Socio-Economic Rights (SER) in India: Responses during Economic Crisis
Dr. Uday Shankar
Assistant Professor
Rajiv Gandhi School of Intellectual Property Law
Indian Institute of Technology Kharagpur
Mail: shankarudaymishra@gmail.com;uday@rgsoipl.iitkgpernet.in
I.
Introduction:
With the fall of imperialism in the mid of 20th Century throughout the World, the newly born
nations, including India, scripted a Constitution to guarantee Justice – political, social and
economic and equality of opportunity and status to all.1 In implementing these ideals, drafters of
the Constitution accorded constitutional status to both civil and political rights, also known as
negative rights and social and economic rights, also known as positive rights. The
constitutionalization of social and economic rights had, rightly, addressed a debate on
categorization of socio-economic rights and civil and political rights and accorded recognition to
the former at par with latter. However, the enforcement of these rights made dependant on
various factors such as economic development, allocation of resources and formulation of policy.
The conditionality for realization of these rights reduced the significance of
constitutionalization, especially for vulnerable sections of the society. One such condition of
availability and allocation of resources for fulfillment of the rights have degenerated the status of
it during economic crisis, which the World had suffered in the year 2008. The impact of absence
of ideals of human rights in formulation of polices for ‘free market’ has exasperated the
extremely difficult situation of the poor, particularly in developing countries.2 The violation of
human rights resulting from economic crisis ignited a debate on role of the State in fulfillment of
socio-economic rights. The paper is an attempt to bring out the effort of India, the legislature,
executive and judiciary in mitigating the hardship arisen out of the crisis. The initiatives taken by
three branches of the State, from the onset of the crisis till date, may not be directly driven by the
crisis, but it will certainly have phenomenal impact in similar situation, if arises in future. The
1
Reference may be drawn from the Preamble of the Constitution.
Carmona, M. ‘The Impact of the Global Economic and Financial Crises on the Universal Realization and Effective
Enjoyment of Human Rights’, Friday, 20 February 2009,
http://www2.ohchr.org/english/issues/poverty/expert/docs/IE_Extreme_Poverty_Statement_HRC.pdf p. 1, accessed
on March 25, 2014.
2
1
paper is organized into different sections. It begins with drawing a relationship between socioeconomic rights and resources and then moves on analyzing the position of socio-economic
rights in India. Further, the paper deals with impact of crisis in India. It presents a complete
portrait of responses/effort taken by the three branches of the State and concludes with
highlighting the role of the State in fulfilling the obligations towards socio-economic rights.
II.
SER and Resources:
Human beings must be guaranteed the basic means of sustaining life and denial of these
would amount to blatant violations of human rights. The contour of rights includes preservation
as well procurement of such needs. They are claim of not only deprived but also of resourceful.
Those who are deprived emphasize the duty of responsible parties to help them to meet their
entitlements. Those who are enjoying it require that the responsible parties must help them to
uphold. The availability of resources is essential for realization of all rights. The effective
realization of rights is impossible in the absence of costs. Enforceability, which is a condition of
right being a right, or a genuine right, is going to involve costs and those costs are going to
involve questions of justice and fairness in the distribution of the resources necessary to enforce
rights. So, if the enforceability is a necessary condition for a right being a right, then all rights
necessarily involve the costs of enforcement.3 Resources bring meaningful existence to human
life. Autonomy cannot be enjoyed in want of necessary means of living a life. Autonomy and
well-being are two distinct features of liberty. Liberty can be enjoyed to its maximum in the
midst of resources to arrange means. Availability of resources graduates the chances of
opportunity and choice. Individual’s autonomy become more meaningful with available
opportunities. Resources make the dream of living a meaningful life for destitute a reality.
If enforceability is an essential feature of rights including negative rights, then this, of
necessity, is going to involve resources in that it is not feasible to think of enforceability as
costless. If this is so, then enforceability cost is not, as it were, contingent conditions for the
protection of rights but are logical structure of rights claims. Thus the arguments of resource
allocation and its problem apply to negative rights and the enforceability as much as they do to
3
Plant, R., Social and Economic Rights Revisited, (2003) 14 KCLJ 1-20, p 11.
2
positive rights.4 The suggestion that realization of civil and political rights requires only
abstention on the part of the state and can be achieved without significant expenditure is patently
at odds with reality.5 The allocation of resources depends upon policy and politics of a given
society.
Indisputably, certain social and economic rights require availability of resources for their
realization. The resources may be arranged domestically or in cooperation with international
agencies or nations. The International Covenant categorically speaks about the assistance of
international agencies in realization of social and economic rights. 6 The insufficient resources in
the hand of the government should not be a ground of denial of status of right to social and
economic rights.
The international agencies have underlined the core of obligations to be fulfilled by the
state in available resources. In laying down obligations the Special Rapportuer, Trubek, to the
Committee on ECOSOC observes that the state parties are obligated to fulfill economic, social
and cultural rights regardless of the level of economic development. The states are obliged to
ensure respect for minimum subsistence for all.7
The different kind of available resources can be channelized to implement social and
economic rights. The resources can be classified in broad terms viz., monetary, natural, human,
information and technology. One of the enduring resources is money. Financial resources can be
put into the hands of those in need, or can be used by the state to purchase items for the needy.
However, dependence on financial resources is somewhat flawed, as it does little to promote
self-reliance.8 Material resources will be more useful to the rural people. Conferment of natural
sources, ensuring land, water, animals, will make them more self-reliable. It will alleviate the
problem of perpetual state dependency.
4
Ibid at 12.
Alston & Quinn, The Nature and Scope of State Parties’ Obligations under the International Covenant on
Economic, Social and Cultural Rights, 8 Hum. Rts Q 156 (1987),172.
6
Article 2 (1) of ICESCR
7
The New International Economic Order and the Promotion of Human Rights: Realization of Economic, Social and
Cultural Rights; Progress Report Prepared by Danilo Turk, UN Commission on Human Rights, Sub-Commission on
Prevention of Discrimination and Protection of Minorities, 42 nd Sess., Provisional Agenda Item 7 at 18, UN Doc.
E/CN.4/Sub.2/1991/17.
8
Robertson, E R., Measuring State Compliance with the Obligation to Devote the “Maximum Available Resources”
to realizing Economic, Social and Cultural Rights, 16 Hum. Rts. Q.693 (1994), 695.
5
3
The Declaration on Social Progress and Development has observed the importance of
human resources that “social progress and development require the full utilization of human
resources.”9 The World Health Organization’s Global Strategy for Health for All by the Year
2000 and the Commission on Human Settlements’ Global Strategy for Shelter to the Year 2000
also emphasize the importance of human resources. The WHO document states:
“To carry out the strategy throughout the world will mean generating and
mobilizing all possible resources. Two type of resources are involved, namely,
human resources and financial and material resources.”10
The Settlement Commission document stresses the importance of human resources in the
execution of national shelter strategies.11 The role of individual and civil society is very crucial
and vital in implementation of rights. Civil Society can assist the governmental institution to
identify the vulnerable of the society. It can also play an instrumental role in transporting the
benefit of allocation of resources to individuals. It can suggest the way to formulate the policies
to ensure social and economic rights through its own studies and surveys.12
Another important resource is technology. The purposeful use of technology can advance
the implementation of social and economic rights. The technology can be used in critical areas of
housing construction, farming, communications and medicine. This resource warrants
international co-operation maximum due to underdeveloped technological advancement in the
developing and underdeveloped countries. The transfer of technology in the said areas will
expedite the implementation process in developing countries. It will lead to fewer dependants to
state resources. Individual will be self-reliant.
