8 Justiciability of Economic, Social and Cultural Rights in India

Dr. Y S R Murthy

Introduction

The enforcement of economic, social and cultural rights (ESCRs) in India has changed significantly over the years. The Constituent Assembly, which drafted the Constitution of India (1950), separated these rights, for the most part, from civil and political rights. ESCRs were not placed in Part III (“Fundamental Rights”) but in Part IV (“Directive Principles of State Policy”). As a result, ESCRs were not originally enforceable in courts. However, beginning in the 1980s, the Indian Supreme Court issued a series of judgments in which it interpreted Article 21 (the right to life and personal liberty) not only to protect against the arbitrary taking of life but also to encompass a broader right to “live with dignity.” This brought various Directive Principles of State Policy within the ambit of Article 21 and made them enforceable in court.

This chapter will introduce students to the Constituent Assembly debates and Constitutional provisions that address ESCRs. It will also survey Indian Supreme Court case law ESCRs, noting how the rise of public interest litigation (PIL) in the 1980s and 90s changed how these rights are interpreted and enforced under the Constitution.

Learning Outcomes:

After completing this chapter, students should know and understand:

• The Constituent Assembly debates and constitutional provisions on the economic, social and cultural rights.
• The original judicial approach to ESCRs.
• The advent of public interest litigation and the shift in ESCR interpretation and enforcement.

I. Economic, Social and Cultural Rights in the Constitution of India

India gained independence from the British in 1947 and adopted its republican Constitution in 1950 after more than two years of debate within its Constituent Assembly.1 Given the poverty and high degree of inequality in India, social and economic justice was a priority in the drafting of the Constitution. As Granville Austin has noted, the Indian Constitution is “first and foremost a social document,” as many of its provisions are “directly aimed at furthering the goals of the social revolution.” Yet, the question of whether to include socio-economic rights in the Constitution was a matter of debate within the Constituent Assembly. Some members favored including socioeconomic provisions as justiciable rights – that is, rights that can be enforced in court. K.M. Munshi drafted the “Rights of Workers” and “Social Rights,” which included the right to a living wage and protections for women and children. Dr. B.R. Ambedkar, the Chairman of the Drafting Committee, favored a social scheme to nationalize all major industries that would take effect ten years after the Constitution was adopted.

In the end, the members of the Constituent Assembly took a middle path. Following the Irish model, they did not include justiciable socioeconomic rights in the Constitution but instead set forth a detailed list of Directive Principles of State Policy (DPSPs). These are non-binding guidelines intended to guide elected representatives towards improving socioeconomic conditions. DPSPs are explicitly non-justiciable. Article 37 of the Constitution states that they “shall not be enforceable by any court.” One of the reasons directive principles are non-justiciable is that they represent aspirational long-term goals of the state that are not suited for judicial review. For example, Article 38 (2) declares, “The State shall, in particular, strive to minimise the inequalities in income,” while Article 39 (1) requires the state “to direct its policy towards securing…that the citizens, men, and women equally, have the right to an adequate means of livelihood.”

Part III of the Constitution, entitled “Fundamental Rights,” includes, inter alia, the rights to life, liberty, and equality that courts may enforce under Articles 32 and 226. DPSPs were placed in Part IV and, as discussed above, were made explicitly non-justiciable. DPSPs are non-justiciable because they represent aspirational long-term goals of the state to be progressively realized. The Constitution sought to give elected representatives the flexibility to pursue these goals gradually and in light of resource constraints, without having the courts interfering in their enforcement.

Some ESCRs, however, are found in both Parts III and Part IV of the Indian Constitution. Take, for example, the right to education. Article 45, which is a DPSP, provides, “The State shall endeavor 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.” Two fundamental rights in Part III also pertain to education. Article 29 states that no citizen may be denied admission into a state-run or state-funded educational institute on the grounds of religion, race, caste or language. Article 30 grants all minorities the right to establish and administer their own educational institutions whether based on religion or language. Article 30 can also be viewed as a cultural right, as it grants minority groups the right to establish and administer their own educational institutions so that they may preserve their cultural heritage. Cultural rights provisions can also be found in Part IV of the Constitution. For instance, Article 43 requires the state to ensure that all workers are able to fully enjoy social and cultural opportunities and Article 51A(f) obligates all citizens of India to value and preserve the composite culture and heritage of the nation. Thus, it would be an oversimplification to claim that all ESCRs were originally non-justiciable – some aspects of these rights are protected in Part III of the Constitution and can therefore be protected in Court.

