Social Rights and the Indian Constitution
High Court of Karnataka,
This is a commentary published on: 28 February 2005
Citation: Kothari, J, ‘Social Rights and the Indian Constitution’, 2004 (2) Law, Social Justice & Global Development Journal (LGD). <http://www.go.warwick.ac.uk/ elj/lgd/2004_2/kothari>
This paper analyses the recent social rights jurisprudence of the Supreme Court of India, which from the early 1990s onwards is especially instructive about how the judiciary both can and should seek to protect social rights.
My paper begins with a discussion on what could be termed as ‘social rights’, the Indian constitutional structure of the division between fundamental rights and directive principles, and the debates in the Constituent Assembly on the nature and enforcement of social rights. I then analyse important judgments of the Indian Supreme Court in the last decade in the field of social rights, looking at the recognition, justiciability and enforcement of three specific rights - the right to food, the right to education and the right to health. This analysis will show that the mode of recognition of each right and the remedies granted by the Supreme Court in each case, takes shape against the backdrop of the litigating parties, their motivations and the quality of empirical research in support of the Court’s intervention.
Other writers have pointed out that the Supreme Court has demonstrated a judicial willingness and capacity to address aspects of social rights in a way that challenges many received notions of the judicial role. (Scott and Macklem, 1992; Baxi, 1990) Moreover the Indian Supreme Court has shown a positive and marked tendency, to take the principle of the interdependence of human rights seriously and to interpret entrenched constitutional guarantees of the Fundamental Rights in light of the Directive Principles. This paper builds on this analysis through the discussion and analysis of the specific rights to food, health and education, but pays more attention to the forms and procedures of constitutional litigation. It argues that social rights can indeed be made enforceable and amenable to judicial implementation and a comparison across different rights allows us to identify the likely conditions under which better remedies may be designed and thereby the rights may be secured to a greater extent.
By ‘social rights’ I refer to those rights that protect the necessities of life or that provide for the foundations of an adequate quality of life. Social rights may also be defined as claims against the state to have certain basic social and economic needs of life satisfied. These social claims have also been defined by Amartya Sen (1999) as basic entitlements. Sen argues that people are entitled in the prevailing system of institutional rights, to adequate means for survival. Entitlements are the totality of things a person can have by virtue of her rights, which in turn depends on the legitimised process of acquiring goods under the relevant system.
The concept of basic human needs involves drawing a list of foundational human needs of both, physiological and well as social import and in a way arrive at a list of the minimum social needs (Pande, 1989). The basic necessities of life encompass at a minimum, the right to adequate nutrition, housing, health, education and livelihood, and all of these rights provide foundations upon which human development can occur and human freedom can flourish. In addition, such basic social rights should be conceptualised in terms of an entitlement both to be equal as humans and to be equal as members of society.
Human rights in the Indian Constitution are divided into two separate parts. Part III of the constitution houses the ‘Fundamental Rights’, which include the right to life, the right to equality, the right to free speech and expression, the right to freedom of movement, the right to freedom of religion, which in conventional human rights language may be termed as civil and political rights. Part IV of the constitution contains the Directive Principles of State Policy (DPSPs), which include all the social, economic and cultural rights, such as the right to education, the right to livelihood, the right to health and housing.
These social rights or basic entitlements have been recognised internationally as being as important as other human rights such as the right to equality, the right against discrimination and others which can be termed as civil and political rights generally. As Michelman (2003) argues, the fact that social rights make budgetary demands or call for government action and not just forbearance does not in itself differentiate them radically from the standpoint of justiciability from constitutionally protected rights to equality before the law, right to speech and expression or to so called negative liberties. At the very minimum social rights can sometimes even be ‘negatively protected’ by comfortable forms of judicial intervention, for example when municipal zoning and land use laws, insofar as they constrict local housing, can be open to challenge.
While Fundamental Rights mentioned in Part III are justiciable under the constitution, the Directive Principles are not justiciable rights and their non-compliance cannot be taken as a claim for enforcement against the State. The Directive Principles in Part IV have specifically been made non-justiciable or unenforceable by Article 37 of the Indian constitution, which states:
‘The provisions contained in this part 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.’
The Indian Constitution does not merely provide the apparatus for governance, but is also forward looking in envisioning what social and economic transformation India would undergo. In this sense, the vision of the drafters was very similar to what the new South African constitution is imagined to be – a transformative constitution. The Indian Constitution aimed at not only achieving political independence from colonial rule but it also resolved to establish a new social order based on social, economic and political justice. Social revolution was put at the top of the national agenda by the Constituent assembly when it adopted the Objectives Resolution, which called for social, economic and political justice and equality of status, opportunity and before the law for all people. The DPSPs, it was thought, would make explicit the ‘socialist’ as well as the social revolutionary content of the constitution.1
During the drafting of the constitution, some of the Directive Principles of State Policy were initially part of the declaration of fundamental rights adopted by the Congress party at Karachi. Among the advocates for the DPSPs in the drafting committee, were Munshi, Ambedkar, K T Shah and B N Rau. They would have made the Directive Principles, or an even more rigorous social programme, justiciable. They disliked mere precepts and in the end supported them in the belief that half a loaf was better than none. Munshi had even included in his draft list of rights, the ‘Rights of Workers’ and ‘Social Rights’, which included provisions protecting women and children and guaranteeing the right to work, a decent wage, and a decent standard of living (Austin, 2001). K T Shah supported Ambedkar in the principle believing that there must be a specified time limit within which all Directive Principles would be made justiciable.