Information as a resource can go a long way in realization of social and economic rights.
In modern world the information plays vital role in progress of individuals. It warrants
9
United Nations Centre for Human Rights, Human Rights: A Compilation of International Instruments, at 500, art 5,
UN Doc. No. ST/HR/1/Rev.4 (Vol I/Part 2), UN Sales No. E.93.XIV 1 (Vol I, Part 2) (1993) (adopted 11 Dec 1969,
GA Res. 2542 (XXIV)).
10
World Health Organisation, Global Strategy For Health For All By the Year 2000, 65 (1981).
11
Report of the Commission on Human Settlements on the Work of its Eleventh Session: Global Strategy for
Shelter to the Year 2000, UN GAOR, 43rd Sess., Supp. No. 8, at 30, 58, UN Doc. A/43/8 (1988), adopted on 20 Dec
1988, GA Res. 43/181, UN GAOR, 43rd Sess., Supp. No. 49, at 136, UN Doc. A/43/49 (1988).
12
MKSS, a Non-Governmental Organization, has played a very instrumental in the enactment of the Right to
Information Act, 2005.
4
accountability and transparency from the different institutions of the government. Generally, the
most pertinent information relating to socio-economic polices failed to reach the beneficiaries. It
may act as a tool in the hand of individual to enquire reasons from the government for noncommittal approach towards these rights.13 Ensuring information dissemination is an extremely
important and sometimes extraordinarily inexpensive way for a state to promote social and
economic rights.14 The benefit of welfare polices failed to deliver the desired result due to want
of information with beneficiaries. The proper dissemination of information may play very
instrumental role in realization of social and economic rights.
Other kind of resources was also suggested to implement newer form of obligations. For
Convention on the Rights of Child, it was advised by the UNICEF to employ resources like
“organizational’ and declared its component include family and household structure, extended
family or clan relationship, community structure and organizations, cooperatives, political
movements, trade unions, religious organizations, the media, governmental organizations, and
other public or private sector institutions.15
The allocation of resources must be examined from a non-essential to an essential
expenditure. In order to determine the commitment of the State, a suitable institution could be
established to review allocation of resources in a very holistic way. Such institution would have
little difficulty in finding that a father’s purchase of the latest BMW is unreasonable if it means
that his children reduced to a diet of bread, water, and gruel; unless the BMW is necessary to
provide even that marginal level of sustenance for the children. The democracy expects the
modern state to play a role of an ideal parent for its disadvantage and vulnerable class of people.
III.
SER and The Indian Constitution
13
For instance, The Right to Information Act, 2005 has been used to seek information about various welfare
schemes of the government in India.
14
Supra n. 106 at 697.
15
Himes, R James., UNICEF International Child Development Centre, Implementing The United Nations
Convention on the Rights of the Child: Resource Mobilization and the Obligations of the State Parties 7 (1992)
(Innocenti Occasional Papers, 2 Child Rights Series).
5
India, amongst the countries to get independence after Second World War, also valued the
importance of human rights in the governance of the country. The movement of Independence
was centered on the fight against atrocities of imperialistic rulers. The freedom struggle found its
strength on pledge against the tyrannical government. Having waged a relentless struggle for
freedom – not with bayonets and bullets but on the lofty principles of non-violence and truth –
they were deeply committed to transforming India into an egalitarian and humane society.
Demand for life with humane existence played significant role in leading the movement. It was
pledged to make India a free country not only in terms of institutions but also of dignified
existence of its inhabitants. Therefore, they had resolved to constitute India into a sovereign,
secular and democratic republic guaranteeing all citizens the following: social, economic, and
political justice; liberty of thought, expression, faith and worship; equality of status and
opportunity; and fraternity assuring dignity of the individual.16 It was a momentous political
decision for constitutionalism and human rights in history.
The founding fathers of the Indian Constitution were anxious to ensure not only political
freedom after independence but also social and economic freedom to large sections of the
community bound by traditions of caste-system and the scourge of untouchability. The
constitutionalisation of social and economic rights in the Indian Constitution was very natural
and outcome of values of the Indian society. Socio-economic needs of people are essential for
vibrant democracy. Political democracy will not survive long in the absence of social and
economic democracy. Social and economic democracy is availability and accessibility of
material needs and opportunities to every individual. The founding fathers were conscious of the
fact that mere political democracy, i.e., getting the right to vote once in five years or so was
meaningless unless it was accompanied by social and economic democracy. Democracy will
become real when in practice there is sharing of power and responsibility by all sections of the
people and it becomes illusory when it is about pursuit of power by the dominant sections alone.
The Directive Principles cannot be confined to mere rhetoric or to adhoc policies of electoral
appeasement.17 The ‘Directive Principles of State Policy’ must not remain ‘Decorative
Principles’. State must endeavor to give effect to them. Constitutionalisation of social and
economic rights does not owe their allegiance to alien source. They are very much imprinted and
16
17
See, The Preamble of the Indian Constitution.
The Report of NCRWC, Vol. I, p 100.
6
inscribed in the tradition of Indian society. In fact, the Indian Constitution without social and
economic rights would have betrayal of aspirations and hopes of millions of people of this
country.
The Constitution of India assembled the values of freedom struggle to promise dignified life
to all in new dispensation. The genesis of the vision, need, recognition, protection and
enforcement of human rights which lies in the freedom struggle of Indians for more than a
century, culminated in the form of Fundamental rights and Directive principles of State Policy on
which the mammoth structure of Indian Republic stands today.18 S C Kashyap observed that:
“When the Constituent Assembly of India set out on its labours, therefore, history
had already done much of the spade work for it. It was clear that the Constitution
was to conceived not merely as a mechanism for governing the country but as a
potent instrument for social change and a code of human rights was inevitably
among the core features of the new Constitution.”19
Like International Bill of Rights, Preamble, Fundamental Rights and Directive Principles and
Fundamental Duties of the Indian Constitution can be called as ‘Indian Bill of Rights’.
Democratic socialism spelt out in the Preamble, and the Directive Principles is means to provide
the context in which the fulfillment of Fundamental Rights has to be achieved. The solemn
declaration made in the Preamble found its concrete shape in Part III and Part IV of the
constitution.20 These four may be described as the soul of the constitution and the testament of
the founding fathers to the succeeding generations. On one hand fundamental rights guaranteed
enforceable rights to individual against the state on the other hand directive principles obligate
state machineries to legislate or to formulate policies and programme in order to fulfill social and
economic rights of individual. Fundamental Duties were introduced in the Constitution through
42nd Constitutional Amendment Act, it demonstrate constitutionalisation of Indian values where
observance duties are regarded as core to establish just social order. ‘….in the Indian context
they (fundamental duties) perform an important role in the realization of human rights of the
masses, by obliging individual citizens to honor the rights of others or by creating rights in those
18
Dadwal, L., Position of Human Rights: An Indian Profile, 39 Civil and Military Law Journal (Oct-Dec 2003), 221
at 225.
