This post is a replug of the our C20 Archives. This year marks 10 years of LSPR’s Predecessor Blog- the Critical Twenties.
Traditionally, rights have been divided into civil and political rights(“CPRs”) and socio-economic rights (“SERs”). CPRs are said to embody the right against State interference of individuals while the SERs represent the freedoms that individuals’ value. This classification is reflected in the International Convention on Civil and Political Rights (“ICCPR”) and the International Convention on Economic Social and Cultural Rights (“ICESCR”). In this essay I assess the correctness of this classification.
I firstly elucidate five differences that are believed to exist between CPRs and SERs and with the examples of case laws I analyze which of these differences are in fact true. I, then argue with the help of case law as to how this classification is artificial. For the purpose of this essay, I focus on cases decided in South Africa, India, Europe, USA, Brazil and Canada.
THE TRADITIONAL CLASSIFICATION
Traditionally, it is believed that there are number of factors that distinguish CPRs from SERs. I list below each of these perceived differences and analyze the correctness of each. For the purpose of this essay, I refer to people who believe such a difference is true as traditionalists.
First, the traditionalists state that CPRs are negative in nature whereas SERs are positive in nature, i.e. CPRs are restrictions on State actions whereas SERs require positive State action for their implementation.
Traditionalists argue that CPRs impose duties of restraint on the Stateand that there can be no positive duties that flow from them. In Canada, for instance, the right to life is worded in the form of a negative right. Section 7 of the Canadian Charter states “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”- clearly a provision that indicates that the right is a negative right. The right to health has been read into this provision in Canada. That there exists a negative duty is uncontroversial as recognised in R. v. Morgentaler where it was held that a legislative provision which prohibited abortion led to an increased health risk for the mother and hence violated the mandate of Section 7 of the Canadian Charter.
In the Canadian context, while the right to health itself has never been held to be a positive right, it has given rise to positive obligations arising out of the right to equality. Where such a right is provided to certain sections of society, there is a positive obligation arising out of the right of equality to extend the same right to all other sections of society, as held in Eldridge v. British Columbia. In this case the Canadian Supreme Court held that the petitioners who were a group of deaf applicants, were entitled to being provided sign-language interpreters in the publicly funded health-care system. The Court held that the Government had a positive obligation under the Canadian Charter to address the needs of disadvantaged groups, such as persons with disabilities.
The fact that positive obligations can flow out of ostensibly negative rights becomes clear by an analysis of Indian case law. In India, it is believed that the CPRs are contained in the Chapter titled “Fundamental Rights” and that these include rights such as the right to life enshrined in Article 21. The wording of Article 21 seems to justify this point of view. Article 21 states “No person shall be deprived of his right to life or personal liberty except by the procedure established by law”. However, the Indian Supreme Court has taken the view that this right is not a negative right and State inaction could also result in denial of this right. For instance, the Supreme Court, in Consumer Education and Research Centre v. Union of India held that right to life meant a right to a meaningful life and that a meaningful life was not possible without having a right to healthcare. The case dealt with the right to healthcare of workmen in the asbestos industry and in order to reach the conclusion that it did, the Court read in provisions of Articles 39, 41 and 43 (which directed the State to provide for healthcare) which were all non-enforceable Directive Principles of State Policy (“DPSP”) into Article 21 in order to widen the scope of Article.
The Indian Supreme Court adopted a similar approach with respect to the right to education in Mohini Jain vs. State of Karnataka. While holding that charging of capitation fees by professional colleges is not permissible, the Court declared that the right to education flows directly from the right to life and that the dignity of an individual cannot be assured unless it is accompanied by the right to education. The Court followed a similar methodology and read the non-enforceable DPSP (Article 45, which imposes upon the State a non-enforceable duty to among other things provide for education of the disadvantaged sections of society) into Article 21.
Conversely, rights that are often believed to be SERs can be framed in such a way that they give rise only to a duty of restraint. The best example is the case of right to education under the European Convention on Human Rights (“ECHR”). Article 2 of the ECHR First Protocol states that the right to education cannot be denied by the State; in other words the only obligation on the State is a duty of restraint. While interpreting this provision the European Court of Justice in Belgian Linguistic Case (No 2) expressly declared that this provision does not require a State to take positive measures to promote education.
