This article is authored by Pankhuri Pankaj, a 3rd-year student pursuing BA-LLB (Hons.) from Vivekananda Institute of Professional Studies, affiliated to GGSIPU. She is currently interning with Lexpeeps. This article summarises certain key provisions of “Emergency Provisions” in the Indian Constitution and is qualified in its entirety by reference to the Constitution of India.
Human right laws are the backbone of any constitution and have been given utmost importance to sustain the essence of humanity in the society and they have been given international relevance through the ¨Universal Declaration of Human Rights¨, 1984. Socio-economic rights of a person which deal with the human right to adequate living conditions including food, housing, and clothing, the right to physical and mental health, right to work, right to education, right to a healthy and clean environment, etcetera, are considered a core part of the human rights laws that developed after the World War II.
Socio-economic laws have played a very important role in the development of countries across the world, especially in the developing countries. These laws ensure the growth of a country not at the cost of the humane rights of its citizens.
Comparative Study of Judicial Enforcement of Socio-Economic Rights in Developing Countries
To get a better look at judicial enforcement of socio-economic rights in developing countries, one can draw a good picture by examining judicial social-economic rights in India and South Africa. Divergent jurisprudence has been developed by the Constitutional Court of South Africa and the Supreme Court of India regarding socio-economic rights. On one hand, there is the South African Court with the clearer constitutional mandate for judicial enforcement has afforded deference to legislative and executive policy choices within the bounds of reasonableness reflecting the progressive approach adopted by the Constitutional Assembly, while on the other hand, the Indian Court has read the provision for enforcement of Fundamental Rights expansively to enforce socio-economic rights enumerated under the Directive Principles of State Policy, while simultaneously relaxing procedural and standing barriers to enforcement by individual claimants.
The expansion of enforceable socio-economic rights by the India Court´s began after Prime Minister Indira Gandhi sought to weaken judicial review during the period of Emergency Rule from 1975 to 1977. Gandhi declared a state of emergency allowing her to rule by executive decree, suspended habeas corpus, and restricted freedom of the press after she was convicted by the Allahabad High Court in 1975 for election fraud in connection with the 1971 general elections. In the landmark case of Keshvananda Bharati v. State of Kerala (1973), it was held by the hon’ble court that any amendments to the Constitution of India are to be held violative of the ¨basic structure¨ of the Constitution. In response to this, the then Prime Minister, Indira Gandhi, appointed her own nominees, who had dissented Kesavananda, as Chief Justice of the Supreme Court, violating tradition, and further, during the emergency period passed four highly controversial Constitutional Amendments which were designed to limit the judicial scrutiny on the actions of the government.
The 42nd Amendment, which was passed during this catastrophe, aimed at overruling the landmark judgement of Kesavananda Bharati Case by prohibiting the Court from reviewing constitutional amendments, adding a provision which required a two-thirds vote of the Court to invalidate statutes as unconstitutional, and declared the 1971 election to be beyond judicial review altogether. This amendment also gave the socio-economic Directive Principles in Part IV of the Indian Constitution precedence over the Fundamental Rights in Part III of the Constitution, authorizing authoritarian socialism which resulted in the detention of political opponents. Following this utter disaster concerted by the arbitrary usage of vital powers democratic procedures were restored with the election of the Janata Party in 1977 and the controversial constitutional amendments were repealed, while the Court decided a number of landmark cases extending judicial review into the realms of socio-economic rights.
