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CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

SOCIAL AND ECONOMIC RIGHTS : A JURISTIC ANALYSIS

SUBMITTED TO: DR. MANORANJAN KUMAR

(FACULTY OF JURISPRUDENCE -II )

SUBMITTED BY: PRIYA JHA (1419)

[3RD YEAR , 6TH SEMESTER ]

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ACKNOWLEDGEMENT

Writing a project is one of the most significant academic challenges I have ever
faced. Though this project has been presented by me but there are many people
who remained in veil, who gave their all support and helped me to complete this
project.

First of all I am very grateful to my subject teacher without the kind support and
help of whom the completion of the project was a herculean task for me. He
donated his valuable time from his busy schedule to help me to complete this
project and suggested me from where and how to collect information and data.

I am very thankful to the librarian who provided me several books on this topic
which proved beneficial in completing this project.

I acknowledge my friends who gave their valuable and meticulous advice which
was very useful and could not be ignored in writing the project. I want to convey a
most sincere thanks to my parents for helping me throughout the project.

PRIYA JHA

ROLL NO. 1419

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TABLE OF CONTENTS

Page
TITLE Number

Introduction
Assessing the Jurisprudence
a) Social jurisprudence in India
Domestic Implementation Of Social And Economic Rights
a) Legitimacy Concerns Regarding the Judicial Enforcement of Social and
economic Rights
i) Democratic legitimacy
ii) Separation of powers
Institutional Capacity Of Courts To Adjudicate Social And
Economic Rights
Review Of Jurisprudence
a) Adjudicating different types of obligations
Conclusion

Bibliography
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INTRODUCTION

In the space of two decades, social rights have emerged from the shadows and margins of human
rights discourse and jurisprudence to claim an increasingly central place. In a significant number
of jurisdictions, adjudicatory bodies have intervened to protect a wide range of social rights from
intrusion and inaction by the State, and increasingly by non-State actors. The breadth of the
decisions is vast. Courts have ordered the reconnection of water supplies, the halting of forced
evictions, the provision of medical treatments, the reinstatement of social security benefits, the
enrolment of poor children and minorities in schools, and the development and improvement of
State programmes to address homelessness, endemic diseases and starvation. The term ‘social
rights’ is principally used since the overall focus is on human rights such as social security,
health, education, housing, water and food. Domestic legislation in many countries provides a
measure of judicially enforceable labour and social rights. What is significant is that the more
durable human rights dimensions of these social values or interests, whether captured in
constitutions or international law, are being adjudicated. This is not to downplay the role of
legislation from either a principled or pragmatic perspective. It is often more precise and
contextualised and has the direct authoritative and democratic imprimatur of the legislature. But
legislative rights are not always sufficient to protect human rights, and they are subject to
amendment by a simple majority of the population. The result is that we are now in a position to
trace a pattern of judgments and decisions on social rights across the world. While social rights
jurisprudence is nascent, it cuts across common and civil law systems, developed and developing
countries and regional groupings. The phrase ‘social rights jurisprudence’ means jurisprudence
that draws on human rights in international treaties or constitutions for the protection of social
rights.

The rapid trajectory of social rights jurisprudence is surprising given its scattered antecedents for
most of the twentieth Century. Such instances include the International Labour Organisation
(ILO)’s Committee of Experts, established in 1927 to review the implementation of the initial
labour conventions by member States. This was followed in 1951 by the creation of a more
judicial like mechanism, the Committee on Freedom of Association which was empowered to
address breaches of ILO conventions concerning freedom of association and the right to organise
and bargain collectively.
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According to the Court, equality must not only exist in law but in fact, and it went on to
articulate the essentialist role of education for minorities declaring that ‘there may be no true
equality between a majority and a minority if the latter were deprived of its institutions (schools
in our case) and were consequently compelled to renounce what constitutes the very essence of it
being a minority’. From 1978, the Indian Supreme Court, and some state courts, went further and
embarked on a process of deriving a broad range of social rights from the right to life in light of
the directive principles institution. This stance was justified on the basis that the right to life was
the ‘most precious human right’ and ‘must therefore be interpreted in a broad and expansive
spirit so as to invest it with significance and vitality which may . . . enhance the dignity of the
individual and the worth of the human person’. In its first clear social rights case in 1980, the
Indian Supreme Court ordered a municipality to fulfil its statutory duties to provide water,
sanitation and drainage systems. The Court also relaxed rules of standing and remedies in order
to facilitate both the filing of petitions and flexible remedial orders.

