all underlying determinants of health. This allows the state to take a host of appropriate public health measures to ensure the progressive realization of the right.

"Appropriateness" of the interventions is a critical element of progressive realization. Almost all international guarantees of health, including pregnancy-related health care, make references to "appropriate" means. The obligation to progressively realize the right to maternal health does not mean that the state can take some measures broadly in the right direction. On the contrary, it is a much more onerous and specific obligation to take the "most appropriate" measure that will progressively realize the right to health. Under article 2 of the ICESCR, states have undertaken to progressively realize the right to health "by all appropriate means."[442]

These repeated calls for "appropriate" means and services should be interpreted in light of the authoritative interpretations issued by the Committee on Economic, Social and Cultural Rights and statements of the UN Special Rapporteur on the right to health. The committee has stated that states should demonstrate in their reports to the committee "not only the measures that have been taken but also the basis on which they are considered to be the most 'appropriate.'"[443] Steps taken by states "must be deliberate, concrete and targeted towards the full realization of the right to health".[444] The UN Special Rapporteur on the right to health has clarified that "progressive realization...does not mean that a State is free to choose whatever measures it wishes to take so long as they reflect some degree of progress. A State has a duty to adopt those measures that are most effective, while taking into account resource availability and other human rights considerations."[445]

In keeping with its international obligations to take the most appropriate measures to progressively realize the right to sexual and reproductive health, including maternal health, the Indian central and Uttar Pradesh state governments should immediately undertake a review of all its policies and programs to determine the appropriateness and effectiveness of its interventions, and revise them to maximize impact.

Another feature of progressive realization is the obligation to maintain the present level of enjoyment of the right to health, that is, the state should not take measures that are retrogressive.  Any deliberately retrogressive measure "would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided...and in the context of the full use of the maximum available resources."[446] In the Indian context, the government's modification of the National Maternity Benefit Scheme, to introduce eligibility criteria in some states for JSY, resulting in the exclusion of many women who were formerly entitled to benefits and not providing them with a reasonable alternative could constitute a retrogressive measure. In some states, the JSY benefits are available to only those women who are above age 18 and up to two live children.[447]

As mentioned before tracking progressive realization through constant monitoring is a key feature of accountability. It involves "monitoring of conduct, performance, and outcomes." [448] In a right-to-health approach to reducing maternal mortality, states should develop "appropriate indicators to monitor progress made, and to highlight where policy adjustments may be needed." [449] The periodic reporting system under the ICESCR aims to ensure that the "state party monitors the actual situation with respect to each of the rights on a regular basis and is thus aware of the extent to which the various rights are, or are not, being enjoyed by all individuals within its territory or under its jurisdiction." [450] Monitoring cannot be achieved merely by gathering aggregate national statistics or estimates, "but also requires that special attention be given to any worse-off regions or areas and to any specific groups or subgroups which appear to be particularly vulnerable or disadvantaged." [451] Such monitoring forms the basis for evaluating the extent to which rights are being progressively realized. [452]

Monitoring should also be based on "appropriate indicators." States have an obligation to adopt and implement a national public health strategy and plan of action, on the basis of "epidemiological evidence."[453] Such a strategy and plan of action should include methods such as right to health indicators and benchmarks, by which progress can be closely monitored.[454] Without such "appropriate indicators and benchmarks...there is no way of knowing whether or not the State is improving its health system and progressively realizing the right to the highest attainable standard of health."[455] Data based on these "appropriate indicators" should be disaggregated on the basis of the prohibited grounds of discrimination to monitor the elimination of discrimination as well as ensure that vulnerable communities are actually benefiting from healthcare schemes.[456]

While monitoring progressive realization, states should identify the factors and difficulties affecting implementation of their obligations.[457]The realization of women's right to health requires the removal of all barriers interfering with access to health services, education and information, including in the area of sexual and reproductive health.[458]Monitoring will help state parties develop a better understanding of the "problems and shortcomings encountered" in realizing rights, providing them with the "framework within which more appropriate policies can be devised."[459]

Finally, monitoring is merely the means to an end-the full realization of the right to health. States should constantly revise and review their laws, policies, programs, and practice based on the information gathered through such monitoring.

