Economic and Social Rights under Indian Constitution

The basic constitutional scheme for the realization of the socio-economic goal is laid in Parts III and IV of the Constitution. Entrenched and Justifiable Fundamental Rights enshrined in Part III provide Constitutional guarantee of these basic human rights as being inalienable and not subject to political vicissitudes. Directives for realization and effectuation of the ideology of Part III are contained in Part IV – The Directives through non-justifiable theoretically permeate the whole ethos of Part III. Synthesis and integration of Fundamental rights with Directive Principles in the judicial process of Constitutionalisingsocial and economic rights have been crucial in giving impetus to the pace of realization of the Directive Principles not only as a means to effectuate Fundamental Rights but also as a source of law for a Welfare State.

Introduction

Part III of the Indian Constitution mainly deals with civil and political rights while Part IV mainly deals with social and economic rights. The categorization of civil and political rights under Part III and socio-economic rights under Part IV is comparable to ICCPR and ICESCR respectively. The core rights mentioned in the ICESCR can be found under Part IV of the Indian Constitution. It includes provisions pertaining to basic needs, workers rights, and social justice.

Part IV is referred to as fundamental in the governance of the State. The presence of socio-economic rights in the constitution—even if the rights themselves are directive and not judicially enforceable—may incline the courts toward a more expansive interpretation of the state’s responsibilities and a more communitarian understanding of rights. India takes this further: the 25th Amendment to the Constitution of India (Article 31-C) provides that legislation intended to further certain socio-economic principles stated in the Constitution cannot be annulled solely on the grounds that they infringe other fundamental rights.

Historical Background

  • The Nehru Report of 1928 which contained a Swaraj Constitution of India incorporated some fundamental rights.
  • The Sapru Report of 1945 clearly divided the fundamental rights into two categories – Justifiable and Non-justifiable.
  • Individual Rights are divided into two categories by Sir B. N. Rau, Constitutional Advisor to the Constituent Assembly i.e., those which can be enforced by the Court and those which are not enforceable. The later he thought as ‘moral percept’ for the authorities of the State.
  • His suggestion was approved and the novel feature was borrowed from the Constitution of Ireland which had copied this novel feature from the Spanish Constitution. It sets forth certain principles of social policy for the guidance of the State but which are not cognizable by any Court.
  • The real importance of Directive Principles contained in Part-IV of the Constitution of India is that they contain the positive obligation of State towards its citizens.
  • The Union and the State Governments must keep these ideas into consideration while the formulation of any law or during passing any law.
  • In India, with its history of caste-based discrimination, there remains a group of marginalized, lower-caste people regarded as ‘untouchables’. To remedy historical discrimination against these groups, the Indian Constitution specifically provides that ‘the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation’ (Constitution of India, Part IV).

Concept

Realization of human rights depends upon the civilization of a society. These rights are inalienable rights of every individual. To promote and protect human rights, certain principles are constituted by every society. After the tyrannical rule of Britishers, a new dimension containing human rights was adopted by the Indian society. Human rights were distinguished in two categories; fundamental rights as justiciable and directive principles as non-justifiable in the court of law. The categorization was based upon Indian values and guided by a struggle of independence. 

Part IV of the Constitution starting from Article 37 to 51 constitutes the provisions which embody these fundamental principles. These provisions cover a number of areas of governance ranging from securing and protecting a social order, minimizing inequality among different groups of people, promotion of non-concentration and distribution of wealth, right to an adequate means of livelihood, equal pay for equal work for both men and women, the health of workers, freedom and dignity of children and youth, free legal aid, organization of village Panchayat, Right to work, Right to education, Right to public assistance in cases of unemployment, old age, sickness and disablement, just and humane conditions of work and maternity relief, the living wage for workers, participation of workers in the management of the industries, Uniform Civil Code for the citizens, promotion of educational and economic interests of scheduled castes, scheduled tribes and weaker sections, raising the level of nutrition and the standard of living and improvement of public health, and many more principles.

Legal Provisions

  1. Right to work – Article 41 (Constitution of India) & Article 6(1) ICESCR.
  2. Just and favorable conditions of work with equal remuneration for work of equal value – Article 39(d) and Article 42 (Constitution of India) & Article 7 ICESCR.
  3. Right to an adequate standard of living and the right to be free from hunger – Article 43 and Article 47 (raising level of nutrition) [Constitution of India] & Article 11 ICESCR.
  4. Right to education including free and compulsory primary education – Articles 21, 21A, 41 and 45 (Constitution of India) &Article 13 ICESCR.
  5. Right to health – Article 47 (Constitution of India) & Article 12 ICESCR.

