The Right to Health as a Paper Promise

Shantanu Pachauri

Shantanu Pachauri is Assistant Professor at School of Law, RV University, Bengaluru.

The Indian Supreme Court has recently handed down two striking judgments. In one, it recognised mental health as a fundamental right under Article 21 of the Indian Constitution, which guarantees life and personal liberty, issuing directions to ensure psychologically safe environments in educational institutions. In another, it recognised the right of pedestrians to use footpaths as a fundamental right, directing States and Union Territories to frame guidelines for their protection. These judgments are part of a familiar pattern. Over the past four decades, the Court has read Article 21 to encompass an ever-expanding catalogue of rights, including livelihood, shelter, clean air and water, health and medical care, privacy, and road safety and immediate medical attention. Few constitutions anywhere in the world recognise such a sweeping set of entitlements. Yet the expansion of rights in doctrine has not meant their realisation in practice.

Citizens may be told they have a right to clean air or safe roads, but they cannot meaningfully invoke those rights in court when the State fails to deliver. The result is a growing gulf between the Constitution as text and the Constitution as lived experience, raising the question: can rights that remain unenforceable still sustain constitutional legitimacy? Or does their continual proclamation, without effective delivery, reduce the Constitution to a charter of aspirations rather than guarantees? The framers were aware of this dilemma. The Constituent Assembly consciously  placed socio-economic rights in the Directive Principles of State Policy rather than in the catalogue of enforceable Fundamental Rights, recognising that their fulfilment required state capacity and resources. Rights that could be judicially enforced were to be distinguished from those that depended on long-term policy commitments. The Court’s recognition of rights such as mental health or pedestrian safety under Article 21 risks collapsing this distinction. When increasingly broad social claims are constitutionalised, the line between directive principles and enforceable rights begins to blur.

The tension becomes most acute when we turn to remedies. Article 32, long regarded as the cornerstone of India’s constitutional architecture, grants citizens direct access to the Supreme Court for the enforcement of fundamental rights. Yet can a citizen meaningfully invoke it to demand safe footpaths, functioning hospitals, or clean air? Remedies that depend on budgets, long-term planning, and administrative capacity cannot be delivered by judicial orders alone. If citizens cannot secure these rights through Article 32, then either the rights themselves are hollow or the promise of Article 32 is being diluted. The very strength of India’s constitutional scheme, that every fundamental right carries a guaranteed remedy, is weakened when rights exist in doctrine but remain unenforceable in practice.

Constitutional theorists have described this dynamic as “symbolic constitutionalism”. The term refers to the tendency of constitutional texts to proclaim ambitious commitments without ensuring the institutional scaffolding required for their fulfilment. Symbolism can shape public expectations, empower movements, and influence political discourse. But symbolism without delivery corrodes constitutional legitimacy. When rights to health, clean air, or safe roads are declared yet remain unrealised, citizens come to see the Constitution as a text of promises rather than guarantees.

Public Health and Unequal Citizenship

The Covid-19 pandemic made this contradiction painfully visible. The Constitution guaranteed the right to life, but in practice survival depended on wealth, networks, and political connections. Those with resources secured oxygen cylinders, ICU beds, and ventilators, while others waited in queues outside collapsing government hospitals. A universal right was experienced as a class-contingent privilege. This was not simply a public health failure but a constitutional one, for rights without institutional delivery are not meaningful rights.

The pandemic was, of course, an extraordinary circumstance. Yet what it revealed was not unique to that crisis. It only magnified structural inequalities that persist in ordinary times. Citizens continue to struggle for affordable treatment, rely on overstretched public hospitals, and face prohibitive costs in private ones. Out-of-pocket expenditure remains among the highest in the world, and for many families hospitalisation is financially catastrophic. The visibility of constitutional failure during Covid should not obscure the fact that even in normal conditions, access to healthcare is distributed along lines of class and status.

This exposes a deeper constitutional point. Article 21 cannot be understood in isolation from Article 14, which guarantees equality before the law and equal protection of the laws. A right to life that is contingent on financial capacity ceases to be equal. Article 21 without Article 14 becomes hollow, producing rights that are equal in theory but unequal in practice. The result is a form of dual constitutionalism, in which the same constitutional text produces radically different experiences of citizenship for the rich and the poor.

In India’s healthcare landscape, where limited public investment has made private hospitals indispensable yet largely unregulated, the constitutional question of their accountability demands urgent scrutiny. Article 12 binds entities classified as ‘State’ to fundamental rights, and the Supreme Court has developed nuanced multi-factor tests, most notably in Ajay Hasia v. Khalid Mujib Sehravardi (1981) and Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002), to assess whether private bodies meet this criterion, focusing on government control, finance, and statutory origin. However, despite judicial recognition that the right to health is integral to Article 21 and explicit directions for greater regulation of private healthcare providers, constitutional doctrine has yet to meaningfully extend scrutiny to private hospitals that perform essential public functions. This exclusion risks making the right to health contingent on market capacity rather than constitutional obligation, undermining equality and accountability in a sector crucial to citizens’ survival. To uphold the promise of constitutional rights, recognition of private hospitals’ obligations, reflecting the realities of governance where state functions are increasingly outsourced, is not doctrinal expansion. It is a necessary affirmation of effective constitutionalism.

Accountability and the Limits of Enforcement

The deeper difficulty lies not in recognising rights but in creating the institutions that can make them real. The Supreme Court has continued to expand the catalogue of fundamental rights with remarkable generosity, yet governments rarely face consequences for failing to provide the infrastructure those rights presuppose. Judicial innovation, however normatively attractive, has sometimes displaced political responsibility rather than secured it.

Expansive interpretations of Article 21 are often justified through the idea of living constitutionalism, the view that the Constitution must evolve to reflect contemporary understandings of dignity and that the framers’ caution in 1950 should not bind us today. Further, even symbolic rights may serve a purpose, by reducing stigma, by providing citizens with rhetorical resources, and by placing pressure on governments over time. These considerations cannot be dismissed. Yet living constitutionalism remains symbolic unless supported by institutions. Rights without remedies may enrich constitutional doctrine, but they do little to alter lived experience.

As long as access to hospitals, treatment, and even basic civic amenities depends primarily on financial capacity, constitutional guarantees will remain unevenly distributed. Article 21 will continue to protect the privileged while serving as rhetoric for the poor. That is the paradox of our constitutional present: rights expand in doctrine but fracture in practice, promising equality in theory while delivering unequal survival in fact. Unless governments assume their constitutional responsibility to make rights real, the right to life risks remaining a promise on paper.

Shantanu Pachauri is Assistant Professor at School of Law, RV University, Bengaluru.

Suggested Citation: Shantanu Pachauri, ‘The Right to Health as a Paper Promise’ IACL-AIDC Blog (X September 2025) The Right to Health as a Paper Promise — IACL-IADC Blog.