19
Kashyap, S C., Human Rights and Parliament, Metropolitan, New Delhi, 1978, p 27.
20
Singh, N., Human Rights and The Future of Mankind, Humanities Press, Atlantic Highlands, 1982, p 69.
7
to whom such duties are owed.’21 The government must strive to fulfill the goal of dignified life
for all. Millions of people of this country hoped that their condition would be improved under the
guidance and protection of democratic government.
The reason of dividing rights into a group of fundamental rights and directive principles
is to obviate administrative and practical difficulties in enforcing such rights depend upon
economic development. The Advisory Committee on formulation of Fundamental rights in its
supplementary report submitted a chapter on directive principles. The first clause of the report
stated: “The principles of policy set forth in this chapter are intended for the guidance of the
State. While these principles shall not be cognizable by any Court, they are nevertheless
fundamental in the governance of the country and their application in the making of laws shall be
the duty of the State.”22 The idea underlying in the incorporation of non-justiciable directive
principles was taken from the advice tendered by Mr. B N Rau, Constitutional Advisor to the
Advisory Committee. He suggested that such of those rights as were normally enforceable
should be listed as justiciable fundamental rights and those which required administrative action
should be incorporated in the Constitution as non-justiciable directives to the State.23 From this it
is evident that distinction was made between fundamental rights and directive principles for the
purpose of avoiding administrative and other practical difficulties that might arise if the
directives were to be enforced at the behest of citizens. Therefore, the provisions in the first part
of Article 37, which make the directive principles unenforceable, are solely intended to make
these directives unenforceable in court of law. However, it would be fatal to read rights
enumerated in Part IV as pious aspirations.
Directive principles enshrined in the Constitution can be divided into four parts. The first
part is the broad guidelines to the law-makers to establish constitutionally desired social order
viz., articles 37, 38 and 39(b), (c) and (e), the second part is the principles of administrative
policy viz., articles 43A, 44, 50 and 51, the third part is social and economic rights viz., articles
39 (a), (d) and (f) , 39-A, 41, 42, 43, 45, first part of 47 and 48 A; the fourth part is Ghandian
philosophy viz., 40, 46, second part of 47 and 48. The inclusion of ideals of Gandhi ji, in
21
Singh, M P., Protection of Human Rights against State and Non-State Action, in Human Rights and the Private
Sphere: A Comparative Study, Dawn Oliver & Jorg Fedtke (eds),180 at 182.
22
V CAD 406.
23
B N Rau, India’s Constitution in the Making, edited by B Shiva Rao, pp 248-50.
8
particular provision relating to Panchayats, categorically indicates blending of Indian values into
the making of the Constitution. It is apt to quote a statement of Surendra Mohan, a member of
the Constituent Assembly, describing the importance of panchayat system, he stated:
“…our village people are so much familiar with this system that if today there is
in our Constitution no provision like this they would not have considered this as
their own Constitution or as something known to them, as something which they
could call their own country’s Constitution.”24
Directive principles have successfully sketched the pattern of social and economic order
the state shall endeavor for. The central and state governments are to be strove to reach the
objectives provided therein.
The makers of the Constitution obligated the legislature and executive to apply the
Principles, which are fundamental in the governance of the country, in making laws. 25 Further,
Article 38 imposes a duty on the state to promote the welfare of the people by securing and
protecting as effectively as it many a social order in which justice, social, economic and political,
shall inform all the institutions of the national life.26 The use of words “justice…shall inform all
the institutions of the national life” is of immense significance because the provision binds every
institution to commit towards social justice which makes impact on shaping life of individuals.
This reading can also be imported to impose human rights obligations upon private institutions,
including the players of the market, for ensuring dignified life to all.27
24
VII CAD 523.
Article 37 states that “The provisions contained in this Part shall not be enforced by any court, but the principles
therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State
to apply these principles in making laws.”
26
Article 38 reads as “State to secure a social order for the promotion of welfare of the people
(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a
social order in which justice, social, economic and political, shall inform all the institutions of the national life
(2) The State shall, in particular, strive to minimize the inequalities in income, and endeavor to eliminate inequalities
in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in
different areas or engaged in different vocations.”
27
Reference can be drawn from the cited case where the Supreme Court validated the commitment of social justice
upon private educational institutions imparting higher education. Indian Medical Association v. Union of India,
(2011) 7 SCC 179, the observed that institutions imparting higher education are also bound by the ideals laid down
in the Constitution. The Court stated that “we have to necessarily hold that Article 38 necessarily includes within its
conception of "institutions informing our “national life", all institutions that perform the role of imparting higher
education.”
25
9
Directive principles of State Policy are not the only charter of social and economic rights
in India. Social and economic rights like the right to form association and unions,28 the right to
carry on any occupation, trade or business,29 the right to education30 and cultural and educational
Rights31 are placed in the chapter of fundamental rights. The fundamental rights also contain the
provisions relating to right against exploitation.32
It is interesting to note that all social and economic rights are not clothed in the language
of ‘rights’ in the constitution. They are formulated in the form of guidelines or objectives to be
followed by the state. It is required to chart out the rights which are colored as rights by the
framers of the constitution. Article 39(a) states that “the citizens, men and women, equally have
the right to adequate means of livelihood.” Article 41 provides “The State shall, within the limits
of its economic capacity and development, make effective provision for securing the right to
work, to education and to public assistance in cases unemployment, old age, sickness and
disablement, and in other cases of undeserved want.” The realization of rights to work, education
and social security has been qualified to the economic condition. There is a similar condition for
implementation of social and economic rights laid down in the International Covenant of
Economic, Social and Educational Rights. The International Covenant refers to ‘the maximum of
its available resources’ as qualification to realize rights therein.33
Apart from these rights, other social and economic rights are imposed as duty upon the
state to give effect to them. Rights such as equal pay for equal work, 34 childhood and youth are
to be protected from exploitation,35 just and humane conditions of work,36 a living wage,
conditions of work ensuring decent standard of life and full enjoyment of leisure, 37 free and
compulsory primary education,38 and raising level of nutrition and the standard of living and the
improvement of public health39 are not framed in a language of rights. These are important
28
Article 19(1)(c) of the Constitution of India.
Article 19(1)(g) of the Constitution of India.
30
Article 21-A of the Constitution of India
31
Articles 29 and 30 of the Constitution of India.
32
Articles 23 and 24 of the Constitution of India.
33
Article 2(1) of ICESCR.
34
Article 39(d) of the Constitution of India.
35
Article 39(f) of the Constitution of India.
36
Article 42 of the Constitution of India.
37
Article 43 of the Constitution of India.
38
Article 45 of the Constitution of India.
39
Article 47 of the Constitution of India.
29
10
conditions of life enumerated in the Part IV. Mere non assertion of such essentials of life in the
language of rights does not dilute their significance and importance. It is pertinent to note that
Article 47 which speaks about ‘raising of the level of nutrition and the standard of living… and
improvement of public health’ is formulated in the nature of duties for the State. The duty
corresponds to rights of an individual. It is a guaranteed right of every individual to expect
reasonable efforts from the government in order to protect and promote rights.