The UDHR includes the following rights: life; freedom from slavery; freedom from torture;
recognition before the law; non-discrimination; right to an effective remedy; freedom from arbitrary
arrest or exile; fair trial; presumption of innocence in criminal trials; freedom of movement and
residence; asylum; a nationality; marriage; own property; freedom of conscience and religion; freedom
of opinion; peaceful assembly and association; take part in government and vote; social security;
work; visual complaints could only be made concerning violations of the rights in the International
Covenant on Civil and Political Rights. Its sister treaty, the International Covenant on Economic,
Social and Cultural Rights (ICESCR) remains deprived of such a mechanism, although the Human
Rights Council is close to addressing this historical imbalance. This same division between the two
sets of human rights was mirrored in Western European constitutions, a number of Latin American
constitutions and many post-colonial constitutions in Africa and Asia. If included, social rights were
often relegated to directive principles. Similarly, at the European level, the committee overseeing the
European Social Charter lacked the judicial powers of the European Court of Human Rights. In many
countries though, human rights litigation was largely impossible because of colonial or one-party rule,
although it was successful in some instances in publicly highlighting injustices , just and favourable
conditions of work; form and join trade unions; rest and leisure; adequate standard of living for health;
education; and participation in cultural life (Articles 3–27).
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RESEARCH METHODOLOGY:

The researcher has used doctrinal method in her research, that is, extensive use of literary
sources and materials. The researcher mainly uses secondary sources to provide substance to the
research analysis. The researcher has also put down immense effort in order to understand the
terms and concepts related to the subject which enriched the study to a great extent. In some
cases, the researcher shall be bound to extract materials directly from the literary work of certain
authors which the researcher intend to adequately cite and notify in due course of time.
“Doctrinal research or traditional research involves analysis of case laws, arranging, ordering and
systematizing legal prepositions and study of legal institutions, but it does more – it creates law
and its major tools through legal reasoning or rational deductions. In the opinion of Boomin, this
kind of research represents more a practical regulative ideal of how the judicial process ought to
be conceived by the judiciary than a theoretical analysis of its actual structure and functioning”.

SOURCES OF DATA:

The following sources of data have been used in the completion of this project:

 Secondary Sources: Articles, Books, Websites.

SCOPE AND LIMITATIONS:

Though this is an immense project and pages can be written over the topic, but due to monetary
and time concerns I could not deal with the topic in greater detail.
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CHAPTER 1

ASSESSING THE JURISPRUDENCE

As there is no one reason for explaining the rise of social rights jurisprudence, it is neither
possible to develop any grand or universal theory from the existing jurisprudence. Indeed, it is
questionable whether one should. Mark Tushnet cautions on the use of comparative law to
universalise on the ideal legal doctrine lest it lead to excessive abstraction. Constitutional law is
deeply embedded in the institutional, doctrinal, social and cultural. Some social rights advocates
themselves have cautioned against a general attempt to ‘search for universal, transcendental
components’ of economic, social and cultural rights. The development of social rights
jurisprudence should follow the ‘grounded’ path of civil and political rights, which he argues
have been ‘adjudicated in historical contexts and must incorporate understanding of the
subjective component of the dignity related interests’. These cautionary perspectives conform
with our attempt above to explain differences between jurisprudence in similar-situated
jurisdictions. Different historical and cultural conditions play a significant role. But a
comparative and international analysis of the jurisprudence can still be useful. From a positivist
standpoint, it is important to understand the current trends in adjudication of social rights, to
identify the common and divergent threads, the manner of legal reasoning, and the extent to
which international and comparative law is shaping or not shaping the developments.

