Justiciability of ESC Rightsthe Indian Experience
Part III of the Indian Constitution guarantees fundamental rights to all citizens, and some of these, like the right to life (art. 21) and the right to equality (art.14), to all persons. The fundamental rights are enforceable in the High Courts and the Supreme Court. In writ petitions before these courts, a person or a citizen can seek enforcement of fundamental rights and redress for their breach. Judicial review of executive action as well as of legislation and judicial and quasi-judicial orders is recognized as part of the basic structure of the Constitution which cannot be taken away even by an amendment to the Constitution.1 The Supreme Court has the final word on the interpretation of the Constitution, and its orders, being law, are binding and enforceable by all authoritiesexecutive, legislative and judicial.2
The Directive Principles of State Policy (DPSP) are contained in part IV, articles 36 to 50, of the Indian Constitution. Many of the provisions correspond to the provisions of the ICESCR. For instance, article 43 provides that the state shall endeavor to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities, and in particular the state shall endeavor to promote cottage industries on an individual or cooperative basis in rural areas. This corresponds more or less to articles 11 and 15 of the ICESCR. However, some of the ICESCR rights, for instance, the right to health (art. 12), have been interpreted by the Indian Supreme Court to form part of the right to life under article 21 of the Constitution, thus making it directly enforceable and justiciable.3 As a party to the ICESCR, the Indian legislature has enacted laws giving effect to some of its treaty obligations and these laws are in turn enforceable in and by the courts.
Article 37 of the Constitution declares that the DPSP shall not be enforceable 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. It is not a mere coincidence that the apparent distinction that is drawn by scholars between the ICCPR rights and ESC rights holds good for the distinction that is drawn in the Indian context between fundamental rights and DPSP.4 Thus the bar to justiciability of the DPSP is spelled out in some sense in the Constitution itself.
However, the Indian judiciary has overcome this apparent limitation by a creative and interpretative exercise. In what context that happened and how is what is proposed to be examined in this case study. After briefly tracing the development of this interpretative exercise through case law in the first three decades of the working of the Constitution, I propose to examine the response of the judiciary in the context of justiciability and enforceability of specific ESC rights.
Fundamental Rights versus DPSP
When the tussle for primacy between fundamental rights and DPSP came up before the Supreme Court first, the court said, The directive principles have to conform to and run subsidiary to the chapter on fundamental rights.5 Later, in the Fundamental Rights Case (referred to above), the majority opinions reflected the view that what is fundamental in the governance of the country cannot be less significant than what is significant in the life of the individual. Another judge constituting the majority in that case said: In building up a just social order it is sometimes imperative that the fundamental rights should be subordinated to directive principles.6 This view, that the fundamental rights and DPSP are complementary, neither part being superior to the other, has held the field since.7
The DPSP have, through important constitutional amendments, become the benchmark to insulate legislation enacted to achieve social objectives, as enumerated in some of the DPSP, from attacks of invalidation by courts. This way, legislation for achieving agrarian reforms, and specifically for achieving the objectives of articles 39(b) and (c) of the Constitution, has been immunized from challenge as to its violation of the right to equality (art. 14) and freedoms of speech, expression, etc. (art. 19).8 However, even here the court has retained its power of judicial review to examine if, in fact, the legislation is intended to achieve the objective of articles 39(b) and (c), and where the legislation is an amendment to the Constitution, whether it violates the basic structure of the constitution.9 Likewise, courts have used DPSP to uphold the constitutional validity of statutes that apparently impose restrictions on the fundamental rights under article 19 (freedoms of speech, expression, association, residence, travel and to carry on a business, trade or profession), as long as they are stated to achieve the objective of the DPSP.10
The DPSP are seen as aids to interpret the Constitution, and more specifically to provide the basis, scope and extent of the content of a fundamental right. To quote again from the Fundamental Rights case:
Judicial Activism and Public Interest Litigation
The internal emergency that was in force between 1975 and 1977 and its aftermath contributed significantly to the change in the judiciarys perception of its role in the working of the Constitution. The period of the emergency witnessed large-scale violations of basic rights of life and liberty. There were also blatant violations of the right to freedom of speech and expression. The end of the emergency saw the emergence of a realignment of political forces. Nevertheless, the popularly elected government was weak and in trying to find its feet, it did not last very long. It was already collapsing by 1978/1979, which was when the judiciary initiated the public-interest litigation (PIL) movement. The development of the jurisprudence of ESC rights is also inextricably linked to this significant development.