In this light the distinction does not hold good.
Second, it is argued that while CPRs are realized immediately, SERs are realized progressively. Linked to this difference is the argument that while CPRs are justiciable, SERs should not be so due to their programmatic realization.
While this argument often does hold good, it blurs because there are a few CPRs which are also progressively realized- for instance the right to fair trial- which requires a complex structure of Courts to be built which is not done overnight. However, an argument that traditionalists make that progressive realization of SERs make it difficult to assess whether the SER has been breached does not logically lead to the conclusion they make, i.e. that it is impossible to assess breach of a SER.
There is no doubt that negative duties are easier to enforce than positive duties. As Sandra Fredman observes, firstly, positive duties require continuous monitoring as they are programmatic in their enforcement. Secondly, duties of restraint are enforceable free of cost which is not so with respect to duties arising from SERs. Thirdly, enforcement of SERs requires an evaluation of a number of choices which are sometimes better made by policy makers.
However, this does not mean that only duties of restraint should be enforced. Whether or not a positive right has been enforced can be judged by keeping the following criteria in mind.
a) Sufficiency of the measures taken to implement the right- the Courts can assess if the State is taking reasonable measures to enforce a positive duty by looking at the expenditure made towards the enforcement of the right and comparing it with the total government spending.
b) Efficiency of enforcing the measures- An SER is not enforced efficiently where a sum is allocated for enforcing the right but in reality the Government does not spend that amount on enforcing the right.
c) Equity of the measures- if a measure is applied unequally, i.e. a measure that ought to be applicable to all classes is not implemented vis a vis one particular class, then the Government is clearly in breach of its duty. This factor is best explained by the case of Eldridge v. British Columbia which has already been explained earlier in this essay.
In the context of right to health, whether the right is being progressively realized can possibly be analyzed by monitoring indicators such as maternal mortality rate, child mortality rate etc and monitoring each of these in terms of fixed parameters such as with respect to development in rural areas, development with respect to certain socio-economic strata etc. Hence it is fallacious to argue that SERs ought not to be enforced because they are programmatic in their realization and hence the enforcement is more difficult.
Third, CPRs are resource free, whereas implementation of SERs is resource dependant.
At a broader level of generalization, this distinction holds good. However, this distinction blurs in the light of decisions that hold that certain SERs like the right to emergency healthcare have to be enforced by the State irrespective of the resources available. In Paschim Banga Khet Mazdoor Samity v. State of West Bengal, the Indian Supreme Court held that the State’s responsibility to provide emergency treatment was not subject to financial constraints. In this case, a man fell from a train and suffered serious head trauma. None of the public hospitals treated him due to lack of hospital beds. The issue before the Court was whether inadequate medical facilities for emergency treatment constituted a denial of the right to life. The Court directed the State to increase the number of clinics around the country to treat serious injuries, and to create a centralized communication system among State hospitals so that patients could be transported immediately to the facilities where space is available. The Court recognized that this involved substantial expenditure but that this duty was not subject to financial constraints.
Fourth, individuals have rights against the State to enforce CPRs. Very often this right is missing in cases of SERs.
This distinction is not true in the sense that individuals do have the right to enforce SERs. However, the nature of such an enforcement is different. In most cases of enforcement of CPRs, the remedy is to prohibit a State action and hence the petitioner gets what he claims in his prayer. However, in case of SERs, the nature of the right is such is that all it requires is State action. Therefore, right to healthcare may not include the right to a particular drug, but it requires only the right for the State to take reasonable action towards providing the healthcare.
This necessarily flows from the fact that SERs provide individuals with the right to ensure that the State is taking reasonable measures to comply with the obligations that arise out of the right.
In cases where Courts have interpreted a right to free health care to mean a right to demand for specific medicines for individuals, this has led to undesired consequences on the country’s economy. This was the case in Brazil, where the budgetary allocations got distorted due to the maintainability of individual demands. Moreover, since right to free medication was available to all, those with greater access to Courts, i.e. the richer sections, were able to get their rights enforced ahead of those with lesser access, i.e. the poorer sections.