SOCIAL JURISPRUDENCE IN INDIA : "Choosing freedom is not, as we are told, choosing

against justice.... If this cruel century has taught us anything at all, it has taught us that economic
revolution must be free just as liberation must include the economic."Albert Camus. The
Supreme Court of India, during the last decade, has been developing a new jurisprudence which
for want of a better expression may be called 'social jurisprudence'. It has achieved a balance
between political rights and social rights. In this achievement, the social rights have been given
greater importance in some cases. This achievement may be described as unique. Even, in the
United States of America, there is a move to recognise some rights as core rights which are
called subsistence rights or rights to minimal economic security. These rights include
"unpolluted air, unpolluted water, adequate food, adequate clothing, adequate shelter, and
minimal preventive public health care". Now that the Supreme Court of India has impliedly
accepted the theory of 'unenumerated rights' in its interpretation of Article 21, it is submitted that
there is adequate scope for the development of the theory of 'core rights' or 'subsistence rights'.
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The concept of human rights is complete only when there is acknowledgment of subsistence
rights along with traditional liberties. As a matter of fact, the Supreme Court of India accepted
this principle when it laid down in Minerva Mills case, that there is harmony and balance
between fundamental rights and the directive principles of State policy and this harmony and
balance is a basic feature of the Constitution. The Supreme Court upheld traditional liberties i.e.
fundamental rights when there is political threat to these rights. Similarly, the Supreme Court has
to uphold subsistence rights when there is social and economic threat to these rights. Political
threats to traditional liberties may be conscious or otherwise. But, the social and economic
threats to subsistence rights being conscious these rights command greater attention from the
judiciary. As the Supreme Court ensures the enjoyment of fundamental rights by warding off
political threats, similarly the court has also to ensure enjoyment of subsistence rights by
warding off social and economic threats. This is the new role of Indian Supreme Court. It is
through this role, the new jurisprudence is being evolved. There is another factor which also
contributes to the evolution of social jurisprudence. Indian Constitution aims at a Welfare State.
Importance of a Welfare State is two fold : it provides a wide range of benefits to be made
available by the State to the citizens as of right, but at the same time it enhances the power of the
bureaucracy, since the benefits thus provided are inevitably administered by government
departments or their agents. Hence a Welfare State creates its own legal problems. These
problems cannot be solved by judiciary if it adopts the traditional rules of interpretations. Nor
can they be solved by Judges who play the role of disinterested umpires. Judges are a part of the
constitutional set-up. They have to play their role in securing to all citizens of India social and
economic justice. The Judges can play this role effectively only when they participate in their
limited way in the process .of securing social and economic justice. Hence Judges have to
become 'activist Judges'. They have to protect fundamental rights of the citizens which are
individual rights against the tyranny of the government and the socio-economic rights,
particularly of the unprivileged against the tyranny of bureaucracy, antisocial forces and
unscrupulous politicians. The Supreme Court of India during the last decade starting from 1978
has been responding to this new responsibility in an admirable manner. It has been guarding both
the political liberties as well as socio-economic rights of the citizens, particularly of the
unprivileged and the downtrodden people. It has developed new strategy of 'public interest
litigation' for upholding and enforcing the rights of the unprivileged. It has devised new methods,
forged new tools and innovated new strategies. Credit of this new development goes primarily to
activist Judges like P.N. Bhagwati, Krishna lyer, D.A. Desai, Chinnappa Reddy, JJ. Their
attitude was influenced by radicalism and insurgency, Madon, J. of the Supreme Court of India
justifies the role of activist Judges. He says, "A Judge who denies to himself judicial activism,
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denies to himself the role of a judge. Nature abhors a vacuum. Take away judicial activism and
tyranny will step in to fill the vacant sphere".

