Constitutional Provisions for Health Insurance in India: Ensuring Social Security

Healthcare access in India is not just a matter of policy; it is rooted in the fundamental promises made by the Constitution. When the framers drafted the supreme law in 1950, they envisioned a welfare state where citizens would not be left helpless during sickness, old age, or maternity. Today, these constitutional commitments form the backbone of every government-run health insurance scheme, from the Central Government Health Scheme (CGHS) to the Employees’ State Insurance Scheme (ESIS) and beyond. Understanding these provisions helps explain why health security is treated as a social responsibility and not merely a private concern.

The constitutional foundation of health security 🔗

The Indian Constitution does not list health as an explicit Fundamental Right under Part III. Instead, the responsibility of safeguarding public health is woven through the Directive Principles of State Policy (DPSP) in Part IV. These principles, borrowed from the Irish Constitution, act as moral and political guidelines that direct the State to work towards social and economic justice. Although these principles are non-justiciable in nature, meaning citizens cannot directly approach courts to enforce them, they shape every welfare law and scheme the government designs.

Several Articles together build the framework for health security. Article 38 directs the State to promote the welfare of the people, Article 39(e) protects the health of workers, Article 47 raises the duty to improve nutrition and public health, and Articles 41 and 42 specifically address assistance during sickness and maternity. These provisions collectively justify why the State invests heavily in social insurance and public hospitals.

Article 41 and 42: Welfare state mandates 🔗

Articles 41 and 42 are the twin pillars on which India’s social insurance system stands. They translate the abstract idea of a welfare state into concrete obligations regarding sickness, old age, and maternity.

Article 41: Public assistance in times of need 🔗

Article 41 reads that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education, and to public assistance in cases of unemployment, old age, sickness, and disablement. This Article recognises that a citizen cannot be expected to face medical crises alone. According to commentary on Article 41, it represents a significant commitment to social and economic justice and serves as a moral and constitutional directive for creating an inclusive society.

The phrase “within the limits of its economic capacity” is important. It acknowledges that India, at the time of independence, could not immediately guarantee universal social security. However, it created a continuing duty to expand assistance as resources grew. This is why schemes like the National Social Assistance Programme, old-age pensions, and disability allowances all trace their philosophical origin to Article 41.

Article 42: Maternity benefits and humane working conditions 🔗

Article 42 directs the State to make provisions for securing just and humane conditions of work and for maternity relief. This Article forms the basis for laws such as the Maternity Benefit Act, 1961, which guarantees paid leave to women employees before and after childbirth. It also underpins the maternity benefits offered under ESIS, where insured women workers receive cash and medical assistance during pregnancy and confinement.

Together, Articles 41 and 42 ensure that two of the most vulnerable life stages, sickness and motherhood, are not left to chance. The Workmen Compensation Act, Minimum Wages Act, Factories Act, and Maternity Benefit Act are all grounded in the principles laid down by Articles 41, 42, and 43A.

Right to health as a human right 🔗

While Articles 41 and 42 are non-justiciable, the Supreme Court has progressively elevated health to the status of a Fundamental Right through creative interpretation of Article 21, which guarantees the right to life and personal liberty.

Judicial expansion through Article 21 🔗

The Supreme Court has repeatedly held that the word “life” in Article 21 means more than mere animal existence. It includes the right to live with dignity, which is impossible without access to healthcare. In Bandhua Mukti Morcha v. Union of India (1984), the Court held that dignity and health fall within the ambit of life and liberty under Article 21, and that the Directive Principles must be duly implemented by the State even though they are not directly binding.

A landmark case in this development is Paschim Banga Khet Mazdoor Samity v. State of West Bengal (1996), where the Court ruled that denial of timely emergency medical treatment by a government hospital violated Article 21. Another significant ruling, Consumer Education and Research Centre v. Union of India, declared that the right to health and medical care, both during service and after retirement, is a fundamental right of a worker under Article 21 read with Articles 39(e), 41, 43, and 48A.

International commitments reinforcing the right 🔗

India is a signatory to the International Covenant on Economic, Social and Cultural Rights, which recognises the right of everyone to the highest attainable standard of physical and mental health. The World Health Organization’s Constitution also declares that the enjoyment of the highest attainable standard of health is a fundamental right of every human being. The Supreme Court has used these international instruments to support its broad interpretation of Article 21, making the right to health a powerful, though indirectly enforceable, claim.

From constitutional vision to insurance schemes 🔗

The constitutional mandate has shaped the architecture of India’s public health insurance system. Two flagship schemes demonstrate this clearly: the Central Government Health Scheme (CGHS) and the Employees’ State Insurance Scheme (ESIS).

Central Government Health Scheme (CGHS) 🔗

Launched on 1 July 1954, the Central Government Health Scheme was established to provide comprehensive healthcare to central government employees, pensioners, and their dependents. The scheme directly reflects the spirit of Article 41 by ensuring that public servants and retirees receive assistance during sickness and old age. CGHS today operates in 80 cities, covers approximately 47 lakh beneficiaries, and offers services through Wellness Centres, empanelled private hospitals, and AYUSH facilities including Ayurveda, Yoga, Unani, Siddha, and Homeopathy.