The Supreme Court has elaborated upon the relationship on rights enumerated in Part III,
generally civil and political rights, and Part IV, generally social and econmoic rights, in
Minerava Mills’s40 case. Justice Bhagwati categorically stated that Directive principles are part
of human rights. He observed that:
“it is not possible to fit fundamental rights and directive principles into distinct
and defined categories, but the reality is that fundamental rights represent civil
and political rights while directive principles embody social and economic rights.
Both are clearly part of the broad spectrum of human rights. If we look at the
declaration of human rights adopted by the general assembly of UNO on 10-121948 we find it contains not only rights protecting individual freedom they are
from art. 1 to 21 but also social and economic rights intended to secure socioeconomic justice to everyone. These are contained form Arts. 22 and 29 to other
international covenants adopted by the general assembly for securing human
right. One is the international covenant, civil and political rights and other is the
economic, social and cultural life. Both are international instrument relating to
human rights. It is therefore, not correct to say that the fundamental rights alone
are based on human rights while directive principles fall in some categories other
than human rights. The section of human rights embodied in directive principles,
are as much as part of human rights as the fundamental rights.”41
In I R Cohelo v State of T.N.,42 the Supreme Court reasserted the need of balance between
fundamental rights and directive principles, it observed that:43
40
Supra n. 41.
Ibid at 1844.
42
(2007) 2 SCC 1.
41
11
“The fundamental rights have always enjoyed a special and privileged place in the
Constitution. Regarding the status and stature of fundamental rights in the
constitutional scheme, it is to be remembered that fundamental rights are those
rights of citizens or those negative obligations of the State which do not permit
encroachment on individual liberties. The State is to deny no one equality before
the law. Economic growth and social equity are the two pillars of our Constitution
which are linked to the rights of an individual (right to equal opportunity), rather
than in the abstract. The object of the fundamental rights is to foster a social
revolution by creating a society egalitarian to the extent that all citizens are to be
equally free from coercion or restriction by the State. By enacting fundamental
rights and directive principles which are negative and positive obligations of the
States, the Constituent Assembly made it the responsibility of the Government to
adopt a middle path between individual liberty and public good. Fundamental
rights and directive have to be balanced. That balance can be tilted in favour of
public good. Te balance, however, cannot be overturned completely overriding
individual liberty. This balance is an essential feature of the Constitution. …Part
III and Part IV together constitute the core of commitment to social revolution
and they together, are the conscience of the Constitution.”
IV.
SER and Economic Crisis in India
The global financial crisis, which swept the developed world from their feet, also left a mark
on India. India was hit by the crisis through all the channels- financial, real and confidence.44
The impact of the crisis on India, though not superficially seen45, was immense. The
ramifications of the crisis included inter alia unemployment, poverty, depreciation in Rupee
value, loss of exports and dip in Gross Domestic Product (GDP).
43
46
Though the repercussions of
Ibid at paras 49, 101 and 105.
44
Duvvuri Subbarao, Governor RBI, Impact of Global Financial Crisis on India: Collateral Damage and Response,
Speech delivered at the symposium on “The global economic crisis and challenges for the Asian economy in a
changing world” organized by the institute of international monetary affairs, Tokyo on February 18, 2009.
45
http://www.project-syndicate.org/commentary/tharoor23/English, Last visited on 26th September 2011.
46
Madhuri
Malhotra,
Financial
Crises:
A
Cascading
Effect
on
India,
http://advances.mse.ac.in/making/Financial%20Crises%20madhuri.pdf , Last visited on 26th September 2011.
12
the economic turmoil were not so badly felt in India47, the economies of the 21st century
globalized world are so closely linked, socially and politically, that domino effect came to
work.48 It was estimated that the number of India’s poor grew exponentially for the year 2009. 49
The crisis, though having an effect on every individual, was seen as having an adverse impact on
particularly three sections of the population, viz. cultivators, migrant workers and home based
women workers.50 The aftermath of the crisis was marked by food insecurity and high inflation
rates.
Unemployment when coupled with high inflation rates yields social unrest.51 The situation
of unrest also exacerbates when, firstly, there is lack of social security infrastructure and
secondly, the social security infrastructure, if present, is not put to appropriate use.52 The global
financial debacle indeed raised concerns all over the world about its impact on human rights.53
The impact of greater poverty and the hunger that the catastrophe brought, which in turn
threatened the right to life, health and education of many people across the developing world,
brought the developing countries on the backseat.54 This categorization of the assessment of
impact on the developed and developing world is essential, largely because the developing world
in normal state of affairs finds itself at tied ends when it comes to proper allocation of resources.
In such a situation, the developing world has borne the brunt of the economic turmoil to an
extreme extent. Measures calling for an approach which balances human rights with the
proposed financial solutions have been mooted by various organizations time and again. 55 Rights
47
Bibek Debroy, Growth Downturn and Its Effects, 2009, UNDP India.
( Noting that the decoupling theory does not hold good) http://www.financialexpress.com/news/emerging-marketdecoupling-theory-may-be-premature/228718/, Last visited on 26th September 2011.
49
“The 2.1% decline in India's GDP growth rate has effectively translated into a 2.8% increase in the incidence of
poverty.”
http://articles.timesofindia.indiatimes.com/2010-02-10/india/28125594_1_india-s-gdp-indian-growthfinancial-crisis, Last visited on 26th September 2011.
50
Jayati Ghosh, Global crisis and the Indian economy, 2009, UNDP India.
51
Gary A. Foster, C.P.M. of Unicorn Equity Analysts, LLC, Elemental Convergence: Income Inequality, Inflation
and Social Unrest, http://www.stockmarketsecuritiesinvestmentvaluationequityanalysts.com/articles/2010-9Elemental-Convergence-by-Gary-Foster.pdf, Last visited on 26th September 2011.
52
Sen, Abhijit, & Himanshu. Poverty and Inequality in India. Getting Closer to the Truth. (2005),
http://www.networkideas.org/arch/archives_Inequality.htm, Last visited on 26th September 2011.
53
http://news.bbc.co.uk/2/hi/business/8066037.stm, Last visited on 26th September 2011; see also
http://www.un.org/apps/news/story.asp?NewsID=29986, Last visited on 26th September 2011.
54
ESCR-Net, ESCR-Net Collective Statement on the Financial Crisis and Global Economic Recession: Towards a
Human Rights Response (2009). www.escr-net.org.
55
Amnesty International Report 2009, May 27, 2009.
48
13
based approach to counter the present and future financial failures have been put forth as an
effective argument to avert the catastrophe.56
Human rights set out a basic minimum standard against which the actions and failures of the
Government are judged.57The inequality in incomes and social stature, which has engulfed the
Indian subcontinent as a result of global economic crisis, has also posed a significant challenge
to the government of India to secure social and economic rights to each and every citizen. With
social security at a parlous state of affairs, a reasoned approach on the part of the Government to
club financial measures with the socio-economic measures has become an imperative need of the
hour. Social and economic rights act as corrective to the free market.58 They create an obligation
on the Government to fulfill, respect and protect the human rights of an individual. Such being
the case, the statement made by Navi Pillay, UN High Commissioner for Human Rights that,
“States can neither waive nor limit their obligation of upholding civil, cultural, economic,
political and social human rights in times of crisis. Rather, by fully integrating human rights
principles and standards into law and practice governments are able to respond to an economic
downturn in a truly sustainable manner...”59, seems axiomatic.
