Contents

1. ​Charting an Agenda on the Right to Health
2. Madras high court must break its silence

Context

• The editorial is anchored in the National Convention on Health Rights (11–12 December 2025, New Delhi), timed around Human Rights Day and Universal Health Coverage Day, which seeks a post‑COVID reset of India’s health policy discourse.
• It argues that India’s health system remains highly privatised, fragmented and inequitable, with COVID‑19 exposing catastrophic out‑of‑pocket spending, weak public systems and social discrimination in access.

Core elements of the proposed agenda

The editorial’s agenda centres on five planks:

• Strengthening public provisioning,
• Regulating the private sector,
• Securing justice for health workers,
• Combating discrimination and deepening
• Community participation.

 It emphasises decentralised, community‑led public health systems, transparent pricing and patient‑rights enforcement, better working conditions for frontline workers (ASHA, ANM, nurses, sanitation staff), and intersectional policies that address social determinants like food security, environment and climate vulnerability.​

Policy agenda summary table
 

Dimension	Problems flagged	Agenda proposed
Public financing	Low public health expenditure, high out‑of‑pocket costs for households.​	Raise public spending; prioritise primary and preventive care; progressive taxation and social health insurance.​
Privatisation & PPPs	Commercialisation, public funds subsidising corporate care, weak regulation.​	Strong regulation of PPPs, transparent contracts, standardised pricing, limits on profiteering.​
Legal framework	Health not yet an explicit, justiciable fundamental right nationally.​	Enact a national Right to Health law, building on Article 21 jurisprudence and state‑level experiments like Rajasthan.​
Health workforce	Contractualisation, low pay, poor safety and recognition for frontline workers.​	Regularisation, fair wages, social security, training and career pathways; recognition as key rights‑bearers.​
Equity & discrimination	Exclusion of marginalised groups; neglect of gender, caste, disability, minority concerns.​	Embed non‑discrimination clauses, targeted programmes, and intersectional monitoring of outcomes.​
Governance & people’s role	Centralised, top‑down schemes; weak accountability at local level.​	Participatory planning, community‑based monitoring, decentralised governance and stronger local accountability.​

 
Privatisation and the Erosion of Public Health

Privatisation has rapidly expanded in Indian healthcare and is closely linked to the weakening of public health systems and equity.

• Shrinking role of public provisioning

India continues to spend a low share of GDP on public health (around 1.5–2%), limiting investment in primary health centres, district hospitals, and public health laboratories.
Weak public facilities push even the poor to seek care in private hospitals and clinics, effectively outsourcing basic healthcare responsibility to the market.

• Skewed infrastructure and access

A large share of hospital beds, ICUs and diagnostic facilities are now in the private sector, heavily concentrated in urban areas and richer states.
Rural, tribal and peri‑urban areas remain dependent on under‑resourced government facilities, deepening the rural–urban divide in health outcomes.

• High out‑of‑pocket expenditure

Privatisation is associated with very high out‑of‑pocket spending (over half of total health expenditure), making health shocks a major cause of indebtedness and poverty.
Even where insurance schemes exist, hidden costs, exclusions and balance‑billing in private hospitals keep financial risk protection weak.

• Public–private partnerships and corporate capture

PPPs in diagnostics, hospital management and insurance-based schemes often channel public money into private hands without commensurate accountability.
Contract designs frequently favour large corporate chains (land at concessional rates, viability gap funding, assured patient flows), while public hospitals remain crowded and underfunded.

• Commercialisation of care

Profit motives encourage over‑prescription, unnecessary procedures, aggressive diagnostics and irrational use of drugs and devices.
Informational asymmetry between doctor and patient, combined with weak regulation, enables price gouging and unethical practices, eroding trust in the health system.

• Fragmentation of the health system

A dominant, unregulated private sector creates a patchwork of providers with varying quality standards and poor referral linkages with public facilities.
This fragmentation undermines comprehensive public health functions such as disease surveillance, prevention, and coordinated response in emergencies.

• Strain on health workforce in public sector

Better pay and infrastructure in corporate hospitals pull specialists and nurses out of the public system, worsening vacancies in government facilities.
In contrast, frontline public workers (ASHAs, ANMs, contractual staff) often face low wages, precarity and burnout, weakening last‑mile service delivery.

