DHARMASHASTRA NATIONAL LAW UNIVERSITY, JABALPUR, MP Academic Session (2019-2020) JURISPRUDENCE PROJECT POSITIVE CIVIL AND POLITICAL RIGHTS AS ADJUDICATORY RIGHTS SUBMITTED TO: SUBMITTED BY: Mr. MANVENDRA TIWARI NITIN SONI (ASSOCIATE PROFESSOR OF LAW) BAL/061/18 B.A.LLB(HONS.) Ms. DRISHTI SINGH (RESEARCH CUM TEACHING ASSISTANT)ACKNOWLEDGEMENT The success and outcome of this project required a lot of guidance and assistance from many people and I am extremely privileged to have got this all along the completion of my project. All that I have done is only due to such supervision and assistance and I would not forget to thank them. | am greatly indebted to DHARMASHASTRA NATIONAL LAW UNIVERSITY for providing me necessary requirements to successfully carry out this project work. I would like to thank our honorable Vice-Chancellor Prof. Balraj Chauhan and our Head of Department Dr. V.S. Gigimon and for giving me this golden opportunity. I respect and thank Mr. Manvendra Tiwari (Associate Professor of Law) and Ms. Drishti Singh (Research Cum Teaching Assistant) for providing me an opportunity to do this project and giving me support and guidance which made me complete the project duly. am extremely thankful to him for providing such a nice support and guidance. I extend my gratitude thanking my parents and my Iriends for giving me the support and strength to complete this wonderful project. WITH REGARDS NITIN SONIIndex Index INTRODUCTIO! CIVIL AND POLITICAL RIGHTS.. ADJUDICATION OF THI IGHT: 3 4 5 6 7 APPLICABILITY OF THESE RIGHTS AS ADJUDICATORY RIGHTS ..ssssssssesee(TRODUCTION A positive right is a right to be subjected to an action or another person or group; positive rights permit or oblige action, Positive rights, or positive freedom, means freedom to something. Thus, your positive right places a positive duty on others, ic. a duty to offer something or act in a certain way. My positive right requires you to respect it by complying with it. Examples of positive rights are the rights to free schooling, free healthcare, a job, and a minimum wage. Civil and political rights are a class of rights that protect individuals’ freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life of the society and state without discrimination or repression. Examples: Civil rights include the ensuring of peoples’ physical and mental integrity, life, and safety; protection from discrimination on grounds such as race, gender, sexual orientation, national origin, colour, age, political affiliation, ethnicity, religion, and disability; and individual rights such as privacy and the freedom of thought, speech, religion, press, assembly, and movement, Political rights include natural justice (procedural faimess) in law, such as the rights of the accused, including the right to a fair trial; due process; the right to seek redress or a legal remedy; and rights of participation in civil society and polities such as freedom of association, the right to assemble, the right to petition, the right of self-defence, and the right to vote. Civil and political rights form the original and main part of intemational human rights.! They comprise the first portion of the 1948 Universal Declaration of Human Rights (with economic, social, and cultural rights comprising the second portion), The theory of three generations of human rights considers this group of rights to be "fi generation rights", ind the theory of negative and positive rights considers them to be generally negative rights ' Paul Sieghart, The Lawful Rights of Mankind: An Introduction to the International Legal Code of Human Rights, Oxford University Press, 1985.CIVIL AND POLITICAL RIGHTS The first wave of human rights in modernity is usually identified with the period of Scottish enlightenment and the age of reason (the ninet snth century), expressed in the liberal revolutions in America, France, and Latin America, Rights asserted in these revolutions were essentially claims of the individual against state interference and to self-government.” That is the civil and political rights (e.g, the freedom to worship, to peaceably assemble) were negative restrictions on state power. Civil and political rights also tend to be procedural rights, that is rules which determine the creation or application of substantive claims to material goods. Another common characteristic of the Civil and political of rights is that, historically, Civil and political rights tends to see property rights as fundamental, individual and even absolute. Later generations see property as relative, and socially conditioned.