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ABSTRACT
Due to their special nature, the economic-social rights (ESRs) – compared to civil-political rights (CPRs) – entail distinct legislative methodology. This is still a nascent area of knowledge globally. ESRs are increasingly pivotal in the trending populist governments. Also, there is growing practical clarity on the paradigm of indivisibility and interdependence of ESRs and CPRs. However, unlike CPRs, the ESRs continue to be seen as resource-contingent, and therefore not amenable to legislative regulation but to ‘progressive realization’ through policies. This article foremost contests that, and instead asserts that ESRs too are legalisable and even justiciable, though differently from CPRs. It illustrates this from a lapsed national health bill of the Indian government, drafted and steered by the author. The matrix comprising the right to health and an Indian legislative initiative is used: the right to health as a particularly complex ESR; and India as a representative democracy with rising influence of privatisation and a declining legislature. Secondly, this experience demonstrates that ESRs need alternative concepts, techniques and practices of legislating. The unfolding nature of ESRs and their deep political-economic entrenchment require nimble and intricate negotiations among competing stakeholders. This makes the ESR laws evolving non-linear processes more than finished end-products. Also, process heaviness makes their legislation necessarily complicated and slow. Thirdly, the case study shows, legislating on ESRs invokes a qualitatively different understanding of democracy. Since ESRs essentially involve multiple interest groups and the larger regulatory framework comprising both the legislature and the executive, they implicate innate democratic values. In the contemporary de-democratisation context, their long-drawn legislative process – even a disingenuous one, initiated only for legitimacy – could counter-intuitively bolster deliberative democracy. For all three reasons, the process itself – besides the enacted law, the product – deserves recognition as an underexamined critical success-indicator of legislative methodology, especially for ESRs.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 See GDP growth data of 2024 by International Monetary Fund (IMF): <https://www.imf.org/external/datamapper/NGDP_RPCH@WEO/OEMDC/ADVEC/WEOWORLD> accessed 4 March 2024.
2 See <https://main.mohfw.gov.in/sites/default/files/9147562941489753121.pdf> accessed 1 November 2023.
3 See 15th Finance Commission’s Report, chapter 9 <https://nhsrcindia.org/sites/default/files/2021-09/XVFC%20VOL%20I%20Main%20Report.pdf>. Also see Oxfam India’s Inequality Report 2021: India’s Unequal Healthcare Story: <https://www.oxfamindia.org/knowledgehub/workingpaper/inequality-report-2021-indias-unequal-healthcare-story>; Ritwik Shukla, ‘Right to Health: Questions India Needs to Focus On’ (Accountability Initiative: Responsive Governance, 2022) <https://accountabilityindia.in/blog/right-to-health-questions-india-needs-to-focus-on/> all accessed 4 March 2024.
4 <https://www.who.int/data/gho/data/indicators/indicator-details/GHO/domestic-general-government-health-expenditure-(gghe-d)-as-percentage-of-general-government-expenditure-(gge)> accessed 4 March 2024.
5 See Helen Xanthaki, ‘An Enlightened Approach to Legislative Scrutiny: Focusing on Effectiveness’ (2018) 9 European Journal of Risk Regulation 431.
6 See Malcolm Langford, ‘The Impact of Public Interest Litigation: The Case of Socio-Economic Rights’ (2021) 27 Australian Journal of Human Rights 505 for a similar analysis of success-indicators for litigation on ESRs.
7 Capable of being recognised through law.
8 Capable of being determined by courts.
9 <https://www.un.org/en/about-us/universal-declaration-of-human-rights> accessed 29 August 2023.
10 <https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights> accessed 29 August 2023.
11 <https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights> accessed 29 August 2023.
12 Article 2(1), ICESCR.
13 Even some CPRs are positive rights: see Fabre C, Social Rights Under the Constitution: Government and the Decent Life (Oxford University Press 2000). All rights are welfare rights; both CPRs and ESRs cost money: see Holmes S and Sunstein CR, The Cost of Rights: Why Liberty Depends on Taxes (WW Norton 2000).