• Equity and rights concerns

Market‑driven care systematically disadvantages the poor, women, Dalits, Adivasis, minorities, migrants, elderly and persons with disabilities, who have less paying capacity and bargaining power.
Health increasingly becomes a commodity rather than a right, contrary to the vision of Article 21 and Directive Principles that require the State to ensure equitable access.

• Policy capture and priority distortion

Policy discourse tends to prioritise tertiary, high‑tech, urban hospital care and medical tourism, aligning with private sector interests.
Preventive, promotive and primary care—core public health functions with high social returns but lower profits—remain neglected.

• Weak regulation and accountability

Regulatory bodies for clinical establishments, pricing, quality standards and grievance redressal are often under‑resourced and poorly enforced.
In absence of strong regulation, privatisation leads not to healthy competition but to oligopolies, opacity in billing, and limited accountability to citizens.

Revitalising Public health Systems

• Boost public procurement and distribution: Centralize bulk buying of generics via Jan Aushadhi Kendras, enforce essential medicines lists, and integrate with Ayushman digital platforms for real-time tracking.​
• Regulate private pharma aggressively: Mandate price caps, ban unethical marketing, and impose penalties for shortages or substandards, alongside promoting local R&D for affordable innovations.
• Strengthen primary care: Invest 70% of health budget in PHCs for preventive services, community monitoring, and workforce regularization to rebuild trust and equity.​
• Rights-based legal framework: Enact a National Right to Health Act with justiciable entitlements to free essential drugs and care, backed by decentralized governance and grievance mechanisms.​

Way forward

Legal and constitutional measures

• Enact a comprehensive Right to Health law that makes essential services (primary care, emergency treatment, essential drugs and diagnostics) justiciable, operationalising Article 21 with clear, enforceable entitlements and grievance‑redress mechanisms.​
• Use the ongoing National Convention on Health Rights as a platform to build consensus for parliamentary action, including clearer division of responsibilities between Union and States and possible refinement of the Concurrent List for public health.​

 Public financing, infrastructure and workforce

• Raise public health expenditure towards at least 2.5–3% of GDP, with priority to primary health care, urban and rural health and wellness centres, and district hospitals, while reducing dependence on out‑of‑pocket spending.​
• Expand and better distribute the health workforce, address contractualisation and poor working conditions, and invest in training, digital tools and supportive supervision to reduce burnout and improve quality of care.​

Regulating private sector and ensuring financial protection

• Build a strong regulatory framework for private hospitals, diagnostics and insurance, with transparent pricing, standard treatment protocols, protection from denial of care, and effective state‑level regulatory authorities.​
• Deepen and rationalise schemes like Ayushman Bharat so that they cover outpatient care and medicines, limit catastrophic expenditure, and do not incentivise over‑commercialisation or exclusion of complex, unprofitable cases.​

Equity, social determinants and community participation

• Design policies explicitly to reduce structural discrimination against Dalits, Adivasis, Muslims, LGBTQ+ persons, persons with disabilities and other marginalised groups, using disaggregated data, targeted outreach and intersectional programmes.​
• Integrate health with food security, nutrition, water, sanitation, housing, pollution control and climate resilience, while institutionalising community monitoring, social audits and local health committees to ensure accountability from below.​

Conclusion

An agenda on the Right to Health in India must transform health care from a market‑led service into a public good, anchored in law, adequate public funding and strong regulation of private interests. Only a people‑centred, equitable and resilient health system—built through sustained political commitment, social mobilisation and cooperative federalism—can convert the constitutional promise of dignity and life into a lived Right to Health for all. Madras High Court Collegium's silence on key procedural questions regarding recent judicial appointments threatens institutional integrity and constitutional propriety. 

Core Issues of the Controversy

The controversy stems from recommendations made by the High Court Collegium for the elevation of six district judges and nine advocates. The State government raised a fundamental objection regarding the constitution of the Collegium itself, a concern the High Court has reportedly not clarified. 

Key points of contention include:

• Exclusion of a Senior Judge: The established Memorandum of Procedure (MoP) and Article 217 of the Constitution mandate that the High Court Collegium must comprise the Chief Justice and the two senior-most judges. In this instance, a senior-most judge, Justice Nisha Banu, was allegedly excluded without recorded reasons.
• Inclusion of Another Judge: Another judge was included in the Collegium in her place, without clear jurisdictional or constitutional authority being provided when questioned by the State government.
• Lack of Transparency: The Collegium proceeded with further recommendations despite the pending procedural questions, a lack of explanation that critics argue fuels suspicion of arbitrariness or bias. 