The financial crisis in India has cautioned the Government to look for appropriate resource
allocation measures in order to draw balance between inequalities in income and status. The
Planning Commission60 document reveals the distribution/allocation of resources on different
sectors relating to socio-economic need of individual. A brief outline of the allocation made
during Eleventh Five Year Plan61 and commitment of the Government in the Twelfth Five Year
56
OHCHR, Principles And Guidelines For A Human Rights Approach To Poverty Reduction Strategies,
HR/PUB/06/12, Office of the High Commissioner for Human Rights: Geneva, 2006.
57
http://www.cesr.org/downloads/CESR-Human%20Rights%20and%20the%20Global%20Economic%20Crisis.pdf,
Last visited on 26th September 2011.
58
Balakrishnan B. and Elson, D. “Auditing Economic Policy in the Light of Obligations on Economic and Social
Rights”, Essex Human Rights Review Volume 5 Number 1, July 2008.
59
Navi Pillay, UN High Commissioner for Human Rights in her statement to the UN General Assembly High Level
Conference on the World Financial and Economic Crisis and its Impact, June 18, 2009.
60
http://planningcommission.nic.in/aboutus/history/index.php?about=aboutbdy.htm. Accessed on March 20, 2014.
The resolution of 1950 states that “The need for comprehensive planning based on a careful appraisal of resources
and on an objective analysis of all the relevant economic factors has become imperative. These purposes can best be
achieved through an organization free from the burden of the day-to-day administration, but in constant touch with
the Government at the highest policy level.
61
14
Plan62 will mirror the obligation honored by the Government for fulfillment of socio-economic
rights during the period of economic crisis.
On health, during the Eleventh Plan funding for health by Central Government has increased
to 2.5 times and of States to 2.14 times that in Tenth Plan, to add up to 1.04 per cent of GDP in
2011–12. When broader determinants of health (drinking water and sanitation, ICDS and MidDay Meal) are added, the total public spending on health in Eleventh Plan comes to 1.97 per cent
of GDP. In the Twelfth Plan, a paradigm shift is envisaged in Central Government funding to
ensure that sufficient amounts are made available and, further that they leverage a comparable
effort from the States. In the Approach Paper to the Twelfth Plan, it was stated that we should
aim at raising the total expenditure on health in the Centre and the States (including both Plan
and Non-Plan) to 2.5 per cent of GDP by the end of the Twelfth Plan period. Accordingly, the
allocations proposed for the Twelfth Plan makes Health a priority and will allow Central Plan
expenditure to expand by about 34 percent per year.
Recognising the importance of education, public spending on education increased rapidly
during the Eleventh Plan period. Education expenditure as a percentage of gross domestic
product (GDP) rose from 3.3 per cent in 2004–05 to over 4 per cent in 2011–12. India faces a
huge challenge to fund its rapidly growing higher education sector. Overall, the country spent
about 1.22 per cent of its GDP on higher education in 2011–12. Funding from both the Central
and the State Governments has to be significantly increased and efficiency of its utilisation
improved during the Twelfth Plan. The Plan should target public spending on higher education to
reach 1.5 per cent of the GDP from the current 1.22 per cent. For this, the Central Government
has to use its Plan funds strategically to encourage greater State funding and promote efficiency
in expenditure.
On employment, the Eleventh Five Year Plan while focusing on utilisation of the human
resources for economic growth, recognised that skill building is not a static process and that
individual’s skills needs to be upgraded continuously for workforce to remain relevant and
employable. To realise this Coordinated Action on Skill Development was initiated in 2008
which provides for a three tier governance structure, namely Prime Minister’s Council on Skill
Development as apex body for policy direction to be supported by National Skill Development
62
15
Coordination Board (NSDCB) in Planning Commission for coordinating and synergising the
efforts of the various central ministries that are involved in the skill development and National
Skill Development Corporation for catalysing private sector efforts in the skill development.
The aim should be to increase the percentage of the workforce which has received formal skills
through vocational education and training from 10.0 per cent at present to 25.0 per cent by the
end of the Twelfth Plan.
The Government of India is implementing, which commenced before the crisis period and
still continuing, a number of programmes, for improving access to employment, education,
health, infrastructure development, urban development, and so on. Some of the important
programmes are National Rural Livelihood Mission, National Rural Health Mission, Sarva
Shikhsa Abhiyan, Indira Awas Yojna.
The Constitution of India also guides the State to adhere to the principles in order to mitigate
the effect of market driven crisis so that the vulnerable will not be pushed, further, to the
periphery of the society.63 Social justice has been held as a dynamic device to mitigate the
sufferings of poor, weak, dalits, tribal and deprived section of people. 64 The concept of social
justice embodies equality to flavor and equality to enliven the practical content of life. 65 The aim
of social justice is to attain substantial degree of social, economic and political equality, which is
the legitimate expectation and constitutional goal.66 Distribution of material resources to elongate
the economic empowerment of the weaker sections of the people, envisaged under Article 39(b),
is the means for the development of the weaker sections.67 Article 39(b) rests a positive
obligation on the State to allocate material resources in such a fashion that does not result in
heightening of inequalities amongst people and amongst regions.68 The term material resources
means and includes all resources, natural and manmade, public and privately owned. 69 The
object of the policy as envisaged under Article 39(b) and 39(c) is to effectuate the mandate of the
Constitution in the Preamble of the Constitution, namely social justice and dignity of person with
63
Article 38, 39, Constitution of India, 1950.
Consumer Education & Research Centre v. U.O.I, AIR 1995 SC 922.
65
Air India Statutory Corporation v. United Labour Union, AIR 1997 SC 645.
66
Durga Das Basu, Indian Constitutional Law, Third Edition, Kamal Law House, 2011 at p. 445.
67
Tarachand Vyas v. Chariman, Disciplinary Authority, (1997) 4 SCC 565.
68
Reliance Natural Resources Ltd. v. Reliance Industries Ltd., (2010) 4 SCC 376; see also State of Bihar v.
Kameshwar Singh, AIR 1952 SC 252.
69
Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd. , AIR 1983 SC 239; see also Jilubhai v. State of Gujrat, AIR
1995 SC 142.
64
16
equal status.70 The Constitution of India clearly articulates for the allocation of resources in a
meaningful way for the attainment of social and economic equality.
V.
Social and Economic Rights: Approaches of the Legislature and Executive:
Legislature and executive branch of the state are entrusted with the responsibility to
fulfillment the subsistence entitlements of the individual. They are appropriately empowered to
bring legislation and policies for effective realization of rights. The measures of the legislature
and executive are furthering the goals enshrined in the Preamble to establish a just society for all.
They are obligated to fulfill and promote the basic needs of individual. The constitutional
provisions place the responsibility on these organs in a high pedestal. In fact, these two
institutions are adequately equipped to design instruments or strategies for effective realization
of social and economic rights of individual. The framers of the Constitution, correctly, entrusted
the responsibility upon them for doing the needful in achieving the desired goal of welfare for
all.