However, ultimately the bifurcation between civil and political rights and social and economic rights was made under the Constitution because the latter, it was felt, could not be made enforceable until appropriate actions were taken by the state to bring about changes in the economy. The Directive Principles nevertheless imposed an obligation upon the State to strive to fulfil them. Ambedkar insisted on the use of the word ‘strive’ in Article 38, which seeks to promote the welfare of the people, and ensure social, economic and political justice, stating that:
‘We have used it because it is our intention that even when there are circumstances which prevent the Government, or which stand in the way of the Government giving effect to these Directive principles, they shall, even under hard and unpropitious circumstances, always strive in the fulfilment of these Directives … Otherwise it would be open for any government to say that the circumstances are so bad, that the finances are so inadequate that we cannot even make an effort in the direction in which the Constitution asks us to go.’2
Such insightful thinking of the framers of the Constitution was futuristic since it falls in line with the ‘progressive realisation of rights’ language of the International Covenant for Economic Social and Cultural Rights (ICESCR)3. It also highlights the arguments that the enforceability of social rights was never thought of as being dependant only on the availability of resources. Their enforcement and the responsibility of the State to make these social rights a reality imposes an obligation to strive to realise them even when resources may not be adequate.
As reference to the Preamble and constitutional assembly debates would show, it would be invidious and indeed dangerous to give primacy or overriding effect to fundamental rights over the directive principles of state policy. Unfortunately however, during the initial period of working of the Constitution, the trend of judicial pronouncements showed an undue emphasis on the aspect of justiciability. The interpretation to the Directive Principles however, has been radically progressive in the last decade by the judiciary.
There are other critics who, while advocating for a Bill of Rights in general, believe that social rights provisions, which require positive governmental action, have no place within them. These critics question the legitimacy of empowering the judiciary to overrule the popular will as expressed through legislative activity. They also question the institutional capacity of the judiciary to adjudicate upon social rights issues. This argument, in its overall form, is that social rights are problematic because: they are positive rights and require governmental action; are resource-intensive and are therefore expensive to protect; are progressive and therefore require time for realisation; are vague in terms of the obligations they mandate; and involve complex, polycentric and diffuse interests in collective goods. The critics contend that all these attributes make issues concerning social rights particularly unsuitable for resolution through judicial for a, which are designed to handle disputes on a case-by-case basis, and cannot tackle large-scale problems (Thiruvengadam, 2004).
Since the emergency in the seventies, there has been a perceptible change in the judicial attitude on this question, and the Indian Supreme Court has been reaffirming that both the fundamental rights and the DPSPs must be interpreted harmoniously – thus laying the foundations for the principle that socio-economic rights are complimentary, interdependent and indivisible with civil and political rights. It was held that there is no disharmony between the Directive principles and the Fundamental Rights, because they supplement each other in aiming at the same goal of bringing about a social revolution and the establishment of a welfare state, which is envisaged in the Preamble.4 Finally in Unnikrishnan, the famous Right to Education judgement, Justice Jeevan Reddy said:
‘The provisions of Part III and IV are supplementary and complementary to each other and not exclusionary of each other and that the fundamental rights are but a means to achieve the goal indicated in Part IV.’5
The method in which the constitutional social rights or the DPSPs have been enforced or made justiciable by the Supreme Court has been through an expansion of the existing fundamental rights, particularly the Right to Life guaranteed in Article 216. Right from the late 1970s starting from the Maneka Gandhi’s7 case; the Supreme Court started expanding the guarantee of the Right to Life in Article 21 to include within it and recognise a whole gamut of social rights.8
After the national emergency was imposed by Indira Gandhi in the seventies, to borrow the words of Upendra Baxi (1987), the Indian Supreme Court started to emerge as ‘the last resort of the oppressed and bewildered’. In dealing with deprivation of socio-economic rights and bringing the DPSPs into the fold of the larger and justiciable Right to Life in article 21 following the emergency, there was thus a heightened phase of judicial activism in the Supreme Court in the seventies and eighties. This phase witnessed the emergence of public interest litigation (PIL) and a pro-active judicial strategy became the most distinguishing characteristic of judicial activism. The Supreme Court made the subtle shift from a neutralist adversarial judicial role to an inquisitorial, affirmative judicial role and the judicial process changed from an adversarial, bi-lateral process to a polycentric, conflict resolving process (Sathe, 2002).
In dealing with the huge number of PIL’s or rather social action litigation as Baxi (1987) prefers, for enforcement of social rights coming before the court, the Supreme Court also had to evolve new remedies for giving relief. The existing remedies which were intended to deal with private rights situations were simply inadequate, for the suffering of the disadvantaged in social and economic rights violation cases could not always be redressed through the traditional remedies of damages, injunctions, and writs of certiorari, mandamus, or prohibition. These new remedies were unorthodox and unconventional and were intended to initiate affirmative action on the part of the State and its authorities. I would like to use the case of Bandhua Mukti Morcha9 to illustrate the use of new remedies. In that case, the Supreme Court made an order giving various directions for identifying, releasing and rehabilitating bonded labourers, ensuring minimum wage payments, observance of labour laws, providing wholesome drinking water and setting up dust-sucking machines in the stone quarries.
The Supreme Court also set up a monitoring agency, which would continuously check the implementation of those directions. Some of these new and creative remedies have been taken forward by the Supreme Court in the 1990s to seek enforcement of some of the newer articulated social rights.
Judicial process is generally considered efficient in preventing encroachments on rights or liberties. But can it create new rights and enforce positive action in terms of allocation of resources? By looking at some of the most important constitutional social rights cases of the last ten years more closely, and viewing them in terms of the specific Right to Food, the Right to education, and the right to health below, we can see that social rights adjudication in India is indeed vibrant and dynamic. Social rights litigation in the Supreme Court has been radical, where the Court has recognised new rights and designed interesting new remedies for their enforcement, , and that they have been made enforceable despite them not being included as justiciable Fundamental rights in the constitution.
