ESC Rights: Budding Trends in Constitutional Regimes of South Africa, India and Bangladesh

Focus Keywords: Justiciability of Economic Social and Cultural Rights

The economic, social and cultural (ESC) rights remain much more debatable as to whether they should be contained in constitutions. According to conventional perception, ESC rights are meaningless in a constitution because they are generally unenforceable by courts. The Constituent Assembly of Bangladesh faced a serious debate while it was drafting the Constitution. Suranjit Sengupta, the lone opposition member in the Assembly, did not support the inclusion of ESC rights in the Constitution (Constituent Assembly Debates 1972, Part II). The Constituent Assembly of Bangladesh ultimately included ESC rights in the Constitution considering their ‘progressive realization’ contingent upon the availability of state resources. In this regard, the Appellate Division of the Supreme Court of Bangladesh stated in the landmark case Kudrat-E-Elahi Panir & Ors vs. Bangladesh & Ors[1] that:

“They (ESC rights) are in the nature of people’s program for socio-economic development of the country in peaceful manner, not overnight but gradually. Implementation of these programs requires resources, technical know-how and many other things including mass education. Whether all the prerequisites for a peaceful socio-economic revolution exist is for the state to decide.’’

The concept of ‘progressive realization’ of ESC rights has been disregarded by modern constitutional practices in many parts of the world. The South African constitutional courts’ practice can be a suitable example in this respect. South African constitutional regime permits individuals to go to the courts solely on the grounds that their economic, social and cultural rights have been violated. The ‘Bill of Rights’ in the South African Constitution has considered the civil and political (CP) rights and ESC rights on an equal footing and made both categories of rights judicially enforceable. Accordingly, its constitutional courts enforced ESC rights rejecting the state’s argument of resource constraints in landmark cases: Government of the Republic of South Africa & Ors vs. Grootboom & Ors[2], Minister of Health & Ors vs. Treatment Action Campaign (TAC) & Ors[3] and Khosa & Ors vs. Minister of Social Development & Ors.[4]

Interestingly, the states that support ‘progressive realization’ concept are now enforcing ESC rights through ‘progressive interpretation’ of ‘right to life’. For example, the Appellate Division (AD) of Supreme Court of Bangladesh in the landmark decision Dr. Mohiuddin Farooque vs. Bangladesh (FAP 20 case/ Locus Standi case[5], found that the ‘right to healthy environment’ is included in ‘right to life’ – a fundamental right ensured under Articles 31 and 32 of the Constitution. The Hight Court Division (HCD) of Supreme Court of Bangladesh enforced ‘right to shelter and housing’ in Ain o Shalish Kendra vs. Bangladesh[6] (Slum case) and ‘right to health and medical care’ in Advocate Zulhasuddin vs. Bangladesh[7] by making a ‘progressive interpretation’ of ‘right to life’.

On the other hand, the Indian courts expanding the ambit of ‘right to life’ – a fundamental right ensured under Article 21 of the Indian Constitution, enforced ‘right to protection of health’ in Bandhua Mukti Morcha vs. Union of India & Ors[8]; ‘right to livelihood’ in Olga Tellis & Ors vs. Bombay Municipal Corporation & Ors[9]; ‘right to food’ in People’s Union for Civil Liberties (PUCL) vs. Union of India & Anr[10]; ‘right to education’ (now recognised as a fundamental right under Article 21A of the Indian Constitution) in Mohini Jain vs. State of Karnataka & Ors[11]; ‘right to health and medical care’ in Consumer Education & Research Center vs. Union of India & Ors[12]; and ‘right to shelter and a reasonable accommodation to live’ in Shantistar Builders vs. Narayan Kimalal Totame & Ors[13].

However, another unique trend evolved by the CEDAW Committee in the landmark case Alyne Da Silva Pimental vs. Brazil[14] is that some of ESC rights are immediately enforceable without any delay and they are not subject to the qualification of ‘progressive realization’. For example, obligations in terms of health care, basic shelter and housing for evicted homeless people are obligations of immediate effect though they relate to ESC rights.

It is a common misunderstanding that ESC rights are strictly ‘positive rights’ requiring the state to undertake positive actions considering the availability of resources and resource constraints is a good plea for the state in terms of non-fulfilment of ESC rights.

It is now established that ESC rights also have ‘negative dimensions’, for example, a state cannot arbitrarily deprive a particular community of access to health care, housing, basic shelter, basic education and so on and also it cannot take measures to evict people from a particular place without providing them with adequate basic shelter or housing. The South African Grootboom case is a good example where the court established negative dimension of a socio-economic right holding that the state cannot take measures that would deprive the evicted desperate people of ‘right to adequate housing’. In the Indian Olga Tellis[15] case, the court found that the state cannot evict the pavement dwellers without providing them alternative housing options. In the Bangladeshi landmark cases Modhumala vs. Director, House Building Research Institute & Ors[16], Ain o Salish Kendra (ASK) Ors vs. Government of Bangladesh & Ors[17], Kalam & Ors vs. Bangladesh & Ors[18] and Aleya Begum vs. Bangladesh[19], the courts also held same view saying that the wholesale eviction of slum dwellers without prior notice and alternative accommodation is violative of the right to livelihood and consequently the ‘right to life’.