Amendments

  1. Constitution (Forty-second Amendment) Act, 1976 – Inserted Articles 39A, 43A and 48A and added Article 39(f) in Part IV of the Indian Constitution.
  2. Constitution (Twenty-fifth Amendment) Act, 1971 –To give primacy to directive principles, Article 31C was inserted in the Indian Constitution.

Case studies

  1. Randhir Singh v. Union of India[i]

The Supreme Court has held that though not a fundamental right, the principle of ‘equal pay for equal work’ is certainly a constitutional goal, and therefore, capable of enforcement through constitutional remedies under Article 32 of the Indian Constitution.

  • M. C. Mehta v. State of Tamil Nadu[ii] (Child Labour Abolition Case)

A three-judge bench of the Supreme Court (comprising of Kuldeep Singh, B. L. Hansariaand S. B. Majumdar, JJ.)  has held that children below the age of 14 years cannot be employed in any hazardous industry, or mines or other work.

The Hon’ble Court further issued guidelines to be followed regarding the judgement.

  • Unni Krishnan v. State of A. P.[iii]

The Supreme Court held that the ‘Right to education’ up to the age of 14 years is a fundamental right within the meaning of Article 21 of the Constitution of India, but thereafter the obligation of the State to provide education is subject to the limit of its economic capacity. “The right to education flows directly from right to life”, the Court declared.

  • Centre of Legal Research v. State of Kerala[iv]

It has been held that in order to achieve the objectives in Article 39 A, the State must encourage and support the participation of voluntary organisations in operating the legal aid programme.

  • The state of Maharashtra v. Manubhai Pragaji Vashi[v]

It was held that under Article 21 read with Article 39 A casts on the State a duty to afford grants-in-aid to recognized private law colleges similar to other faculties e.g., arts, science etc.

Conclusion

The recognition of basic human needs, by way of recognizing the corresponding non-justiciable obligation of the State (and not that of the right holder and the rights) in the form of directive principles being fundamental in the governance of the country, intended to deny any normative grounding to a right based discourse around basic human needs.

The Constitution of India does not expressly talk about socio-economic rights barring the two Articles forming part of the directive principles which uses the expression “right‟. Article 39(a) states that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood and Article 41 stipulates that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and public assistance in cases of unemployment, old age, sickness and disablement. Apart from this Article 45 in its unamended form imposed an obligation which was prioritized by the Constitution itself by providing for free and fair education for children until they complete the age of fourteen years to be achieved within ten years of the commencement of the Constitution. The force of the nomenclature of „right‟ and the command under the unamended Article 45 along with the other directive principles gets blunted to a great extent by Article 37, which makes directive principles not justifiable in a court of law.

The Courts in India, however, lead by the Supreme Court have acknowledged the logical inconsistency in distinguishing the two set of rights, one as justifiable and other as non-justifiable under the Indian Constitution, and have therefore read basic human needs forming part of the socio-economic rights theorization being bare essentials to lead a dignified life, into the right to life under Article 21. Indifference towards the obligation contained in the principles which are fundamental in the governance of the country by the government has certainly acted as a catalyst in enabling courts in taking an activist stand. This has re-oriented the basic human needs into a justifiable right.

References

Questionnaire

  1. In which part of the Indian Constitution socio-economic rights are mentioned?

Answer: Part 4

  • Directive Principles has been borrowed from the Constitution of which Country?

Answer: Ireland

  • Which part of the Constitution of India, includes the concept of welfare States?

Answer: Directive Principles of State Policy – Part IV

  • Which of the Directive Principles are not enforceable in any Court?

Answer: Article 37

  • Which  article was added to Indian Constitution by 25th amendment act , which gives the directive principles in article 39 (b) and ( c) primacy over fundamental rights guaranteed under article 14 & 19 of the Indian Constitution?

Answer: Article 31-C


[i]AIR1982 SC879.

[ii] AIR1997 SC699.

[iii](1993) 1 SCC645.

[iv] AIR1986 SC1332.

[v] (1995) 5 SCC370.

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