Consumers India had taken up the policy issue regarding access to affordable medicines with National Human Rights Commission (NHRC). NHRC had invited Dr Jayashree Gupta, President, Consumers India on 24th September, 2012 for explaining the facts of the case. The position was explained by her at great length before the full bench of NHRC. The text of the submission made by her is reproduced below:

“It is my aspiration that health will finally be seen not as a blessing to be wished for, but as a human right to be fought for.”

Mr Kofi Annan,
Former Secretary General, United Nations
English: Former U.S. First Lady Eleanor Roosev...

English: Former U.S. First Lady Eleanor Roosevelt with the English version of the United Nations Universal Declaration of Human Rights Italiano: Mrs. Eleanor Roosevelt, moglie del presidente degli Stati Uniti, mostra la Dichiarazione in formato poster (1949) (Photo credit: Wikipedia)

“The right to health does not mean the right to be healthy, nor does it mean that poor governments must put in place expensive health services for which they have no resources. But it does require governments and public authorities to put in place policies and action plans which will lead to available and accessible health care for all in the shortest possible time….”
Ms Mary Robinson,
Former United Nations
High Commissioner
for Human Rights
What are Human Rights for Health?
Human rights are rights relating to life, liberty, equality and dignity of the individual, embodied in the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, adopted by the General Assembly of the United Nations on 16th December, 1966. These Covenants, along with the Universal Declaration of Human Rights (1948), set a common standard of achievement for all peoples and all nations. As a matter of fact, these human rights are enshrined in the Constitution of several countries, including India.
Some of the important provisions relating to human rights for health, strewn in Indian Constitution and International Conventions are given below.
v The State shall, in particular, direct its policy towards securing
Ø that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. (Article 39 (e) of the Directive Principles of State PolicyConstitution of India).
Ø that children are given opportunities and facilities to develop in a healthy                                             manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. (Article 39 (f) of the Directive Principles of State Policy, Constitution of India).
v The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties. (Article 47 of the Constitution of India).
v Everyone has the right to life, liberty and the security of person. (Article 3 of Universal Declaration of Human Rights).
v Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services….(Article 25.1 of Universal Declaration of Human Rights).
v The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. (Article 12.1 of the International Covenant on Economic, Social and Cultural Rights).
v The Steps taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
a)   The provision for the reduction of the still birth-rate and of infant mortality and for the healthy development of the child;
b)   The improvement of all aspects of environmental and industrial hygiene;
c)    The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
d)   The creation of conditions which would assure to all medical service and medical attention in the event of sickness. (Article 12.2 of the International Covenant on Economic, Social and Cultural Rights).
This is just an illustrative list. These rights have been further reiterated and elaborated in other major international human rights instruments like Convention on the Elimination of All Forms of Discrimination Against Women (1979) and Convention on the Rights of the Child (1989).
Is ‘Access to Affordable Medicine’ a Human Right?
Medicines constitute a major part of health expenditure in India. As per available data,private sector accounts for nearly 80% cost of out-patient treatment and 71% of it is on purchase of medicines. The high expenditure on medicines prevents many a poor people from pursuing proper treatment for their ailments. Access to Affordable Medicines is, therefore, an essential component of human right to health.
Medicines worth Rs 51,843 Crores are sold through the network of over six lakh chemists all over the country. (IMS data of September 2011). The total domestic market of Pharma industry being about Rs 60,000 crores, this major pie of Rs 51,843 Crores has to be addressed to address this growing concern for the health and well being of consumers.
Vision of Ministry of Health and Family Welfare
“Health as a right for all citizens is the goal that the Ministry will strive towards.”
Annual Report to the People on Health,
Government of India, December 2011
Vision of Department of Pharmaceuticals in 
Government of India.
 “To enable Indian pharmaceuticals industry to play a leading role in the global market and to ensure abundant availability, at reasonable prices within the country, of good quality pharmaceuticals of mass consumption.”
Comments on Draft National Pharmaceutical Policy
As per the Draft National Pharmaceuticals Pricing Policy – 2011, all medicines in the National List of Essential Medicines( NLEM)-2011  are to be brought under the ambit of Price Control. By doing so, the Government will increase the span of control from the existing 74 Drugs to 348 Drugs covered in the NLEM-2011 list.
The National list of Essential Medicines has been finalized by Ministry of Health and FW after due consideration of the disease pattern of the masses. It is, therefore, necessary that all these medicines are made available to masses at affordable prices.
