India’s understanding of Socio-Economic Human Rights.

Through this paper, I am going to look at how India has given effect to the socio-economic
wing of the right to life enshrined in the right to education and right to shelter, with special
focus on the former. Further, I am going to look at the polyvocal nature of the Supreme Court
of India as it has passed two decisions, one of which is progressive and the other is grossly
regressive. One focuses on the right to education while the other focuses on the right to
livelihood and shelter.

Socio-economic rights, or second-generation rights or welfare rights1 are the most special
category of rights. I call them special because this category of rights often poses a question to
the universal idea of human rights as these rights are hugely dependent on the resources
available to the State and the margin of appreciation does play a huge role in giving effect to
these rights.2 Article 13 to the International Covenant on Social, Economic and Cultural
Rights lists down the right to free education. It requires states to take international assistance
or cooperation, and through the maximum of its available resources, strive to progressively
realise this right.3 It therefore does provide for a positive obligation on the state to take
measures (such as preparing legislations) to ensure that the citizens are provided with free
education, however it has been made subject to maximum available resources to the State.
The duty to progressively realise these rights ensures that the citizen does not get the right sue
the State as soon as the right is recognised but only if the State fails in taking necessary steps
when it had the duty as well as the means to do it.

India, has created the right to education under Article 21A of the Constitution of India that is
an extension to the fundamental right to life. Statutory right to education was first introduced
in India through a legislation, i.e. the Right to Education Act, 2009, which made education,
both free and compulsory for students up to the age of 14, in furtherance of the principles also
explained by Daniel Moeckli and others such as free and compulsory, non-discriminatory

1
Santra Friedman, page 226.
2
Eyal Benvenisti, Margin of Appreciation, Consensus, And Universal Standards, International Law and
Politics, Vol. 31:843 (1999).
3
DANIEL MOECKLI ET AL, HUMAN RIGHTS, Oxford University Press (2013), Pg 239.
education etc.4 Let us first briefly look at how the right to education has been incorporated in
our legal system.

History of Right to Education in India:

Article 45 of the constitution, that the state shall provide free education to children till the age
of fourteen, came into effect after 10 years of implementation of the constitution.5 The
framers of the Constitution had estimated that such a right would be recognised as late as
1960. However, embroiled in faulty parliamentary procedures and Supreme Court cases it
was first judicially recognised in 1992, legislated in 2009 and enforced in 2010.

In 1992 and 1993, two of the most important decisions on right to education were delivered
by the Supreme Court of India, which are Mohini Jain v. State of Karnataka6 and Unni
Krishnan v. State of Andhra Pradesh.7 In the former case, it was pointed out by the Court that

“Right to life" is the compendious expression for all those rights which the courts must
enforce because they are basic to the dignified enjoyment of life. It extends to the full range
of conduct which the individual is free to pursue. The right to education flows directly from
right to life. The right to life under Article 21 and the dignity of an individual cannot be
assured unless it is accompanied by the right to education. The State Government is under an
obligation to make endeavor to provide educational facilities at all levels to its citizens.”

In 2002, the 86th Amendment to the Indian Constitution was given effect to, as a result a bill
was prepared that was made open for suggestions from the public. After incorporating the
suggestions, the CABE (Central Advisor Board of Education) also prepared a bill and sent it
to the HRD ministry. However, this bill did not see the light of the day as the finance
committee and planning commission rejected it stating lack of funds as the reason as it was
supposed to cost Rs. 4,36,000 crore for its effective implementation.8

In 2009, the bill was passed by the Parliament which made it mandatory for the government
to have a school in every neighbourhood thus providing free education to every child within

4
Supra Note 243, 244, 245.
5
DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA 647 (14 ed., LexisNexis 2011)(1958).
6
AIR 1992 SC 1858.
7
(1993) 4 SCC 111.
8
See Right To Education Bill, The Campaign, http://www.ilpnet.org/rte/#History (Last visited May 20th, 2015).
the age of 6 to 149 and was enforced in 2010. In order to curb forced child labour, the parents
were also put under an obligation to send their children to school for education.10