The Supreme Court of India has faced the challenges of a Welfare State in an unique manner. It
has accepted new concepts of 'locus standi' and 'public interest litigation'. It has interpreted the
constitutional provisions relating to the fundamental rights and the directive principles of state
policy in a harmonious manner, thus enabling the citizens of India to march towards the goal of
socio-economic justice. It laid down that there is harmony and balance between the fundamental
rights and the directive principles and this harmony and balance is one of the basic features of
the Constitution. The Supreme Court also played its role in upholding human rights and political
rights. It interpreted the term 'life' in Article 21 to include the right to livelihood, the right to
speedy trial etc.10 It read in Article 14 the notions of 'fairness', 'reasonableness' and 'absence of
arbitrariness' and thus widened the protection of Article 14. It evolved doctrine of basic structure
of the Constitution and put a check on whims of Parliament to amend the Constitution as it liked.
Thus, both in the sphere of political rights and also of economic and social rights the activist
Judges of the Supreme Court have evolved a new Indian jurisprudence. This is described as
'judicial law-making' and is not approved by some critics. But, for interpreting a dynamic
constitution as the Constitution of India is, a creative attitude is necessary. If such an attitude is
not adopted Indian Constitution will cease to be a social document which it is. This creative role
can be played successfully only by a well-equipped Judge. It is only a Bhagwati or a Krishna lyer
and others of their category who can play the role effectively. The pledge of socialism in the
Preamble of the Constitution can be fulfilled only by social jurisprudence to be developed by
competent activist Judges. The expectation of the Indian Society today has been well explained
by Madon, J. of the Supreme Court of India. He writes : The collective will of the society today
wants that if the rich sleep in luxury apartments, the poor should sleep at least with a roof over
their head, that if the rich can eat both bread and cakes, the poor should at least eat bread, that if
the rich can live in opulence, the poor should at least be able to afford basic comforts of life. If
the law is to operate today, so as to secure social justice to all, who else can do it but Judges
whose constitutional task is to interpret and apply the law. The judiciary thus wishes to bring
about a silent revolution for the purpose of securing socio-economic justice to all. The urgency
of securing socio-economic justice is rightly pointed out by Chandrachud, C.J. He observes : The
promise of better tomorrow must be fulfilled today, day after tomorrow it runs the risk of being
conveniently forgotten. Indeed, so many tomorrows have come and gone without a leaf turning
that today there is a lurking danger that people will work out their destiny through the compelled
cult of their own 'dirty hands'.
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The concept of social and economic justice is closely linked with ethical principles. Cause of law
is the welfare of society. When the welfare of society becomes the aim as against mere
individual rights, a new concept of natural law is developed. This concept is based on ethical
considerations and it gives rise to the concept of social morality. This social morality aims at
making the life of every human being a decent life. The Supreme Court of India in the process of
development of social jurisprudence stresses the importance of social morality and ethical values
in our public life. These qualities are essential to make India a strong welfare democracy.
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CHAPTER 2

Domestic Implementation Of Ecomonic And Social Rights

The ICESCR does not stipulate the specific means by which it is to be implemented and the
precise method by which Covenant rights are to be given effect in national law is a matter for
each State party to decide. However, the means used should be appropriate in the sense of
producing results which are consistent with the full discharge of the State party’s
obligations. Social and economic rights impose three types of obligations on States: (1) the
obligation to respect; (2) the obligation to protect; and (3) the obligation to fulfil.

(1) The obligation to respect

A government must not infringe, or interfere with, the enjoyment of economic, social and
cultural rights. For example, the government cannot engage in forced evictions or confiscate land
without appropriate compensation.

(2) The obligation to protect

A government must prevent third parties from infringing economic, social and cultural rights.
Human rights legislation and human rights commissions have a critical role in fulfilling this
obligation. Human rights legislation is designed to prevent private actors and even the
government from infringing certain rights and human rights commissions are charged with
administering and enforcing the legislation.

(3) The obligation to fulfil

A government has a duty to take appropriate legislative, administrative, budgetary, judicial and
other measures to fulfil the rights; i.e. the government must provide food, shelter, health,
education or other necessities to individuals without the means to provide for themselves.
Canada has responded to these obligations through a variety of social and public policy measures
provincially and nationally. A discussion of the broad range of such programs is beyond the
scope of this paper; however, examples include social assistance, public health care and public
education.
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ECONOMIC RIGHTS

Economic rights are those rights which are necessary for the economic development of the
individual. In Communist countries, these rights are given great importance. Main economic
rights are us under:

1. Right to economic security

2. Right to wages

3. Right to work

4. Right to fix hours of work

5. Right to leisure

What? • Socio-economic rights provide protection for the dignity, freedom and well-being of
individuals by guaranteeing state-supported entitlements to education, public health care,
housing, a living wage, decent working conditions and other social goods.

Why? • Constitutionalising socio-economic rights reflects the need to protect the most
fundamental interests of individuals in having resources that are necessary for the exercise of
their well-bring.

Why not? • Objections to the constitutionalization of socio-economic rights include: the risk of
overloading the state’s capacity to deliver promised goods leading to a lack of legitimacy, the
fear of judges becoming too involved in policymaking and ideological objections.