® These rights can be summarised, roughly, as negative civil and political rights -"freedoms from" rather than "rights to." However, describing these rights as negative protection from state interference is not entirely accurate. The right to worship as one chooses, to write or speak one's mind, are not mere restrictions on state power- they are also assertions of the individual's power. Most restrictions of state power imply an exercise of individual power and vice versa. Rights discourse is inherently problematic because of this dual nature of rights — every single person's right implies another person's corresponding duty. Rights discourse is inherently problematic because "rights" are expressed as vague, ot ambiguous, platitudes. Rights discourse is also contested because the interest of the individual and the collective are, at times, in conflict, and one, or the other, must prevail and because of the classic duality of "substance" versus "procedure". However, though the usual account of the historical development of human rights is not perfectly accurate, and though human rights are inherently problematic, that does not mean that there is no common concept of an idea that humans have inherent rights. There is even some agreement as to, at least, a common core of ? R. Randall Kelso, A Post-Conference Reflection On Federalism, Toleration, And Human Rights, 40, 3 Armstrong v. United States, 364 U.S. 40, 48 (1960), “Paul W. Kahn, American Hegemony and Intemational Law Speaking Law To Power: Popular Sovereignty, Human Rights, And The New Intemational Order. I CHL. J. INTL L. 1, 5 (2000)universally recognized human rights, such as the right not to be deprived arbitrarily of one's own life ADJUDICATION OF THESE RIGHTS Traditionally, a distinction is made between two categories of rights: civil and political rights on the one hand and economic, social and cultural rights on the other, While both categories of rights are recognised in principle, considerable differences exist with respect to their domestic implementation. As a first step, this calls for defining the scope of protection of these rights. While the key interests to be protected ate readily discemible (e.g. health, housing), the difficulty lies in identifying what guarantees are entailed in relation to these interests. In order to capture all negative as well as positive obligations that may be engaged by economic, social and cultural rights, itis being proposed to define the scope of protection in terms of a duty of the State to ensure an appropriate (legal and social) framework for the enjoyment of these rights. The second element of the standard methodology - the requirement of an interference with the right concerned — can be utilized for claims based on economic, social and cultural rights. While all cases examined involve a burden for the holder of the right, this burden does not necessarily derive from State action, as is normally required for an interference, However, the ince of direct or indirect State action may be overcome by modifying the methodology so as to accept a sufficiently close connection between the burden suffered and the State’s duty to ensure the conditions for the enjoyment of the protected right, which makes it possible to conclude on the existence of an interference. This leaves the issue of a justification of such an interference to be addressed, especially in so far as the positive obligations of the State are concemed.” While the margin of appreciation accorded to the legislative and executive branches of the State somewhat lowers the threshold for justification of positive measures based on prognoses, the case law clearly reveals that there are limits to what this appreciation may be based on. For example, a wrong factual basis, a particularly severe violation of the right concerned or negative stereotyping may render the justification invalid. Secondly, what is often presumed to be an absolute barrier to the realisation of economic, social and cultural rights the limited icGoldrick D. (1991) “The Human Rights Committee; Its role in the development of Intemational Covenant on Civil and Political rights’, Oxford: Clarendon Press "Tid "Ibidavailability of resources — proves to be a very relative standard that does not necessarily play a role whenever such rights are adjudicated. When the question of the limitation or expansion of resources does arise, it needs to be balanced against other constitutionally protected interests, such as equality and the State's capability to function to the benefit ofall. Finally, the analysis also shows that the progressive realisation of economic, social and cultural rights does not constitute a ground for justification other than in the context of limited resources While, as a final methodological step, rights adjudication regularly involves a proportionality check, this element significantly changes when we are faced with a State’s omission to act in violation of its duty to ensure the enjoyment of a right Rather, the appropriate assessment in this context relies on the kind of eriteria identified as key components of the fest of reasonableness, which includes the consideration of minimum core obligations, equality aspects and the prohibition of regressive measun ‘Whenever the assessment allows to conclude on a violation of an economic, social and cultural right, it will be up to the adjudicating court to remedy such a violation. Contrary to widespread belief, however, the appropriate remedy will rare consist in the granting of resources to the claimant, even when dealing with positive claims. It is either through a declaratory order or through some type of supervisory mechanism (where provided for by domestic law) that the courts will oblige and ultimately force the competent authorities to act. After having examined all elements of the common rights methodology, the last chapter of this thesis is dedicated to the general conclusions, from a theoretical and methodological perspective, which may be drawn from this exercise and their consequences on the appreciation of