Litigating Health Rights: Can Courts Bring More Justice to Health

By Sharanjeet Parmar and Namita Wahi
in India: Citizens, Courts and the Right to Health: Between Promise and Progress?
Edited by Alicia Ely Yamin and Siri Gloppen
Harvard University Press
2011
In this chapter, we examined health rights litigation in India before the Supreme Court and High Courts to determine whether litigation provides an effective mechanism for making health service delivery more equitable. For the purposes of the book and our chapter, we understood the right to health to include accessible, available and quality health care, as well as the underlying social determinants of health including, food, water, sanitation, education etc. By analysing a sample of 218 Supreme Court and High Court cases and conducting key informant interviews with petitioners, attorneys, judges, academics, government officials and civil society actors working on public health and human rights-related issues, we sought to answer the following questions:

a. Who were the petitioners in these cases? 

b. What kinds of claims were brought? 

c. How were these claims adjudicated?

d. What were the litigation outcomes that followed?

e. What were the legislative and policy outcomes that followed adjudication of these cases?

Assessed against the backdrop of a dismal health care situation in India, where accessibility, availability and quality of health care is extremely poor for the vast majority of the Indian population, we found a complex picture with many successes and failures of health rights litigation. We found that unlike countries like Argentina and Brazil also studied as part of this book, health rights litigation does not appear to be worsening health inequities in India. Yet, health rights litigation by itself cannot bring about the structural and systemic changes necessary for improving access to health care for the vast majority of the Indian population.