IV. I. SER and Legislature
The Parliament has responded remarkably to enforce socio-economic needs of individual
when the country was witnessing financial crisis. Though enactment of laws were not
necessitated by the situation emerged from economic crisis, but they would play instrumental
role in mitigating the rigor of market driven disaster. Hence, various laws are directly related to
the realization of socio-economic rights. These legislations on different socio-economic rights
conferred statutory recognition to the rights which were dependent upon policy and programme
of the government. Such recognition has removed contingent character of implementation of
socio-economic rights. Salient features of the legislations enacted during the period of financial
crisis, 2008 to till date, are elaborated to draw connection with the socio-economic rights.
A. The Mahatma Gandhi National Rural Employment Guarantee Act (NREGA),
2005 is the first- ever law that guarantees wage employment at an unprecedented scale. It aims at
enhancing livelihood security of rural households by providing at least 100 days of guaranteed
70
State of W.B v. Kailash, (1997) 2 SCC 387.
17
wage employment in a year to every household. The works undertaken under MGNREGA
rejuvenate the natural resource base and address the causes of chronic poverty such as drought,
deforestation, soil erosion, floods, poor rural connectivity. Though this Act is not enacted during
the period of crisis, but the statutory guarantee to ensure employment for 100 days mitigated the
hardship of unemployment inflicted due to the crisis.
B. The Right of Children to Free and Compulsory Education Act (RTE), is enacted
in the year 2009 which describes the modalities of the importance of free and compulsory
education for children between 6 and 14. The Act is gave effect to the constitutional obligation
of the right to education incorporated as a fundamental right in the year 2002. Education in the
Indian constitution is in the concurrent list and both centre and states can legislate on the issue.
The Act lays down specific responsibilities for the centre, state and local bodies for its
implementation. The central government has agreed to share the funding for implementation of
the law in the ratio of 65 to 35 between the centre and the states, and a ratio of 90 to 10 for the
North-Eastern states. The essential schema of this Act, as articulated in Section 12, mandates
government schools to provide for free and compulsory elementary education and directs private
unaided schools to do the same in respect of children belonging to the weaker sections and
disadvantaged groups, subject to a maximum of twenty five per cent of their student intake. In
the case of the latter, the act guarantees them reimbursement, in respect of the 25 per cent of
students admitted through the ‘free’ quota, of the same per-child-expenditure as would be
incurred by a government school.
C. The National Food Security Act, 2013, the Government of India has enacted
historical legislation by securing two-thirds India’s population of 1.23 billion a heavily
subsidized food grains. The Act guarantees 5 Kg of rice, wheat, coarse cereals per person per
month Rs. 3, 2, 1 respectively. With this landmark legislation, India has ensured largest food
security programme in the world with the estimated cost of Rs. 1, 30, 000 Crores which would
require 62 million tonnes of foodgrains every year. In a bid to give women more authority in
running their households, the oldest adult woman in each house would be considered the head of
that household for the issuing of ration cards. Moreover, pregnant and lactating women will be
entitled to free meals during pregnancy and six months after child birth. They will also receive
18
maternity benefit of at least Rs. 6000. Children aged six months to 14 years will get take-home
rations or hot cooked food.
D. The Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013, section 10, puts a condition on acquisition of
agriculture land by the state government and also the provision for development of an equivalent
amount of culturable wasteland for agricultural purposes in lieu of land diverted is enacted. This
is a welcome move for ensuring food security.
E. Unorganised Sectors Workers’ Social Security Act, 2008, provides for the social
security and welfare of unorganised workers and for other matters connected therewith or
incidental thereto. It provides for constitution of National Social Security Board which shall
recommend social security schemes viz. life and disability cover, health and maternity benefits,
old age protection and any other benefit as may be determined by the Government for
unorganized sector workers. The National Social Security Board was set up on 18.08.2009, and it
has since held five meetings recommending extension of coverage of social security schemes viz
Janshree Bima Yojana, Rashtriya Swasthya Bima Yojana, Old Age Pension to certain category
of unorganized workers. The Government has launched the Aam Admi Bima Yojana (AABY) to
provide insurance against death and disability to landless rural households. Indira Gandhi
National Old Age Pension scheme (IGNOAPS) was expanded by revising the eligibility criteria.
The persons living below poverty line and above the age of 60 years are eligible for old age
pension of Rs. 200 per month. For persons above the age of 80 years, the amount of pension has
been raised to Rs. 500 per month.
F. The Drugs & Cosmetics Act, 1940 was amended by the Drugs & Cosmetics
(Amendment) Act, 2008 for enhancing the penalties in the Drugs & Cosmetics Act, 1940 so as
to help tackle the problem of spurious and adulterated drugs. The salient features of the amended
provisions of the Drugs & Cosmetics Act, 1940 are as follows:
a) Maximum penalty life imprisonment and fine of Rs. 10 lakhs or 3 times the value of the
confiscated goods, whichever is more.
b) Some of the offences cognizable and non-bailable;
c) Besides officers from the Drug Controller’s Office, other gazette officers also authorized to
19
launch prosecution under the Act;
d) Specially designated courts for trial of offences covered under the Act;
e) Provision for compounding of minor offences.
G. Food Safety and Standards Act, 2006 which came into force in the year 2011 is a
step in the right direction and seeks to modify the basic approach to food safety from farm to
fork. Under the current Act, there is a clear shift from “checking adulteration and prosecution” to
“self-compliance” enabling responsibility with the food business operator to comply with the
law. The Act mandates , through a new set of regulations, untouched areas like proprietary foods,
novel foods, GM foods, dietary supplements, nutraceuticals and more. The Act also stipulates
bringing regulations / guidelines for food imports, food recall and an active surveillance system.
The current Act also empowers consumers to draw samples and send these for analysis to
recognised labs—an act of empowerment of consumer to prevent food contamination through a
structured legal remedy.
H. The Street Vendors (Protection of Livelihood and Regulation of Street Vending)
Act, 2013 provides for protection of livelihoods rights, social security of street vendors,
regulation of urban street vending in the country and for matters connected therewith or
incidental thereto. The Act also provides for promotional measures to be undertaken by the
Government, towards availability of credit, insurance and other welfare schemes of social
security, capacity building programmes, research, education and training programme etc. for
street vendors.
I. Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 is a comprehensive legislation to deal with the protection of women
against sexual harassment at workplace. This Act gives impetus to right to work and enables
dignified exercise of the right by women who are joining workforce both in organized and
unorganized sector.
J. Maintenance and Welfare of Parents and Senior Citizens Act, 2007 is a legislation
enacted in 2007, to provide more effective provision for maintenance and welfare of parents and
senior citizens. This Act makes it a legal obligation for children and heirs to provide maintenance
20
to senior citizens and parents, by monthly allowance. This Act also provides simple, speedy and
inexpensive mechanism for the protection of life and property of the older persons.
IV.II. SER and Executive
The Central Executive has also formulated policies on different subject matters which relates
to realization of socio-economic rights during the period economic crisis. The policies
catalogued reflect the commitment of the policy makers on realization of socio-economic rights.