The Indian government has a maternal mortality benchmark (MMR should be below 100 by 2010) but does constantly monitor progress based on appropriate indicators, including the recommended UN indicators for monitoring availability and utilization of obstetric services.[460] Merely identifying a time-specific benchmark without gathering information that helps monitor the timely achievement of the goal defeats the very purpose of the benchmark. The Indian central government has an obligation to collect data on processes and outcomes that will enable it to measure progress and revise programs. Further, investigating maternal deaths at the district level will help states to identify socio-economic and cultural causes, and problems that hamper women's access to healthcare services.

"Core obligations" subject to immediate implementation

In order to fully realize the different aspects of the rights to health, states are allowed some leeway by way of time- "full realization...cannot be achieved in a short period of time."[461] However, the obligation to progressively realize is itself an immediate obligation that cannot be postponed. States are under an obligation "to take steps" towards such full realization.[462] States have an obligation to move "as expeditiously and effectively as possible" towards the "full realization" of article 12 of ICESCR.[463]

Moreover, certain "core obligations" are not subject to availability of resources-they should be immediately realized. Non-discrimination, for example, is one such obligation that is not subject to availability of resources.[464]  Monitoring progressive realization is another such obligation. The CESCR has emphasized that "the obligation to monitor the extent of realization, or more especially of the non-realization of economic, social and cultural rights, and to devise strategies and programmes for their promotion, are not in any way eliminated as a result of resource constraints."[465] Establishing an accessible, transparent, and effective accountability mechanism, including monitoring, is a core obligation.[466]

The UN Special Rapporteur on the right to health has further observed that states also have a "core obligation" to ensure a "minimum basket of health-related services and facilities," including "sexual and reproductive health services including information, family planning, prenatal and postnatal services, and emergency obstetric care."[467]

Since monitoring progress and creating benchmarks to measure progress are a core obligation, collection of the data necessary to measure such progress should also be treated as such.

Equality and Non-discrimination as a "Core Obligation"

International law obligates governments to ensure basic human rights without discrimination. This obligation is set out in Article 2 of both the ICCPR and the ICESCR.[468]   The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) explicitly prohibits discrimination against women in all fields including the right to life and health care.

The principle of non-discrimination and equality requires states to develop programs that "promote equitable distribution of health care, including provision in rural or poor areas, or areas with high indigenous or minority populations." [469] The obligation of non-discrimination and equality is an immediate obligation, not subject to availability of resources. [470]

Discrimination in access to health care and underlying determinants of health is prohibited. In addition to those explicitly provided for in the text of the ICESCR, the CESCR has identified other grounds on which discrimination is prohibited. [471] In 2009, the committee adopted a General Comment on the obligation of non-discrimination in which it sets out its understanding of the phrase "other status," enumerating more prohibited grounds of discrimination. This list, though not exhaustive, includes, age, marital and family status including number of children, place of residence, and economic and social situation. [472]   

Differential treatment based on prohibited grounds will be viewed as discriminatory unless such treatment can be justified as reasonable and objective. [473] This will include an assessment of the whether the aim and effects of the measures or omissions are legitimate, compatible with the rights enshrined in the ICESCR, and are undertaken solely for the purpose of promoting the general welfare in a democratic society. There should also be a reasonable relationship of proportionality between the aim sought, the measures or omissions, and the effects.

