Social security” is a major component of fundamental ‘right to life’ and both are inextricably interwoven. Therefore, social security measures are an integral part social justice in its larger perspective of social policy framework of the State. It comes within socioeconomic rights enshrined in Part IV of the Constitution as Directive Principles of State Policy. It is integrally linked with the ‘life and liberty’ of citizens. Therefore, it becomes the fundamental rights as interpreted by the Supreme Court in many judgments. The natural implication is that social security should be formally declared as a fundamental right which will ensure its enforceability under Articles 32 and 226 of the Constitution by the Supreme Court and High Courts.
Article 21 mandates that no person shall be deprived of his life or personal liberty except according to the procedure established by law. In this backdrop, Article 41 speaks of right to work, education and public assistance and, therefore, the State shall within the limits of its economic capacity and development make effective provisions for securing the right to work, to education and to public assistance in cases of unemployment, old age and sickness disablement. Article 42 says the State shall make provision for securing just and humane conditions of work and for maternity relief. Similarly, Item 24 provides for welfare of labour including conditions of work, provident funds, employer’s liability, workmen’s compensation, invalidity and old age pension and maternity benefits. Therefore, the provisions in Part IV, although not enforceable rights, have specifically elaborated the social security goals.
It has been interpreted by the Supreme Court that the Directive Principles and fundamental rights are not in conflict with each other; rather they are complimentary. Although these provisions are non-justiciable rights, they are fundamental for governance of the country. No political party capturing the reins of administration can so lightly brush aside these provisions. Rather the State would try to implement these ideals into action for people’s welfare.
Right to education was not stated expressly as a fundamental right, but later it became a fundamental right by a Constitutional amendment. The Supreme Court has, however, not followed the rule that unless a right is expressly stated as a fundamental one, it cannot be treated as such. Accordingly, the apex court has widened the scope of Article-21. From Article 21 has sprung up a whole lot of human rights jurisprudence, viz., right to legal aid, speedy trial, the right to means of livelihood, right to live with dignity and privacy, right to health, right to pollution-free environment and so on. Freedom of Press was not expressly mentioned in Part III; yet it has been read into and inferred from the freedom of speech and expression under Article 19 by the Supreme Court.
While affirming the proposition that Article 21 must be construed in the light of the Directive Principles of the State Policy, the Supreme Court observed, “This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles and particularly from Clauses (e) and (f) of Articles 39 and Articles 41 and 42. Therefore, it has included protection of the health and strength of workers, men and women and of the tender age children against abuse, educational facilities, just and humane conditions to work and maternity relief.
Sardar Vallabhbhai Patel described both the rights mentioned in Parts III and IV as ‘fundamental rights’, one justiciable and the other non-justiciable.
In the case of Keshavananda Bharati vs State of Kerala, known as ‘Fundamental Rights case’, the apex court observed that the fundamental rights and Directive Principles constitute the conscience of the Constitution. There is no antithesis between the fundamental rules and the Directive Principles; one supplements the other. If the State fails to create conditions in which the fundamental freedoms can be enjoyed by all, the freedom of the few will be at the mercy of the many and then all freedoms will vanish. In a case, the apex court has observed, “To give absolute primacy to one over the other is to disturb the harmony of the Constitution.” It further observed, “Those rights (fundamental rights) are not an end in them but are the means to end. The end is specified in Part IV.”
In lIC of India vs Consumer Education & Research Centre, it has been stated that social security has been the goal of the fathers of the Constitution. The clear-cut directives on the part of the State to implement the policies for social securities are not only the pious wishes of the leaders but it is long-term policy, guidelines for the executive to carry out the requirements of the masses in dynamic and developing democracy. In another case, the Supreme Court elaborated the scope of the right under Article 21 and held that the right to life includes right to live with human dignity and all that goes along with it -- the bare necessities of life.
The Supreme Court has been very much conscious and active towards the socioeconomic and technological dynamism of society. At the same time, the international developments in jurisprudence and initiatives of international organisations have also made significant impact on the judgments of the courts.
The Supreme Court was quite conscious while interpreting the wide scope of the ‘life and liberty’ under Article 21. The Universal Declarations of Human Rights in Article 22 states that everyone as a “member of society” has the right to social security and is entitled to realisation through national effort and international cooperation and in accordance with the organisation and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. Article 25 of the Universal Declaration of Human Rights envisages that everyone has the right of standard of living adequate for the health and wellbeing of himself and of his family including food, clothing, housing and medical care and necessary social services and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in the circumstances beyond his control.
Article 7 of the International Covenant on Economic and Social Rights equally assures right to everyone to the enjoyment of just and favourable conditions of work which ensures not only adequate remuneration and fair wages but also decent living to the workers for themselves and their families. The Covenant on Rights to Development enjoins the State to provide opportunities to make rights a reality so as to make these rights meaningful.
In Olga Tellis vs Bombay Municipal Corporation, known as pavement dweller’s case, the Supreme Court held that the right to life includes ‘right to livelihood’ because no person can live without the means of living. If the right to livelihood is not treated as part of Constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Medical facilities to protect the health of workers are also fundamental rights under Article 21.
(The writer is a former CBI Special Judge, Bhubaneswar and a former Prof of law at lal Bahadur Shastri National Academy of Administration, Mussoorie)