Joint Committee On Human Rights - Twenty-First Report

Joint Committee On Human Rights Twenty-First Report

3 Comparative Approaches to Economic and Social Rights Protection

33. Internationally, the constitutional law of many states, including many European states, contains some measure of protection for economic, social or cultural rights.[41] Amongst common law jurisdictions, the states with the most developed jurisprudence on economic, social and cultural rights are India and South Africa. Of these, the Indian system for protection of these rights has developed through judicial interpretation of the civil and political rights in the Constitution, in particular the right to life, in light of the "directive principles of social policy" contained in the Constitution as guidance to government in the formation of policy. The South African Constitution, by contrast, contains an express catalogue of economic, social and cultural rights.

The South African Constitution 1996

34. The South African Constitution of 1996, in clauses influenced by the ICESCR, protects a catalogue of basic economic, social and cultural rights. These are subject to varying degrees of protection. Some of these rights, including the economic and social rights of children,[42] the requirement to provide emergency medical treatment,[43] and the prohibition on arbitrary evictions,[44] impose immediate obligations on the State.[45] Others, including adults' rights to adequate housing[46] adequate healthcare, food, water and social security[47] and further education[48] are subject to the principle of progressive realisation within available resources, and will be breached where the State does not take reasonable steps to realise the rights.[49] The Constitution also protects cultural and linguistic rights, including the right to use the language and participate in the culture of one's choice, so long as this right is not exercised in a manner inconsistent with the Bill of Rights.[50]

Jurisprudence of the Constitutional Court

35. The South African Constitutional Court has re-affirmed the justiciability, within certain limitations, of economic, social and cultural rights under the Constitution, in a series of cases dealing with housing and healthcare rights.[51] It has stressed the principle of indivisibility and interdependence of all the Constitutional rights, based on the principle of human dignity, so that "affording socio-economic rights to all people … enables them to enjoy the other rights enshrined in [the Constitutional Bill of Rights]".[52]

36. The Court has adopted a restrained approach to the scope of permissible review of economic, social and cultural rights, confined to consideration of whether the government has taken "reasonable" steps to protect the right.[53] In doing so, the Constitutional Court has expressly rejected a more radical approach which would require the State to provide certain minimal standards of constitutional economic and social rights to all its citizens, since—

[c]ourts are ill-suited to adjudicate upon issues where court orders could have multiple social and economic consequences for the community. The Constitution contemplates rather a restrained and focused role for the courts, namely, to require the state to take measures to meet its constitutional obligations and to subject the reasonableness of these measures to evaluation. Such determinations of reasonableness may in fact have budgetary implications, but are not in themselves directed at rearranging budgets. In this way the judicial, legislative and executive functions achieve appropriate constitutional balance.[54]

37. A series of cases before the South African Constitutional Court have shaped the scope of ESC rights protection. In Government of South Africa v Grootboom, the Constitutional Court found that the State's failure to provide emergency accommodation for homeless applicants was an unreasonable denial of their right to adequate housing. The applicants had been evicted from an illegal squatter camp, and were living in another temporary settlement in extremely difficult and unhealthy conditions. Whilst government programmes were in place to develop social housing in the medium and long-term, the Court found that the absence of any government programme to address the needs of those in immediate need of emergency shelter, within the available resources, was an unreasonable interference with the right to adequate housing. It held that—

…. to be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavour to realise. Those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right.[55]

The Court ordered the Government to implement a programme, within available resources, to address the need for emergency housing as part of the right of access to adequate housing. In the recent case of Port Elizabeth Municipality v Various Occupiers[56] the Constitutional Court followed Grootboom to hold that the eviction of a group of illegal squatters on municipal land was not in accordance with the right to adequate housing, in the absence of any attempt by the municipality to resolve the squatters housing needs before making the eviction order.

38. The second case, Minister of Health v Treatment Action Campaign,[57] concerned the failure of the South African government to make available the anti-retroviral drug neviropine which would prevent the transmission of HIV from mothers to babies. The Court found this to be an unreasonable denial of rights to healthcare and to children's healthcare under sections 27 and 28 of the Constitution. It held that the government had failed to discharge its obligations under section 27(1) to devise and implement a comprehensive and co-ordinated programme to combat mother-to-child transmission of HIV. In reaching this conclusion, the Court took account of the reliable evidence available, both nationally and internationally, that neviropine was safe; the minimal cost, which was well within the State's resources, of making the drug widely available; and the fact that its prescription did not involve complex additional training for healthcare staff. The Court ordered the removal of restrictions on the availability of neviropine, and the taking of reasonable measures to extend testing and counselling facilities throughout the public health service, to facilitate and expedite the use of the drug.

39. In the case of Khosa and others v Minister of Social Development,[58] the Constitutional Court held that the exclusion of permanent residents who were not South African citizens from provision of social welfare benefits, was an unreasonable and unjustifiable interference with the constitutional right to social security guaranteed to "everyone" under section 27 of the Constitution. This was considered in light of the guarantee of equality in section 9 of the Constitution. Noting that permanent residents were in a position largely analogous to South African citizens, and that extension of benefits to them would not have a significant budgetary impact, the Court considered that a limitation on their rights that affected their dignity and equality in material respects, could not be justified.[59]

India

40. The Indian Constitution recognises economic, social and cultural rights as "Directive Principles of State Policy" which, unlike the guarantees 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.[60] 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,[61] the right to medical facilities,[62] the right to earn a livelihood, and environmental rights.[63] In Olga Tellis v Bombay Municipal Corporation[64] the Supreme Court held that—

The sweep of the right to life conferred by article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to the procedure established by law. That is but one aspect of the right to life. An equally important fact of that right is the right to livelihood because no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.

41. In the Tellis case, the right to a 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[65] 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.

42. 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. In Bandhua Mukti Morcha v Union of India[66] the Supreme Court required measures to be taken to provide educational and health services to child labourers, and to provide them with adequate nutrition.[67]

43. A feature of the Indian caselaw is the emphasis placed by the courts on implementation of judgments. Indian courts are active in ensuring implementation of their judgments, and in keeping under review the government's compliance with them.[68] In some cases the courts have issued a series of orders on the implementation of a judgment on economic and social rights.[69] In Bandhua Mukti Morca v Union of India,[70] the Court recognised the importance of monitoring the enforcement of its judgments, and requested Periodic Reports from the authorities on implementation. The Supreme Court has also directed government to take measures to implement human rights protective legislation which it considers has not been sufficiently enforced.[71]