economic and social rights under law. APPLICABILITY OF THESE RIGHTS AS ADJUDICATORY RIGHTS Firstly, on a theoretical level, itis possible to affirm that the widely accepted theory of the non- justiciability of these rights is obsolete. In this respect, the study shows that the civil and political rights enshrined in the Constitution comprise a number of justiciable social or economic guarantees, Rather than it being a question of justiciable or not, it can be said that * Beddard R. & Hill D. (1992) ‘Economic, Social and Cultural Rights: Progress and Achievement’ London: Macmillanthe justiciability of claims in relation to economic and social rights is variable, depending on how much deference to the legislative and executive branches will be required in a given constellation. Secondly, the conception of economic and social rights as purely objective principles must be rejected. In fact, the objective and subjective components of rights do not exclude but complement each other, the subjective component taking precedence whenever the effectiveness of rights protection calls for it? Thirdly, while social and economic rights may not find much explicit textual reference in the Basic Law, it cannot be denied that these rights have made their entrance from below, given that numerous typical contents have come to be recognised by the courts and will continue to give rise to new court challenges in the modem welfare state.!” From a methodological point of view, it must first ofall be made clear that economic and social rights are not (o be equated with positive rights, Rather, economic and social rights are defined by their thematic scope and, just like civil and political rights, may operate as negative, positive or participatory rights. Insofar as positive claims are concemed, the methodological challenges involved occur as much in the context of economic and social rights as they do in the context of political and civil rights. Admittedly, meeting these challenges will necessitate certain adjustments to the standard methodological framework commonly used for negative claims. However, as demonstrated in the comparative analysis in the previous chapter, the difficulties that present themselves can be resolved and must be resolved, because rights methodology is not an end in itself, but is to serve the effectiveness of the substantial guarantees in question. In fact, the Court has already developed the key elements for a methodological adaptation that will allow the courts to adjudicate rights claims of a positive nature." Finally, these findings demand a re-evaluation of the options for the endorsement of economic and social rights in law. The economic and social rights will best be protected when translated into strong constitutional guarantees s to be the most effective and However, while this app legitimate means of implementation, it also happens to be the most unlikely scenario, given the lack of political will for a constitutional amendment to that effect. ° Committee on Economic, Social and Cultural Rights (2000). '© McGoldrick D. (1991) “The Human Rights Committee; Its role in the development of Intemational Covenant on Civil and Political rights’, Oxford: Clarendon Press "International Covenant on Civil and Political Rights (1966)CONCLUSIO! The adjudication of civil and political rights often encroaches upon the political options of governments notably with regard to the allocation of resources. Courts often have to make decisions regarding balancing between competing rights, for example, the right to freedom of speech versus the right to privacy, Given the indivisibility, interdependence and interrelatedness of all human rights it is therefore reasonable to assert that the protection of civil and political rights ought to have little significance without the effectual protection of economic, social and cultural rights, The justiciability of these rights can be seen in three steps, namely, the scope of protection offered by these rights, second, am interference with the right concemed, and finally, the analysis consisting a ground for justification, ¢ rights are variable. Civil and political rights operate as negative, The economic and social rights will best be protected when translated into strong constitutional guarantees. However, while this appears to be the most effective and legitimate means of implementation, it also happens to be the most unlikely scenario, given the lack of political will for a constitutional amendment to that effect. Asa final methodological step, rights adjudication regularly involves a proportionality check, this element significantly changes when we are faced with a State’s omission to act in violation of its duty to ensure the enjoyment of a right. The appropriate assessment in this context relies on the kind of criteria identified as key components of the test of reasonableness, which includes the consideration of minimum core obligations, equality aspects and the prohibition of regressive measures. Finally, these findings demand a re-evaluation of the options for the endorsement of economic and social rights in law. Therefore, adjudication of a set of civil and political rights involve ensuring implementation of the mechanism for enforcement of economic, social and cultural rights, they, that is why, go hand in hand.