The law, policy, program, or practice of the state does not have to be intentionally discriminatory. Even where it in effect nullifies or impairs the equal enjoyment or exercise of the right to health, it amounts to discrimination. [474]

In some states, the Indian government has limited the JSY scheme only to women above age 18 and for up to two live children. This policy is discriminatory and does not fall within the category of differential treatment. Many activists and public health experts in India state that even though this measure has ostensibly been taken to discourage early marriage and child-bearing, the harm done by excluding young mothers from the JSY scheme is far greater since young mothers are at higher risk of complications due to pregnancy and are in increased need of medical attention at the time of delivery.[475] Likewise, the exclusion of women with more than two live children from JSY benefits is also discriminatory. Activists and experts consistently maintain that women with more than two children are more vulnerable and need better attention.[476] Instead of empowering such women and improving their access to and utilization of contraceptives of their choice, excluding them from the JSY scheme only puts them in harm's way.[477]

The jurisdictional division of health workers in Uttar Pradesh in effect leads to a discriminatory practice-pregnant women living in their mother's homes do not have equal access to sexual and reproductive healthcare services compared with those who live in their husband's homes.[478] 

Redress

It is a general principle of human rights law that victims of violations have a right to a remedy. Specifically article 2(3) of the ICCPR requires that individuals have accessible and effective remedies to vindicate their rights. The Human Rights Committee has made explicit that states should also "make reparation to individuals whose rights have been violated. Without reparation ... the obligation to provide an effective remedy, ... is not discharged."[479] Likewise the Committee on economic, social and cultural rights has said that where any person or group is a victim of a violation of the right to health they should have access to effective remedies and should be entitled to adequate reparation. Both committees have emphasized that victims should expect satisfaction and guarantees of non-repetition.[480] The Human Rights Committee has observed that states have an obligation to make changes in relevant laws and practices as necessary and, when there are serious violations, to hold accountable those responsible for human rights violations.[481]

To establish meaningful accountability, an investigation needs to independently identify the extent of the state's liability for maternal deaths or severe morbidities that result from failings in healthcare provision. Therefore effective remedial mechanisms should be designed not only to examine where individual fault or responsibility may lie in a particular case, but need to include an examination of responsibility for planning and oversight at the level of district and sub-health officials. They should examine whether health authorities have taken appropriate systemic measures to minimize, to the greatest extent possible, the risk to life and assess whether the authorities were negligent in failing to take such measures.[482]

Further, the right to health is closely related to and dependent upon the realization of other human rights, such as access to information.[483]Information, particularly information related to sexual and reproductive health is one of the underlying determinants of health.[484]Especially in the context of maternal health, the state is obligated to ensure access to information about sexual and reproductive health services, as well as resources necessary to act on such information.[485] States should also ensure that third parties do not limit people's access to health-related information.[486]As part of its obligation to fulfill the right to health, the state has an obligation to promote information campaigns on sexual and reproductive health.[487]By not providing information about entitlements under existing maternal healthcare schemes and failing to implement grievance redressal procedures, the government is not enabling women to fully claim their rights.

International Assistance and Cooperation for Maternal Mortality Reduction

States have undertaken additional obligations to provide international assistance and cooperation to ensure the realization of economic, social, and cultural rights in low-income countries. In compliance with their international obligations, states should respect the enjoyment of the right to health in other countries and prevent third parties, through political or legal means, from interfering with the enjoyment of the right.[488] In furtherance of this obligation, both the CESCR and the UN Special Rapporteur on the right to health have observed that "States should ensure that their actions as members of international organizations take due account of the right to health."[489] The CESCR has noted that members of international financial institutions such as the World Bank and regional development banks "should pay greater attention to the protection of the right to health in influencing... measures of these institutions."[490] It has reiterated that this would entail "international assistance and cooperation, especially economic and technical...which enable developing countries fulfill their core and other obligations."[491] The UN Special Rapporteur has stated that they should pay particular attention to helping other States give effect to minimum essential levels of health."[492] Following from this obligation to provide international assistance and cooperation, states have an obligation to set up an international mechanism for accountability,[493] including the obligation to design indicators to monitor states obligations at the international level.[494] Moreover, accountability as a human rights principle "extends to international actors working on health-related issues."[495]

