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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