Quick answer
Not automatically. Article 2(1) of the ICESCR allows States to realise economic, social and cultural rights, including the right to health in Article 12, progressively (step by step, over time) and to the maximum of their available resources. A State does not breach the Covenant merely because every hospital has not yet been built. However, some duties are immediate. These are the duty to take deliberate, concrete and targeted steps, the duty not to discriminate, and a minimum core obligation to ensure essential primary health care. Lack of money never excuses discrimination.
The law
- Article 12(1) ICESCR: everyone has the right to the enjoyment of the highest attainable standard of physical and mental health. Article 12(2) lists steps such as reducing infant mortality, controlling epidemic diseases, and creating conditions that assure medical service to all in sickness.
- Article 2(1): each State undertakes to take steps, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights, by all appropriate means, including legislation.
- Article 2(2): the rights must be exercised without discrimination of any kind, including on the ground of religion.
What the Committee on Economic, Social and Cultural Rights has said
- General Comment No. 3 (1990), paragraphs 1 and 2: the Covenant imposes obligations of immediate effect. These are the guarantee of non-discrimination and the undertaking "to take steps". Such steps must be taken within a reasonably short time and be deliberate, concrete and targeted.
- Paragraph 9: progressive realisation is a flexibility device. It does not deprive the obligation of meaningful content, and States must move as expeditiously and effectively as possible. Deliberately retrogressive measures (steps backward) need full justification.
- Paragraph 10: every State has a minimum core obligation to ensure minimum essential levels of each right, including essential primary health care. To blame a failure on lack of resources, a State must show that it made every effort to use all available resources for these minimum obligations as a priority.
- General Comment No. 14 (2000), paragraph 47: distinguish a State's inability from its unwillingness. A State unwilling to use the maximum of its available resources violates Article 12, and core obligations such as non-discriminatory access to health facilities cannot be justified away.
Progressive and immediate duties compared
| Progressive (depends on resources) | Immediate (no waiting) |
|---|---|
| Building a full network of hospitals and clinics | Taking deliberate, concrete and targeted steps now |
| Raising the overall standard of health services | Ensuring existing services are accessible without discrimination |
| Expanding coverage as resources grow | Meeting minimum essential levels, such as essential primary health care, as a priority |
Example
Armaan lives in a village with no clinic nearby. The State may need time and money to build one. It does not violate the Covenant simply because the clinic is not ready, provided it has a genuine, targeted plan, is moving forward with it, and is prioritising essential primary care. Now suppose a government clinic exists but refuses to treat Neha only because of her religion. That is a breach of the immediate duty of non-discrimination under Article 2(2), and the State cannot defend it by pointing to a shortage of resources.
Indian connection
India acceded to the ICESCR on 10 April 1979. In the Constitution, Article 47 (a Directive Principle) directs the State to regard the improvement of public health as among its primary duties.
Exam point
Under Article 2(1) ICESCR, full realisation of the right to health may be progressive. However, the duties to take deliberate steps, to avoid discrimination (Article 2(2)) and to meet minimum core obligations apply immediately (CESCR General Comments No. 3 and No. 14).
Sources and further reading
- International Covenant on Economic, Social and Cultural Rights: authentic text, UN Treaty Collection
- Compilation of General Comments, HRI/GEN/1/Rev.9 (Vol. I), including CESCR General Comments No. 3 and No. 14
- ICESCR: status of ratification (India's accession), UN Treaty Collection
- The Constitution of India (as on 1 May 2024), Legislative Department