Where? • Most recent constitutions, especially in Europe, Africa and Latin America, include
some socio-economic rights. North America and the Caribbean are notable for the absence of
such provisions.
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Legitimacy Concerns Regarding the Judicial Enforcement of Social and economic

Rights

i) Democratic Legitimacy

One objection that is made regularly with regard to the legitimacy of adjudication involving
social and economic rights is the alleged ‘anti-democratic’ or ‘counter -majoritarian’ nature of
such adjudication. It is argued that administration of the public purse or formulation of social or
economic policy should only be carried out by elected representatives of the people. However, it
is necessary to consider why these kinds of concerns are given greater weight in relation to social
and economic than civil and political rights. It is arguably the essence of constitutional human
rights norms in democratic states that they will restrain, limit or direct the actions of
democratically elected representatives. Complaints about the ‘anti- democratic’ nature of social
and economic rights adjudication must therefore be assessed in light of the broader debate on the
legitimacy of judicial constraints on democratically elected organs and the role of human rights
in enhancing, rather than undermining, democratic governance.

It is often because of a perception that social and economic rights cases have greater implications
for state resource procurement and spending that concerns about the democratic legitimacy of
judicial review tend to be emphasised more in relation to social and economic rights.

ii) Separation of Powers

Another objection to the legitimacy of the courts dealing with social and economic rights is that
judicial involvement in social and economic rights claims will result in a violation of the
separation of powers among the three branches or organs of government (the legislature, the
executive and the judiciary). This is because, where courts deal with social and economic rights,
such activity allegedly entails the courts exercising functions traditionally associated with other,
elected branches of government, such as considering budgetary implications and prioritising
expenditure or dealing with programs and policies that normally belong on the agenda of the
legislature. A final assertion is that, “if social and economic rights are made justiciable and are
vindicated by the courts, the result will tend to distort the traditional balance of the separation of
powers between the judiciary and other branches of government.
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CHAPTER 3

Institutional Capacity of Courts to Adjudicate Economic and Social Rights

The broad assertion that adjudicating social and economic rights issues is beyond the
institutional capacity of the judicial branch can be broken down into four primary claims. These
are:

(i) that the courts lack the information required to deal with social and economic rights;
(ii) that the judiciary lacks the necessary expertise, qualification or experience to deal
with social and economic rights issues;
(iii) that the courts are incapable of dealing successfully with ‘polycentric’ tasks, such as
those entailed by adjudication involving social and economic rights; and
(iv) that the courts lack the necessary tools and remedies to deal effectively with social
and economic rights

(i) that the courts lack the information required to deal with social and economic rights

The concern about a lack of ‘information’ necessary to resolve social and economic rights issues
primarily relates to rationales for, and implications of, specific social and economic policies or
decisions to prioritise certain areas in the allocation of resources.

Judges can be provided with information by a variety of actors and in many different ways.
Lawyers for the parties in a case will have the primary responsibility for ensuring that the
adequate information is presented to the court. Once before the court, such information will be
subject to adversary review, encouraging parties to bring as much detailed supporting evidence
before the courts as possible and deterring them from presenting inaccurate or incomplete
material. During the course of hearings, courts may seek further evidence from witnesses or from
lawyers. Additional information is available to courts in many jurisdictions through amicus
curiae (‘friend of the court’) or third party interveners.
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One must consider whether there is information, on the basis of which policy decisions are made
by governments, which cannot be conveyed to courts by way of evidence. Since legislatures
themselves rely on bringing witnesses before committees to be questioned, it is difficult to see
any category of information which is the exclusive domain of the legislature, particularly in the
area of social and economic policy. The experience of advocates for social and economic rights,
in fact, is that preparing and presenting evidence for judicial review of government action often
brings forth new information that was not adequately considered by governments or exposes
problems with the information on the basis of which the government acted.

Information that is compiled to assess compliance with rights often has a different focus (for
example, on the effect of policies on vulnerable groups) which may have been lacking in the
information on which governments were basing their decisions. As Scott and Macklem point out,
the ability of courts to relate the expert evidence to the real life circumstances of a rights
claimant may provide an important new dimension to information before the court that was not
available to the legislature. In this sense, judicial review of decision-making in relation to social
and economic rights may enhance the quality of governmental decision-making in this area, in
part by bringing forth new information or more ‘rights-based’ analysis of existing information.

