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Social Rights and The Constitution
by Jayna Kothari*
Cite as : (2004) 6 SCC (Jour) 32
I. Introduction
This article 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 on social rights during the drafting of the Constitution. With this background, some of the most important judgments of the Supreme Court in the last ten years in the field of social rights have been analysed, looking specifically at the enforcement and justiciability of the right to food, right to education and the right to health. The developments in the last decade are significant as during this time the deleterious effects of globalisation and threats of deprivation of basic social rights have been acutely felt and this has been studied. The study of the recent case-law in the nineties on these social rights is of interest because the Supreme Court has demonstrated a judicial willingness and capacity to address aspects of social rights in a way that challenges many preconceived notions of the judicial role.1 From the nineties onwards we can see that the 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 the light of the directive principles.
Moving ahead from the position that social rights and civil and political rights are indivisible and interdependent, through the discussion and analysis of the specific rights to food, health and education, this article argues that social rights can indeed be made enforceable and are amenable to judicial implementation. The recent Indian experience shows that their enforceability still remains the crucial factor and gives ample examples of ways in which innovative remedies have been used to enforce social and economic rights by the judiciary.
II. Why “social” rights? Directive principles and fundamental rights in the Constitution
“Social rights” refer to those rights that protect the basic necessities of life or rights that provide for the foundation 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 Sen2 as basic entitlements. Sen argues that people are entitled in the prevailing system of institutional rights, to adequate means for survival and 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 basic necessities of life encompass at a minimum, the right to adequate nutrition, shelter, health, education, work and environment. 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.3
Social rights in the Constitution
Human rights in the Constitution are divided into two separate parts. Part III of the Constitution houses the “fundamental rights”, 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.
Social rights or basic entitlements have been recognised internationally as being as important as other civil and political human rights. As Frank Michelman 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.4 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 the fundamental rights mentioned in Part III are justiciable under the Constitution, DPSPs are not justiciable rights and their non-compliance cannot be taken as a claim for enforcement against the State, as per the text of the Constitution.5
Drafting of the Constitution and social rights
The Constitution does not merely provide the apparatus for governance, but it is also futuristic 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 Constitution aimed at not only achieving political independence from colonial rule but also resolved to establish a new social order based on social, economic and political justice.6 Social revolution was put at the top of the national agenda by the Constituent Assembly and DPSPs, it was thought, would make explicit the “socialist” as well as the social revolutionary content of the Constitution.7
It is very interesting to discover that 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 DPSPs in the Drafting Committee were Munshi, Dr Ambedkar, Prof. 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.8 K.T. Shah supported Dr Ambedkar in the principle believing that there must be a specified timelimit within which all directive principles would be made justiciable.
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 action was taken by the State to bring about changes in the economy. The importance given to Part IV is reflected in the speech of Dr Ambedkar when he insisted on the use of the word “strive” in Article 38:
“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.”9
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)10 and gives weight to the argument that the enforceability of social rights was never thought of as being dependent only on the availability of resources.
III. Social rights jurisprudence of the Supreme Court
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, during the initial period of the working of the Constitution, the trend of judicial pronouncements showed an undue emphasis on the aspect of justiciability.
Since the emergency in the seventies, there has been a perceptible change in the judicial attitude on this question, and the Supreme Court has been reaffirming that both the fundamental rights and DPSPs must be interpreted harmoniously — thus laying the foundations for the principle that social rights are complementary, interdependent and indivisible from civil and political rights. It was held by the Supreme Court 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.11 Following this, in Unni Krishnan12, the famous right to education judgment, Justice Jeevan Reddy declared: (SCC p. 730, para 165)
The provisions of Parts 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.
Article 21 and the Supreme Court
From the late 1970s starting from Maneka Gandhi case12a, the Supreme Court started expanding the guarantee of the right to life in Article 21 to include a whole gamut of social rights. This strategy has been widely and continuously used through the years, and through the expansion of Article 21, social rights have thus become de facto justiciable and enforceable by the courts.