However, ESC rights include both positive and negative dimensions and more recently, the Supreme Court of Bangladesh in the case Major General K.M. Shafiullah & Anr vs. Bangladesh[20] established this directing the government to adopt measures for protecting all places of historical importance (positive dimension) and also to refrain from disfiguring them by development activities (negative dimension).

It is noteworthy, the CP rights are not strictly ‘negative rights’ and they have ‘positive dimensions’ as well. For example, ‘right to fair trial’, though it is a civil right, requires ‘positive actions’ on the part of state authorities to establish a functioning court system by appointing skilled and scrupulous judges and prosecutors. In Brown vs. Broad of Education of Topeka[21], the US court considering the positive dimension of ‘right to equal protection’, a negative right, required positive actions on the respondent to fulfil the equal protection clause.

The Universal Declaration of Human Rights (UDHR), 1948 did not make any distinction between CP rights and ESC rights. However, owing to political circumstances relating to the Cold War, human rights diverged into two different categories – civil and political (CP) rights on the one hand, and economic, social, and cultural (ESC) rights on the other.

The evolving trends in international human rights affirm that all rights are universal, indivisible and interdependent and interrelated, and of equal status and one cannot be meaningfully enjoyed without full realization of the other. The Vienna Declaration of 1993 affirmed that “all human rights are universal, indivisible and interdependent and interrelated.”

The Optional Protocol (OP) to the International Covenant on Economic, Social and Cultural Rights (ICESCR) that came into force on 5^th May, 2013 also affirms the equality, interdependence, and indivisibility of all human rights. It is an important tool to strengthen access to justice globally in relation to ESC rights. It recognises an international complaints mechanism that allows individuals to claim before the UN Committee on ESCR (CESCR) that their rights under the International Covenant on Economic, Social and Cultural Rights (ICESCR) have been violated, provided such individuals have exhausted all remedies available at domestic level. However, the OP corrected the historical imbalance between CP and ESC rights.

The historical imbalance between CP and ESC rights was also corrected by Indian Supreme Court in many decisions. In Maneka Gandhi vs. Union of India[22], the Indian Supreme Court recognised the harmony and balance between CP and ESC rights. In Minerva Mills Ltd. & Ors vs. Union of India & Ors[23], the court decided that harmony and balance between fundamental rights and directive principles is a basic structure of the Constitution and therefore, any amendment of Constitution impairing this basic structure is not allowed.

Concluding Remarks :

Nationally and internationally, the traditional distinction between CP and ESC rights is diminishing. Many states like South Korea, South Africa, Thailand, Indonesia, Afghanistan, Argentina, Brazil, Bolivia, Ecuador, Cuba, Uganda, and Ethiopia have enshrined legally enforceable ESC rights in their constitutions under the heading of ‘Fundamental Rights’. Although other states, notably India, Ireland, Bangladesh, Pakistan, Myanmar etc., have listed ESC rights in their constitutions as directive or fundamental principles of state policy, courts and regional bodies there have routinely adjudicated upon ESC rights claims, proving these rights judicially enforceable. States that are parties to the International Covenant on Economic, Social and Cultural rights (ICESCR) and its Optional Protocol are obliged to take deliberate, concrete and targeted steps towards the full realization of ESC rights and also have ‘a minimum core obligation’, regardless of their available resources, to ensure the satisfaction of minimum subsistence rights (such as essential foodstuffs, essential primary health care, basic shelter and housing, basic education etc.) for all.

Footnotes:

[1]. 44 DLR (AD) 319.

[2]. [2000] ZACC 19.

[3]. [2002] ZACC 15.

[4]. [2004] ZACC 11.

[5]. (1997) 49 DLR (AD) 1.

[6]. (1999) 19 BLD (HCD) 488.

[7]. (2010) BLD 1.

[8]. 1984 AIR 802.

[9]. 1986 AIR 180.

[10].1997 AIR SC 568.

[11].1992 AIR 1858.

[12]. 1995 AIR 922.

[13]. AIR 1990 SC 630.

[14]. UN Doc. CEDAW/C/49/D/17/2008.

[15]. Olga Tellis & Ors vs. Bombay Municipal Corporation & Ors 1986 AIR 180.

[16]. (2001) 53 DLR 540.

[17]. (1999) 19 BLD (HCD) 488.

[18]. (2001) 21 BLD (HCD) 446.

[19]. (2001) 53 DLR (HCD) 63.

[20]. (1997) 49 DLR (AD).

[21]. 347 US 483 (1954).

[22]. (1978) AIR 597.

[23]. (1980) AIR SC 1789.