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                         When Treatment Becomes a Market: The Fight for Health Rights in India

Rising Privatisation and Declining Public Health Spending in India: Can the ‘Right to Health’ Really Be Enforced in Courts? When treatment becomes a market commodity rather than a service, the language of rights becomes thin.

The direction and structure of healthcare in India is changing rapidly. Medical care, once considered a public responsibility and a fundamental responsibility of the welfare state, is increasingly being taken over by the private sector. On one hand, the government healthcare system is struggling with limited budgets, limited human resources and poor infrastructure; on the other, the reach and influence of private hospitals and corporate medical chains is growing steadily. In the midst of this, ordinary citizens, especially the poor, rural dwellers, Dalits, Adivasis, minorities and marginalised communities, are increasingly bearing the brunt of rising healthcare costs and unequal access.

In this changing scenario, the debate has intensified in India on whether health should be made a legitimate and enforceable fundamental right. Can the judiciary enforce this right when the system itself is fundamentally unequal, expensive and privatised? The question is not just legal; it is deeply political, social and economic. For a right is meaningful only when the state has both the capacity and the will to provide it.

In India, the right to health has been clearly recognised by the courts under Article 21, but it has not yet been explicitly made an independent fundamental right. A major reason for this is that the state is not yet in a position to accept the binding responsibility of ensuring equal, accessible and quality treatment for every citizen. But it is equally true that until it is made an enforceable right, issues such as inequality, exploitation and arbitrary fee-charging will continue to grow.

The biggest irony of India’s public health system is that while the country is on track to become the world’s fifth-largest economy, public spending on health remains one of the lowest in the world. When the state does not allocate adequate budget for healthcare, the private sector naturally fills the void – and this leads to inequality, unmanageable fees, unnecessary medical procedures and economic devastation for the common man.

Another aspect of increasing privatization is that it is not limited to the operation of healthcare facilities; it is also influencing the direction of health policy, drug prices, insurance schemes and public-private partnerships (PPPs). When health becomes a profit-driven industry, the nature, cost, access and quality of treatment all become subject to market rules. In such a situation, the right to health may exist on paper, but it is not widely implemented on the ground.

Another serious problem is the poor implementation of the Clinical Establishment Act, 2010. Even in states where it is in force, regulations and transparency are very weak. Issues such as arbitrary patient fees, unnecessary testing recommendations, expensive packages and surgeries at exorbitant rates have become commonplace. The situation is further compounded by weak and ineffective mechanisms for patient complaints and redress.

Moreover, out-of-pocket expenditure in India still accounts for about 40% of total health expenditure, meaning that patients have to spend a significant amount out of their own pockets. While government insurance schemes – such as Ayushman – are intended to provide financial security, the procedures covered are limited, and their use by private hospitals is often arbitrary. The insurance-based model has not solved the underlying problem of health spending; instead, it has often become a new source of customers for the private sector.

Another level of inequality is social exclusion. Dalits, tribals, Muslims, women, transgender people, and citizens with disabilities – these individuals face even more difficult access to healthcare. Often, lack of sensitivity, discrimination, communication gaps, or structural barriers in government hospitals deprive them of quality care. Therefore, the right to health should not remain a matter of mere legal language; it should be understood from the perspective of social justice.

The right to health can only be meaningfully implemented if the health system is strong. For this, the government first needs to increase public health spending. According to the World Health Organization, health should account for at least 5% of GDP; India currently spends less than 2%. Without strengthening primary health infrastructure, increasing the number of specialist doctors, nurses, and community health workers, making medicines and tests affordable, and strengthening accountability in health institutions – implementing any right will remain merely theoretical.

Another reason for health inequality in India is the high prices of medicines and the influence of pharmaceutical companies. About 80% of medicines are still price-controlled. Unless strict price controls are imposed on essential medicines and the Jan Aushadhi system is expanded, poor and middle-class families will continue to be burdened by expensive medicines.

In addition, the conditions of health workers are a significant aspect of this crisis. Temporary appointments, low salaries, work pressure, and unsafe working environments - all of these