A. The Department of Pharmaceuticals has notified the National Pharmaceutical Pricing
Policy-2012 under which the prices of National List of Essential Medicines-2011 are to be
controlled & regulated. The objective is to put in place a regulatory framework for pricing of
drugs so as to ensure availability of required medicines – “essential medicines” – at reasonable
prices even while providing sufficient opportunity for innovation and competition to support the
growth of industry, thereby meeting the goals of employment and shared economic well being
for all.
B. The National Urban Housing & Habitat Policy 2007 has been formulated keeping in
view the changing socio-economic parameters of the urban areas and growing requirement of
shelter and related infrastructure. The Policy seeks to promote various types of public-private
partnerships for realizing the goal of “Affordable Housing for All” with special emphasis on the
urban poor. Under the policy, the Scheme of Affordable Housing in Partnership has been
launched in the year 2009 which intends to provide a major stimulus to economic activities
through affordable housing for the creation of employment, especially for the construction
workers and other urban poor who are likely to be amongst the most vulnerable groups in
recession. It also targets the creation of demand for a large variety of industrial goods through
the multiplier effect of housing on other economic activities.
C. National Policy on Skill Development, 2009 has been made by the Government of India
with the objective to empower all individuals through improved skills, knowledge, nationally and
internationally recognized qualifications to gain access to decent employment and ensure India’s
competitiveness in the global market. The Government of India has set a target of skilling 500
million people by 2022.
21
D. Rajiv Awas Yojana (RAY) is a new scheme announced by the President earlier in 2009,
focuses on slum dwellers and the urban poor. This scheme aims at promoting a slum-free India
in five years and would focus on according property rights to slum dwellers. The scheme will
focus on according property rights to slum dwellers and the urban poor by the states and union
territories. It would provide basic amenities such as water supply, sewerage, drainage, internal
and approach roads, street lighting and social infrastructure facilities in slums and low income
settlements adopting a 'whole city' approach. It would also provide subsidized credit. The scheme
aims to make India slum-free by 2022 by providing people with shelter or housing free of cost.
E. National Policy for Senior Citizens, 2011 is formulated with the focus to promote the
concept of „Ageing in Place‟ or ageing in own home, housing, income security and homecare
services, old age pension and access to healthcare insurance schemes and other programmes and
services to facilitate and sustain dignity in old age. The thrust of the policy would be preventive
rather than cure. The policy aims towards achievement of this directive, the policy visualizes that
the states will extend their support for senior citizens living below the poverty line in urban and
rural areas and ensure their social security, healthcare, shelter and welfare. It will protect them
from abuse and exploitation so that the quality of their lives improves.
F. Government of India has announced two pensions scheme in the year 2009 under
National Social Assistance Progamme, namely, Indira Gandhi National Widow Pension
Scheme (IGNWPS) has approved pension to BPL widows in the age group of 40-64 years at the
rate of Rs. 200 p.m. per beneficiary and Indira Gandhi National Disability Pension Scheme
(IGNDPS) has also approved pension for BPL persons with severe or multiple disabilities
between the age group of 18-64 years at the rate of Rs. 200 p.m. per beneficiary. Under the same
programme, on 28th February 201, the Government announced that ‘under the on-going Indira
Gandhi National Old Age Pension Scheme for BPL beneficiaries, the eligibility for pension is
proposed to be reduced from 65 years at present to 60 years. Further, for those who are 80 years
and above, the pension amount is being raised from Rs.200 at present to Rs.500 per month.
22
IV.
SER and Judiciary
The Indian Courts have responded to the hierarchy between ‘negative’ and ‘positive’
rights by trying to collapse the distinction between the same. While the fundamental rights of
citizens enumerated in Part III of the Constitution are justiciable before the higher judiciary, Part
IV deals with the ‘Directive Principles of State Policy’ that largely enumerate objectives
pertaining to socio-economic entitlements. The Directive Principles aim at creating an egalitarian
society whose citizens are free from the abject physical conditions that had hitherto prevented
them from fulfilling their best selves.
The enforceability of measures relating to social equality though incorporated in
aspirational terms was never envisaged as being dependent only on the availability of state
resources. The judicially expanded understanding of the same now includes several socioeconomic entitlements for citizens which place positive obligations on the state.
The integrated and interdependent relationship between fundamental rights and directive
principles facilitated enforcement of many socio-economic rights in India. Almost every socioeconomic rights enumerated under the Indian Constitution has been made justiciable by reading
them as an integral part of ‘life’ guaranteed under the chapter of fundamental rights. The enlisted
cases only highlight the pronouncements made on socio-economic rights from the onset of
economic crisis and till date.
A. Right to Education:
Society for Unaided Private Schools of Rajasthan v. Union of India,71 the Supreme Court
upholds the constitutionality of the right to education act, 2009. Moreover, the obligations on the
private parties, unaided private schools, to ensure the realization of the right to education have
also been endorsed by the court.
State of UP v. Bhupendra Nath Tripathi72, the Court held that “The State is under the
constitutional obligation to provide education to all children of the age of 6 to 14 years. The State
by virtue of Article 21 A is bound to provide free education, create necessary infrastructure and
effective machinery for the proper implementation of the right and meet total expenditure of the
71
72
(2012) 6 SCC 1.
(2010) 13 SCC 203.
23
schools to that extent. Right to education guaranteed by Article 21 A would remain illusory in
the absence of the State taking adequate steps to have required number of school manned by
efficient and qualified teachers.” The direction on providing necessary infrastructure clearly
indicates the prioritization of resource allocation in the matter of socio-economic rights and also
state must not be allowed to shirk from fulfilling the constitutional responsibility.
In Indian Medical Association v. Union of India,73 the Supreme Court negated the argument of
private players in the field of higher education to allow them to admit students of ‘their choice’.
The Court aptly remarked on cause and effect of ‘free market’ on human rights obligations by
stating that, worth quoting in-extenso, “The falsity of the knee jerk beliefs that markets are
necessarily efficient, and will necessarily find optimal and just solutions for all problems, was
again provided by the recent global financial crisis. That unregulated laissez faire free markets
would only lead to massive market failures, even with respect to those aspects in which markets
are supposed to function efficiently, such as wealth generation has to be accepted as a
fundamental truth. With respect to other social values and goals, it has also been shown that the
complete evisceration of the power of the State to regulate the private sector would lead to
massive redistributions of incomes, assets and resources in favor of the few, as against the
multitude, thereby generating even greater inequalities. This would also suppress the ability of
the State to exercise moral authority, and force, to keep competing interests, spread across
groups, regions, and classes, from degenerating into a war of all against all.74 The necessity of
such a role for the State should not be doubted, nor its Constitutional duty whittled down. This
potential danger, and consequences, of evisceration of the role of the State was anticipated by the
farmers of our Constitution. That is the reason why, the Preamble specifically articulates that
ensuring the dignity of human beings, and fraternity amongst groups of people, to be vital for the
integrity and security of the nation.”
B. Natural Resources75
Networking of Rivers, In re,76 the Supreme Court, on a petition filed for issuance of
necessary direction relating to interlinking of rivers in order to ensure preservation of water as a
73
(2011) 7 SCC 179.
Emphasis Supplied.
75
The elaboration of judicial pronouncements on ‘natural resources’ has been done to establish the approach of
judiciary towards distribution of resources which play instrumental role in bridging the gap between rich and poor.