While the Indian Supreme Court has reiterated in several of its decisions that the Right to Life guaranteed in Article 21 of the constitution in its true meaning includes the basic right to food, clothing and shelter10, it is indeed surprising that the justiciability of the specific Right to Food as an integral right under Art 21 had never been articulated or enforced until 2001! 11 Prior to the big Right to Food petition filed by PUCL in 2001, the only other case concerning specifically the right to food, went up to the Supreme Court in 1986 was the case of Kishen Pattnayak vs State of Orissa. In this petition, the petitioner wrote a letter to the Supreme Court bringing to the court’s notice the extreme poverty of the people of Kalahandi in Orissa where hundreds were dying due to starvation and where several people were forced to sell their children. The letter prayed that the State Government should be directed to take immediate steps in order to ameliorate this miserable condition of the people of Kalahandi. This was the first case specifically taking up the issue of starvation and lack of food. In this judgement, the Supreme Court took a very pro-government approach and gave directions to take macro level measures to address the starvation problem such as implementing irrigation projects in the state so as to reduce the drought in the region, measures to ensure fair selling price of paddy and appointing of a Natural Calamities Committee. None of these measures actually directly affected the immediate needs of the petitioner – ie to prevent people from dying of hunger. More importantly, the Supreme Court did not recognise the specific Right to Food within this context of starvation.
Following the Kishen Pattnayak case in 1986, there were no other cases going up to the Supreme Court or the High Courts concerning the right to food, until 2001. It is not surprising that the next judgement concerning right to food and the right against starvation deaths again emerged from the State of Orissa, one of the poorest states in India. In 2001, there was a massive drought in several states in India especially Orissa, Rajasthan and Madhya Pradesh. Due to the drought, which had been going on for months and the extreme poverty and complete lack of access to food grains, people were starving in large numbers. While the poor were starving in the drought hit villages, the central government had excess food grains in its storehouses, which were not being disbursed and were rotting! The agitation in the country over lack of access to food grains in the drought hit states took rapid momentum after shocking incidents of people in some of the poorest districts of Orissa dying due to starvation. Despite these facts, the central government maintained that there were no incidents of starvation deaths !12
Slowly, the agitation over access to food became a full-fledged Right to Food campaign in the country. As part of this campaign, a public interest litigation was filed by the People’s Union for Civil Liberties (PUCL) in April 2001 in the Supreme Court for enforcement of the Right to Food of the thousands of families that were starving in the drought struck States of Orissa, Rajasthan, Chhatisgarh, Gujarat and Maharashtra, and where several had died due to starvation.13
The Right to Food petition asked three major questions:
1. Starvation deaths had become a national phenomenon while there was a surplus stock of food grains in government granaries. Does the right to life mean that people who are starving and who are too poor to buy food grains should be denied food grains free of cost by the State from the surplus stock of the State particularly when it is lying unused and rotting ?
2. Does not the right to life under Article 21 of the Constitution of India include the right to food ?
3. Does not the right to life which has been upheld by the apex Court imply that the State has a duty to provide food especially in situations of drought to people who are drought affected and are not in a position to purchase food ?
As relief measures, the petition demanded among other things, the immediate release of food stocks for drought relief, provision of work for every able-bodied person and the increase in quota of food grains under the Public Distribution Scheme (PDS) for every person. This was the very first time that a distinct right to food was being articulated as encompassed within Article 21 and was sought to be enforced in the Supreme Court.
This time the Supreme Court was much more receptive than it was in Kishen Pattnayak case to take immediate action for preventing hunger. The Supreme Court expressed serious concern about the increasing number of starvation deaths and food insecurity despite overflowing food in FCI storehouses across the country. The Bench comprising of Justices Kirpal and Balakrishnan, then even broadened the scope of the petition from the initially mentioned six drought affected States, to include all the Indian States and Union Territories.
In its several hearings, the Court directed all state governments to ensure that all Public Distribution Shops are kept open with regular supplies and stated that it is the prime responsibility of the government to prevent hunger and starvation. On 23 July, 2001, recognising the right to food, the court said:
‘In our opinion, what is of utmost importance is to see that food is provided to the aged, infirm, disabled, destitute women, destitute men who are in danger of starvation, pregnant and lactating women and destitute children, especially in cases where they or members of their family do not have sufficient funds to provide food for them. In case of famine, there may be shortage of food, but here the situation is that amongst plenty there is scarcity. Plenty of food is available, but distribution of the same amongst the very poor and the destitute is scarce and non-existent leading to mal-nourishment, starvation and other related problems.’14
The Supreme Court, thus recognised a distinct Right to Food under the constitution under Article 21 and also sought to broaden the scope of the right to not only encompass the right to be free from starvation, but to also include distribution and access to food and the right to be free from mal-nutrition, especially of women, children and the aged
The Court, in an unprecedented interim order on 28 November 200115, directed all the state governments and the Union of India to effectively enforce eight different centrally sponsored food schemes to the poor16. These food security Schemes were declared as entitlements (rights) of the poor, and the Court also laid down very specific time limits for the implementation of these schemes with the responsibility on the states to submit compliance affidavits to the court. These included the Antyodaya Anna Yojna, the National Old-Age Pension Scheme, the Integrated Child Development Services (ICDS) programme, the National Mid-day Meals Programme (NMMP), the Annapurna scheme and several employment schemes providing food for work. Of the eight schemes, the most significant was the Mid-day Meal Scheme and the direction of the Court to all state governments to provide cooked mid-day meals in all government schools by January 2002.
The Supreme Court directed the state governments to:
‘implement the Mid-Day Meal Scheme by providing every child in every Government and Government assisted primary schools with a prepared mid-day meal with a minimum content of 300 calories and 8-12 grams of protein each day of school for a minimum of 200 days. Those governments providing dry rations instead of cooked meals must within three months start providing cooked meals in all Govt. and Govt. aided primary schools in at least half the districts of the State (in order of poverty) and must within a further period of three months extend the provision of cooked meals to the remaining parts of the State.’17
In addition to the above Mid Day Meal Scheme, the Supreme Court also held that under the Targeted Public Distribution Scheme, the States should commence distribution of 25 kilograms. Grain per family per month (as opposed to the earlier limit of 20 kilograms. Grain per family per month), latest by 1 January 2002. All state governments were directed to take their ‘entire allotment of food grains from the Central Government under the various Schemes and disburse the same in accordance with the Schemes’. Further, the court required that ‘the Food for Work Program in the scarcity areas should also be implemented by the various States to the extent possible’.