II. Original Approach to Enforcing Economic, Social and Cultural Rights

Indian citizens may file writ petitions before the Supreme Court to obtain redress for violations of their fundamental rights in Part III of the Constitution. Article 32 empowers the Indian Supreme Court to grant a range of remedies. It provides that the Court may issue “directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari” as it deems appropriate in a given case. Article 32 also states that citizens may move the Supreme Court for the enforcement of a right through “appropriate proceedings.” This grants the Court some discretion to determine the procedure through which citizens may bring petitions alleging fundamental rights violations.

In the Court’s early jurisprudence, the phrase “appropriate proceedings” was construed narrowly to permit only those individuals whose rights had been directly infringed to bring suit. For instance, in Charanjit Lal v. Union of India (1951), the Court held that a shareholder of a company did not have standing under Article 32 to petition the Court to enforce a corporation’s right to hold and dispose of property under Article 19(1)(f) of the Constitution. The Court noted that a corporation and its shareholders are separate entities and that therefore only the corporation could properly bring this claim.

Similarly, in G.C. College Silchar v. Gauhati University (1973), petitioners challenged a resolution by a Gauhati University’s Academic Council to retain English and introduce the native language (Assamese) as the languages of instruction. The petitioners claimed that this resolution violated their rights under Articles 29 and 30 (allowing minorities to enroll in any educational institution of their choice and preventing the state from discriminating against minorities in academic admissions, respectively) of the Constitution. Prior to this Resolution, the university had used Bengali alongside English to help students understand the content of English-language lectures. However, even though one petitioner was a Bengali-speaking student, the Court found that “the impugned resolution does not presently affect the petitioners.” Thus, it held that the petitioners lacked standing to file this petition. The result of these early cases was limit standing (or locus standi) under Article 32 to petitioners directly harmed by a disputed law. Only these individuals were permitted to petition the Court to redress violations of the fundamental rights enshrined in Part III of the Constitution.

In the early years of the Indian republic, Article 21 (the right to life and personal liberty) was also construed narrowly. Drawing from U.S. Supreme Court justice Felix Frankfurter and the British tradition of judicial restraint, Article 21 was carefully drafted to exclude any mention of “due process” in favor of the phrase “procedure established by law”. This sought to avoid the “substantive due process” doctrine that emerged in the U.S., and permitted the government to deprive citizens of life or liberty as long as it acted pursuant to a duly enacted law. Thus, Article 21 was originally limited to infringements of life and personal liberty that had no legal basis to prevent the courts from inquiring into the substantive fairness of the law itself.

III. Public Interest Litigation and the Expansion of Article 218

In the early 1980s, the judiciary became much more accessible to the public, as the courts began to accept cases that concerned the rights of large swathes of the Indian population. In this period, the Supreme Court introduced important procedural and substantive innovations that greatly expanded its own jurisdiction and allowed ESCRs found in Part IV of the Constitution to be enforced in court.

The procedural innovations in this period created a new form of litigation commonly referred to as “public interest litigation” (PIL). The Court’s most significant innovation was to relax standing requirements under Article 32. Moving away from the traditional view of standing – where petitioners had to show direct harm by an impugned law – the Court began to recognize standing for any member of the public who moved the court for relief on behalf of any “person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief.”

The chief architect of this procedural revolution was Justice P.N. Bhagwati – one of the justices who joined the Court’s timorous majority opinion in the Habeas Corpus case. In a 1984 speech delivered at Columbia Law School, Justice Bhagwati set out his views on standing, making the case that procedural formalism inherited from Anglo-American jurisprudence did not suit the Indian context.11 He said, “[T]he main obstacle which deprived the poor and disadvantaged of effective access to justice was the traditional rule of standing…it effectively barred the doors of the Court…to large masses of people.” In response to criticism of the Court’s “judicial activism,” Justice Bhagwati argued that it was very much the province of the judiciary to develop new remedies to tackle difficult social problems. In his words, “unorthodox and unconventional remedies” were needed to “initiative affirmative action on the part of the state” to “ensure distributive justice to the deprived sections of the community.”

