CIVIL AND POLITICAL RIGHTS V.

SOCIO ECONOMIC RIGHTS- A CRITICAL ANALYSIS BY RAGHUL SUDHEESH & VISHNU CHANDRAN, NUALS, COCHIN Introduction: Constitution is a product of its times and circumstances. The rule of law, the landmark of a liberal democracy, was the cherished ideal of the world after the Second World War. People suffered owing to unjust legislation which had to be accepted as law in the 18 th century in the United states and in the 20th century in Nazi Germany, fascist Italy and always in colonial countries also in British India. Need was therefore felt that the liberties of the people must be secured with some permanency. World opinion was reflected in the Universal Declaration of Human Rights (1948) soon after the formation of the United Nations Organisations and for the first time the United Nations, divided the rights which were included in the declaration of Human Rights into two parts. Each of these two parts was made the subject matter of a covenant. The International Covenant on Civil and Political Rights (ICCPR) embodied those rights which were enforceable by the individual through a court of law. The State had only to refrain from infringing these rights. International Covenant on Economic, Social and Cultural Rights (ICESCR)1[1] on the other hand embodied such rights as would have to be created for the benefit of the citizens by a welfare state. The positive assistance of the state, not only its negative abstention from interference, was required to help the individual to enjoy these rights. Following the Universal Declaration of human rights of the united nations .the Objective resolution adopted by the Constituent Assembly on 22 january,1947 decided to and adopted a Constitution which guarantees and secure a vast range of rights to the people. The Fundamental Rights enshrined in Part III of our Constitution and Directive Principles of State Policy enshrined in Part IV is more or less incorporating all the great values of human rights. The constitutional scholar Granville Austin, in his magisterial work, Working a Democratic Constitution: The Indian Experience, states that probably no other Constitution in the world has provided so much impetus towards changing and rebuilding society for the common good. Indeed, it is perhaps one of the most rights-based constitutions in the world. In the Constituent Assembly, on 25th November, 1949, Dr. Ambedkar stated: On the 26th January, 1950, we are going to enter upon into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment else those who suffer from inequality will blow up the structure of democracy which this Constituent Assembly has so laboriously built up Thus, realizing that the masses had suffered for long, and recognizing the reality of prevailing social inequalities, the founding fathers placed the mandate of social equality at the helm of the Constitution, and attempted to create a system where every member is empowered to participate in the liberties and the freedom provided under the Constitution.
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Pandit Nehru embodied the essence of this goal in the following words to the Constituent Assembly: The first task of this Assembly is to free India through a new Constitution, to feed the starving people and to clothe the naked masses and to give every Indian the fullest opportunity to develop himself according to his capacity. With this noble aim, the founding fathers inserted the Fundamental Rights and Directive Principles in the Constitution, which find their roots in the Constitution of India Bill, 1895 and the 1931 Karachi Resolution respectively. They form the soul of this living document, and connect Indias past, present and future into one single thread, giving greater credence to the pursuit of social equality. The issue debated very much now is "Civil and political rights have been assured in the Indian Constitution but the same was not true of socio-economic rights?" A lot of books ,articles, etc have been written and seminars and discussions held on this topic but to my mind all these are devoid of any real meaning until and unless the 2/3 or of the world population which is today living in object poverty, hunger and destitution is given a decent life, socially ,economically and culturally .For example the right of freedom of speech and expression guaranteed by Article 19(1)(a) of our Constitution is meaningless for a man who is hungry or unemployed .The right to travel of ones own freewill throughout the territory of India conferred by Article19(1)(d) of the Indian Constitution is meaningless if one doesnot have the money to travel from Allahabad to Lucknow. The right to carry on any trade or business conferred by Article19(1)(g) of the Indian Constitution has no meaning if one does not have the capital to do so. In brief,the political rights and civil liberties conferred by Part III of the Indian Constitution are meaningless if the citizen is not provided with the economic means of exercising these rights and liberties. As an English judge cynically remarked The law like the Ritz Hotel, is open to rich and poor alike. Hence the main goal of our nation must be to abolish the poverty, unemployment, ignorance, disease, etc, and to build India as a modern, powerful, industrial state. This is only possible by rapid industralisation, as industralisation alone can generate the wealth with which we can provide for the welfare of our people and ensure socio-economic justice.(which is real justice) to the people. Underdeveloped countries like India are passing through a transitional age,between feudal, agricultural society and modern industrial society. This is a very painful and agonising period.A study of the history of England of the16th, 17th and18th centuries and of france of the 18th and 19th centuries, shows that the transitional period was full of turbulence, turmoil, revolutions, intellectualferment etc. It was only after going through this fire that modern society emerged in Europe. India is presently going through this fire. The events in Gujarat, the barbaric honour killings in western UP districts like Meerut and Muzaffarnagar of young men and women of different castes who were killed because they wished to get married,the burying alive of infants as a religious ritual and the sale of their kidneys by women of Tamilnadu (to feed their families),the eating of rotis made by grass in Rajasthan and mango kernels in Orissa etc show how backward we still are, living in abject poverty, and full of castism and communalism. The truth is that Indians, despite being an intelligent and industrious people, are not respected by westerners, not because the colour of our skin is brown or black, but because our country is poor. Today the real world is cruel and harsh;it respects power, not weakness or poverty. When China