Therefore, it is interesting to note that this time the Supreme Court did not merely direct the States to formulate appropriate schemes for as had been done earlier by the Court in several housing rights cases18, but it went several steps further in directing strict implementation of already formulated (and modified where considered necessary) Schemes within fixed time frames to make them entitlements and to ensure accountability. With a view to ensuring adequate food to the poorest of the poor, the Supreme Court in March 2002 asked all States and Union Territories to respond to an application seeking the framing of wage employment schemes such as the Sampoorna Gramin Rojgar Yojna (SGRY) ensuring the right to work to adults in rural areas. On 8 May 2002, the Supreme Court agreed on a system of monitoring and also added that the States are to provide a funds utilisation certificate before the money is released for their use.
The remedies used to enforce this newly recognised right to food were thus at the micro-level of implementing schemes such as the Mid-Day meal scheme and its monitoring and also at the macro-level.
Enforcement of the orders of the Supreme Court in the Right to Food petition has been very varied on the ground level. Not all States have not been implementing the orders due to various reasons. However, since the beginning of the 2002 academic year, primary schools in Rajasthan have been serving mid-day meals in compliance of the Supreme Court orders, and among States that did not already have a mid-day meal scheme; Rajasthan was the first to comply. Interestingly, the mid-day meal scheme is not merely providing nutrition to the school children. In a survey conducted it has been found that it has resulted in a sharp increase in the enrolment of girls (36%) and a reduction in gender bias in enrolment in schools. Daily attendances of children to the schools has also increased and this was attributed to the mid day meals.19
These orders of the Supreme Court bear great relevance for social rights jurisprudence – it shows once again that courts do have the authority to order positive action by the state which has financial / budgetary implications, such as the Supreme Court’s interim order requiring the state governments to provide cooked mid day meals to children within three months instead of uncooked meals etc. and that social rights can in fact be enforced concretely. Financial implications did not seem to affect the Court in making this order for enforcement of the right to food of the thousands of people starving in the drought struck states20.
While the Court has been guided entirely by national law, it could also have drawn on recent advances made in understanding the right to food at the global level. There is increasing recognition worldwide that food and nutrition is a human right and thus there is a legal obligation to assure that all people are adequately nourished.21
Ground level reports and surveys done for the implementation of the Supreme Court orders are not uniform. By no means is the implementation of all the schemes perfect in any way, and there remains a lot of scope for further improvement, but in states such as Rajasthan where the Right to Food campaign is very strongly asserted, these schemes have been internalised quite quickly by all concerned – school teachers, village administrations, state governments and the communities.
While the Petitioners in the Right to Food petition focussed on the 'starvation deaths', the Supreme Court enlarged the scope of the right to Food to include malnutrition, distribution and access to food and designed enforcement mechanisms and remedies to implement the right. However, the larger issues of food security were not addressed by the Court. Widespread hunger is a much larger issue in India and it is now getting impossible to de-link endemic hunger from these 'starvation deaths' (Sainath, 2001), and the scope of the right to food needs to bring the issue of hunger within its fold. While this needs to addressed, the PUCL petition and campaign is important as it shows how with the active intervention of the Supreme Court and supported by litigants such as the PUCL who presented empirical data and material to the Court, there is no reason why certain social rights such as the right to food cannot be subject to judicial determination.
The development of the right to education in India takes a completely different trajectory from the right to food discussed above.
As of 1991 there were 331 million children in India between the ages of 0-14. Of these 179 million are between the ages of 6-14 and 90 million of these children do not go to school. A large number of them are child workers, street children or child labourers (Roy, 1991). Obviously the state had failed in its ‘duty’ to provide free and compulsory education even in 50 years.
After the national emergency was imposed in the seventies, the Supreme Court went through a phase of heightened judicial activism. This judicial activism resulted in a number of decisions, which expanded the scope of fundamental rights interpretation in India dramatically, which included the right to education being declared as a fundamental right.
The journey of the Right to Education – from being initially enumerated in the Directive Principles to being declared a fundamental right - has been a huge struggle and a triumph, for activists, child rights advocates, educationists and NGO’s working on the Right to Education campaign all over the country. This journey however has been quite different from that of the other constitutional social rights, the main reason being that Article 45 of the Directive Principles gave a very different promise than the other provisions within the Constitution. Article 45 states:
Article 45: 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’.
Article 45 is the only article among all the articles in Part IV of the Indian Constitution, which speaks of a time limit within which this right should be made justiciable. No other article in Part IV does. Therefore, it was clear that when the constitution of India was adopted in 1950, the framers of the constitution were aware that for the realisation of a person’s capabilities and for full protection of her rights, education was an important tool. Thus, in addition to Article 45, the right to education has been referred in articles 41 and 4622 of the Directive Principles as well, with Article 41, very significantly stating that:
Article 41: 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.
The right to free primary education has now been declared as a fundamental right by the Indian Supreme Court. The theory of the complementary nature of rights declared in Part III and Part IV, and the harmonious interpretation of these rights has been the foundation for the realisation of primary education being declared a fundamental right today in India. Interestingly, the judgments which resulted in the Supreme Court declaring primary education as a fundamental right stemmed from petitions of students concerning higher professional education and the imposition of high fees by the college managements! The two crucial judgements of the Supreme Court which paved the way for the declaration of the right to education as a fundamental right and which gave full realisation to the interdependence argument of social and civil / political rights, have been discussed below.