The case of Bandhua Mukti Morcha v. Union of India nicely illustrates the Court’s willingness to experiment with new remedies. A three-judge Supreme Court bench, led by Justice Bhagwati, initiated at PIL in response to a letter they received from an NGO urging the Court to end the practice of bonded labor. Instead of simply issuing a judgment declaring bonded labor unconstitutional, the Court adopted a doctrine known as “continuing mandamus,” which permitted it to postpone its final judgment so that it may periodically issue guidelines and interim orders to ensure that the government complies with the relevant constitutional provisions. The Court also appointed two advocates and a doctor as “special commissioners” to investigate the living and working conditions of bonded laborers and report their findings to the Court. In sum, the Court in this case not only relaxed its standing requirements to allow an NGO to file a writ petition on behalf of bonded laborers but also expanded the scope of its authority to conduct its own fact-finding and to keep the litigation open so as to monitor compliance with its orders.

In addition to these procedural innovations, the Supreme Court instituted an important substantive change in the law. It began to enforce the Directive Principles of State Policy (DPSPs) by reading them into the fundamental right to life enshrined in Article 21 of the Indian Constitution. Recall that Article 37 explicitly states that DPSPs “shall not be enforceable by any court.” However, the Court led by Justice Bhagwati once again, sidestepped Article 37 in the larger cause of promoting greater human dignity and distributive justice. In Francis Coralie Mullin v. Union Territory of Delhi (1981), the Supreme Court was asked to rule on a narrow question: whether a detainee held in preventative detention had the right to meet with his lawyer and family. However, Justice Bhagwati took this as an opportunity to substantially enlarge the ambit of Article 21, which provides that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Writing for the Court, Justice Bhagwati declared that this right to life and personal liberty protects a broader right to “live with human dignity.” He went on to state, “Article 21 cannot be restricted to mere animal existence.” Rather, “it must…include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self.” The Court has since built on this judgment to enforce a number of new socio-economic rights within the “right to live with human dignity.” These include the rights to education, food, healthcare, shelter, and a decent livelihood.

Overall, the Court enjoys greater scope for judicial review following these developments for at least three reasons. First, by easing its standing requirements, the Court has become more accessible to the Indian public. NGOs and other concerned citizens now regularly petition the Court for redress of fundamental rights violations on behalf of large affected communities. Second, through a broad reading of the right to life under Article 21, the Court now recognizes and enforces a range of socioeconomic rights that were originally thought to be non-justiciable. Third, by keeping cases open and inventing novel remedies in cases dealing with socioeconomic justice, the Court now actively monitors government compliance with its orders. All told, the Indian Supreme Court is a significant policy making institution today.

Summary

India has come a long way with respect to the enforcement of economic, social and cultural rights (ESCRs). In 1950, when the Constitution was adopted after more than two years of debate, ESCRs placed in Part IV of the Constitution as Directive Principles of State Policy (DPSPs). They were separated from the fundamental rights contained in Part III of the Constitution, which included mostly civil and political rights with a few notable exceptions (e.g., Articles 29 and 30).

While fundamental rights were made to be justiciable under Article 32, Article 37 of the Constitution explicitly prohibited judicial enforcement of DPSPs. Moreover, Article 32, which allows the Supreme Court to grant various writs to enforce fundamental rights through “appropriate proceedings,” was read narrowly in the early years of the Indian republic. The Court interpreted this phrase to permit only those petitioners who had been directly affected by an impugned law to have standing (locus standi) to file writ petitions. Article 21 (the right to life and liberty) was also read narrowly, as the Constituent Assembly had intended, to apply only to violations that had no basis in law; courts could not adjudicate on the substantive fairness of existing laws.

In the 1980s, the Supreme Court’s interpretation of both these provisions would change substantially. It relaxed its standing requirements to allow any member of the public to move the court for relief on behalf of disadvantaged persons who could not file petitions themselves. The Court also took on a greater role in fact-finding, by appointing special commissioners in some cases, and in monitoring government compliance with its orders. It adopted a procedural innovation known as “continuing mandamus,” which permitted it to postpone its final judgment so that it could periodically issue guidelines and interim orders.

The Court also broadened the scope of Article 21 to protect the “right to live with dignity.” This brought various DPSPs within the ambit of Article 21, including the rights to food, education, shelter, and a decent livelihood. The result of all these changes is that the Indian judiciary, particularly the Supreme Court, has vastly increased its power and jurisdiction. Today, it is not just a significant legal institution, but an important policy making institution as well.

Reference

1. The Indian Constitution: Cornerstone of a Nation (New Delhi, Oxford University Press, 1996.