14 In fact, the ICESCR protects several rights which are conventionally understood as CPRs, such as the right of self-determination (Article 1(1), 1(3)) and the right of freedom of association (Article 8). Also, some concepts and rights are recognised under both Covenants, such as the right against discrimination (Article 2(2) ICESCR, Article 26 ICCPR) and the ‘inherent dignity’ of every human (in Preambles of both). Also, in their Preambles, both ICESCR and ICCPR identically profess universal protection of both ESRs and CPRs.
15 See Amartya Sen, Development as Freedom (Oxford University Press 1999).
16 For the debate see Fausto Pocar, ‘Some Thoughts on the Universal Declaration of Human Rights and the Generations of Human Rights’ (2015) 10 Intercultural Human Rights Law Review 43; Dennis M Davis, ‘Socio-Economic Rights: Has the Promise of Eradicating the Divide between First and Second Generation Rights Been Fulfilled?’ (2011) 519 Comparative Constitutional Law 528; Michael J Dennis and David Stewart, ‘Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?’ (2004) 98 The American Journal of International Law 462.
17 E.g. for law on the right to health, see Joseph Harris, Achieving Access: Professional Movements and the Politics of Health Universalism (Cornell University Press 2017).
18 See Padraig McAuliffe, ‘The Ambivalent Status of Socio-Economic Rights in Human Rights-Based Approaches to Development’ (2022) 40 Nordic Journal of Human Rights 481 – on the gap between the ‘doctrinal’, ‘normative’ and ‘operational’ aspects of ESRs and for the viewpoint against legislatively created accountability and justiciability of ESRs, which are ‘morally serious and politically compelling’ rights best advanced programmatically and in democratic terms (participation and empowerment), as opposed to judicially enforced ‘violationist’ legal terms. For contra view see P Hunt P ‘Interpreting the International Right to Health in a Human Rights-Based Approach to Health’ (Health and Human Rights Journal, 2016).
19 Articles 4 and 5(2), ICESCR; also see articles 2 and 8(2).
20 See Michael J Dennis and David Stewart, ‘Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?’ (2004) 98 The American Journal of International Law 462.
21 <https://digitallibrary.un.org/record/1490423> accessed 24 August 2023; For similar mandate for national laws, also see Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (1986) UN Doc. E/CN.4/1987/17, Annex.
22 ibid [1, 2].
23 ibid [3].
24 ibid [10].
25 See Courtney Jung, Ran Hirschl and Evan Rosevear, ‘Economic and Social Rights in National Constitutions’ (2014) 62 The American Journal of Comparative Law 1043; H Schwartz, ‘Do Economic and Social Rights Belong in a Constitution’ (1994) 10 American University Journal of International Law and Policy 1233.
26 Part III (articles 12–35).
27 Part IV (articles 36–51).
28 Article 37.
29 See Mahendra P Singh, ‘The Statics and the Dynamics of the Fundamental Rights and the Directive Principles—A Human Rights Perspective’ (2003) 5 Supreme Court Cases (Jour) 1.
30 See Nick Robinson, ‘Expanding Judiciaries: India and the Rise of the Good Governance Court’ (2009) 8 Washington University Global Studies Law Review 1.
31 See Preamble, WHO Constitution (1946); article 25 of UDHR (1948); article 12 of ICESCR (1966) and various other international instruments mentioned in GC14 for definition of the ‘right to health’.
32 General Comment No. 14: The Right to the Highest Attainable Standard of Health (Article 12) (2000) 3.
33 ibid [4].
34 ibid [8].
35 ibid [13].
36 ibid [11].
37 ibid [8], also [18], [19].
38 ibid [46–52].
39 ibid [59–60].
40 See Michael J Dennis and David Stewart, ‘Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?’ (2004) 98 The American Journal of International Law 462.
41 General Comment 14 on Article 12, ICESCR, [53–56].
42 General Comment 12 on Article 11 of ICESCR (1999), [29].
43 ‘Guide on Legislating for the Right to Food | The Right to Food | Food and Agriculture Organization of the United Nations’ <https://www.fao.org/right-to-food/resources/resources-detail/en/c/129278/> accessed 24 November 2023.