Education as a necessary means of achieving socio political justice was largely ignored until the 1992 Supreme Court judgement in Mohini Jain vs State of Karnataka,23 otherwise known as the Capitation Fees case. This case was regarding the charging of capitation fees for professional colleges. The two-judge Bench of the Supreme Court, while declaring that the charging of capitation fees as illegal, categorically held that ‘the right to education flows directly from the right to life’ as ‘the right to life and the dignity of an individual cannot be assured unless it is accompanied by the right to education’, and ‘the Fundamental Rights guaranteed under Part III of the Constitution of India, including the right to freedom of speech and expression and other rights under Article 19, cannot be appreciated and fully enjoyed unless a citizen is educated and conscious of his individualistic dignity’.24
In looking at the interdependence of the rights guaranteed in part III and Part IV, the court held:
‘The directive principles which are fundamental in the governance of the country cannot be isolated from the fundamental rights guaranteed under Part III. These principles have to be read into the fundamental rights. Both are supplementary to each other ... Without making ‘right to education’ under Article 41 of the constitution a reality, the fundamental rights under chapter III shall remain out of reach of a large majority which is illiterate.’25
The Supreme Court, referred to the principles of the Universal Declaration of Human Rights 1948 and to Article 41 of the Constitution, which recognises an individual’s right to education. The Court held that ‘although a citizen cannot enforce the Directive Principles contained in Chapter IV of the Constitution, these were not intended to be mere pious declarations … and that the Directive Principles, which are fundamental in the governance of the country, cannot be isolated from the fundamental rights guaranteed under Part III’. These principles have to be read into the fundamental rights. The State is under a constitutional mandate to create conditions in which the fundamental rights guaranteed to the individuals under Part III, could be enjoyed by all. Without making the ‘right to education’ under Article 41 of the Constitution a reality, the fundamental rights under Chapter III remain beyond the reach of the large majority which is illiterate.’ The Court also relied upon all the Article 21 elaborations and expansion laid down in earlier judgements26 to uphold the right to education.
The zeal demonstrated in Mohini Jain continued in the later Constitution Bench decision in UnniKrishnan v State of AP and Ors27, where the Constitution Bench articulated that the fundamental right to education flows from Article 21. While declaring the right to education to be a fundamental right, it was held not to be an absolute right, and its content was defined by the parameters of Articles 45 and 41 of the Directive Principles. In other words, every child/citizen has a right to free education up to the age of fourteen years and thereafter the right would be subject to the limits of the economic capacity of the State. It was ruled that since more than four decades have elapsed; it was high time when the State must implement the Directive in Article 45. This was in the nature of waking up the State from hibernation so that it may be fully alive to its obligations under the Directives than an expansion of ‘Life’ or ‘Liberty’ in Article 21.
In Unnikrishnan28, the Court took the support of the right to education as laid down in the UDHR and Article 13 of the ICESCR and for the first time articulated it as a ‘social’ right. By holding the right to free primary education up to the age of 14 years, the Court was thus reminding the state of the endeavour it had to take under Article 45 within a prescribed time limit, which had expired long ago. This has been one of the first judgements where the courts have employed ICESCR language for progressive realisation of the right to higher education while declaring the fundamental right to free primary education.
Relying very heavily on the Keshavananda Bharati case29, Justice Jeevan Reddy uses the earlier approach for enforcement of directive principles in the UnniKrishnan30 case and the debate moves from justiciability of rights to enforcement of socio-economic rights. The court held:
‘Many of the articles, whether in Part III or Part IV, represent moral rights which they have recognised as inherent in every human being in this country. The task of protecting and realising these rights is imposed upon all the organs of the State, namely legislative, executive and judicial. What then is the importance to be attached to the fact that the provisions of Part III are enforceable in a court and the provisions in Part IV are not? Is it that the rights reflected in the provisions of Part III are somehow superior to the moral claims and aspirations reflected in the provisions of Part IV? I think not. Free and compulsory education under Article 45 is certainly as important as freedom of religion under Article 25. Freedom from starvation is as important as the right to life. Nor are the provisions in Part III absolute in the sense that the rights represented by them can always be given full implementation.’31
The argument that the Right to Life in Article 21 is merely negative in character was rejected by the Court. The question of insufficient resources was also very ingeniously dealt with by J. Jeevan Reddy. He states quite naturally that it is only Article 41 which speaks of economic capacity of the State, whereas Article 45 does not speak of the limits of its economic capacity as does Article 41 and therefore this hurdle would not stand as an obstacle in carving out a fundamental right to primary education from Article 21! Knowing that this would have grave budgetary implications, he goes on to hold that ‘we are not seeking to lay down the priorities for the Government – we are only emphasising the constitutional policy as disclosed by Articles 45, 46 and 41. Surely the wisdom of these constitutional provisions is beyond question.’32
The declarations of the right to education as a fundamental right, has been further upheld and confirmed by the 11 judge constitutional bench of the Supreme Court, while deciding on minority rights in TMA Pai Foundation v Union of India.33
As Baxi (2000) states, this self-effacing timorous or normalising form of activist discourse occurs when justices maintain that they are doing nothing outside their province, or doing nothing new, when everyone knows the situation to be quite frankly otherwise. This form of articulation is pragmatic as it avoids the ethical burden of justification for judicial activism and paves way for routine legitimation of judicial innovation. Thus, constructing a fundamental right to education from a long ignored Directive Principle is presented in Unnikrishnan34 as merely an example of the old idea that the Directive Principles furnish the technology of construction of Part III and now as a swayambhu (self manifesting) aspect of new judicial power (Baxi 2000).
The right to education stands on a very different footing in Indian social rights jurisprudence because of the very specific endeavour of the drafters of the Constitution to realise this right within a time frame of ten years. However, the interpretation given by the five-judge bench to the harmonious interpretation of social rights within the right to life, and with the strength of the DPSP, is truly radical. Following the judgments of the Supreme Court, in 1997 the then Indian government (United Front) had proposed the 83rd amendment to the constitution which sought to introduce a change to Article 21 of the Constitution to make the right to primary education for children upto the age of 14 a fundamental right. The Amendment was finally passed in 2002 and inserted in to the Constitution as Article 21A. Thus the ambit of the fundamental right to education in India includes only free primary education for all upto the age of 14 years. While this has been the scope of the right, the courts have used the petitions coming before it to intervene in matters of higher education, particularly the charging of high capitation fees for professional courses. However, although the Supreme Court made a glorious declaration of the right to education, it did not lay down any steps or measures of enforcement to make it a reality. This lack is obvious, as the right to education litigation in the Supreme Court has only been with regard to professional education and fees.