(ii) that the judiciary lack the necessary expertise, qualification or experience to deal with
social and economic rights issues
It has been argued that judges may lack the experience and skill to interpret and process
specialised information of a financial or policy nature and are, therefore, incapable of
adjudicating social and economic rights claims competently. The first response to the concern
about the qualifications or expertise of judges is that this concern reflects a misunderstanding of
the nature of the expertise which is required of courts in adjudicating any kind of rights claim.
Rights claimants do not turn to courts for some kind of superior expertise in the policy issues, but
rather for an expertise in reviewing government decisions or policies against the requirements of
the law. They rely on the exercise of ‘traditional’ judicial competences: hearing from the rights
claimant and other witnesses about the particular situation at issue, considering evidence from
expert witnesses about the broader policy issues, hearing argument from the parties and, finally,
applying the law to the facts in a fair and impartial manner.
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Judges, of course, often specialise in different areas of law, whether through prior private
practice or through development of special interests after appointment to the Bench. While
judges may not start off with expertise in particular areas such expertise may be acquired through
on-the-job experience and judicial education. If the courts are considered capable of evaluating
and drawing conclusions on the basis of complex technical and medical evidence in, for
example, a criminal or tort law context, then there can be no presumption that they are unable to
do so in a social and economic rights context. In addition, it is often possible for judges to
‘delegate’ particular tasks where they deem it appropriate. For instance, in the US, courts have
appointed individuals and bodies including special masters, advisory juries, and court-appointed
experts to help courts to, inter alia, evaluate evidence and resolve technical issues. Similar
mechanisms exist in other jurisdictions.
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Where courts are presented with adequate information and are willing to do so, there can be no
prima facie presumption that they lack the institutional capacity to deal with evidence of a
statistical, scientific, financial, or other nature.

(iii) that the courts are incapable of dealing successfully with ‘polycentric’ tasks, such as
those entailed by adjudication involving social and economic rights

Lon Fuller argued that legal adjudication cannot deal successfully with ‘polycentric’ situations.
In a judicial context, a ‘polycentric’ situation is one in which a judicial decision will have
complex repercussions that will extend beyond the parties and the factual situation before the
court. It has been alleged that courts are ill-suited to make polycentric decisions because of
several features of the adjudicative process, principally the ‘triadic’ nature of the average judicial
proceeding (two parties and a judge), its adversarial nature, and the limitations on the types and
amounts of evidence before the court.

(iv) that the courts lack the necessary tools and remedies to deal effectively with social and
economic rights

Social and economic rights can be vindicated in a wide variety of ways. Orders that have been
employed by courts in rulings involving social and economic rights include: damages; reparation
in kind; declaratory orders; mandatory orders; ‘reading in’ of additional protections in a
legislative scheme where a group has been unlawfully excluded, and supervisory jurisdiction,
through which a Court may retain jurisdiction over a matter in order to provide the legislature
time to remedy a violation.
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CHAPTER 4

Review Of Jurisprudence

We are at a significant advantage in considering the validity of concerns about the justiciability
of economic and social rights in comparison to commentators in earlier years. There is now a
large amount of case law that allows us to assess whether, in fact, courts have been able to deal
with some of the problems considered above, and what strategies have been developed to address
them. Social and economic rights (or aspects of them) have been brought before, and have been
dealt with, by courts in numerous ways. First, social and economic rights have been litigated
directly before courts, resulting in judgments and orders being made expressly on the basis of
such rights. Second, as stated above, many civil and political rights have social and economic
aspects or implications and the acknowledged interrelationship and indivisibility of both kinds of
rights have led to elements of social and economic rights being protected by means of provisions
relating to civil and political rights. In some instances, economic and social rights have been
derived from such rights. Third, some rights, which may be classified as either civil and political
or social and economic in nature, for example, trade union rights and equality rights, may be
employed by litigants and courts in order to give effect to social and economic interests.

The argument that economic and social rights lack the qualities of justiciability cannot, therefore,
be sustained in the face of any reasonable survey of jurisprudence at the national and
international level. The same is true in relation to the contention that only ‘some’ aspects of
economic, social rights are, or might be, inherently justiciable. In a surprising number of cases
from a variety of legal systems, courts have demonstrated that they are capable of identifying the
relevant legal standards to apply in cases concerning alleged violations of economic and social
rights, while at the same time respecting their limits in relation to the distinctive role and
competencies of governments.
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Adjudicating different types of obligation

Obligations of governments in relation to social and economic rights are commonly expressed as
a tri-partite typology of obligations: the duties to respect, protect and fulfil. The obligation to
respect requires states to refrain from interfering with the enjoyment of social and economic
rights. The obligation to protect requires states to take measures that prevent third parties from
interfering with the enjoyment of such rights. The obligation to fulfil requires states to take steps
to facilitate individuals and communities enjoying the right and, when an individual or group is
unable to realise the right themselves, to provide what is necessary for the enjoyment of the right.

