7 Theories of Enforcement for Economic, Social and Cultural Rights

Prof. Rehan Abeyratne

Introduction

At the domestic level, the justiciability of economic, social and cultural rights (ESCRs) is a contested topic. Traditionally, ESCRs were seen to be nonjusticiable policy objectives – a view that is reflected in the constitutions of several countries, including Part IV of the Indian Constitution. This view holds that civil and political rights are more easily enforced in court because they are more clearly defined, and courts can provide straightforward remedies. ESCRs, by contrast, is difficult to define and involve complex questions of resource allocation that are beyond the province of the judiciary.

This chapter will introduce students to the general concerns regarding whether courts can properly adjudicate ESCRs, examine other problems that arise when ESCRs are given constitutional status, and finally discuss how these problems might be overcome.

Learning Outcomes:

After completing this chapter, students should know and understand:

• The concerns with justiciability of economic, social and cultural rights Non-judicial issues regarding constitutional protection of ESCRs
• How to overcome these issues

1. General Concerns of Justiciability With Respect to Economic, Social and Cultural Rights

Two main concerns arise when courts are asked to enforce economic, social and cultural rights (ESCRs). Both question the suitability of courts for this purpose; one is practical, the other normative. The practical concern pertains to the capacity of courts to deal with complex data and competing for policy considerations. Courts, particularly in common law jurisdictions, simply do not have the resources to undertake their own fact-finding or research. Judges usually operate their own chambers, which are staffed by administrative assistants and law clerks. These clerks are usually recent law school graduates who are being trained in judicial practice; they rarely have legislative or other practical work experience. Against this backdrop, there is a concern that courts do not have the capacity to properly adjudicate on ESCR cases because they are so complex and involve difficult questions of resource allocation. Take, for example, a case involving the right to housing. If citizens can approach a court demanding shelter or housing subsidies, the court must take into account the economic capabilities of the state and the practical feasibility of various socioeconomic programs before arriving at a judgment. Not only do courts usually lack the staff to carry out independent research on these issues, they lack the time to do so. Courts often hear 100 or more cases ever year, so they cannot spend a disproportionate amount of time on cases involving ESCRs.

The concern, therefore, is that courts do not have the time or the resources to investigate such issues in their full complexity and therefore will produce incomplete or simplistic judgments. Legislatures, by contrast, have time to deliberate and debate economic, social and cultural issues and may appoint committees or other bodies to conduct fact-finding surveys and research on ground conditions. From a practical perspective, then, legislatures are better suited to handling these issues than courts.

The second concern with courts enforcing ESCRs involves the separation of powers. The standard separation of powers scheme in a democratic framework empowers legislatures to enact laws, while courts simply interpret those laws. The concern is that if courts adjudicate on ESCRs, such as the right to food or housing, they will, in effect, act as legislators. For any ESCR case involves determining how the state should allocate resources, which means that courts must take into account policies on tax, trade, immigration, etc. In other words, by adjudicating on ESCRs, courts will engage in policymaking on a range of topics that are ordinarily decided by legislatures. This is fundamentally undemocratic, the argument goes because legislatures are elected to make laws, which they do through deliberation and compromise, whereas court judgments are issued by unelected judges.

Both these concerns are illustrated in PUCL v. Union of India (2001). Following a famine in Rajasthan, an NGI filed a writ petition before the Indian Supreme Court on behalf of millions of Indian citizens who were without adequate food following a famine. Their petition, filed under Article 32 of the Indian Constitution, alleged that the Government of India, the Food Corporation of India (FCI) and six state governments had violated the right to “live with dignity” under Article 21 with respect to these famine victims. Since food is a necessary to sustain a dignified life, the petitioners contended that the state had an affirmative duty to provide and distribute food to citizens affected by the famine.

On 28 November 2001, the Supreme Court issued an interim order that expanded the scope of the right to life and recognized certain food schemes as legal entitlements under Article 21. However, the Court did not end its inquiry there. It exercised “continuing mandamus,” a procedural device used to keep litigation open to retain oversight of government compliance with court orders.

