A new Constitution is currently in the works and the question has arisen as to whether social and economic rights should be included as was the case with South Africa’s new constitution. No one doubts the importance of access to education, healthcare or shelter, but should these be included within the Constitution?
This was the subject of a talk delivered by Professor Pratap Bhanu Mehta, at a forum organised jointly by the Advocata Institute and Echelon Magazine.
Prof Mehta stated that the most important fact to keep in mind is that a constitution is a social contract among a particular group of people. It has to reflect the historical specificities of those people, their diverse goals, aspirations and identities. It needs to be legitimate in the eyes of the people who will be governed by that constitution.
We can all agree that it is good to have the best healthcare for all citizens, as equitably as possible; nobody would disagree with the need to disseminate education as widely as possible and few would disagree that some sensible labour legislation is necessary.
Will these goals be met by including socio economic rights in the constitution rather than leaving it to the normal hurly burly of representative politics?
Unfortunately, the comparative experience provides no clear answer, it depends on circumstances. There is also a paradox: it is precisely those countries that would have achieved these goals even in the absence of constitutionalising these rights that also do better when they do constitutionalise them.
Prof Mehta claimed that a part of the fascination with constitutionalising these rights comes from a feeling of deep state failure. Most countries that have achieved these goals, as in Scandinavia or advanced developed countries have done so without constitutionalising them. Therefore, the notion that constitutionalising these rights is a necessary condition for achieving them is false.
He stated, in the developing world there is pressure for constitutionalising these rights because it is believed that in the absence of a justiciable constitution right, the legislature, ministers, parliament, will not create the conditions to achieve these rights.
This context is very important. The discourse on rights in developing countries emerges from a history of state failure. We want to go to court because the legislature does not give us these rights. The paradox is that if we live in a country where the legislature does not deliver these rights, it is highly unlikely to do so even if constitutionalised as the state is unlikely to have the effective institutions to deliver these rights.
The problem is essentially one of governance and the idea that constitutionalising rights can substitute for broad governance reforms needs to be challenged.
The drafters of the Indian constitution drew a distinction between Fundamental Rights which are justiciable under the constitution and the Directive Principles of State Policy which are not. The Directive Principles contain the social and economic rights. While the Directive Principles imposed an obligation upon the State to strive to fulfill them, they are not justiciable rights and their non-compliance cannot be taken as a claim for enforcement against the State.
The rationale for this distinction is that in any society there are deep differences in opinion on economic matters, and a constitution should not prejudge these questions. We can all agree that better healthcare is a good idea, more education is a good idea, more health workers is a good idea, but we might disagree on the institutional architecture to deliver these rights.
Deep entrenchment of these rights in a constitution framework abridges that democratic and political discussion. The determination of the best solution should emerge from democratic politics and be open to iterative re-balancing, which will occur over time, depending on how the experience unfolds.
To illustrate, Prof Mehta took the example of workplace protection for workers. We may agree that increasing workers power vis a vis employers is a good thing, but we may disagree on the best solution to achieve that outcome.
If one’s economic analysis suggests that a form of social protection detaches income from employment; a minimum basic income, this may lead to a different view as to what the employer-employee relationship should be. From this viewpoint, giving people a minimum basic income may enhance workers bargaining power and may be a better way to achieve the desired outcome than by including stringent minimum wage instructions and placing the onus on the employer.
Thus, we may have two different models of enhancing workers bargaining power. How do we decide which is correct? This is something that should be subject to iterative learning. The danger with constitutionalising is that we may be setting in stone a solution that does not get very far because economic conditions are changing.
Interestingly, in India from the late 1970s the Supreme Court started expanding the guarantee of the Right to Life (a Fundamental Right) to include within it and recognise a whole gamut of social rights; the right to shelter, the right to health, education, right to environment, even a right to sleep.
The question to ask is: how far has Indian governance improved as a result of the promulgation of these rights? Prof Mehta admitted that this was a complicated empirical question but his short answer is: only to a very limited extent.
The court pronounced the right to education and India now has a right to education bill as a result, but he claimed this bill was passed the day India’s enrolment in primary education had already reached its goal.
The right came after the fact, and focused largely on the input side of education rather than the output. He claimed that in fact learning outcomes have worsened after that right was promulgated. He said, similar problems existed with the right to environment. How does a country with the most progressive environment laws in the world end up with the filthiest air and the dirtiest water in the world?
Sri Lanka is regarded as one of the most important cases of human development success: it leads South Asia on many indicators, including, universal primary school enrollment, gender parity in school enrollment, under-five mortality, universal provision of reproductive health services, tuberculosis prevalence and death rates, and sanitation. All this, despite the absence of constitutionalised socio economic rights.
These achievements may be traced to enlightened policy and effective administration during the early decades after independence. Nepotism and corruption have rotted Sri Lanka’s public service, a disproportionate share of the budget is spent on defence and debt service, some of which has financed white elephant infrastructure.
Perhaps, these are the real issues to be tackled?