For the establishment of schools, 65% of the funds will be borne by the central govt. and 35%
by the state govt.11 However, what remains a huge criticism of the Act is whether the
government has been providing enough funds to the schools for giving effect to these rights?
Private schools are equally under an obligation to observe this right. Yet, the Government
provides a sum of Rs. 1,190 per month per students, however the schools have complained
that they end up spending up to Rs. 3000 per month which makes the funds from the
government insufficient to provide free education, thereby encouraging schools from finding
ways to shy away from their obligations.12 The necessary academic qualification for a teacher
is also not satisfactory,13 which shows that quality of education is being compromised.
Although the argument that can be sustained is that the initiative being at its nascent stage
will gradually focus on quality however, the situation could be targeted in a much better way
by providing larger incentives to the teachers, thereby ensuring that no compromise on the
quality is made. What can be seen from the above facts is that the right to education, even
though a step in the right direction, still needs a lot of work to become a fool-proof system of
providing education. One aspect that the legislature must focus on, is an idea discussed by
Moeckli,14 which is that the right of the students to education also contains the right to be
educated in one’s own language. In the case of DH and Ors v. Czech Republic,15 it was held
that the policy of the government to send the Roma students to local schools did not solve
any good purpose as the decision remained discriminatory against the minorities as they did
not understand the language used in the school. Similarly, the state boards of education in
India need to ensure that education is accessible in local languages as well. Mere lack of
funds should not be a reason for not fulfilling the obligations as the ICESCR encourages
States to take international cooperation.

Polyvocal Supreme Court:

9
Section 3(1), The Right of Children to Free and Compulsory Education Act, 2009.
10
Section 10, Right of Children to Free and Compulsory Education Act, 2009.
11
Right To Education Act in India And It’s Future Implementation, http://www.articlesbase.com/childhood-
education-articles/right-to-education-act-in-india-and-it039s-future-implementation-1868156.html (Last visited,
May 20th, 2015).
12
Neha Pushkarna, RTE: Schools Want Govt. Bailout, THE TIMES OF INDIA, Apr. 13, 2012 at 2.
13
http://mhrd.gov.in/sites/upload_files/mhrd/files/upload_document/d_0.pdf
14
Supra Note 3 at 245.
15
(Application no. 57325/00).
In 1985, the Supreme Court of India delivered the infamous judgment known as Olga Tellis
& Ors. v. Bombay Municipal Corporation.16 This case is also famously called as the
pavement dwellers’ case. The Bombay Municipal Corporation had evicted a large number of
people who had established their homes on the pavements on the sides of the roads. The
pavement dwellers argued that staying within the city helped them earn a livelihood which
they would not be able to in any other place, thereby being deprived of the right to livelihood
which is a corollary to the right to life under Article 21 of the Constitution of India. They also
argued that forcibly removing them from the pavements was in violation of their right to
shelter once again enshrined under the right to life. The Court held that the right to life also
covered within it the right to earn a livelihood as the right to life meant something more than
mere animal existence, and it would mean to live a life of dignity, and dignity would dictate
that the people be allowed to earn a livelihood. The first half of the judgment praises the ever
increasing scope of the right to life, however the court soon proved that it could easily be
used as an instrument to act against the poor as the court in the same breath also held that
such a right to life(livelihood) was not absolute and the pavement dwellers could be evicted
under a fair and reasonable procedure. Ultimately, the court allowed the municipal
corporation to remove the dwellers from the roads, thereby clearly trampling upon their rights
under Article 21.

Moving on from the infamous judgment to a progressive judgment that for the first time
clarified the meaning of the fundamental right to free education. The judgment of Unni
Krishnan17 can be considered one that crystalised the right to education. It went into the entire
trajectory through which the right to education has been judicially recognised in part II of the
judgment.18 One of the questions posed to the court was whether if the right to education is
considered a fundamental right, every citizen would be suing the state for not granting him
the right? The court pointed out that going by the judgment of Mohini Jain, the answer to the
above question would be in affirmative, however the judges disagreed with that opinion
saying that the right to education was subject to the state’s economic capabilities that were
mentioned in the directive principles of the Constitution of India.19 The court here took a
realistic view of the application of this right and set the limits to the exercise of this right,
which is also in line with the obligation put on the state through international covenants.

16
(1985) 2 Supp SCR 51.
17
(1993) 4 SCC 111.
18
Id. at 148.
19
The Court cites Article 37, 39 and 41 as the provisions putting limits on the realisation of the fundamental
rights.
Conclusion:

Multitudes in India are still living under the poverty line and many even above that line are
uneducated. Education in particular is a tool that serves many purposes. The right to
education should be construed as an empowerment right.20 It enables social mobility21 as it is
a means to end discrimination based on social status, helps in reducing poverty, providing
people with a livelihood, thereby increasing the overall standard of living. In a democracy
such as ours, making of an informed choice is extremely necessary and right to education is a
way forward in ensuring that there is smooth running of democracy. Having said that, the
most important aspect of the socio-economic rights is justiciability, that is to say that mere
adjudging of the presence of a right does not by itself serve the purpose, the various
institutions of the State need to take positive measures to ensure that the rights of these
people are implemented.

20
Supra Note 3 at 248.
21
Id.