Today, more than 13 years after it began, the PUCL v. Union of India case remains open and has expanded greatly. The litigation now includes all twenty-eight Indian states as respondents, and the Court has issued more than fifty interim orders requiring state governments to implement policies on a range of matters, many of which do not relate directly to food production or distribution. For instance, interim orders have dealt with issues such as urban poverty, the right to employment, and general issues of government accountability and transparency. This raises the practical concern, discussed earlier, about the judiciary’s capacity to deal with ESCR cases. Given that the Supreme Court of India has several hundred cases pending final judgment, and that its justices have limited resources to research all these complex issues, it is fair to ask whether it should be devoting so much of its time and efforts to one case, or whether it is competent to rule on such a wide range of policy matters.

Moreover, in some instances, the interim orders issued in the PUCL case seem more like policy directives than legal opinions. In these orders, the Court does not simply judge the validity of government schemes, but issues directives to the central and state governments on how schemes should be operated. For example, with respect to how food licenses to the poor should be regulated, the Court instructed government authorities as follows:

(1) Licensees, who (a) do not keep their shops open throughout the month during the stipulated period, (b) fail to provide grain to BPL [below poverty line] families strictly at BPL rates and no higher, (c) keep the cards of BPL households with them, (d) make false entries in the BPL cards, (e) engage in black-marketing or siphoning away of grains to the open market and hand over such ration shops to such other person/organizations, shall make themselves liable for cancellation of their licenses. The concerned authorities/functionaries would not show any laxity on the subject.

As Lauren Birchfield and Jessica Corsi put it, the Supreme Court, in this case, engages in “something strikingly close to lawmaking,”  enforcing broad constitutional rights in a way that substantially constrains legislative decision-making. Thus, we see the separation of powers concern illustrated here: the Supreme Court has expanded its sphere of authority and now acts as a policymaking institution, almost as a quasi-legislature.

Non-Judicial Concerns with Constitutional Protection of ESCRs

In this section, we will examine two objections to constitutional economic, social and cultural that go beyond questions of justiciability. They focus instead on how political and legal institutions should function under a democratic constitutional scheme. These objections are drawn from the work of Frank Michelman. In The Constitution, Social Rights and Liberal Political Justification, Michelman addresses the effects of ESCRs on a constitution’s legitimacy. He puts forth two objections to making ESCRs enforceable constitutional rights. He refers to them as the “democratic” objection and the “contractarian” objection, respectively. Let us examine each in turn.

A. The Democratic Objection

The “democratic” objection is concerned with the effects of ESCRs on representative democracy.8 Imagine a constitution that includes a number of enforceable ESCRs. In the country that it governs, every citizen is entitled to a minimal food ration, basic accommodation, and access to healthcare. This country is ravaged by a natural disaster – an earthquake, perhaps a hurricane – that requires substantial resources to rescue victims and to rebuild damaged property. However, the state’s budget is devoted entirely to ensuring that ESCRs are upheld. The state’s legislators, despite their best intentions, are hamstrung by the Constitution and cannot allocate adequate resources to address the devastation caused by this natural disaster.

This illustrates the democratic objection with regard to constitutional ESCRs. The concern is that elected officials cannot properly deliberate and legislate on any issue involving resource allocation if the Constitution requires substantial resources to be provided to certain schemes. Put differently; the Democratic objector might say that placing ESCRs in a constitution removes so many issues from the legislative agenda that politics becomes undemocratic. As Michelman points out, however, the strength of this objection relies, in part, on how broadly these rights are couched. If a constitution sets forth a comprehensive right to “social citizenship,” ensuring that any citizen “can make a respectable living through forms of social participation that are themselves a source and support of satisfaction, energy, pride and social respect,” this objection becomes quite strong. In this society, Michelman argues, there is potentially no issue of public policy on which legislative deliberation is not limited by the constitution – every policy debate from international trade, to taxes, to public education would be constrained.

Note that this objection does not depend on the standard conception of separation of powers – where the legislature makes law, and the courts simply interpret those laws. Even if courts have no scope for judicial review, a constitution that enumerates ESCRs would still place serious limits on democratic deliberation and decision-making as long as legislators and other government officials take constitutional rights seriously in their drafting and enforcement of laws.