The most controversial obligations with respect to justiciability are the obligations related to
positive duties to fulfil, or to progressively realise the rights and devote the maximum available
resources to their fulfilment. Some academic writers have focused primarily on this aspect.
However, such an approach tends to overlook the way in which the duty to fulfil economic and
social rights is difficult to separate from the duties of states to respect and protect such rights.
While Mathew Craven has legitimately cautioned against putting too much emphasis on the
justiciability of the ‘respect/protect’ dimensions so as to prioritise the largely negative civil and
political rights style obligations over the more positive obligations, it is important to consider the
adjudication of both the defence of ESC rights and the progressive achievement of an adequate
level of fulfilment to understand the variety of ways in which courts and other bodies are now
adjudicating social and economic rights.

Adjudicating the fulfilment of ESC rights: ‘progressive realisation’ and other issue

There are a number of different ways in which courts have ensured that states give effect to their
duty to fulfil economic and social rights. The opening parts of this section focus on two of these:
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the judicial application of equality norms with regard to states’ positive obligations to address the
needs of disadvantaged groups, and adjudication by courts upon whether governments have

taken concrete steps towards the fulfilment of social and economic rights. The final part of this
section considers judicial responses to ‘retrogressive measures’ on the part of states.

Equality rights and the duty to fulfil social and economic rights

The relationship between the right to equality and non-discrimination and social and economic
rights is of central importance to the adjudication of social and economic rights. Violations of
most social and economic rights are directly linked to systemic inequalities and may, in many
cases, be challenged as such. Thus, in jurisdictions lacking explicit protections of social and
economic rights, the right to equality can serve as a critical vehicle for disadvantaged groups
seeking to enforce their social and economic rights. The CESCR has affirmed that “Guarantees
of equality and non-discrimination should be interpreted, to the greatest extent possible, in ways
which facilitate the full protection of economic, social and cultural rights.” Reference to social
and economic rights may be important in moving courts beyond a narrow or formal notion of
equality focused on comparative, rather than substantive equality.
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CONCLUSION

Both our appraisal of common arguments against making social and economic rights justiciable
and our analysis of jurisprudence in this area suggest that concerns about the justiciability of
social and economic rights are generally ill-conceived and run contrary to experience.

Critics of justiciability have relied on false or overly simplistic characterisations of civil and
political and social and economic rights and on incorrect assumptions about the nature of the
relationship between the judiciary and the legislative or executive branches of government when
social and economic rights are adjudicated. We have seen that an understanding of the ways in
which civil and political and social and economic rights are intertwined and interact with one
another makes it impossible to declare the latter category non-justiciable without undermining
protections of both categories of rights.

What is cause for hope, however, are the signs of a newly invigorated and inclusive framework
for the adjudication of fundamental rights at the domestic, regional and international levels. After
too many years of delay, we are beginning to see the emergence of a shared commitment to the
provision of fair hearings into violations of all human rights, not just a selective few. These
developments in the administration of justice both reflect and reinforce the emergence of a new
human rights movement that must be fully inclusive of those whose dignity, security and
equality is assaulted by poverty, homelessness, hunger or violations of other social and economic
rights. More creative responses to the challenges of claiming and adjudicating social and
economic rights may provide a new framework for broader strategies at the local, national and
international levels for addressing the violations of social and economic rights occurring in all
countries.
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BIBLIOGRAPHY

Books

S.N Dhyani “ Fundamental of Jurisprudence”(1992)

V.D Mahajan “Jursiprudence and Legal Theory” 5th edition.
Eastern Book Company “Jurisprudence and Legal Theory”

Websites

http://www.encyclopedia.com

http://www.encyclopedia.com/humanities/encyclopedias-almanacs-transcripts-and-
maps/historical-school-jurisprudence

www.legalservices.org