Justiciability of the Right to Health: access to medicines - the South African and Indian experience

Abstract

The World Health Organisation (WHO) estimates that the share of people lacking access to essential medicines worldwide is around 1.7 billon, approximately one-third of the world’s population. Lack of access to essential medicines is an especially serious problem for patients in developing and least-developed countries, where many people struggle just to survive from day to day. From the total number of people who lack access to essential medicines, an estimated 1.3 billion, that is to say, about 80%, live in low-income countries. The reasons why patients lack access to essential medicines are manifold and complex and will not be set out in this article. Often mentioned are prohibitively high medicines prices, which have been ascribed to the practice of the pharmaceutical industry of protecting their pharmaceutical products and processes from competition through patents. Whatever the exact reason for patients’ lack of access to essential medicines, the consequences can be disastrous both for the individual concerned and for society at large when taking into account the scale of the problem worldwide. Although many academics and (non-governmental) organisations have addressed this particular problem from various perspectives, the aim of this article is to illustrate the different approaches taken by two legal systems with regard to the justiciability of the right to health. Moreover, the article intends to demonstrate how allowing for the justiciability of the right to health can play a role in enhancing access to medicines for patients in developing countries