In addition to the constitutional amendment declaring the Right to Education as a fundamental right, several States in India have passed legislation making primary education compulsory.35 These statutes have however remained un-enforced due to various socio-economic and cultural factors as well as administrative and financial constraints. There is no central legislation making elementary education compulsory. The Central Government, which has placed responsibility of education on the State has, therefore, been advocating community involvement, decentralisation of planning and management of school education to Panchayat Raj Institutions, motivation of children to attend schools regularly, improvement of infrastructure and facilities in schools, development of locally relevant curricula, improvement in quality of text-books, teacher training, child-centred learning and adoption of minimum levels of learning. The Central Government has also initiated centrally sponsored schemes of Operation Blackboard, Non-Formal Education and establishment of District Institutes of Education and Training in 1987-88 and launched a National Programme of Nutritional Support to Primary Education in 1995-96 for provision of Mid-day Meals.
Therefore, the question of enforcement of this right is a significant part of the entire campaign to declare it as a fundamental right. With the Supreme Court declarations, and the recent constitutional amendment, the challenge on the ground level remains to be seen is whether the State machinery is put into work to enforce the right, and also to implement the state level legislations, which seek to provide free and compulsory primary education. In this case therefore, the issue would be of enforceability and not one of justiciability.
Compared to some of the other social rights, the Right to Health has been articulated and recognized as an integral part of the right to life only from the mid nineties by the Indian Supreme Court. In sharp contrast to the two rights discussed above, the recognition of the right to health has emerged out of a gamut of different petitions and public interest litigations in the Supreme Court, ranging from PILs concerning workers health hazards to petitions filed by individual seeking rights of emergency medical care and HIV issues and to PILs for banning smoking in public spaces! In all these judgments, the Supreme Court has carved out a Right to Health within Article 21. Thus the scope of the right has also been very broad encompassing several different aspects of health care and services.
With the recognition that both the Preamble of the Constitution and the fundamental right to life in Article 21 emphasise the value of human dignity, the Supreme Court began to address the importance of health as a fundamental right to Indian citizens. In the Directive Principles in Part IV of the constitution, Article 47 declares that the ‘[s]tate 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 …’. In addition to Article 47, the right to health also has its genesis in Articles 38 (social order to promote the welfare of the people), 39(e) (health of workers, men, women and children must be protected against abuse), 41(right to public assistance in certain cases, including sickness and disability), and 48A (the state’s duty to protect the environment) of the Directive Principles. In a series of cases dealing with the substantive content of the right to life the Court has found that the right to live with human dignity includes the right to good health.36
It was in 1995 in Consumer Education and Research Centre v. Union of India,37 that the Supreme Court for the first time explicitly held that ‘[t]he right to health . . . is an integral fact of [a] meaningful right to life.’ This case was concerning the occupational health hazards faced by workers in the asbestos industry. Reading Article 21 with the relevant directive principles guaranteed in articles 39 (e), 41 and 43, the Supreme Court held that the right to health and medical care is a fundamental right and it makes the life of the workman meaningful and purposeful with the dignity of person.
This recognition established a framework for addressing health concerns within the rubric of public interest litigation and in a series of subsequent cases, the Court held that it is the obligation of the state not only to provide emergency medical services but also to ensure the creation of conditions necessary for good health, including provisions for basic curative and preventive health services and the assurance of healthy living and working conditions.
Very significantly, while adjudicating on the social right to health, the Supreme Court has specifically considered the issue of availability of resources, and has rejected the argument that social rights are non-enforceable due to shortage of resources. This was discussed in the Paschim Banga Khet Mazdoor Samity case38, where the Court addressed the issue of adequacy and availability of emergency medical treatment. In this case, Hakim Sheikh, a member of the Paschim Banga Khet Mazdoor Samity, fell off a train and suffered serious head injuries. He was brought to a number of state hospitals, including both primary health centres and specialist clinics, for treatment of his injuries. Seven state hospitals were unable to provide emergency treatment for his injuries because of a lack of bed space and trauma and neurological services. He was finally taken to a private hospital where he received his treatment. Feeling aggrieved by the callous and insensitive attitude of the government hospitals in Calcutta in providing emergency treatment the petitioner filed this petition in the Supreme Court and sought compensation. The issue presented to the Court was whether the lack of adequate medical facilities for emergency treatment constituted a denial of the fundamental right to life under Article 21.
It was held that Article 21 of the Constitution casts an obligation on the state to take every measure to preserve life.39 The Court found that it is the primary duty of a welfare state to ensure that medical facilities are adequate and available to provide treatment and due to the violation of the right to life of the petitioner, compensation was awarded to him. In this case, the Supreme Court recognised that financial resources are needed for providing these facilities, but Justice S C Agarwal held:
‘… But at the same time it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. The Court recognised that substantial expenditure was needed to ensure that medical facilities were adequate. However, it held that a state could not avoid this constitutional obligation on account of financial constraints. Whatever is necessary for this purpose has to be done. In the context of the constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State to provide medical aid to preserve human life.’40
So, therefore, not only did Justice Agarwal reiterate that the state has to strive towards enforcement and guaranteeing of social rights irrespective of financial constraints, but also the important issue that the need for resources arises also in the matter of enforcement of civil/political rights.
The Court, in Paschim Banga41 also required the state to ensure that primary health centres are equipped to provide immediate stabilising treatment for serious injuries and emergencies. In addition, the Court ordered the state to increase the number of specialist and regional clinics around the country available to treat serious injuries, and to create a centralized communication system among state hospitals so that patients could be transported immediately to the facilities where space is available.