State Government’s Concern: Why Was She Excluded

The government's core concern is that her exclusion violated mandatory constitutional procedure.
 
Grounds for the State's Concern

• Mandatory Procedure: The Memorandum of Procedure (MoP) and Article 217 of the Constitution require the High Court Collegium to be formed by the Chief Justice and the two senior-most judges of that High Court. Justice Nisha Banu is the second most senior judge at the Madras High Court.
• Continued Status as a Sitting Judge: Although the Supreme Court Collegium recommended her transfer to the Kerala High Court on October 14, 2025, and the Central government notified it, she has not yet officially joined her new post in Kerala and continues to be a judge of the Madras High Court. Jurists argue that a judge continues to be part of the court until they are relieved and take charge elsewhere.
• Unauthorized Substitution: Instead of Justice Nisha Banu, Justice M.S. Ramesh, the next in the line of seniority, was included in the Collegium that made recent recommendations.
• Lack of Justification: The State government questioned the constitutional principle or Supreme Court directive that permitted this deviation and substitution of a senior judge without recorded reasons. 

Constitutional Framework and Procedural Norms

The power to appoint High Court judges flows from Article 217 of the Constitution, which specifies that the President makes appointments after consultation with the Chief Justice of India (CJI), the state Governor, and the High Court Chief Justice. This constitutional provision is operationalized through a judicially-evolved system (the "Collegium system") and a detailed Memorandum of Procedure (MoP). 

• Mandatory Composition: The MoP requires that for High Court appointments, the collegium must consist of the Chief Justice of the High Court and the two senior-most judges of that court.
• Written Consultation: All consultations and opinions among the Collegium members must be in writing and forwarded to the Central Government.

The Role of Procedure in Constitutional Governance

The legitimacy of the Collegium system, which is not enshrined in the Constitution but evolved through Supreme Court judgments (the "Judges Cases"), depends entirely on its strict adherence to self-mandated rules. The primary implications of the Madras High Court's alleged procedural lapses are: 

• Validity of Decisions: The Memorandum of Procedure (MoP) for judicial appointments is a binding framework. A failure to follow the statutory composition of the Collegium (Chief Justice and two senior-most judges) without recorded, justifiable, and legal reasons constitutes "procedural impropriety". This can be grounds for legal challenges and potentially render the subsequent appointment recommendations void.
• Erosion of Public Trust: The judiciary is perceived as the last hope for justice, and it demands transparency and reasoned orders from the executive and legislative branches. Operating in secrecy and failing to clarify procedural doubts "erodes the faith of people in the judiciary".
• Accountability and Transparency: The controversy highlights systemic criticisms of the Collegium system regarding its lack of transparency and an absence of a clear accountability mechanism. The current situation underscores the need for clear criteria and published reasons for collegium actions.
• Separation of Powers: While the Collegium system aims to protect judicial independence from executive interference (as was the rationale for striking down the NJAC in 2015), it must still operate within the checks and balances of the constitutional system. The State government is constitutionally empowered to raise objections and seek clarifications, and ignoring these legitimate queries can lead to a conflict between the judiciary and the executive.

Why Transparency is Essential

The judiciary operates on the moral authority and public trust bestowed upon it by the Constitution. Transparency in the appointment process is crucial for several reasons:

• Ensuring Legitimacy: The current Collegium system relies on procedural legitimacy. A public clarification regarding the exclusion of a senior judge (Justice J. Nisha Banu) would validate that the correct constitutional and procedural norms were followed, thus lending legitimacy to the recommendations made.
• Maintaining Accountability: The judiciary holds other branches of government accountable. To maintain this right, it must adhere to the same standards of accountability it demands of others. Secrecy creates a perception of arbitrariness.
• Building Public Confidence: As noted by legal experts, "silence in the face of legitimate questions on procedure" erodes public faith in the impartiality and integrity of the justice system. A transparent explanation can help restore confidence.
• Avoiding Constitutional Conflict: The lack of clarification has put the State government in a difficult position regarding whether to proceed with the recommendations. Clear communication avoids unnecessary friction between the judiciary and the executive branch of government.