Since the national emergency the Supreme Court started to emerge, in the words of Prof. Upendra Baxi, as “the last resort of the oppressed and bewildered”13. In dealing with deprivation of social rights and bringing 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. This phase witnessed the emergence of social action litigation and a proactive judicial strategy became the most distinguishing characteristic of judicial activism. There was a subtle shift from a neutralist adversarial judicial role to an inquisitorial, affirmative judicial role and the judicial process changed from an adversarial, bilateral process to a polycentric, conflict-resolving process.14
In dealing with the huge number of PILs or social action litigation for enforcement of social rights, 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 and new remedies were evolved. These new remedies were unorthodox and unconventional and were intended to initiate affirmative action on the part of the State and its authorities.15 For example, in Bandhua Mukti Morcha16, 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 nineties to seek enforcement of some of the newer articulated social rights such as the right to food, health and education.
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?17 By examining 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, we can see that social rights adjudication in India is indeed vibrant and dynamic, and that they have been made enforceable despite their not being included as justiciable fundamental rights in the Constitution.
IV. The right to food
While the 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 shelter,18 it is indeed surprising that the justiciability of the specific right to food as an integral right under Article 21 had never been articulated or enforced until 2001!19
In 2001, there was a massive drought in several States in India especially Orissa, Rajasthan and Madhya Pradesh. Due to this drought, which had been going on for months and the extreme poverty and complete lack of access to foodgrains, people starved in large numbers. While the poor were starving in the drought-hit villages, the Central Government had excess foodgrains in its storehouses, which were not being distributed. The agitation in the country over lack of access to foodgrains in the drought-hit States of Orissa, Rajasthan, Gujarat and others, 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.20
The right to food petition
Slowly, the public agitation over lack of access to food became a fullfledged right to food campaign. 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 in the drought-struck States of Orissa, Rajasthan, Chhattisgarh, Gujarat and Maharashtra.
The right to food petition raised three major questions:
1. Starvation deaths had become a national phenomenon while there is a surplus stock of foodgrains in government granaries. Does the right to life mean that people who are starving and who are too poor to buy foodgrains should be denied foodgrains 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 food 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 not in a position to purchase food?
As relief measures, the petition demanded among other things, the immediate release of foodstocks for drought relief, provision of work for every able-bodied person and the increase in quota of foodgrains 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.
The Supreme Court and enforcement
The Supreme Court expressed serious concern about the increasing number of starvation deaths and food insecurity despite overflowing food in FCI godowns across the country. The Bench comprising Justices Kirpal and K.G. Balakrishnan even broadened the scope of the petition from the initially mentioned six drought-affected States, to include the entire country.
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 23-7-2001 recognising the right to food, the Supreme Court held:
“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 malnourishment, starvation and other related problems.”21
Food distribution schemes made into entitlements
The Court, in an unprecedented interim order on 28-11-200122, directed all the State Governments and the Union of India to effectively enforce eight different Centrally-sponsored food schemes to the poor.23 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 include the Antyodaya Anna Yojna, the National Old Age Pension Scheme, the Integrated Child Development Services (ICDS) Programme, the National Midday Meals Programme (NMMP), the Annapurna Scheme and several employment schemes providing food for work. Of the eight schemes, the most significant is the order directing all State Governments to provide cooked midday meals in all government schools by January 2002. The Supreme Court directed the State Governments to:
“Implement the Midday Meal Scheme by providing every child in every government and government-assisted primary schools with a prepared midday 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 government and government-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.”24
In addition to the above Midday Meal Scheme, the Supreme Court also held that under the Targeted Public Distribution Scheme, the States should commence distribution of 25 kg grain per family per month (as against the earlier limit of 20 kg grain per family per month), latest by 1-1-2002. All State Governments were directed to take their “entire allotment of foodgrains 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 Programme in the scarcity areas should also be implemented by the various States to the extent possible”.25
It is interesting to note that this time the Supreme Court did not merely direct the States to formulate appropriate schemes for food distribution as had been done earlier by the Court in several cases relating to the right to housing and shelter,26 but 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 Rozgar Yojna (SGRY) ensuring the right to work to adults in rural areas. On 8-5-2002, the Supreme Court agreed on a system of monitoring. The Bench also added that the States are to provide funds utilisation certificate before the money is released for use.