B. The Contractarian Objection

The “contractarian” objection arises out of the work of John Rawls, the renowned political philosopher. Rawls was a social contractarian. For him, a country’s constitution is not just a legal document, but also a contract between the state and its citizens. He articulated this relationship through his liberal principle of legitimacy. This principle states that political power is justified only when exercised in accordance with a constitution “the essentials of which all citizens, as reasonable and rational, can endorse in light of their common human reason.” Thus, a constitution, and the government it establishes is legitimate only if citizens can understand its terms; they cannot assent to be governed under a constitution that is too vague or complex.

The concern for social contractarians with constitutional ESCRs is that it may be very difficult for citizens to understand exactly what these rights require and precisely when they are violated. Imagine two countries that have enacted constitutional rights to adequate food. In one country, the government passes laws aimed at increasing agricultural production, improving the food distribution system, and giving food stamps to everyone living below the poverty line. These provisions will take ten years to supply adequate food to all citizens but will provide a sustainable food supply thereafter. In the second country, the government only passes one law – it mandates the immediate distribution of sufficient food to all citizens living below the poverty line. Food supplies are limited and, in the long-term, there will not be enough food to supply everyone in need. In this scenario, one society has adopted laws that will gradually but sustainably provide food for all, while the other provides food immediately to every citizen in need at the cost of long-term food security. Does one society comply with the right to food while the other does not? If so, which one? Couldn’t we plausibly argue that both (or neither) have fulfilled this right? Perhaps no one can decisively say if such a right is or is not being satisfied. According to the contractarian objection, this “raging indeterminacy” prevents citizens from determining when their government complies with or violates ESCRs. This, in turn, would threaten the legitimacy of the constitution itself.

III. Overcoming the Non-Judicial Objections to Constitutional ESCRs

Now that we have discussed these two theoretical objections to making ESCRs enforceable constitutional rights, it is worth considering ways to overcome them. Let us begin with the democratic objection, where the Indian Constituent Assembly devised a way to avoid it altogether. When the Constituent Assembly was drafting the Constitution of India, they largely omitted economic, social and cultural rights from Part III (Fundamental Rights). Part III includes mostly civil and political rights and, under Article 32 of the Constitution, citizens can file writ petitions directly before the Supreme Court to have these rights enforced. Part IV contains the “Directive Principles of State Policy” (DPSPs), which pertain mostly to economic, social and cultural issues. As per Article 37 of the Constitution, the DPSPs “shall not be enforceable by any court.” DPSPs are non-justiciable because they represent aspirational long-term goals of the state to be progressively realized. The Constitution, therefore, sought to give elected representatives the flexibility to pursue these goals gradually and in light of resource constraints.

The benefit of this approach is that it gives constitutional status to economic, social and cultural rights without overly constraining the scope of legislative lawmaking. The Indian Parliament may still allocate resources as it sees fit in the short-run, as long as it pursues the broad objectives set forth in the DPSPs in the long run. In theory, this approach provides an elegant solution to the democratic objection. In practice, however, the Indian Supreme Court has held that the Constitution protects a “right to live with dignity” under Article 21 – a fundamental right in Part III of the Constitution. It has since interpreted this right to include within its ambit various ESCRs that are found in the DPSPs, including rights to food, shelter, and education. Indeed, as PUCL v. Union of India shows, the Supreme Court now acts as a quasi-legislative body, giving specific directions to elected officials on how to implement food-related and other economic and social policies. Thus though the framers of the Constitution had devised a scheme to avoid the democratic objection, it applies today against the Indian Supreme Court’s enforcement of ESCRs.

The contractarian objection can perhaps be overcome using Rawls’ concept of public reason. With respect to ESCRs, or questions of socioeconomic justice, Rawls argued that they should be discussed and decided under the “constraint of public reason.” This requires citizens to present publicly acceptable reasons to each other for their political views. Citizens must also be willing to “listen to others” and display “fair-mindedness in deciding when accommodations to their views should reasonably be made.” Public reason applies to citizens, elected representatives, and judges. But the Supreme Court plays a particularly important role here. For Rawls, the Supreme Court is the “exemplar of public reason.”  While citizens and their elected representatives engage with a range of political questions that do not fall under the constraint of public reason, the Supreme Court, in interpreting the Constitution, may only justify and explain its decisions using public reason. In particular, they must fit their judgments into “a coherent constitutional view over the whole range of their decisions.”