44 Jennifer Sellin, ‘Right to Health’, Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL] (Oxford Constitutional Law (OXCON) 2021) <https://oxcon.ouplaw.com/display/10.1093/law-mpeccol/law-mpeccol-e131?prd=OXCON> accessed 4 March 2024; J Heymann and others, ‘Constitutional Rights to Health, Public Health and Medical Care: The Status of Health Protections in 191 Countries’ (2013) 8 Global Public Health 639.
45 E.g. Ireland’s Health Act 1947 <https://www.irishstatutebook.ie/eli/1947/act/28/enacted/en/html>; Australia’s National Health Act 1953 <https://www6.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/nha1953147/>; New Zealand’s Health Act 1956 <https://www.legislation.govt.nz/act/public/1956/0065/latest/whole.html>; Switzerland’s The Public Health Act 1969 <http://faolex.fao.org/docs/pdf/swa204878.pdf>; Canada Health Act 1985 <https://laws-lois.justice.gc.ca/eng/acts/c-6/> all accessed 15 November 2023.
46 Examples of framework laws on health: Kenya’s Health Act 2017 <https://www.kelinkenya.org/wp-content/uploads/2017/09/Health_Bill_2017.pdf>; South Africa’s National Health Act 2003 <https://www.sahpra.org.za/wp-content/uploads/2020/02/National-Health-Act.pdf>; Namibia’s National Health Act 2015 <https://faolex.fao.org/docs/pdf/nam144987.pdf>; Thailand’s National Health Act 2007 <http://thailawforum.com/laws/National%20Health%20Act_2007.pdf>; Nigeria’s National Health Act 2014 <https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/104157/126947/F-693610255/NGA104157.pdf>; The UK’s Health and Care Act 2022 <https://www.legislation.gov.uk/ukpga/2022/31/contents/enacted>. Spain’s Health System Framework Act, 2003 <https://www.hrpub.org/download/20160430/SA2-19604973.pdf> all accessed 17 November 2023.
47 World Health Organization had compiled a list of more than 200 important statutes and executive instruments relating to health in India in the late 2000s (mentioned in Approach Paper on Public Health Act by Task Force on Public Health Act, dated 25 July 2012, at pages 24–32): <https://nhsrcindia.org/sites/default/files/2021-06/10.Task%20Force%20on%20Public%20Health%20Act_2012_approach%20paper.pdf> accessed 31 August 2023.
48 IMF (n 1); Government of India (n 2); Finance Commission (n 3).
49 See <https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=79&Lang=EN> accessed 25 February 2024.
50 The National Health Bill (2009) (MoHFW GoI Working Draft: Version January 2009) is available at <https://nhsrcindia.org/sites/default/files/2021-06/7.The%20National%20Health%20Bill%202009.pdf> accessed 31 August 2023.
51 Ambumani Ramadoss, under Congress led NDA-coalition.
52 The Bill was earlier posted on the ministry website on this link but is no longer available there: <http://mohfw.nic.in/nrhm/Draft_Health_Bill/General/Draft_National_Bill.pdf>.
53 Peter Berman, Rajeev Ahuja and Laveesh Bhandari, ‘The Impoverishing Effect of Healthcare Payments in India: New Methodology and Findings’ (2010) 45 Economic and Political Weekly 65.
54 ‘2004, The Year for NHRC | National Human Rights Commission India’ <https://nhrc.nic.in/press-release/2004-year-nhrc> accessed 29 February 2024.
55 <https://nhm.gov.in/WriteReadData/l892s/nrhm-framework-latest.pdf> accessed 16 August 2023.
56 ibid.
57 <https://nhsrcindia.org/> accessed 16 August 2023.
58 Since ‘public health’ is explicitly in the state domain under the Constitution, the Government of India had drafted Model Public Health Acts twice, in 1955 and 1987, but they were not successful in their objective; also they were not rights based. See draft Model Public Health Act, 1987 at <https://cbhidghs.mohfw.gov.in/WriteReadData/l892s/Draft%20Model%20Pubilc%20Health%20Act%20(1).pdf>.