Enforcement of the right to food
The orders of the Supreme Court in the right to food petition are already being implemented at the ground level. Since the beginning of the 2002 academic year, primary schools in Rajasthan have been serving midday meals in compliance with Supreme Court orders, and among States that did not already have a Midday Meal Scheme; Rajasthan was the first to comply. Interestingly, the Midday 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 in the schools has also increased and this was attributed to the midday meals.27
These orders of the Supreme Court bear great relevance for social rights jurisprudence — it not only shows once again the indivisibility of rights, but also that courts do have the authority to order positive action by the State which has financial/budgetary implications. Pleas on financial constraints did not seem to have affected the Court in making this order for enforcement of the right to food of the thousands of people starving in the drought-struck States and the Court took the opportunity to be truly activist.28
While the Supreme 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.29
Ground-level reports and surveys done for the implementation of the Supreme Court orders are indeed encouraging and several State Governments along with the NGOs are actually implementing the several schemes although by no means is the implementation of all the schemes perfect in any way, and there remains a lot of scope for further improvement. The active intervention of the Supreme Court in this petition shows how theoretically and in practice, there is no reason why certain social rights such as the right to food cannot be subject to judicial determination.
V. Right to education
As of 1991 there were 331 million children in India between the ages of 0-14. Of these 179 million were 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.30 Obviously the State has failed in its “duty” to provide free and compulsory education even in fifty years.
The activist phase of the Supreme Court during recent years included the declaration of the right to education up to fourteen years 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 NGOs working on education 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 as it imposed a time-limit of ten years to implement the right to free and compulsory primary education.
Article 45 is the only article among all the articles in Part IV of the Constitution, which speaks of a time-limit within which this right should be made justiciable. 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 4131 and 4632 of the directive principles as well.
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. The two crucial judgments of the Supreme Court which paved the way for the declaration of the right to education as a fundamental right, give full realisation to the interdependence argument of social and civil/political rights, as discussed below.
Education as a necessary means of achieving socio-political justice was largely ignored until the 1992 Supreme Court judgment in Mohini Jain v. State of Karnataka33. In this case, 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 is conscious of his individualistic dignity”.34
In looking at the interdependence of the rights guaranteed in Part III and Part IV, the Court held:
“9. 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 beyond the reach of large majority which is illiterate.”35
The Supreme Court, in Mohini Jain33, referred to the UDHR principles and to Article 41 of the Constitution, which recognises an individual’s right to education. Borrowing the words of Dr Ambedkar, the Court held that
“although a citizen cannot enforce the directive principles contained in Chapter IV of the Constitution but these were not intended to be mere pious declarations ... [and] the directive principles which are fundamental in the governance of the country cannot be isolated from the fundamental rights guaranteed under Part III”.36
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. The Court held that 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.37 The Court also relied upon Article 21 elaborations and expansion laid down in earlier judgments38 to uphold the right to education.