The scheme is contributory, with a monthly subscription deducted from employees’ salaries, and provides cashless treatment at empanelled hospitals. Beneficiaries also receive coverage for outpatient care, hospitalisation, diagnostics, medicines, and even reimbursement for emergency treatment.

Employees’ State Insurance Scheme (ESIS) 🔗

The Employees’ State Insurance Scheme was established under the Employees’ State Insurance Act, 1948, and is a more direct fulfilment of Articles 41 and 42. ESIS is a multidimensional social security system designed for organised sector workers earning up to ₹21,000 per month. It covers non-seasonal factories with 10 or more employees, as well as hotels, shops, restaurants, cinemas, transport undertakings, and certain educational and medical institutions employing 20 or more workers.

What makes ESIS especially aligned with the constitutional mandate is its bouquet of benefits. It provides medical care from the first day of insurable employment, sickness benefits, maternity benefits, disablement benefits, and dependents’ benefits in case of death due to occupational hazards. The maternity component directly operationalises Article 42, while the sickness and disablement coverage operationalises Article 41.

Implementation challenges and the role of the state 🔗

Despite a robust constitutional framework, translating these provisions into reality remains a continuing challenge. The gap between aspiration and delivery is visible in several areas.

Coverage gaps and informal sector exclusion 🔗

India’s social insurance schemes largely cater to the organised sector, which employs only a small fraction of the workforce. The vast informal sector, comprising agricultural labourers, domestic workers, gig workers, and self-employed people, remains outside the protective umbrella of ESIS and CGHS. According to a NITI Aayog report on health insurance, around 30 percent of Indians, often called the “missing middle,” have no financial protection for health.

Infrastructure and human resource shortages 🔗

The Parliamentary Standing Committee on Health and Family Welfare has flagged significant vacancies in the CGHS organisation, with around 28 percent of sanctioned posts remaining unfilled. Public hospitals frequently face shortages of doctors, nurses, medicines, and diagnostic equipment, particularly in rural and tribal areas. This undermines the State’s ability to deliver on its constitutional promise.

Financing public health 🔗

India’s public spending on health has historically been low. The National Health Policy 2017 set a target of raising public health expenditure to 2.5 percent of GDP, but actual spending has hovered around 1.3 to 1.8 percent. Inadequate financing limits the expansion of insurance coverage, the quality of public facilities, and the State’s capacity to fulfil its DPSP obligations.

The expanding role of the state 🔗

To address these gaps, the government has launched broader schemes such as Pradhan Mantri Jan Arogya Yojana (Ayushman Bharat), which provides health cover of ₹5 lakh per family per year to over 50 crore beneficiaries from poor and vulnerable groups. This represents the largest publicly funded health insurance scheme in the world and reflects a deliberate effort to operationalise the constitutional vision of universal health coverage.

The State’s role also extends beyond financing. It includes regulating private healthcare providers, ensuring quality standards, training health workers, and building primary health infrastructure through initiatives like Health and Wellness Centres under the Ayushman Bharat umbrella.

Connecting constitutional provisions to everyday life 🔗

For a college student in Siliguri, a factory worker in Pune, or a senior pensioner in Lucknow, these constitutional provisions are not abstract legal text. They are the reason a worker can claim sickness benefits, a pregnant employee receives paid maternity leave, a retired teacher gets subsidised hospital care, and a low-income family is shielded from catastrophic medical bills. Every time a government health scheme is announced or expanded, it is the Constitution speaking through policy.

The continued evolution of judicial interpretation, combined with progressive legislation and digital initiatives like the Ayushman Bharat Digital Mission, suggests that the constitutional promise of health security is gradually moving from a directive principle towards a tangible right for every citizen.

What do you think? Should India amend the Constitution to make the right to health an explicit Fundamental Right, similar to the Right to Education? And how can the State extend the benefits of schemes like ESIS and CGHS to the millions of informal sector workers who remain outside the social security net?

References

1. https://blog.ipleaders.in/article-42-of-the-indian-constitution/
2. https://www.gktoday.in/article-41/
3. https://labour.gov.in/womenlabour/maternity-benefit
4. https://www.jsalaw.com/covid-19/right-to-health-as-a-fundamental-right-guaranteed-by-the-constitution-of-india/
5. https://uja.in/blog/legal-chronicle/right-to-health-in-india-constitutional-perspective/
6. https://www.who.int/about/governance/constitution
7. https://cghs.gov.in/
8. https://www.esic.gov.in/
9. https://www.niti.gov.in/sites/default/files/2021-10/HealthInsurance-forIndiasMissingMiddle_28-10-2021.pdf
10. https://main.mohfw.gov.in/sites/default/files/9147562941489753121.pdf
11. https://pmjay.gov.in/
12. https://abdm.gov.in/