The aid given by donor countries and international agencies is governed by the 2005 Paris Declaration on Aid Effectiveness supplemented by the 2008 Accra Agenda for Action. [496] India, along with key funding agencies and donor countries, has adhered to the Paris Declaration and the Accra Agenda for Action, and is committed to implementing them.[497]

Under the Paris Declaration, based on the principle of "mutual accountability" between donor and partner (recipient) countries, donors have committed to aligning their overall support including country strategies, policy dialogues, and development co-operation programs with partners' national development strategies and periodic reviews.[498] Donors have also undertaken to increase aid effectiveness "by strengthening the partner country's sustainable capacity to develop, implement and account for its policies to its citizens and parliament."[499]

In particular, the Declaration recognizes the "shared interest" of donors and partners "in being able to monitor progress," and to this end, both partners and donors have joined hands to "establish mutually agreed frameworks that provide reliable assessments of performance, transparency and accountability of country systems." In keeping with the principle of mutual accountability, donors have also undertaken to "provide timely, transparent and comprehensive information on aid flows."[500]

In 2008, developing countries and donors including bilateral and multilateral development institutions reiterated their commitment to accountability in the use of aid for meeting the Millennium Development Goals in the Accra Agenda for Action. "Achieving development results-and openly accounting for them-must be at the heart of all we do," endorsed ministers of countries and heads of development institutions. Acknowledging that "citizens and taxpayers of all countries expect to see tangible results of development efforts," and restating their commitment to mutual accountability, they committed to being held accountable before their "respective parliaments and governing bodies for these outcomes."[501] Recognizing that "greater transparency and accountability for the use of development resources-domestic as well as external-are powerful drivers of progress," they committed to taking several measures in furtherance of such transparency and accountability.[502] These include developing countries' and donors' commitment to "assess the impact of development policies and adjust them as necessary," through better co-ordination and linking of sources of information, statistical systems, planning, monitoring, and country-led evaluations of performance.[503] To this end, donors committed to supporting and investing in the statistical capacity and information systems of developing countries. [504]

Transparency is another key commitment, both of donors and developing countries. While developing countries will "facilitate parliamentary oversight by implementing greater transparency in public financial management, including public disclosure of revenues, budgets, expenditures, procurement and audits," donors will "publicly disclose regular, detailed and timely information on volume, allocation and, when available, results of development expenditure."[505]

Indian Legal and Policy Framework

India has a strong platform for integrating accountability as a principle into existing programs for preventable maternal mortality and morbidity. The Indian Constitution guarantees the right to life, and has been interpreted by the Supreme Court in a host of judgments as including the right to health.

It is supplemented by the NRHM which recognizes the urgent need to "transform the public health system into an accountable, accessible, and affordable system of quality services," with its vision to "improve access to rural people, especially poor women and children to equitable, affordable, accountable and effective primary health care."[506] The 2009 draft legislation on health codifies the right to health in India, including the rights to emergency treatment and care, which includes emergency obstetric care. It also defines the right to reproductive and sexual health care, which includes the "right to comprehensive obstetric healthcare services with continuum of care, including antenatal and postnatal care," and "right to safe abortion/termination of pregnancy." In addition, the draft legislation creates a detailed complaints mechanism for India.[507]

Constitutional Law and Supreme Court Decisions

Right to Health as a Enforceable Fundamental Right

The right to life is an enforceable fundamental right under article 21 of the Indian Constitution. Fundamental rights impose obligations on the state and are judicially enforceable. The Directive Principles of State Policy, under the Indian Constitution, recognize as part of the "primary duties" of the state the need "to raise the level of nutrition and the standard of living and to improve public health." Reading the "fundamental right to life" under article 21 in conjunction with the Directive Principles of State Policy, the Supreme Court of India has consistently interpreted, in a host of judgments, that the right to life includes the right to health, [508] and stated that "it is a most imperative constitutional goal."[509]