The courts have not only looked at the issue of emergency medical treatment as part of the right to health, but have also addressed the importance of providing preventive health services to the Indian population. In addition the courts have observed that a healthy body is the very foundation for all human activities and that measures should be taken to ensure that health is preserved. For example in Murli Deora v Union of India and Ors,42 which was a public interest litigation, the Supreme Court prohibited smoking in public places in the entire country on the grounds that smoking is injurious to health of passive smokers and issued directions to the Union of India, State Governments as well as the Union Territories to take effective steps to ensure prohibiting smoking in all public places such as auditoriums, hospital buildings, health institutions, educational institutions, libraries, courts, public offices and public conveyances, including railways. In another interesting PIL, the Supreme Court, taking into consideration the increasing pollution levels in New Delhi due to diesel emissions, and that such exposure to toxic air would violate to the right to life and health of the citizens, directed all private non-commercial vehicles to conform to Euro-II norms within a specified time period.43
The social right to health has been very well articulated with relation to persons suffering with HIV/AIDS, due to the large levels of discrimination faced by them. The denial of services vis-à-vis care and support represents one of the most immediate and pressing concerns of people living with HIV/AIDS.
The courts have protected people with HIV/AIDS against discrimination in employment and services, but the issue of the right to health of persons with HIV is a new and emerging area of adjudication. A recent Full Bench decision of the Andhra Pradesh High Court views AIDS as a public health issue and one that needs to be articulated in terms of the constitutional guarantee to the right to life, making employers and health providers accountable for any negligence, omission or failure to conform to procedure. In M Vijaya vs Chairman, Singareni Collieries Hyderabad,44 Vijaya, whose husband was an employee of the company for the past 17 years, underwent a hysterectomy at the company's hospital in January 1998, for which her brother donated blood. Fifteen days later, she fell sick and was advised further tests, which revealed that she was HIV positive. Her husband tested negative, while her brother tested positive. In its counter affidavit, the hospital not only disclosed facts about the widespread prevalence of HIV/AIDS in the collieries but also admitted that it had not tested the blood of the donor before accepting it. This, the court said, was negligence on the part of doctors and could not be condoned. The Court awarded compensation as a public law remedy in addition to and apart from the private law remedy for tortuous damages. The court directed Singareni Collieries to pay Rs One Lakh towards medical costs, in addition to the special or general claims for damages that the petitioner might make.
6.3. Some Thoughts on the Right to Health Adjudication and its Scope
In trying to unpack a constitutional right to health, what would the core elements be? At a minimum would be the government’s responsibility to include relief for the poor confronting health challenges and without the resources to overcome them. It would also include as the courts have stated in the cases above, an effective public health care system providing HIV treatment, access to basic primary health care, hospitals etc. A constitutionally recognised right to health can only be fulfilled through rational planning, which in turn is dependant on accurate and regular information gathering and timely statistics on health needs from the government, which are often unavailable. This may lead to the charges that the right to health is no more than a rhetorical one. However, jurisprudence reveals that courts and lawyers are not completely incapable of working with and pronouncing on the social right to health.
The movement of judicial view from the early discussions on health to the late nineties clearly shows that the right to health and access to medical treatment has become part of Article 21. A corollary of this development is that while so long the negative language of Article 21 was supposed to impose upon the State only the negative duty not to interfere with the life or liberty of an individual without the sanction of law, judges have now imposed a positive obligation upon the State to take steps for ensuring to the individual a better enjoyment of his life and dignity. In Paschim Banga45, the state has been placed, despite financial constraints, under an obligation to provide better-equipped hospitals with modernised medical technological facilities. The substantive recognition of the right to health as essential to living with human dignity has thus allowed the judiciary to directly address human suffering by guaranteeing the social entitlements and conditions necessary for good health.
The above narrative suggests a potential role for a creative and sensitive judiciary to enforce constitutional social rights. The analysis of the litigations reaching the Supreme Court as described above, have given rise to the Court articulating and recognising the specific rights to food, education and health. This has been largely due to the kind of petitions brought before the court, the campaigns behind these petitions and the arguments of constitutional social rights that were raised. These judgments show that the Supreme Court has refashioned its institutional role to readily enforce social rights and even impose positive obligations on the State. There has been some concern about the legitimacy and accountability of such overt judicial activism but the Court, however, continues to justify its interventions by asserting that it is temporarily filling the void created by the lack of strong executive and legislature branches. More importantly I believe, the recent Indian response opens up new avenues of exploration for the practical application and implementation of social human rights in the developing world.
First, it shows that constitutional and human rights interpretation is a dynamic process that involves the creativity and commitment of individuals to the underlying values of society. The Indian experiment also vividly demonstrates that language can be given widely different meanings depending on the goal to be reached. It proves as Shah (1999) argues that ‘the Constitution is what we say it is.’ In addition, the Supreme Court has shown that judges have the enormous potential to effect change in society when they so desire. Therefore, despite being non-justiciable in the Constitution, the social rights in the Directive Principles have nevertheless been made enforceable and have been treated as justiciable by the Supreme Court. However, as we see in the above discussion, the implementation of judicial orders still remains a big issue. In the Right to Food petition, for example, except a few States such as Rajasthan, Karnataka and Madhya Pradesh, the implementation of the mid-day meal scheme was not effected in the other states, and therefore a Monitoring system had to be out in place by the Supreme Court.
Therefore the last decade, along with some insensitive court orders and non-implementation of social rights legislation, has also seen some very innovative directions given by the Supreme Court and creative monitoring and ground level implementation of remedies. We can see that a positive response has been received more often in situations where public interest litigations were backed by strong civil society movements and campaigns at the ground level, to push the slow and lethargic administration of the state into action.
For many who subscribe to the ‘generational approach to human rights protection – that civil and political rights are on a higher rung than the social, economic and cultural rights by virtue of being enforceable, if the above mentioned examples of the Indian experience are any indication, their enforceability is clearly fundamental. In several cases the Supreme Court has rejected the notion of non-enforceability of social rights. There is no reason therefore, why social rights such as the right to food, health, education, housing, livelihood and others cannot be made subject to judicial determination. The Indian experiment proves that societies can indeed choose to make social rights justiciable and develop appropriate methods for their implementation and enforcement.