and Japan were poor nations they were derisively called yellow races by the western nations. Today nobody dares to call them that, as they are strong, instrial nations. Similarly,if we wish our country to get respect in the comity of nations we must make it highly industrialized and prosperous. For this purpose a powerful cultural struggle, that is ,a struggle in the realm of ideas must be waged by our patriotic ,modern minded intelligentsia. This cultural struggle must be waged by combating feudal,backward ideas, example castism and communalism, and replacing them with modern scientific ideas among the masses. What are socio - economic rights? Socio-economic rights include the human right to work, the right to an adequate standard of living, including food, clothing and housing, the right to physical and mental health, the right to social security, the right to a healthy environment, and the right to education. ESCR are part of a larger body of human rights law that developed in the aftermath of World War II. Human rights law includes all economic and social rights, in addition to civil and political rights like the right to free speech and the right to a fair trial. The Universal Declaration of Human Rights reiterated that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. The Declaration places a number of economic, social and cultural rights side by side with civil and political rights. International Law Principles The Universal Declaration of Human Rights recognises what have traditionally been seen as two distinct sets of rights: civil and political rights and economic, social and cultural rights. Each set of rights is reflected in a separate Covenant, the International Covenant of Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) respectively2[3]. The ICESCR is divided into five parts. Part I (like Part I of the ICCPR) recognises the right of peoples to self-determination; Part II defines the general nature of states parties obligations; Part III enumerates the specific substantive rights; Part IV deals with international implementation and Part V contains typical final provisions of a human rights treaty. The substantive rights in Part III include the right to work (Article 6), to just and favourable conditions of work (Article 7), to form trade unions (Article 8), to social security and insurance (Article 9) to an adequate standard of living, including food, clothing and housing (Article 11), to physical and mental health (Article 12) and to education (Article 13). Under the International Human Rights Law, every State has three obligations the obligation to respect, the obligation to protect and the obligation to fulfil human rights. The obligation to respect requires the State to abstain from doing that which violates, even directly or indirectly, the concerned human right. The obligation to protect requires the State and its agents to take the measures necessary to prevent other individuals or groups from violating or infringing the enjoyment of the right. The obligation to fulfil requires the State to take measures to ensure each person within its jurisdiction has the opportunities to obtain satisfaction of those needs recognized in the human rights instruments which cannot be achieved by personal efforts. All human rights are interdependent, indivisible and inalienable. You take away one, you take away the others. Deny food, deny livelihood, deny shelter and you deny liberty, freedom, and ultimately the right to life and all that goes with life.

