Would merely mending the walls of the hospitals be sufficient to provide health security to the people of the state? The answer would certainly be in the negative. At length, mending walls may be taken as a first step towards development of the health sector but may not lead to an ultimate improvement in quality life unless it is regarded as a fundamental human right.

Under the given circumstances, man in our society would not solely opt to accept the right of security to life sans health. Health in itself possesses all capabilities to fight the adversities threatening life more from within than from outside.

True, that policymakers might be pining for not substantially catering to the medical needs of the poor people and finding remedies to the ‘3 patients in 1 bed’ situation or even the patients dying in the corridors of hospitals, but still may not be feeling obliged constitutionally to ensure steps for the provision of medical facilities to the masses on priority basis.

Certain questions do arise of the situation: If for instance, health is provided as a fundamental right of the citizens at par with other fundamental rights directly under the very provisions of the constitution? Whether, principles of policy enumerated in the Constitution containing direction to the executive in respect of health, inter alia, are enforceable at law empowering the courts to hold it accountable for any such delinquency? Whether, human health is not considered to be a tangible human asset incumbent to the ultimate socio-economic growth of a state like Pakistan? Whether, non-inclusion of the health facilities under the human rights chapter of Constitution is not violation of the agreements and conventions signed under auspices of international organisations like United Nations? Whether, the policy makers and implementers are truly handicapped by any unavoidable mal-administration situation and meagre resources or they do not have the will or priority at all to address the situation regardless of its being fundamental or non-fundamental category?

Admittedly, despite their efforts, policy makers are at times bemoaning of mal-administration and of scanty resources at the others. The fact remains that constitutionally and legally, they are not bound to enforce even the minimum health standards as a fundamental right of the citizens vis-à-vis rights to life, speech, movement, education, religion and equality etc. The courts are thus not as visibly empowered to hold accountable the functionaries to improve the health standards of the citizens by issuing writs to the state as in the case of other law enforcers. All the other basic human rights and freedoms including the right to life and under Article 25A, even the right to education have been provided by the Constitution of Pakistan, 1973 – except health.

The provision of health facilities to the citizens has been surpassingly mentioned under Constitution’s chapter of ‘Principles of Policy’, which again is not enforceable in the court of law and hence, falls under the discretion of the political executive and the public functionaries. So much so that Article 38 of the Constitution of Pakistan, though not enforceable, at one hand enjoins basic necessities of life, such as, food, clothing, housing, education and medical relief for all the citizens irrespective of sex, caste, creed or race but on the other hand, absolves the executive of this binding responsibility subjecting it to the availability of resources. It thus, renders the health sector at the sweet will and discretion of the executive exposing the same to the sheer discrimination amongst various segments of the society, inequality and lopsided policies under pretext of unseen political and financial priorities and constraints.

The right to health is an economic, social and cultural right to which all the individuals are entitled. The concept of right to health has been made a subject of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of Persons with Disabilities. However, the interpretation and application varies nation to nation in terms of its definition.

Health with us seems more to be a diversion under the pressure of opposition and the media than a priority as a basic right directed under the Constitution. Courts are not empowered to intervene in any administrative infirmities, maybe a result of bona fide error of judgment, and ask for the rationale behind policies like bifurcation of the health department on administrative rather than geographical lines. Doctors, employees and above all the patients feel ruined, having no right of judicial review in the manner as provided for other fundamental rights under Article 199 of the Constitution of Pakistan. Had health been taken as a basic human right, any judicial or legislative check upon the policies would, perhaps, have directed the policy makers to establish a sub-secretariat at some southern part of Punjab on geographical lines for major sectors like health and education instead of bifurcation which would have imparted confidence to the patient. Similarly, the allocation of resources might have been monitored by certain other checking institutions leading to higher logical conclusions. Jinnah Hospital, for instance, which frequently becomes problematic due to lack of resources, gets annual budget of Rs4 billion, of which 2.9 billion goes to salaries, 25 crores to utilities whereas only 50 crores is left for medicines etc. Hence, this results in the mismanagement and frequent suspensions of medical superintendents, which in itself reflects the very element of negligence in the discharge of legal obligations of fundamental rights.

Looking at health as a fundamental right cannot, perhaps, bring in miracles like other fundamental rights but it can at least establish a check and balance on this important sector and save it from any deviation ultimately leading to the benefit of the patient.