The Indian Constitution without social and economic rights would have been a betrayal to the very spirit of democracy. The debate on social rights is multi-faceted and there is no centralized theme to this argument. The formal arrangement in the Constitution has placed Socio Economic rights with other directives in Part IV which includes Directive Principles of State Policy. Civil and Political rights are often overlapped with socio-economic rights enshrined in part IV.
The judiciary has shaped its role as a solitary structure by interpreting socio economic rights as a scheme of fundamental rights for attaining greater social and economic empowerment. The first instance of this empowerment can be traced back to 1981-82 when the Supreme Court expanded the meaning of life enshrined in article 21 by bringing in the ‘dignity’ component. The purpose of this paper is not to get into the question of justiciability of directive principles and fundamental rights but rather attempt to analyse the judicial role in the light of increasing judicial activism. Secondly, the author attempts to highlight cases that paved the way for establishing ‘right to health’ as a part of article 21 ‘right to life’ and lastly, we shall briefly overview a recent controversial case.
Contribution or activism?
Increasing access to justice and taking over the role of legislature are two fundamentally different objectives. While broadening the scope of locus standi and non-adversarial, investigative proceedings are the steps that established the judiciary as a justice delivery system, it has also raised major concerns. For instance, let us consider the Apex court’s opinion in Francis Mullin vs Union Territory of Delhi (1981). The landmark case never involved a social issue. Francis Coralie Mullin focused on the rights of a person detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974. The cases under this statute were classic civil liberties cases. At this juncture, quoting from the judgement is of paramount importance,
"We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings"
Another development was the movement of Public Interest Litigation towards the end of the internal emergency of 1975-77. It is intricately linked with incorporation of socio economic rights as fundamental rights. The procedural innovations were accompanied with PILs. For instance, letters to judges were treated as petitions, commissioners were judicially appointed to verify facts, etc. These procedural developments took place simultaneous with an important substantive one: the "right to life" in Article 21 of the Constitution was interpreted to include several socio-economic guarantees. Additionally, From A.K. Gopalan to Maneka Gandhi, judiciary had come a long way, it wanted to redeem itself as a sole protector of justice.
It is pertinent to highlight the case of Narmada Bachao Andolan where the debate of legitimacy and competence of judicial intervention arose. The majority opinion was that ‘if a considered policy decision has been taken, which is not in conflict with any law or is not mala fide, it will not be in public interest to require the court to go into and investigate those areas which are the functions of the executive’. This case remarkably supports the argument of overlapping judicial activism with legislature. Courts are incompetent to adjudicate matters of policy since policies are an inherent subject of legislature and executive. However to achieve the final ends of justice, court extended its competency and granted relief.
Right to health
The social hierarchy of India continues to strive with massive energy where the elites establish their dominance over poor. This invisible hunger of power and control has ultimately led to degradation of health of individuals. Right to health as per article 47 of the Directive Principles of State Policy (DPSP) underlines the state’s role in improving public health. Although the court never faced difficulty in establishing the justiciability of this right, enforceability has been a tough road.
In, Parmanand Katara v. Union of India a prominent decision was delivered with regard to right to health. In this case, the court was confronted with a situation where hospitals were refusing to admit accident victims and were directing them to specific hospitals designated to admit ‘medico-legal cases’. The court ruled that while the medical authorities were free to draw up administrative rules to tackle cases based on practical considerations, no medical authority could refuse immediate medical attention to a patient in need. The Court observed that denial to access to health care is violation of ‘protection of life and liberty’ guaranteed under Article 21. Strengthening the recognition of the ‘right to health’ in Indian Medical Association V V.P.Shantha, it was ruled that the provision of a medical service (whether diagnosis or treatment) in return for monetary consideration amounted to a ‘service’ for the purpose of the Consumer Protection Act, 1986. Consequently the medical practitioner could be held liable under the Act for deficiency in service in case of negligence.
Even though these two cases present the beauty of judiciary as a justice delivery mechanism, we cannot ignore the strong remedial approach taken by courts on certain occasions. In Consumer Education, a public interest petition highlighted health hazards faced by workers in asbestos industries. After examining the dangers of exposure to asbestos, the Supreme Court held that employers had a constitutional responsibility to provide for safe working conditions. It was in consideration of the fact that diseases like asbestos are diagnosed only after the retirement of employees whereas the Employees’ State Insurance Act and the Workmen’s Compensation Act provided workmen a compensation for death or injury only during their employment. Unarguably, the statute was incompetent at this juncture. Hence, the court made the rules of International Labour Organisation binding on all industries. The inadequacy of statute and void of legislation was filled by judiciary.
Through the analysis done by Shylashri Shankar & Pratap Bhanu Mehta, there is another minor issue that ought to be pointed out. Shankar and Mehta note that in the 1992 decision C.E.S.C. Limited v. Subhash Chandra Bose, Justice Ramaswamy recognized the constitutional right to health in a minority opinion, but "the majority opinion, however, held that in the absence of legislation, one could not talk of a right to health".
Curious case of privacy
Moving beyond the paradigm of rights-remedy, courts have definitely changed the meaning of social democracy. The midnight crackdown on supporters of Baba Ramdev at Ram Lila ground in Delhi reiterated the court’s role in establishing the fundamental necessity of socio economic justice. The hearing was against the rude awakening of citizens by the police action.
Maintenance of democratic crux of a nation is not possible if the citizens are not guaranteed their basic human rights. Hence, when the attorney general quoted a 1954 judgement to assert the present position of privacy rights in our country, he faced criticism from all corners. The preservation of ‘private sphere’ is the heart of all fundamental rights. The position of the state was very clear when they demanded the surrender of right to privacy from its citizens in lieu of added benefits of subsidies, payments etc. The demand of government to waive the fundamental right of privacy in trade of Aadhar cards was unjustified.
The Constitutional jurisprudence of our country incorporates the right to privacy like all other basic rights in article 21 with life and dignity. The future of our liberal democracy definitely lies in danger because of this compromising offer made by the state. Post Sharma, a variety of decisions have recognized ‘right to privacy’ as an inherent component of Article 21. Hence, it would not be incorrect to hope that India’s post- independence legal fraternity shall witness another landmark contribution of judiciary in making social and economic justice accessible.
A perusal of judicial panorama in this discussion has highlighted the expansion of interpretation of fundamental rights to make our society equitable and just. It is noted that there is only one counterintuitive conclusion from the above observations, the Court has contributed to making India’s system of social ordering more convenient, but has also undermined the legitimacy of that system. Although the overt judicial activism and misuse of liberal technicalities of PIL are issues of primary concern, we have to acknowledge the gigantic roleplay of the same in delivering justice.
Social rights adjudication in our country is inherently co-related to the actions of state. The instance of right to health taken in this opinion proves the same. Preparing a structure for implementation of policies and maintaining a system of checks and balances has definitely made Indian society more inclusive and democratic. Even though, we still have miles to cover before becoming a utopian social framework, the judiciary has given us a platform to begin with. In the real sense, the court has played a pivotal role in imposing positive obligations on authorities to give its citizens a fair, just and equitable society.
The writer is a third-year student of the West Bengal National University of Juridical Sciences, Kolkata.