74
24
part of right to life and livelihood, directed the Ministry of Water Resource, Government of India
to constitute an Expert Committee for creating a plan, construct and implement the interlinking
programmes for the benefit for the nation as a whole.
Centre for Public Interest Litigation v. Union of India,77 the Supreme Court emphasized
the importance of constitutional mandate on distribution of natural resources laid down under
Article 39(b), ownership and control of material resources of community should be so distributed
so as to best sub-serve common good, to private parties. The Court held that “State was legal
owner of natural resources as a trustee of people and although it was empowered to distribute
same, process of distribution must be guided by constitutional principles including doctrine of
equality and larger public good.” Though this case relates to arbitrary exercise of power by the
State in allocation of spectrum, a natural resource, it can be a guiding force in cases involving
allocation of resources on the one hand and the constitutional obligation to pursue public interest
on the other hand.
In Reliance Natural Resources Limited v. Reliance Industries Limited,78 the Supreme
Court raised a question on the obligations of the State to the people in the matter of distribution
of natural resources and scripted a remarkable answer by stating that “The Constitution of India
postulates that monopolies, created by an inequitable distribution of resources and their
concentration in the hands of the few, are inimical to democracy and the values of equality and
justice in all spheres of social action. They were the lessons of history. While large economic
organizations might be necessary to accomplish certain kinds of tasks, it is imperative that the
State always be watchful that they do not take over the essential functions of the State, especially
of policy formulation. In its dealings with such entities, the State should always be mindful that it
does not convey that its public law duties could be bought or abrogated in any manner.” Further,
the Court eulogized on the scheme of the Constitution on distribution of material resource and
the responsibility of the State by saying “The structure of our Constitution is not such that it
permits the reading of each of the Directive Principles of State Policy, that have been framed for
the achievement of conditions of social, economic and political justice in isolation. The structural
76
(2012) 4 SCC 51
(2012) 3 SCC 1
78
(2010) 7 SCC 1. The case involves question of legal sanctity to a private family arrangement after the division of
business between the family members on the issue of distribution of natural resources of the country.
77
25
lines of logic, of ethical imperatives of the State and the lessons of history flow from one to the
other. In the quest for national development and unity of the nation, it was felt that the
"ownership and control of the material resources of the community" if distributed in a manner
that does not result in common good, it would lead to derogation from the quest for national
development and the unity of the nation. Consequently, Article 39(b) of the Constitution should
be construed in light of Article 38 of the Constitution and be understood as placing an
affirmative obligation upon the State to ensure that distribution of material resources of the
community does not result in heightening of inequalities amongst people and amongst regions.”
C. Right to Health
In the case of Occupational Health and Safety Association v. Union of India,79 the
Supreme Court echoed the concern on lack of proper health delivery system causing
occupational health hazards to the workers working in thermal power plants. The court
highlighted the responsibility of the State in following words “Right to health i.e. right to live in
a clean, hygienic and safe environment is a right flowing from Article 21. Clean surroundings
lead to healthy body and healthy mind. But, unfortunately, for eking a livelihood and for national
interest, many employees work in dangerous, risky and unhygienic environment. Right to live
with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of
State Policy, particularly Clauses (e) and (f) of Articles 39, 41 and 42. Those Articles include
protection of health and strength of workers and just and humane conditions of work. Those are
minimum requirements which must exist to enable a person to live with human dignity. Every
State has an obligation and duty to provide at least the minimum condition ensuring human
dignity. But when workers are engaged in such hazardous and risky jobs, then the responsibility
and duty on the State is double-fold80.”
Novartis AG v. Union of India,81 a historic judgment on accessibility of life saving
medicines, the Court rejected an application to patent of anti-cancer drug by Novartis, a multinational drug manufacturing company on the ground of evergreening of patent. While examining
the scope of statutory provision relating to subject matter of patent82, the Court has read the
79
MANU/SC/076/2014.
Emphasis supplied.
81
(2013) 6 SCC 1
82
Section 3. What are not inventions.- The following are not inventions within the meaning of this Act,80
26
element of public health and reiterated the concern of the Parliament in these words “In the
following lines we shall see how the Indian legislature addressed this concern and, while
harmonizing the patent law in the country with the provisions of the TRIPS Agreement, strove to
balance its obligations under the international treaty and its commitment to protect and promote
public health considerations, not only of its own people but in many other parts of the world
(particularly in the Developing Countries and the Least Developed Countries).”
VI. Conclusion:
Early years of socialist policy was aimed to establish a classless society with economic
justice and opportunity for all. Erstwhile, people from the higher echelons of society were able to
draw benefits from such policies. The Indian government has now introduced free market
economy for achieving the much-desired goals of ensuring decent standard of life to all. The new
economic policy has been helpful in accumulating wealth for the government. This does not
come without a limitation. The accumulation of resource is to be coupled with the allocation of
resources. The resources should be diverted to areas where there is a vacuum of minimum means
to lead a meaningful life. The social and economic inequalities which have been diagnosed in the
present India call for a cure at the earliest.
The expression “we the people” enshrined in the Indian Constitution83 enunciates the vision
of the people of India to attain an economy of abundance in the country by the fullest and the
most effective use of resources.84 The core constitutional objective of social and economic
democracy cannot be established without removing the inequalities in income and making
endevour to eliminate inequalities in status through the rule of law. 85 Social unrest, as an
(d) the mere discovery of a new form of a known substance which does not result in the enhancement of the known
efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the
mere use of a known process, machine or apparatus unless such known process results in a new product or employs
at least one new reactant.
Explanation.-For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size,
isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be
considered to be the same substance, unless they differ significantly in properties with regard to efficacy.
83
Preamble, Indian Constitution, 1950.
84
State of Karnataka v. Pravin Bhai Thogadia, (2004) 4 SCC 684.
85
Samatha v. State of A.P, (1997) 8 SCC 191.
27
aftermath of financial crisis, thus calls for the appropriation of resources in a fruitful way. Indian
of tomorrow, therefore, can only be built by realization of the objectives of the Constitution.86
The responses of three branches of the state highlight the availability of statutory obligations
and structured policy framework for tackling the menace of the market which could potentially
threatened the subsistence rights of individuals. These responses are not only necessary as a
matter of justice, but will make the reforms of the financial and economic system more
sustainable and resilient to future crises. It is a matter of the fact that the policies of the
government would not bind the future government but they would certainly influence peoples’
perception on the performance of the government. The legislations would certainly impose
positive obligations upon the successive governments to implement statutorily recognized socioeconomic rights until they are amended or repealed by the government. Judicial decision as a
source of law binds every authority of the government; hence judicial pronouncements recognize
socio-economic rights and it would be effectuated regardless of policy priority of the
government.
Dr. B.R Ambedkar, architect of the Indian Constitution, when he insisted on the use of the
word ‘strive’ in the language of Article 38 which mentions the governmental objective of an
equitable distribution of material resources, elaborated upon non-negotiable character of the
socio-economic needs which would be appropriate reminder to the State about obligations of
human rights during the crisis:
“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 fulfillment 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.”87
86
87
G.R Madan, India of Tomorrow, Third Edition, Allied Publishers Ltd. 1998.
Constituent Assembly Debates, 19.11.1948.
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