Realizing the importance of human rights, both ICESCR and DPSP have provided their own mechanism to achieve full implementation of all human rights. Art. 2 of ICESCR says:- 1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. The key words are to take steps, individually and through international cooperation to the maximum of its available resources, Achieving progressively the full realization of the rights and by all appropriate means (including the adoption of legislative measures. While all the States Parties have an obligation to respect, protect, and fulfil all human rights, the method and the manner in which obligations are to be discharged have been set out in the above Article. Whenever the State is called upon to explain how it has dealt with these social and economic rights, it has an obligation to demonstrate what steps it has taken, and in what manner, and with what resources and with what means. It has to show that it has made use of all its available resources including international assistance and that it has adopted all appropriate means to fulfil these rights to its people. This covenant is of great importance, particularly in the context of large parts of the world where people are denied the basic needs such as food, shelter, health protection and education. It must be remembered that the rights enumerated in the ICESCR were subject to progressive realisation and further contingent on the ability of the State parties to muster adequate material resources for fulfilling the same.3[6]This condition was at the heart of the difference between rights enumerated in the ICESCR and those enumerated in the International Covenant on Civil and Political Rights (ICCPR) which would be specifically enforced against the state parties. The hierarchy between the rights enumerated in the two covenants reflected the cold war politics over the prioritisation of the same. COMPARATIVE JURISPRUDENCE The South African Judicial Experience The South-African post-apartheid constitution4[7] considered the Indian model of directive principles as an approach to social rights, but decided to accord those rights full constitutional recognition instead. Section 1 of Chapter 1 (Founding provisions) provides: The Republic of South Africa is one sovereign democratic state founded on the following values: Human dignity, the achievement of equality and the advancement of human rights and freedoms Various sections of Chapter 2 (Bill of Rights) provide: Section 7. Rights
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(a)

This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. (2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights. (3) The rights in the Bill of Rights are subject to the limitations contained in or referred to in section 36, or elsewhere in the Bill. Section 26. Housing Everyone has the right to have access to adequate housing. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions. Section 39. Interpretation of Bill of Rights (1) When interpreting the Bill of Rights, a court, tribunal or forum (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law. When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights. (1) (2)

(1)

(2)

Government of South Africa v Grootboom The respondents lived in a squatter settlement, facing the prospect of indefinitely long intolerable conditions. They therefore moved onto vacant privately owned land that was earmarked for eventual low-cost housing. The owner brought court proceedings that resulted in an eviction order. The respondents applied to the High Court for an order requiring the government to provide them with adequate basic housing until they obtained permanent accommodation. The High Court ordered the provision of tents, portable latrines and a regular supply of water as the bare minimum. The Government appealed. The Constitutional Court considered Articles 2 and 11 of the ICESCR together with section 26 of the Constitution and the question of whether the measures taken by the state to realise the right to access adequate housing were reasonable. It was noted that section 26 imposed a negative obligation on the state to desist from preventing access to adequate housing, but also a positive obligation to create conditions for access, through planning laws and access to finance. There had to be a coherent public housing programme directed towards realisation of the right, the precise detail of which was a matter for the legislature and the executive and which did not need to go beyond what was achievable by the state within its available resources. The states various legislative schemes made no express provision to facilitate access to temporary relief for people who have no access to land, no roof over their heads or are living in crisis as a result of natural disaster or threat of demolition. The nationwide housing programme therefore fell short of the

states obligations under section 26 by focusing on medium and long-term objectives to the exclusion of those in desperate need. The Indian Judicial Experience The Indian Constitution of 1950 contains one chapter dealing with fundamental rights, which consists largely of civil and political rights which figure in a great deal of litigation, and another chapter dealing with directive principles of state policy. Article 21 provides: No person shall be deprived of his life or personal liberty except according to procedure established by law. Article 37 provides: The provisions contained in this Part shall not be enforced by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. Article 41 provides: 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, and in other cases of undeserved want. Article 47 provides: 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 These directive principles, although themselves non-justiciable directly, have been combined two further procedural features of the Indian justice system to provide rights at first instance before the Supreme Court, resulting in a wealth of public interest litigation or social action litigation. Those procedural features are: The epistolary jurisdiction of the Indian courts, whereby letters written by ordinary citizens to the courts get converted into writ petitions. The effect of this is to revolutionise the law on standing, such that a wide range of people have real access to the courts to complain of rights violations. 2. The collection of social data and legal evidence concerning the plight of impoverished groups of citizens by socio-legal commissions appointed by the Courts. These Commissions are constituted at state expense and are comprised of public citizens, social scientists and increasingly universities and research institutes who put together reports for use in litigation. The new spirit of harmonious interpretation was reflected in the various decisions of the Supreme Court. These case concerned petitions brought on behalf of pavement and slum dwellers, typically a landless labourer from a rural area who had moved to Bombay to find work even at extremely low wages. The petitioners claimed that the decision to demolish violated, among other provisions, Article 21 of the Constitution. They did not argue that they had a right 1.