Holding that primary health centers should be one of the state's primary concerns, the court has held that "technical fetters cannot be introduced as subterfuges to cause hindrances in the establishment of health centers."[510]

The Uttar Pradesh High Court has interpreted the right to health to mean the right to adequate and quality medical care.[511]

The Fundamental Right to Admission and Treatment in Emergencies

A detailed analysis of the host of Supreme Court judgments that govern the right to health is beyond the scope of this report. Nevertheless, in the context of preventable maternal mortality and morbidity, it is particularly useful to discuss in some detail the Supreme Court's landmark judgment on the right to admission and treatment in emergencies in Paschim Bangal Khet Mazdoor Samiti v. State of West Bengal.[512] In this case, a patient with serious head injuries received first aid in a primary health center and was subsequently referred from one government hospital to another without being admitted or provided emergency treatment. After doing the rounds in three government hospitals without any success, he was compelled to go to a private hospital. Saying that there was a fundamental right to health, the Supreme Court held that there was a corresponding obligation on the state to provide emergency treatment. Holding that "a patient should not be refused admission when his condition is grave," the Supreme Court held that "the Superintendent [of the hospital] should have given guidelines to respective medical officers for admitting serious cases under any circumstances."[513]

The court issued a set of guidelines for state obligations in emergencies stating "that the guiding principle should be to ensure that no emergency case is denied medical care. All possibilities should be explored to accommodate emergency patients in serious condition."[514] The court issued the following general guidelines:

• Primary health centers should be equipped with adequate facilities to ensure basic treatment to patients, stabilizing their condition before referral.
• Hospitals at the district and sub-division levels should be upgraded so that they can provide care in serious cases.
• Number of facilities available for specialist treatment should be increased to meet the growing need, and such facilities should be available at the district and sub-divisional level hospitals.
• A centralized communication system should be put in place at the state level so that patients can be directed to a hospital which has the required care and free beds for admitting such patients.
• Patients should be transported from primary health centers to higher facilities for care in ambulances. Proper arrangements should be made to ensure that there are a sufficient number of ambulances equipped with facilities and medical personnel.

The Right to Emergency Care as a "Core" Obligation Not Subject to Financial Constraints

In the Pashchim Bangal Khet Mazdoor case, the Supreme Court cited a prior decision imposing a constitutional obligation to provide free legal aid to the poor and drew a parallel between that obligation and the obligation to provide emergency medical care. The court held,

These observations will apply with equal if not greater force in the matter of discharge of constitutional obligation of the State to provide medical aid to preserve human life. In the matter of allocation of funds for medical services the said constitutional obligation of the State has to be kept in view.[515]

The Need for a Policy Requiring Health Officials to Report Maternal Deaths

Many public health experts and human rights activists, including UNICEF, have called for a new national policy requiring all medical professionals, such as doctors, staff nurses, and ANMs, to report maternal deaths.

Public health experts and human rights activists such as Dr. Sundari Ravindran and Dr. Abhijit Das have suggested that there will be great utility to treating maternal deaths on the same platform as communicable diseases.

Prominent human rights lawyers in India such as Dr. Usha Ramanathan and Mihir Desai have noted that such a mandatory notification system is not unknown to Indian legal jurisprudence, including in the area of public health. Dr. Ramanathan said, "Such a mandatory notification system is important particularly because we are talking about deaths in extremely vulnerable communities." Especially when there is such a level of vulnerability, "the state should be pro-active and cannot put the onus on reporting deaths solely on families." Mandatory notification systems have been used in cases where the law recognizes the vulnerability of groups involved, she said, citing examples where certified medical practitioners are required to report cases where they notice the presence of an occupational health problem in workmen on whom they attend. Similarly, she explained, in case of "fatal accident or serious bodily injury" to an interstate workman, the authorities in both the state from which he originates and the state to which he has migrated to work have to be notified by the contractor who employs him, on pain of penalty.[516]