Hunt, on the other hand observes that right to healthcare would be a boon and not a bane, if implemented in a manner that favours the disadvantaged. Hunt advocates a model where the right to healthcare is looked at as a policy measure adopted with the active participation of the affected members of a community. This presumably means not providing the right to health as an individualized right to medicines of the rich.
The South African model is a happy integration of both the Brazilian model and Hunt’s model, whereby the right to emergency healthcare is an individualized right that cannot be denied and the other components of the right to healthcare follow Hunt’s model.
Despite the neutral wording of the South African Constitution, it can be said that the approach of the South African Courts is quite the opposite as that of the Brazilian Courts and the Indian Courts as well. In Soobramoney v Minister of Health the petitioner had suffered from heart disease and renal failure and he had been refused life long dialysis on the basis that due to the shortage of dialysis machines, there was a policy to provide dialysis machines only to people who did not suffer from heart disease. He therefore claimed that his right to life and emergency healthcare had been violated. The State argued that since the petitioner was not affected by an “emergency”, the State was not mandated to provide him life long dialysis. The Constitutional Court upheld the State’s argument as the State had a discretion to decide what policy to adopt and that such policy depended on the funds available. In the present case the policy had been formed in a transparent manner and was hence valid.
Fifth, CPRs are determinate whereas SERs are not and hence enforcement of latter is difficult
While this may be so in many cases, the Indian Supreme Court’s interpretative strategy indicates that even ostensibly determinate CPRs like the right to life does not have a fixed content. Often the content of an ostensibly determinate CPR merges with that of a SER. For instance, the right to life in India, worded in the form of a negative right, now includes the right to education and right to healthcare.
Even in cases of SERs courts have attempted to make the right determinate by laying down certain standards. For instance, the New York Court in Campaign for Fiscal Equity Inc v State of New York laid down that the right to education would include sound basic education, which in turn meant basic literacy, calculation and verbal skills that were necessary to make children function productively in society and exercise some of their CPRs like the right to vote. The right would also include ‘minimally adequate’ physical facilities and the right to be taught by adequately trained teachers.
THE DISTINCTION- A MYTH
The entire distinction is a myth. CPRs and SERs feed into eachother and SERs are required for the realization of CPRs. For instance, if the right to healthcare is so not available when a citizen is ailing, how does one expect such a citizen to exercise his right to vote? As recognized by the ICESCR General Comment, education is the means by which the socially and economically disadvantaged sections of society can be empowered to improve their quality of living (and hence be in a position to exercise their CPRs).
Similarly, CPRs aid the realization of SERs as well. For instance, if politicians are accountable to the electorate for famine relief, how will the accountability be possible without the freedom of expression which includes within its ambit the freedom of press?
A number of the distinctions between CPRs and SERs, though true at a broader level of abstraction, tend to blur when we look at specific exceptions. In the light of this view, I believe that every right must be looked at as one which has a positive element and negative element to it. In other words it may be said that every right is a combination of SER and CPR elements.
I would like to conclude by echoing Shue’s views that every right potentially gives rise to three types of duties- duty to avoid (or duty of restraint), duty to protect (duty to prevent) and duty to aid (duty to fulfil). Duties of restraint refer to duties of the State not to do certain acts; duties to protect to the duty of the State to protect one individual from the actions of others and the duties to fulfil to the positive duties of the State. While such a classification is accurate, the traditionalists’ view cannot be said to be so.
The author is currently founding partner at AK Law Chambers and an alumnus of NALSAR and Oxford University. He is the Chief-Editor of Justice R.S. Bachawat’s Law of Arbitration & Conciliation and the author of “The Law of Reservation and Anti-discrimination”. This article was first published in February 2011.
 S Fredman Human Rights Transformed (OUP 2008).
  1 S.C.R. 30
  3 S.C.R. 624.
 (1995)3 SCC 42.
 AIR 1992 SC 1858.
 (1968) 1 EHRR 252 (European Court of Human Rights)
  3 S.C.R. 624.
 1996(4) SCC 37
 Section 27 of the South African Constitution.
  1 SALR 765 (CC)
 2006 NYSlipOp 02284 (Appellate Division, First Department).
Categories: Constitutional Law, Jurisprudence