to live on the pavements, but that they had a right to live, and that that right could not be exercised without the means of a livelihood. They therefore sought an order that they could not be evicted from their shelters without being offered alternative accommodation. The Government argued that it provided housing assistance to the weaker elements of society, but that any allocation of housing had to be made after balancing the conflicting demands of various priority sectors. In Olga Tellis v Bombay Municipal Corporation Court upheld the petitioners argument that the right to life in Article 21 of the Constitution included the right to livelihood. In support of this conclusion, it relied on the Principles contained in Articles 39(a) and 41 as fundamental in understanding and interpreting the meaning and content of fundamental rights, according to Article 37. If there was an obligation upon the State to secure to citizens an adequate means of livelihood and right to work, it would be pedantry to exclude the right to livelihood from the content of the right to life. Although the State was not compellable to provide adequate means of livelihood or work to citizens, any person who was deprived of his right to livelihood except according to just and fair procedure established by law could challenge that deprivation as offending the right to life conferred by Article 21. Thereafter in Peoples Union For Civil Liberties v. Union of India & Ors, where starvation deaths had occurred in Rajasthan despite excess grain being kept for official times of famine. Various schemes throughout India for food distribution were also not functioning. In 2001, the Peoples Union for Civil Liberties (PUCL) petitioned the Court for enforcement of the schemes and the Famine Code. The PUCL based their arguments on the right to food, deriving it from the right to life. The Court, noting the right to life, stated Would the very existence of life of those families which are below the poverty line not come under danger for want of appropriate schemes and implementation. They found systematic failure by the government to implement and resource various food schemes. The Court ordered that: (a) The Famine Code be implemented for three months; (b) Grain allocation for the Food for Work Scheme be doubled (from five to ten million tonnes) and increased financial support for schemes; (c) Ration shop licensees must stay open and provide the grain to families below the poverty line (BPL) at the set price; (d) The government publicise the rights of BPL families to grain to ensure all eligible families are covered; (e) All individuals without means of support (older persons, widows, disabled adults) be granted an Antyodaya Anna Yozana ration card for free grain; and (f) State governments progressively implement the Mid Day Meal Scheme in schools. The courts have time and again reiterated that the constitution is founded on the bedrock of the balance between perts III and IV. Further in Unni Krishnan, J.P., v. State of A.P. and Other Court held that the parameters of the right must be understood in the context of the Directive Principles of State Policy, including Article 45 which provides that the state is to endeavour to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children under the age of 14 (Article 45).The case involved a challenge to the constitutionality of capitation fees charged by certain private professional educational facilities. The Court held that the right to basic education, is implied by the

fundamental right to life (Article 21) when read in conjunction with the directive principle on basic education (Article 41). The Court ruled that there is no fundamental right to education for a professional degree that flows from Article 21. It held, however, that the passage of 44 years since the enactment of the Constitution had effectively converted the non-justiciable right to education of children under 14 into one enforceable under the law. After reaching the age of fourteen, their right to education is subject to the limits of economic capacity and development of the state (as per Article 41). Conclusion In the light of the above decisions and analysing the constitution, the ultimate conclusion which can be drawn is both civil and political rights as well as socio-economic rights have been well assured by the constitution. The Preamble promises socio-economic justice, the fundamental rights confer certain justiciable socio economic rights and the Directive Principles fix the socioeconomic goals which the State must strive to attain. These three together constitute the core and conscience of the Constitution The judiciary has developed piecemeal protection for socio-economic rights using common law principles of dignity and constitutional principles of equality. In doing so, they have indirectly confirmed the importance of socio-economic entitlements. In the future, it will be necessary to untangle the complexities that this minimalist and indirect socio-economic protection has created. If the importance of socio-economic entitlement is conceded, the next step would be to directly and substantially protect socio-economic rights within the Constitution. This requires a shift from what is perceived to be bestowed on individuals by virtue of the benevolence of a welfare state, to that of a right. It was not done through judicial activism alone but this vision was there in the drafters minds too as evident from the Constituent Assembly debates mentioned in the introduction. There is no doubt that the level of the realisation of socio-economic rights in any country is indirectly influenced by the level of its economic development. This is because, as mentioned earlier, these rights have important social and economic dimensions as most of them reflect specific areas of basic needs or delivery of particular goods and services.