The lifting of the emergency and the realignment of political forces had not resulted in any dramatic change in the social imbalances or executive excesses that had by then become endemic. The postemergency period then provided the right environment for the judiciary to redeem itself as a protector and enforcer of the rule of law. Judges woke up to this need and PIL was the tool the judiciary shaped to achieve this end. PIL was entirely a judge-led and judge-dominated movement.12
What made PIL unique was that it acknowledged that a majority of the population, on account of their social, economic and other disabilities, was unable to access the justice system. The insurmountable walls of procedure were dismantled and suddenly the doors of the Supreme Court were open to people and issues that had never reached there before. By relaxing the rules of standing and procedure to the point where even a postcard could be treated as a writ petition, the judiciary ushered in a new phase of activism where litigants were freed from the stranglehold of formal law and lawyering.
The Maneka Gandhi Case and Thereafter
Simultaneously, the judiciary took upon itself the task of infusing into the constitutional provisions the spirit of social justice. This it did in a series of cases of which Maneka Gandhi v. Union of India was a landmark.13 The case involved the refusal by the government to grant a passport to the petitioner, which thus restrained her liberty to travel. In answering the question whether this denial could be sustained without a predecisional hearing, the court proceeded to explain the scope and content of the right to life and liberty. In a departure from the earlier view,14 the court asserted the doctrine of substantive due process as integral to the chapter on fundamental rights and emanating from a collective understanding of the scheme underlying articles 14 (the right to equality), 19 (the freedoms) and 21 (the right to life). The power the court has to strike down legislation was thus broadened to include critical examination of the substantive due process element in statutes.
Once the court took a broader view of the scope and content of the fundamental right to life and liberty, there was no looking back. Article 21 was interpreted to include a bundle of other incidental and integral rights, many of them in the nature of ESC rights.
In Francis Coralie Mullin the court declared:
The combined effect of the expanded interpretation of the right to life and the use of PIL as a tool led the court into areas where there was a crying need for social justice. These were areas where there was a direct interaction between law and poverty, as in the case of bonded labor and child labor, and crime and poverty, as in the case of undertrials in jails. In reading several of these concomitant rights of dignity, living conditions, health into the ambit of the right to life, the court overcame the difficulty of justiciability of these as economic and social rights, which were hitherto, in their manifestation as DPSP, considered nonenforceable. A brief look at how some of these ESC rights were dealt with by the court in four specific contexts will help understand the development of the law in this area.
Right to Work
Article 41 of the Constitution provides 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, and in other cases of undeserved want.16 Article 38 states that the state shall strive to promote the welfare of the people and article 43 states it shall endeavor to secure a living wage and a decent standard of life to all workers. One of the contexts in which the problem of enforceability of such a right was posed before the Supreme Court was of large-scale abolition of posts of village officers in the State of Tamil Nadu in India. In negating the contention that such an abolition of posts would fall foul of the DPSP, the court said:
But the court has since then felt freer to interfere even in areas which would have been considered to be in the domain of the policy of the executive. Where the issue was of regularizing the services of a large number of casual (nonpermanent) workers in the posts and telegraphs department of the government, the court has not hesitated to invoke the DPSP to direct such regularization. The explanation was:
In Bandhua Mukti Morcha v. Union of India,19 a PIL by an NGO highlighted the deplorable condition of bonded laborers in a quarry in Haryana, not very far from the Supreme Court. A host of protective and welfare-oriented labor legislation, including the Bonded Labour (Abolition) Act and the Minimum Wages Act, were being observed in the breach. In giving extensive directions to the state government to enable it to discharge its constitutional obligation towards the bonded laborers, the court said:20
Thus the court converted what seemed a non-justiciable issue into a justiciable one by invoking the wide sweep of the enforceable article 21. More recently, the court performed a similar exercise when, in the context of articles 21 and 42, it evolved legally binding guidelines to deal with the problems of sexual harassment of women at the work place.22
The right of workmen to be heard at the stage of winding up of a company was a contentious issue. In a bench of five judges that heard the case the judges that constituted the majority that upheld the right were three. The justification for the right was traced to the newly inserted article 43-A, which asked the state to take suitable steps to secure participation of workers in management. The court observed:
Right to Shelter
Unlike certain other ESC rights, the right to shelter, which forms part of the right to an adequate standard of living under article 11 of the ICESCR, finds no corresponding expression in the DPSP. This right has been seen as forming part of article 21 itself. The court has gone as far as to say, The right to life . . . would take within its sweep the right to food . . . and a reasonable accommodation to live in.24 However, given that these observations were not made in a petition by a homeless person seeking shelter, it is doubtful that this declaration would be in the nature of a positive right that could be said to be enforceable. On the other hand, in certain other contexts with regard to housing for the poor, the court has actually refused to recognize any such absolute right.