59 Article 253.
60 See articles 38, 39, 42, 47.
61 Mainly under articles 21, 14 and 15. Also see articles 17, 23, 24.
62 Article 248, read with item 97 in Union List.
63 Articles 254, 251.
64 Article 253.
65 See (n 48).
66 E.g. Section 312 of the Indian Penal Code 1860 makes abortion a punishable offence for the concerned medical practitioner as well as the woman, except when it is essential for saving the woman’s life. This remains valid law and co-exists with the specific Indian stature on abortion enacted almost 90 years later, the Medical Termination of Pregnancy Act 1971. The latter makes abortion legal in certain circumstances, but does not decriminalise (or destigmatise) it. Also it is a regulatory law centred on empowering the medical practitioner than the woman herself, despite undergoing some pro-woman amendments. Further, it is not synergised with some other important laws such as on preconception and prenatal diagnostic techniques for sex selection (PCPNDT Act 1994), and on sexual offences against children (POCSO Act 2012). The other even clearer examples of archaic health related laws are the Epidemic Diseases Act 1897 (which continues to remarkably elude a rights-based framework despite being amended in 2020 – see (n 77)) and most of the state-level public health laws.
67 See text to (n 42); (n 43); (n 44).
68 NRHM (n 56).
69 E.g. T K Rajalakshmi, ‘Bill of Neglect’ (Frontline, 10 September 2009) <https://frontline.thehindu.com/cover-story/article30188201.ece; Savita Verma, ‘Health Bill May Deny the Poor Free Care’ India Today <https://www.indiatoday.in/india/story/health-bill-may-deny-the-poor-free-care-67860-2010-02-21> both accessed 4 March 2024.
70 Both notes available on file with the author.
71 <https://main.sci.gov.in/supremecourt/2020/10918/10918_2020_31_18_23662_Order_31-Aug-2020.pdf> accessed 4 July 2022.
72 <https://legislative.assam.gov.in/sites/default/files/swf_utility_folder/departments/legislative_medhassu_in_oid_3/menu/document/The%20Assam%20Public%20Health%20Act%2C%202010.-ilovepdf-compressed.pdf> accessed 4 March 2024.
73 <https://rajswasthya.nic.in/PDF/94%20Dt.08.03.2022%20Website.pdf>. For short commentary on it, see Shukla A, ‘A Right Act for Health’ (2023) 58 <https://www.epw.in/journal/2023/19/commentary/right-act-health.html> both accessed 30 August 2023.
74 The ‘first working draft’: <https://vartagensex.org/wp-content/uploads/2021/10/140-univ-health-healthcare-access-bill-drft-oct21.pdf> accessed 31 August 2023.
75 <http://164.100.47.4/BillsTexts/RSBillTexts/asintroduced/right%20to%20health-E.pdf> accessed 31 August 2023.
76 See 286th Report of Law Commission of India, Government of India: ‘A Comprehensive Review of the Epidemic Diseases Act, 1897’ dated February 2024: <https://lawcommissionofindia.nic.in/report_twentysecond/> accessed 25 February 2024.
77 See Manish Tewari, ‘India’s Fight against Health Emergencies: In Search of a Legal Architecture’ <https://www.orfonline.org/research/indias-fight-against-health-emergencies-in-search-of-a-legal-architecture-63884> accessed 26 February 2024.
78 BJP-led NDA coalition, with Narendra Modi as Prime Minister.
79 See https://www.narendramodi.in/minimum-government-maximum-governance-3162> dated 14 May 2014 accessed 4 March 2024.
80 <https://nhsrcindia.org/sites/default/files/2021-06/21.HLEG%20Report%20on%20Universal%20Health%20Coverage%20for%20India.pdf> accessed 26 February 2024.
81 See more on website of National Health Authority: <https://nha.gov.in/PM-JAY> accessed 26 February 2024; also see T Sundararaman, Mekhala Krishnamurthy, ‘The Right to Healthcare, Universal Health Coverage and Primary Health Care: The Necessary Relationship’ (Right to Health Resources | RTH Resources, 7 February 224).
