JUDICIAL CONTRIBUTION IN ADVANCEMENT OF SOCIO-ECONOMIC RIGHT IN INDIA AND SOUTH AFRICA WITH SPECIAL REFERENCE TO RIGHT TO HEALTH

Abstract

Constitution of a country provides for the basic rule of governance for Legislature, Judiciary and Executive. It contains all the rights which is available to its citizen, and also makes it clear that the particular right is enforceable or not. However enforceability of a particular right is a vague term. It is because even if a particular Right is made explicitly unenforceable it can be enforced in the colour of other enforceable Rights.  

Since the inception of Universal Declaration of Human Right there is a kind of ‘a jaundiced eye’ toward the Socio-economic Rights and Civil Political Rights are given priority over socioeconomic Rights. This trend continued even after the inception of International Covenant on Civil Political Right, 1966 (ICCPR) and International Covenant on Economic Social and Cultural Rights, 1966 (ICESCR). These two Covenants have different mechanism, while the ICCPR makes it necessary to enforce the Civil Political Rights and give effective remedy while infringed; the enforcement Economic Social and Cultural Rights can be resisted on the basis of the financial capacity of the particular developing country. Thus it subordinates the category of socio-economic rights.125This situation was because of many orthodox beliefs such as; the enforcement of socio-economic right was pricey as it is a positive right and socio-economic rights has a poly-centric nature so it cannot be easy to justify by Judiciary.126 However, all these folklore slowly changed with time. Now enforcement of socio-economic right in national level is possible by three ways: first by including enforceable socio-economic right, second by extensive reading of civil political right and third by enacting particular domestic legislation.The judiciary of a country generally uses ‘reasonable approach’ in first type and ‘minimum core approach’ in second kind.