• Mallika Ramachandran

Indian Courts’ Reference to the Work of the Committee on Economic, Social and Cultural Rights


In the Indian context, while domestic legislation is given primacy, courts are to respect the rules of international law (where there is no contrary legislation).[i] In fact, in instances of a ‘void’ in domestic law, courts have been seen to be under an obligation to give due regard to international conventions and norms in construing domestic norms.[ii] Also, international conventions not inconsistent with the fundamental rights and in harmony with the spirit of the provisions are to be read into the same to ‘enlarge their meaning and content’ and to promote constitutional guarantees.[iii]


India is a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR)[iv] and both the provisions of the ICESCR[v] and the General Comments issued by the Committee on Economic, Social and Cultural Rights (CESCR) on various provisions and aspects thereunder have been referred to by courts in their decisions.


General comments issued by the CESCR have been referred to by Indian Courts for the purpose both of considering obligations of states thereunder, as well as in the context of elaborating on certain provisions. For instance, in Rajive Raturi v. Union of India,[vi] the Supreme Court in its order referred to General Comment 5 of the CESCR on persons with disabilities, specifically taking note of the Committee’s interpretation of disability as a human rights issue.


In Mohd Ahmed (Minor) v. Union of India,[vii] a minor suffering from Gaucher disease, a chronic and rare disease, and whose parents belonged to the economically weaker sections, sought medical treatment. While he was given a positive prognosis, the cost of treatment was far beyond his parents’ means. In considering the matter, besides constitutional provisions, the court also referred to General Comment 14 of the CESCR, specifically the ‘highest attainable standard of health’ which in its view referred both to biological and socioeconomic preconditions of the individual as well as resources of the state, and the aspects of availability, affordability, accessibility, and quality. The Court further took note of General Comment 3 of the CESCR and the obligation recognised thereunder to provide minimum essential levels of each right. While it did not make any specific observation as to the applicability of the general comments, it did observe that article 21 was to be interpreted in accordance with the ICCPR, India being a signatory to the same, and went on to reaffirm the right to health and access to healthcare as well as to quality healthcare. Another important aspect of this decision is as regards core obligations on the right to health, which the court held to be non-derogable. It acknowledged the difficulties in defining the minimum core but at the same time held it to include ‘the minimum decencies of life consistent with human dignity’. It was also of the view that the government cannot plead financial constraints to not fulfil its obligation to ensure access to medicines or to adopt a plan of action for treatment of rare diseases nor to ‘wriggle out of its obligation’ to ensure access to healthcare to the vulnerable and marginalized sections.[viii] While in the Indian context the concept of minimum core has not been frequently brought up or used, the observations of the Delhi High Court in this instance indicate that this may be considered and applied in the future.


The concept of ‘minimum core’ was also taken note of earlier, in Laxmi Mandal v. Deen Dayal Harinagar Hospital,[ix] where the court was of the view that the Supreme Court in PUCL v. Union of India [CWP 196/2001] had spelled out the minimum core of the right to health and food in terms of the ‘obligations of conduct’ and ‘obligations of result’ of the centre, state and UT governments.


General Comment 14 on the right to health was also cited by the Delhi High Court in Naz Foundation v. Government of NCT of Delhi[x] to note that the right to health is not merely about being healthy but contains both ‘freedoms and entitlements’ including to control one’s health and body and entitlement to a system of health ‘which provides equality of opportunity for people to enjoy the highest attainable standards of health’; discrimination including on grounds of sexual orientation is proscribed. This was considered in the context of section 377 of the IPC (criminalizing homosexuality) being seen as an impediment to public health.


Another instance where general comments were referred to by the Delhi High Court was more recently in 2019 in Ajay Maken v. Union of India and others,[xi] a matter concerned with forced evictions of about 5000 persons living in a JJ basti in Delhi. Noting that the General Comments of the CESCR explain the substantive and procedural aspects of the ICESCR, the Delhi High Court, took note, in particular, of General Comment no 4 on various aspects of the right to housing including security of tenure; availability of services, materials, and facilities; affordability; accessibility; habitability; location; and cultural accessibility. The indivisibility of all rights was also considered to observe that the right to housing cannot be viewed in isolation from other rights. Reference was also made to General Comment 7 on forced evictions to take note of the definition of the expression by the CESCR, which essentially covers situations of permanent or temporary removal of persons from the homes or land occupied by them without consent and without appropriate legal and other protections, when carried out otherwise than in accordance with law. The court also stressed on the procedural protections applicable in such situations such as adequate and reasonable notice, opportunity for genuine consultation, requirement of presence of government officials, and other conditions as to timing, etc., besides provision of legal remedies.


Besides the General Comments issued by the Committee, its reports including country-specific obligations have also been considered in judicial decisions. In National Legal Services Authority v. Union of India and Others,[xii] concerned with the rights of the transgender community, the 2009 report of the Committee on Economic, Social and Cultural Rights was referred to in the context of its observations on gender orientation and gender identity that these aspects should not be grounds for discrimination or barriers to the realisation of ICESCR rights.


An earlier decision of the Delhi High Court concerned with housing, Sudama Singh v. Government of Delhi and Another,[xiii] looked into the Concluding Observations of the CESCR on India which specifically raised the issue of the need for a National Housing Policy in the Country and the issue of acute shortage of housing in the country and recommended implementation of the laws and regulations concerned with forced evictions so as to ensure provision of either compensation or alternative accommodation to those displaced, and the requirement of open, participatory and meaningful consultations with those impacted prior to undertaking such evictions.


Thus the work of the CESCR, be it in terms of definitions or concepts proposed, guidelines laid out, or observations specific to India have been taken into account by the judiciary in various decisions. Such reference has helped


Notes

[i] See National Legal Services Authority v. Union of India, W.P. Civil 400/2012, Decided 15 April 2014, Supreme Court of India; reading article 51 with article 253 of the Constitution. [ii] Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759 [iii] National Legal Services Authority v. Union of India, W.P. Civil 400/2012, Decided 15 April 2014 [iv] India ratified the same on 10 April 1979. [v] For instance, Chameli Singh v. State of U.P., AIR 1996 SC 1051; Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan [(1997) 11 SCC 121; Naz Foundation v. Government of NCT of Delhi, Delhi High Court, decided 2 July 2009. [vi] WP (Civil) 243/2005, Supreme Court of India, decided 15 December 2017. [vii]Delhi High Court, decided 17 April 2014 [viii] This position contrasts with the approach of the South African Constitutional Court which declined to use the concept of ‘minimum core’. [ix] Delhi High Court, decided 2 June 2010 [x] Decided 2 July 2009. [xi] Delhi High Court, decided 18 March 2019. [xii] W.P. Civil 400/2012, decided 15 April 2014. [xiii] Delhi High Court, decided 11 February 2010.

Dr. Mallika Ramachandran is a freelance editor and legal researcher. She is visiting Faculty at Centre for Post Graduate Legal Studies, TERI School of Advanced Studies, Delhi.

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