82 Still, due to several years of sustained advocacy, three rights-based national laws on some important health-related issues have been passed in India in last decade: Rights of Persons with Disabilities Act 2016; Healthcare Act (MHCA) 2017; Medical Termination of Pregnancy (Amendment) Act 2021.
83 See (n 4).
84 T Sundararaman et al, ‘No Respite for Public Health | Economic and Political Weekly’ <https://www.epw.in/journal/2016/16/budget-2016%E2%80%9317/no-respite-public-health.html> accessed 6 September 2023.
85 See Oxfam India’s Inequality Report 2021: India’s Unequal Healthcare Story: <https://www.oxfamindia.org/knowledgehub/workingpaper/inequality-report-2021-indias-unequal-healthcare-story> accessed 15 July 2023.
86 <https://www.im4change.org/siteadmin/tinymce/uploaded/High%20Level%20group%20of%20Health%20Sector.pdf> accessed 4 March 2024.
87 The report was available at the Finance Commission’s website on 20 August 2023 at: <https://fincomindia.nic.in/writereaddata/html_en_files/fincom15/StudyReports/High%20Level%20group%20of%20Health%20Sector.pdf>.
88 See (n 84) (22).
89 See Interpreting the International Right to Health in a Human Rights-Based Approach to Health by Paul Hunt, former UN Special Rapporteur on the right to the highest attainable standard of health (2002–2008) <https://www.hhrjournal.org/2016/12/interpreting-the-international-right-to-health-in-a-human-rights-based-approach-to-health/> accessed 10 October 2021.
90 <https://www.niti.gov.in/sites/default/files/2021-03/InvestmentOpportunities_HealthcareSector_0.pdf> accessed 4 March 2024.
91 Some prominent ESR laws passed in India in this period are: National Rural Employment Guarantee Act 2005; Right to Information Act 2005; The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006; Right to Education Act 2009; The Clinical Establishments (Registration and Regulation) Act 2010; National Food Security Act 2013; Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013.
92 See (n 2) [27]: The Indian government’s National Health Policy 2017 acknowledges this practical difficulty: “One of the fundamental policy questions being raised in recent years is whether to pass a health rights bill making health a fundamental right – in the way that was done for education. The policy question is whether we have reached the level of economic and health systems development so as to make this a justiciable right.”
93 ibid.
94 See (n 33) for the right to health. Also see International Labour Organization’s deployment of the so-called ‘flexibility clauses’ in its instruments for labour standards, allowing governments to set interim lower standards, exclusion of certain categories of workers from some entitlements, or to apply only certain parts of the instrument <https://www.ilo.org/global/standards/introduction-to-international-labour-standards/international-labour-standards-creation/lang--en/index.htm> accessed 17 August 2023.
95 See T Endicott, ‘The Impossibility of the Rule of Law’ (1999) 19 Oxford Journal of Legal Studies <https://ora.ox.ac.uk/objects/uuid:13972247-b645-4283-a8c0-24f29e3823dd> accessed 26 February 2024.
96 See U Baxi, Outline of a “Theory of Practice” of Indian Constitutionalism’ [2008] Politics and ethics of the Indian Constitution (92–93).
97 ibid (101). Baxi has based this on Jeremy Bentham’s ‘theory of legislation’.
98 See PRS Legislative Research, ‘70 Years of Parliament’ (2022) <https://prsindia.org/parliamenttrack/vital-stats/70-years-of-parliament> accessed 3 March 2024. Also see: Modi’s India: Hindu Nationalism and the Rise of Ethnic Democracy and Christophe Jaffrelot, Modi’s India: Hindu Nationalism and the Rise of Ethnic Democracy (Princeton University Press 2021).
99 See L O Gostin, O A Cabrera and D Patterson, Advancing the Right to Health: The Vital Role of Law <https://www.who.int/publications-detail-redirect/9789241511384> accessed 17 November 2023.