The zeal demonstrated in Mohini Jain33 continued in the later Constitution Bench decision in Unni Krishnan v. State of A.P.12 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. 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. 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 Unni Krishnan12 the Court took support from UDHR and Article 13 of ICESCR and for the first time articulated education 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 judgments 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 Kesavananda Bharati11 Jeevan Reddy, J. uses the earlier approach for enforcement of directive principles in Unni Krishnan12 and the debate moves from justiciability of rights to enforcement of rights. This issue — enforcement of social rights, rather than justiciability was elaborated upon even as recently in 2001 in the Grootbroom39 judgment on housing rights by Zak Yacoob, J. where the South African Constitutional Court held that the issue should not be one of justiciability but to what extent these rights can be enforced. We can see this concept emerging in 1973 in the Supreme Court in Kesavananda Bharati11 and being relied upon in Unni Krishnan12. Mathew, J. had held: (SCC p. 876, para 1700)
“Many of the articles, whether in Part III or Part IV, represents 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 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....”40
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 Jeevan Reddy, J. 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 does 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:
“[W]e 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.”41
The declarations of the right to education as a fundamental right, has been further upheld and recently confirmed by the eleven-Judge Constitutional Bench of the Supreme Court in T.M.A. Pai Foundation v. State of Karnataka42.
As Upendra Baxi 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.43 This form of articulation is pragmatic as it avoids the ethical burden of justification for judicial activism and paves the way for routine legitimation of judicial innovation. Thus, constructing a fundamental right to education from a long-ignored directive principle as presented in Unni Krishnan12 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.44
In 1997 the then Government (United Front) had proposed the Eightythird 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 up to the age of 14 a fundamental right. This sparked off a nationwide campaign spearheaded by NGOs working with various aspects of children’s rights to pressurise the Government into passing the Amendment Act.45 The Amendment was finally passed in 2002 and inserted in the Constitution as Article 21A.
In addition to the declaration and amendment declaring the right to education as a fundamental right, several States in India have passed legislation making primary education compulsory.46 These Acts, however, remain unenforced 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 rather than on parents, has, therefore, been advocating community involvement, decentralisation of planning and management of school education to panchayat raj institutions and other efforts for encouraging primary education.
With the Supreme Court declarations, it is to be seen 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.
VI. The right to health
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. In the directive principles in Part IV of the Constitution, Article 47 declares that the “State 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 reference 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.47
Moving towards a recognition of the right to health
Compared to some of the other social rights, the right to health has been articulated and recognised as an integral part of the right to life, only from the mid-nineties by the Indian Supreme Court. It was in 1995 in Consumer Education and Research Centre v. Union of India48, that the Supreme Court for the first time explicitly held (at SCC p. 70, para 24) that “[t]he right to health ... is an integral facet 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 Paschim Banga Khet Mazdoor Samity case18, 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 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 a 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.49 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 for 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. Agrawal 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.50
So, therefore, not only did Agrawal, J. reiterate that the State has to strive towards enforcement and guaranteeing of social rights irrespective of financial constraints, but also that the need for resources arises also in the matter of enforcement of civil/political rights.
The Court in Paschim Banga18 also required the State to ensure that primary health centres are equipped to provide immediate stabilising treatment for serious injuries and emergencies.
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 measures should be taken to ensure that health is preserved. For example in Murli S. Deora v. Union of India51 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 the 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. 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 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.52
HIV and the right to health
The social right to health has been very well articulated in 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.
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 v. Chairman, Singareni Collieries, Hyderabad53 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 tortious 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.
Some thoughts on the right to health adjudication
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. In addition a constitutionally recognised right to health can only be fulfilled through rational planning, which in turn is dependent 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.
VII. Conclusion
The above discussion suggests a potential role for a creative and sensitive judiciary to enforce constitutional social rights. With public interest litigation, 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 in the late nineties, 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. As a result, public interest litigations have evolved a full-fledged human rights jurisprudence and established a mechanism by which social rights can be adjudicated.
More importantly, 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 argues that “the Constitution is what we say it is”.54 In addition, the Supreme Court has shown that judges have 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. 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.
The Constitution must be given a meaning and interpreted and implemented in a manner which makes all the three organs of the Government, the legislature, the executive and the judiciary — responsible ultimately to the people, their welfare, their liberties and their rights.55 Those who would give protection only to fundamental rights and give a subordinate place to the social rights in the directive principles of State policy are guilty of doing violence to the Constitution. 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 abovementioned 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.
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