In Olga Tellis v. Bombay Municipal Corporation,25 the court held that the right to life included the right to livelihood. The petitioners contended that since they would be deprived of their livelihood if they were evicted from their slum and pavement dwellings, their eviction would be tantamount to deprivation of their life and hence be unconstitutional. The court, however, was not prepared to go that far. It denied that contention, saying:
Later benches of the Supreme Court have followed the Olga Tellis dictum with approval. In Municipal Corporation of Delhi v. Gurnam Kaur,26 the court held that the Municipal Corporation of Delhi had no legal obligation to provide pavement squatters alternative shops for rehabilitation as the squatters had no legal enforceable right. In Sodan Singh v. NDMC27 a constitution bench of the Supreme Court reiterated that the question whether there can at all be a fundamental right of a citizen to occupy a particular place on the pavement where he can squat and engage in trade must be answered in the negative. These cases fail to account for socioeconomic compulsions that give rise to pavement dwelling and restrict their examination of the problem from a purely statutory point of view rather than the human rights perspective.
Fortunately, a different note has been struck in a recent decision of the court. In Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan,28 in the context of eviction of encroachers in a busy locality of Ahmedabad city, the court said:
Right to Health
The right to health has been perhaps the least difficult area for the court in terms of justiciability, but not in terms of enforceability. Article 47 of DPSP provides for the duty of the state to improve public health. However, the court has always recognized the right to health as being an integral part of the right to life.30 The principle got tested in the case of an agricultural laborer whose condition, after a fall from a running train, worsened considerably when as many as seven government hospitals in Calcutta refused to admit him as they did not have beds vacant. The Supreme Court did not stop at declaring the right to health to be a fundamental right and at enforcing that right of the laborer by asking the Government of West Bengal to pay him compensation for the loss suffered. It directed the government to formulate a blue print for primary health care with particular reference to treatment of patients during an emergency.31
In Consumer Education and Research Centre v. Union of India32 the court, in a PIL, tackled the problem of the health of workers in the asbestos industry. Noticing that long years of exposure to the harmful chemical could result in debilitating asbestosis, the court mandated compulsory health insurance for every worker as enforcement of the workers fundamental right to health. It is again in PIL that the court has had occasion to examine the quality of drugs and medicines being marketed in the country and even ask that some of them be banned.33
A note of caution was struck when government employees protested against the reduction of their entitlements to medical care. The court said:
Right to Education
Article 45 of the DPSP, which corresponds to article 13(1) of the ICESCR, states, The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years. Thus, while the right of a child not to be employed in hazardous industries was, by virtue of article 24, recognized to be a fundamental right, the childs right to education was put into the DPSP in part IV and deferred for a period of ten years.
The question whether the right to education was a fundamental right and enforceable as such was answered by the Supreme Court in the affirmative in Mohini Jain v. State of Karnataka.35 The correctness of this decision was examined by a larger bench of five judges in Unnikrishnan J.P. v. State of Andhra Pradesh.36 The occasion was the challenge, by private medical and engineering colleges, to state legislation regulating the charging of capitation fees from students seeking admission. The college management was seeking enforcement of their right to business. The court expressly denied this claim and proceeded to examine the nature of the right to education. The court refused to accept the nonenforceablity of the DPSP. It asked:
The court then proceeded to examine how this right would be enforceable and to what extent. It clarified the issue thus:
More caution followed. The courts apprehension clearly was that recognition of such a right might open the flood gates for other claims. It clarified:
In fact, the court had broken new ground in the matter of justiciability and enforceability of the DPSP. The decision in Unnikrishnan has been applied by the court in formulating broad parameters for compliance by the government in the matter of eradication of child labor. This it did in a PIL where it said:
The court, while recognizing the importance of declaring the childs negative right against exploitation and positive right to education, chose a pragmatic approach when it came to enforceability. Earlier the court would have shrugged off the whole issue as not being within its domain. That has now changed as is clear from the recent trend of cases.
This much is clear from the above narrationthat ESC rights are no less important than fundamental rights in the constitutional scheme. They are enforceable when they are projected as supplying the content of a fundamental right,41 but not just by themselves.42
The judiciary will not be fettered by any apparent injunction in the Constitution against non-enforceability of the DPSP. It will, on the other hand, pin the state to its obligations towards the citizens by referring to the DPSP. Such obligation, the court has explained in the context of right to environment, can confer corresponding rights on the citizen:
The ESC rights that the DPSP symbolize can demonstrably be read as forming part of an enforceable regime of fundamental rights. What then is crucial is the will of the state to implement this constitutional mandate. The agenda of the state can be shaped to a considerable extent by a creative and activist judiciary. The state has to be constantly reminded of its obligations and duties. The actual realization of ESC rights may be a long-drawn affair, but keeping it on the agenda is more than half that effort. The Indian judiciary has through a combination of strategies done just that. That is the Indian experience.
1. Keshavananda Bharati v. State
of Kerala (1973) 4 SCC 225 (cited hereafter as the Fundamental Rights