The reason the Supreme Court is held to this higher standard can be traced back to the liberal principle of legitimacy. Recall that this principle requires citizens to be able to understand their constitution so that they can assent to be governed by its terms. If they cannot understand its terms, then the Constitution – and the government it establishes – loses legitimacy. Since the Court has the final word on constitutional meaning, it must clearly and cogently explain its decisions in the language of public reason. The legitimacy of the Constitution is threatened if it does not do so, since poorly reasoned or articulated Supreme Court judgments may render the constitutional provisions at issue in those judgments inscrutable to ordinary citizens.

How does this contractarian objection apply to ESCRs in India? As discussed, the Indian Supreme Court has altered the original constitutional structure by reading the directive principles into the right to life under Article 21. Article 37 of the Indian Constitution specifically makes these principles non-justiciable. As a matter of constitutional interpretation, clear textual commands cannot be ignored or contravened. Every major theory of constitutional law accepts this basic tenet. Thus, if courts decide to circumvent the plain meaning of the Constitution’s text, the demands of public reason are raised to a higher – if not extraordinary – level. At the very least, courts must justify their deviations from the plain meaning of the constitutional text with well-reasoned and clearly explained judgments. If they do not, then citizens will not be able to understand, much less agree to be governed by, their constitution. None of the Indian Supreme Court judgments on ESCRs have clearly articulated exactly how Article 37 can be circumvented. They have also failed to set forth a standard of review to guide their decision-making on ESCRs. Thus, a serious contractarian objection arises in India. Indian citizens cannot know with any clarity or conviction what the constitution requires with respect to ESCRs, meaning that the legitimacy of the Indian Constitution is under threat.

Summary

The question of whether to have enforceable economic, social and cultural rights in a domestic constitution is a contested issue. The most common concerns pertain to justiciability – are courts properly suited to resolving these issues? Two major concerns arise with respect to justiciability. First, there is a practical concern that courts have neither the time nor resources to fully address the complex questions raised by ESCR cases. Second, there is a normative concern that courts will violate the traditional understanding of the separation of powers in which legislatures make the law and courts simply interpret the law. Because ESCR cases involve issues relating to tax, immigration, trade and other policies, courts might be asked to rule on a range of questions that are best left to the legislature. PUCL v. Union of India is a good illustration of both these concerns.

Moving past justiciability concerns, we might still have reasons not to make ESCRs enforceable constitutional rights. Drawing on Frank Michelman’s work, we discussed two possible objections to constitutional ESCRs. First, there is a “democratic” objection that arises if too many issues are taken off the agenda of the legislature because they are decided by the Constitution. On this view, constitutional ESCRs would overly constrain the legislature, which would be hamstrung in its decision-making powers, and society would become, in a real sense, undemocratic. The second objection, a “contractarian” objection, arises out of the work of John Rawls. It is concerned with the loss of constitutional legitimacy if citizens cannot fully understand what their constitution means. With respect to constitutional ESCRs, the concern is that these rights would be too indeterminate for citizens to know exactly what they require or when they are violated. As a result, they could not assent to be governed under a constitution that contains enforceable ESCRs, and that constitution would lose legitimacy.

To overcome the Democratic objection, ESCRs can be included in a constitution as nonbinding guidelines, rather than enforceable rights. This is precisely what the Indian Constituent Assembly attempted to do by separating Fundamental Rights in Part III from DPSPs in Part IV of the Indian Constitution. However, in practice, this has not been followed, as the Indian Supreme Court has declared that Article 21 of the Constitution encompasses a broader right to live with dignity, which includes within it several of the DPSPs.

The contractarian objection can be overcome using Rawls’ conception of public reason, where the Supreme Court, in particular, must give clear and transparent reasons for its decisions on ESCRs, so that citizens can more fully understand the constitutional provisions at issue in cases. Once again, in practice, this has not been accomplished in India. In its judgments on ESCRs, the Indian Supreme Court has not clarified how it gets around the clear command in Article 37 of the Constitution that DPSPs shall not be enforceable in court. It also has not clearly identified the standard of review in these cases. As a result, Indian citizens cannot know with any certainty or clarity what the Constitution requires, and the Constitution’s legitimacy has been weakened.

Reference

1. The Living Constitution (Oxford, Oxford University Press, 2010).
2. The Constitution, Social Rights, and Liberal Political Justification.
3. Constitutional Welfare Rights: A History, Critique and Reconstruction at http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3710&context=flr