The key para in the draft policy is para 4.7: “The Ceiling Price would be fixed on the basis of Weighted Average Price (WAP) of the top three brands by value (MAT value).”  In simple language it means that the regulation of prices of drugs in the National Pharmaceuticals Pricing Policy 2011 would be on the basis of  Market Based Pricing (MBP) as against  the earlier principle of regulating the prices through Cost Based Pricing (CBP) under the Drug Policy 1994. The prices of the medicines will be fixed by taking the weighted average of the prices of the top three Brands during the past twelve months.
The  draft policy, in its present form,  is heavily loaded in favour of the Pharmaceutical Industry. It shows no respect  for  the human rights of people.We would like to give example of a few common drugs, which are also being sold through Jan Aushadhi outlets set up by the Govt, to substantiate this  point.
The ‘Jan Aushadhi’  initiative, launched by the Government, has proved that there is high gap between cost of manufacturing and sale price of medicines sold in the market. In the Jan Aushadhi outlets generic medicines  are made available  to consumers at 10-25% of the price at which similar drugs are available in the market in branded form. There is no Govt subsidy in this programme. They are sold at cost + nominal profit basis. Manufactures are not allowed to inflate prices as they do in the case of branded medicines. The following comparison will give some idea regarding the price advantage available to masses through this campaign:
Price in Indian Rupees
(2011-12 )
Name of Salt
      No of tablets
 Jan Aushadhi Price
Price of  Leading brand in  Market
       10 mg
         96 (Storvas by Stancare)
         2 mg
      117.4 (Amaryl by Sanofi Aventis)
       37.5 (Cetzine byGlaxosmithkline)
Tab. Paracetamol
          . 245
         1.2 (Calpol byGlaxosmithkline)
It can be observed from the above that Storvas, manufactured by M/s Stancare is being sold in the market at a price that is about 12 times higher than the generic cousin Atorvastatin. Similar is the case with other medicines. Just imagine the impact on consumers in the case of medicines for chronic diseases which have to be taken life-long!
Recent study by the Ministry of  Corporate Affairs in Government of India has also found that several leading pharmaceutical companies are resorting to mark up of 1100% and more. This further substantiates the fact that unreasonable profits are being made by pharma companies at the cost of helpless patients.
If Market Based Pricing (MBP), as proposed in the draft policy document, is adopted, the prevailing high prices of drugswill get legitimacy. As a matter of fact, this will lead to overall increase in prices of medicines, since even those companies, which are now selling their products at cheaper prices, will get tempted to revise their prices upwards and bring them close to the ceiling price.
Giant companies like IDPL, set up by the Govt as per vision of Pt Jawahar Lal Nehru, to provide affordable medicines for the masses are being allowed to fade away in sickness. Why are they not being revived and their full potential used for flooding the market with quality drugs at affordable prices?
Despite a huge infrastructure for delivery of health care services set up by the Govt,private sector accounts for nearly 80% cost of out-patient treatment and 71% of it is on purchase of medicines. Many a times this leads to distress sale of their meagre assets. Also, the high expenditure on medicines prevents many a poor people from pursuing proper treatment for their ailments.
Medicines worth Rs 51,843 Crores are sold through chemists as per IMS data of September 2011. The total domestic market of Pharma industry being about Rs 60,000 crores, this major pie of Rs 51,843 Crores has to be addressed to address this growing concern for the health and well being of consumers. Even in Tamil Nadu where proper availability of medicines in public health facilities is being ensured  by procuring medicines at reasonable prices through TNMC, nearly 70% people go to private sector for treatment.
It is, therefore, important that essential medicines are made available at affordable prices through the network of over six lakh chemist outlets across the length and width of the country. This would be possible only through a consumer friendly Pharmaceutical Pricing Policy.
The ‘Draft National Pharmaceuticals Pricing Policy – 2011 is in total violation of human rights of the teeming masses in India who are deprived of the access to health care due to high prices of drugs. It should be modified thoroughly so that it could be used to provide access to affordable medicines to masses.
Our considered view is that the criteria for determining the price of medicines should be Jan Aushadhi based pricing (JABP) and not  the Market Based Pricing (MBP), as proposed in the draft policy. The ceiling price of NLEM medicines may be kept at the level of the price of similar medicines in Jan Aushadhi outlets.
Access to affordable  drugs in developing countries is one of the important targets of  the Millennium Development Goals (MDGs). The UN Millennium Declaration was adopted in the year 2000 by the largest ever gathering of Heads of State, committing themselves to doing all they can to achieve those goals for making it a better world for all by 2015.
Target 8.E of MDGs clearly states In cooperation with pharmaceutical companies, provide access to affordable drugs in developing countries’. Since we have not been able to provide access to affordable medicines in cooperation with pharmaceutical companies so far, it is high time we take advantage of the opportunity available through National Pharmaceuticals Pricing Policy – 2011 and ensure that at least medicines covered under NLEM are available to masses at the benchmark set by Jan Aushadhi outlets.
We appeal to National Human Rights Commission to take immediate measures to safeguard human rights of the masses.
Dr Jayashree Gupta
President, Consumers India,
E-7/16, Vasant Vihar, New Delhi-110057
Mobile: 9871950011