by Rohit Sharma
India’s ‘Ayushman Bharat National Health Protection Scheme’ (The Scheme) is a big step forward in recognising the right to health and implementing a rights-based approach to ensuring adequate healthcare, one that maximizes the capabilities of individuals; but it is not without its flaws.
The ‘right to health’ is enshrined in Article 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and refers to the right to physical and mental health to the highest attainable standard. Additionally, Article 25 of the Universal Declaration on Human Rights, mentions that ‘Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing, and medical care.’
The Indian government, while aiming for the fulfillment of similar rights, introduced one of the biggest healthcare schemes in the world. The Scheme was launched in 2018 and aimed to insure 500 million of India’s most impoverished families with a cover of Rs 500,000 rupees to treat serious ailments. However, despite the big promises and massive budget allocation, the Scheme suffers from multiple issues such as doctor apathy, lack of adequate infrastructure and financial issues. While addressing such issues, I will also analyse the healthcare scheme through the lens of a ‘capabilities and rights-based’ approach.
Article 21 of the Indian Constitution contains the right to life and personal liberty and deals with the concept of the well-being of an individual. In addition, Article 47, one of the Directive Principles of State Policy, mentions the duty of the state to improve public health.
For the past few years, India’s economic policy has not recognised the importance of the health sector. For instance, in 2018 India spent 1.02% of its GDP in health expenditure against 17.8% by the United States and 11.3% by Canada. Additionally, in terms of per capita health expenditure, India’s expenditure falls below countries like Iraq, Iran, Kenya, and Tunisia, who are still recovering from civil wars in the past few years. Since the expenditure involved in the well-being of an individual can be quite high, it is ideal for individuals to cover themselves through health insurance schemes. However, as per the government’s National Sample Survey Office (NSSO) report for the year 2014, merely 18.1% and 14.1% of the urban and rural population respectively were covered under any of the government health insurance schemes. This highlights the critical state of health conditions in India.
The reason active steps were required by the Indian government to create such a significant scheme stems from the fact that the right to health for all was often considered an impossible standard to achieve. However, The Scheme plans to address implementation issues concerning the right to health by providing health insurance to the poor and vulnerable, irrespective of their class or caste. Instead, households must qualify under the deprivation criteria of Socio-Economic Caste Census, 2011 (hereafter SECC), which takes socioeconomic status into account for rural and urban households and allows ranking of households based on predefined parameters.
Besides seeing the healthcare scheme from a rights-based approach, it is pertinent to notice that the right to health, if maintained, will maximize people’s capabilities, that is, their ability to do and be their best.
A capabilities approach
According to Aristotle, ‘human flourishing is the end of all political activity.’ This idea thus leads to the concept of the ‘capability of an individual.’ Martha Nussbaum, a proponent of the capability approach, extended the Aristotelian idea, stating that “the capability to function well is a major factor in determining the active role in political activity.”
Some scholars, such as Jennifer Prah Ruger distinguish between central and non-central health capabilities, wherein central health capabilities act as a prerequisite for developing other kinds of capabilities. The assessment of central health capabilities is achieved through “life expectancy, infant and child mortality, and prevalence and incidence rates of disease such as Tuberculosis, dysfunction, and physical and mental functioning and disability.” She further asserts that the former should be prioritized as they lead to the development of other capabilities and to evaluate health policy in a better manner.
Three core capabilities included on Nussbaum’s list of the ten most central capabilities are a normal life span, bodily health, and bodily integrity. She believes that to maintain people’s health and well-being to the maximum level, the state should intervene in the private sphere and provide opportunities that expand individuals’ capabilities. The Scheme aims to attain positive health for the masses through the support of doctors and wellness centers to improve the situation of vulnerable sections of society.
A rights-based approach
According to prominent American philosopher Henry Shue who is accredited with the rights-based approach, one of the fundamental rights needed to enjoy all other rights is the right of subsistence. He mentions that “No one can fully if at all, enjoy any right that is supposedly protected by society if he or she lacks the essentials for a reasonably healthy and active life.” For instance, The Scheme is trying to encourage an awareness of the interdependence between food security and healthcare, as most malnourished Indians also suffer from a lack of positive health. The right to subsistence must also include minimal preventive health care.
Shue also argues that poverty is a consequence of either state inaction or a direct consequence of government policy. Therefore, there should be an explicit normative framework with clearly spelled out legal obligations by which the state makes the right to health an entitlement. Any violation of such entitlement will then mean the non-realization of human rights.
Issues with the Scheme
States have three types of obligations regarding human rights: to respect, protect, and fulfill the rights of individuals. India is still violating individuals’ rights because the Scheme does not cover a substantial number of stakeholders due to its reliance on the flawed SECC.
SECC publicly exposes the data of individuals, which is a significant point of concern for stakeholders. Additionally, under the sex column of SECC, there are only two columns of male and female, despite the Supreme Court mandate in recognizing transgender as third gender. Another such flaw of SECC concerns its methodology. The Census automatically excludes about 40 percent of rural households and automatically includes only 0.89 percent of rural households , despite the aim of The Scheme to offer healthcare to India’s most marginalized groups.
Another problematic issue is that despite being mandated under The Scheme to admit beneficiaries and offer them quality services, private hospitals are failing their duty. The hospitals believe that the low-cost treatments and package rates fixed by the government will cause them heavy losses, and doctors are not inclined to give the best quality treatment and surgery to such deprived patients. Consequently, the state is not able to prevent and protect the beneficiaries from getting stigmatized and ensuring their right to health. It is further observed that the implementation of The Scheme comes at the cost of curtailing the budget for non-communicable diseases, immunization programs, trauma, and child health, and reproductive health.
Finally, the current hospital infrastructure lacks a sufficient number of beds to accommodate patients who benefit from the Scheme. The figures reveal that 1.5 million beds in hospitals are inadequate to support the 500 million individuals in need. The current demands under the Scheme require the addition of around 200 thousand beds, which is a big challenge for both the state and hospitals.
These factors aggregately suggest that The Scheme was launched without the proper administrative, budgetary, and promotional measures to fully realize the right to health for all. This, in effect, means that despite the significant step taken to acknowledge the right to health, the state failed to respect, protect, and fulfill it.
Shue’s focus on a rights-based approach that makes a state accountable for non-enjoyment of any human right and Nussbaum’s focus on basic capabilities converge at a common point – freedom to be ‘human.’ The Scheme had an opportunity to provide the freedom required for the physical and mental well-being of Indians and maintain both the capability as well as the rights-based approach. However, the aforementioned problems coupled with an inadequate infrastructural support suggests that The Scheme has the potential to become another failed healthcare scheme, leaving the right to health for all as just a dream.
ABOUT THE AUTHOR
Rohit Sharma is a 2020 National University of Juridical Sciences Graduate. In the past, he has served as Editor of the Journal of Indian Law and Society (JILS). Through his leadership of the JILS Blog, it was ranked one of the top 10 ranked legal blogs of India. He has also worked for NUJS Legal Aid Society and Increasing Diversity by Increasing Access(IDIA) and is now set to become a corporate lawyer at Indian law firm, Cyril Amarchand Mangaldas. He can be reached at firstname.lastname@example.org