1 Mahavir Tyagi from the United Provinces, during the Constituent Assembly Debates said, ‘… the directive principles accommodate all the revolutionary slogans in a particular form as it is social and economic justice that is demanded by the most radical of the radicals of the world.’ Constituent Assembly Debates Official Report 1999) 19th Nov. 1948, Vol. No. VII, Book No.2 (New Delhi Lok Sabha Secretariat New Delhi).
2 Constituent Assembly Debates (n 8) 495.
3 ICESCR Article 2.1states: ‘Each State Party to the present covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technically to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognized in the present covenant by all appropriate means, including particularly the adoption of legislative measures.’
4 Kesavananda Bharati v State of Kerala (1973) 4 SCC 225.
5 Unnikrishnan J P v State of A P, AIR 1993 SC 2178.
6 Article 21: No person shall be deprived of his life or personal liberty except according to procedure established by law.
7 Maneka Gandhi v Union of India, AIR 1978 SC 597.
8 Francis Coralie Mullin v Union Territory of Delhi 1981(1) SCC 608.
9 Bandhua Mukti Morcha v Union of India AIR 1984 SC 802.
10 Chameli Singh v State of UP 1996 (2) SCC 549, Paschim Banga Khet Mazdoor Samity and Ors., vs. State of West Bengal., 1996(4) SCC 37, Francis Coralie Mullin (supra note 8).
11 The case of starvation deaths due to poverty in two of the poorest villages of Orissa was brought to the Supreme Court in a PIL In 1989, but the petition did not articulate a violation of the right to food on the part of the State. The Supreme Court in that judgement noted that on evidence, ‘starvation deaths could not be ruled out’, but failed to recognise that the right to food, an integral part of the right to life was being violated. In this case the court reviewed governmental plans and responses to poverty and starvation in that area and merely ordered increased participation of community members on the Natural Calamities Committee to oversee working of all social welfare measures designed to alleviate poverty. Kishen Patnaik and Anr v State of Orissa, AIR 1989 SC 677.
12 UNI ‘No Starvation Deaths: Minister’ The Hindu (Bangalore India 3 August 2001).
13 Peoples Union for Civil Liberties (PUCL) v. Union of India & Ors. W.P. (Civil) No. 196 / 2001
14 Hearing dates July 23rd, 2001 (unreported) People’s Union for Civil Liberties, supra, note 8.
15 Unreported Interim Order dated 28th Nov. 2001 in People’s Union for Civil Liberties, supra note 8.
16 These schemes included food distribution schemes and schemes guaranteeing income support in order to gain access to food such as the National Old Age Pension Scheme, the National Maternity Benefit Scheme and the National Family Benefit Scheme.
17 Interim Order dated 28 November 2001 in People’s Union for Civil Liberties, supra note 8.
18 Olga Tellis v Bombay Municipal Corporation, AIR 1986 SC 180. Ahmedabad Municipal Corporation v Nawab Khan Gulab Khan AIR (1997) 11 SCC 121
19 Khera R (2002) ‘Mid Day Meals in Rajasthan’, The Hindu 13 November 2002.
20 This order was of course prompted by activists, NGO’s academics and lawyers working hard to collect data, material and the facts to put forward the real picture before the Court.
21 Kent, G (2002) ‘The Human Right to Food in India’ University of Hawaii, Available at: http://www.earthwindow.com/grc2/foodrights/. The right to food and nutrition is guaranteed in the international provisions stated in the ICESCR. The ICESCR in Article 11.1provides that the right to adequate food is part of the right of every person to an adequate standard of living, and also Article 11.2, which recognises the fundamental right of everyone to be free from hunger and state responsibilities in doing so.
22 Article 46: The State shall promote with special care, the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
23 Mohini Jain v. State of Karnataka AIR 1992 SC 1858.
26 Francis Coralie, supra note 8, Bandhua Mukti Morcha (supra note 9)
27 UnniKrishnanI, supra note 5.
29 Kesavananda Bharati, supra note 4.
30 UnniKrishnan, supra, note 5.
33 AIR 1996 SC 2652.
34 Unnikrishnan, supra note 5.
35 They are: Assam, Andhra Pradesh, Bihar, Goa, Gujarat, Haryana, Jammu & Kashmir, Karnataka, Madhya Pradesh, Maharashtra, Punjab, Rajasthan, Tamil Nadu, Kerala and West Bengal. UTs: Chandigarh, Delhi, Pondicherry and Andaman & Nicobar Islands.
36 Vincent Parikulangara v. Union Of India 1987 (2) SCC 165, Paschim Banga Khet Mazdoor Samity and Others v. State of West Bengal (note x), Murli Deora v. Union of India & Ors.(2001)8 SCC 765, Consumer Education and Research Centre v. Union of India (1995)3 SCC 42, M.C. Mehta v. Union of India and Ors., (1999)6 SCC 9, ‘X’ v. Hospital ‘Z’ (2003) 1 SCC 500, Parmanand Katra v. Union of India,(1989)4 SCC 286.
37 (1995)3 SCC 42.
38 Paschim Banga Khet Mazdoor Samity, supra note 10.
39 This was held following a previous case concerning emergency medical treatment in Parmanand Katra v Union of India, supra note 36. The case concerned the availability of emergency medical treatment for a seriously injured man at a local hospital. The hospital doctors refused to provide the man with emergency aid and sent him to another hospital 20 km away. The injured man died en route to the other hospital. The Court required the state to remove legal impediments imposed on doctors and hospitals for providing emergency medical aid.
40 Paschim Banga Khet Mazdoor Samity, supra note 10.
42 Murli Deora, supra note 36.
43 M C Mehta, supra note 36.
44 2001(5) ALD 522 (LB).
45 Paschim Banga Khet Mazdoor Samity, supra note 10.
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