Another case which contributes to perfectly exemplify the judicial enforcement of socio-economic rights in a developing country like India is the case of Maneka Gandhi v. Union of India (1978), where the Court held that Ms. Gandhi´s Fundamental right to personal liberty was directly violated by the state’s action to confiscate her passport without any sufficient procedure established in the law. In continuation to the opinion of the court in this case, in the case of Francis Coralie Mullin v. Union Territory of Delhi (1981), the Court decided to expand the Fundamental Rights of life and personal liberty to include the right of a detainee to “live with human dignity,” which also included the bare necessities of life that a human deserves. Finally in the case of Bandhua Mukti Morcha v. Union of India (1993), the Court explicitly associated the right to life with the socioeconomic Directive Principles and further added that the right to live with human dignity, enshrined in Article 21, derives its life breath from the Directive Principles. In furtherance the Court simultaneously decided to relax procedural and standing barriers to public interest litigation and that the Court was of the belief that these reforms were necessary because the very purpose of the law was undergoing a transformation.
These cases stand testimony to the fact that judicial enforcement of the socio-economic rights in a developing country like India has played a major role in keeping the element of humanity alive in the society, and to successfully keep this key element an embedded party of the society, many times the courts have taken it upon themselves to act as a policymaker as well, for example in the “Right to Food” Litigation (2003), where the court declared a duty on the parts of the states to provide emergency nutrition and issued forty-nine various interim orders between the years 2001 and 2005 implementing its judgment at a detailed level of social policy, touching on everything from school lunches to accountability, altogether taking care of the socio-economic rights of the citizens of the country.
The South African courts have given greater discretion to policymakers and demonstrated greater deference to policy choices. The first case the Constitutional Court of South Africa heard was Soobramoney v. Minister of Health where the claimant challenged a hospital policy prioritizing curable cases for publicly-funded dialysis treatment at the expense of terminal cases such as his. It was a case where a private individual sought to enforce constitutional socio-economic rights. It was held by the court that the policy was reasonable in light of the limited resources available for health services, and it did not violate the constitutional right to emergency healthcare, and they further added substantive limits to this deference for reasonable policy choices in the case of Republic of South Africa v. Grootboom (2000), where the Court required the government to implement a ¨coherent program¨ directed towards the progressive realization of the constitutional right within the state’s available means, the Court held that a government housing project violated this obligation because it failed to prioritize assistance to those living in intolerable conditions or crisis situations. Later in Berea Township v. City of Johannesburg (2008), the court added a procedural dimension to the reasonableness standard of review in Occupiers of 51 Olivia Road requiring the government to engage in good-faith consultations with the community before pursuing evictions, and take resulting homelessness into consideration.
The Constitutional Court of South Africa has created an obligation for the government of South Africa to pursue progressive realization rather than achieving individual entitlements by occasionally granting judgements against the state while refusing to award individual remedies to successful litigants which have helped in reinforcing an understanding of socio-economic rights in the country. This element can be better understood by taking into account cases like that of Grootboom where the Court declared a housing policy unconstitutional and required the government to revise it, but denied immediate or direct relief to claimants, the case of Nokoty ana v. Ekurhuleni Metropolitan Municipality (2009), where the court held that the government’s failure to reach a final decision to improve an informal settlement violated residents’ rights to adequate housing, but deferred to the government’s proposed plan to review and remedy the situation and refused to grant monetary relief to individual claimants, the case of Njongi v. Department of Welfare (Eastern Cape (2008)), where the Court held that the cancellation of a disabled woman’s benefits without notice or explanation was severely devoid of all humanity and it ordered the restoration of her benefits, etcetera.
Time and again the Court of South Africa has taken it on itself to safeguard the socio-economic rights of the citizens of the country implementing judicial enforcement of socio-economic rights in the fairly developing country and maintaining the essence of humanity.
To conclude the study of judicial enforcement of socio-economic rights in a developing country, a developing country is a dynamic state with a lot to gain and the most to lose. To keep a growing pace it is important for such a state to maintain a peaceful harmony between the state and its subjects, here socio-economic rights play the role of the backbone of the development in the society by keeping the key element of humanity embedded in the society. In a ruthless state driven by ambitions to achieve big judicial enforcement of these socio-economic rights play the most important role in avoiding unnecessary exploitation of the subjects of the nation and contribute to the rather healthy development of the state.
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