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Introduction
Economic, social and cultural rights (ESCR) include the human
right to work; the right to an adequate standard of living,
including food, clothing, and housing; the right to physical and
mental health; the right to social security; the right to a
healthy environment; and the right to education.
Need for protection of ESCR:--
Economic, Social and Cultural Rights are an important part of the
international human rights law. They have been fully recognized by
the international community and throughout international human
rights law.
Although these rights have received less attention than civil and
political rights, far more serious consideration than ever before
is currently being devoted to them. The question is not whether
these rights are basic human rights, but rather what entitlements
they imply and the legal nature of the obligations of States to
realize them. The fact is that civil and political rights and
economic, social and cultural rights are indivisible and
interdependent. Without realizing economic, social and cultural
rights, there cannot be a meaningful enjoyment of civil and
political rights.
Key International Instruments on ESCR and the Optional Protocol to
the International Covenant on Economic, Social and Cultural Rights
(ICESCR):--
Various international instruments recognize economic, social and
cultural rights as integral parts of the human rights framework.
The first comprehensive international instrument encompassing both
sets of rights i.e., civil and political rights and the economic,
social and cultural rights is the Universal Declaration of Human
Rights (UDHR). The International Covenant on Economic, Social and
Cultural Rights (ICESCR) remains the principal instrument on
economic, social and cultural rights. It recognizes the right to
self determination;
equality for men and women; the right to work and favourable
conditions of work; the right to form and join trade unions; the
right to an adequate standard of living including adequate food,
clothing and housing; the right to health and healthcare; the
protection of the family; and the right to social security. As of
November 2005, 149 countries have ratified the Covenant.
Other key international instruments include the Convention on the
Elimination of All Forms of Racial Discrimination (1965), the
Convention on the Elimination of All Forms of Discrimination
against Women, 1979 (CEDAW) and the Convention on the Rights of
the Child, 1989 (CRC), Limburg Principles and the Maastricht
Guidelines, Vienna World Conference on Human Rights Declaration
and Plan of Action and Conventions of the International Labour
Organization.
General Principles of ESCR and State Obligations to Promote,
Protect and Fulfill:--
State parties are bound to ensure minimum human rights regardless
of their resource constraints. For ESC rights, minimum core
requirements include available foodstuffs for the population,
essential primary healthcare, basic shelter and housing, and the
most basic form of education. The Committee on Economic, Social
and Cultural Rights elaborated on state obligations under General
Comment 3: The Nature of State Parties Obligations
How do states fulfill their minimum requirements?
Respect- the obligation to respect requires governments to refrain
from interfering directly or indirectly with the enjoyment of ESCR
Protect-
the obligation to protect requires governments to prevent third
parties such as corporations, from interfering in any way with the
enjoyment of ESCR
Fulfill-
the obligation to fulfill requires governments to adopt the
necessary measures to achieve the full realization of ESCR.
The Indian Context:--
The Indian Constitution recognizes economic, social and cultural
rights as ?Directive Principles of State Policy? which, unlike the
guarantee of civil and political rights in the Indian
Constitution, are not directly enforceable in the courts, but are
intended to serve as guidance for government policy. The Indian
law of economic, social and cultural rights has been developed
incrementally by the courts, drawing on the Directive Principles
as aids to interpretation of the civil and political rights which
are justiciable under the Constitution, to elevate the status of
the Directive Principles as constitutional rights. In particular,
the Indian Supreme Court has adopted an expansive interpretation
of the constitutional right to life, based on principles of human
dignity, to protect certain economic and social rights, including
the right to adequate nutrition, clothing and shelter, the right
to medical facilities, the right to earn a livelihood, and
environmental rights.
In the
Olga Tellis case,
the right to livelihood meant that there was an obligation on the
state to afford procedural fair hearing rights to a group of
pavement dwellers whose livelihoods were threatened by their
eviction. Beyond procedural rights, the Supreme Court has held in
Paschim Banga Khet Mazdoor Sabha v. State of West Bengal
that the State's obligations to protect economic and social rights
may include obligations to provide additional resources, for
example to ensure essential healthcare services.
Similarly, the right to life and personal liberty, in Article 21
of the Constitution, has also been applied by the Supreme Court,
in conjunction with Directive Principles relating to education,
health, and conditions of employment, to address the working
conditions of child labourers in the carpet industry.
Thus, ESC rights are no less important than fundamental rights in
the constitutional scheme. It need hardly be added that the duty
cast on the State under Articles 47 and 48-A in particular of Part
IV of the Constitution is to be read as conferring a corresponding
right on the citizens and therefore, the right under Article 21 at
least must be read to include the same within its ambit. The ESC
rights that the DPSP symbolize can demonstrably be read as forming
part of an enforceable regime of fundamental rights. Therefore it
is crucial for the State to implement this constitutional mandate.
The State has to be constantly reminded of its obligations and
duties. This is the Indian Experience.
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author can be reached at: senjhuma1984@legalserviceindia.com /
