Justiciability of ESC Rights—the Indian Experience

Introduction

Part III of the Indian Constitution guarantees “fundamental rights” to all citizens, and some of these, like the right to life (art. 21) and the right to equality (art.14), to all persons.  The fun­damental rights are enforceable in the High Courts and the Supreme Court.  In writ petitions before these courts, a person or a citizen can seek enforcement of  fundamental rights and redress for their breach.  Judicial review of executive action as well as of legislation and judicial and quasi-judicial orders is recognized as part of the “basic structure” of the Constitution which cannot be taken away even by an amendment to the Constitution.¹ The Supreme Court has the final word on the interpretation of the Constitution, and its orders, being law, are binding and enforceable by all authorities—executive, legislative and judicial.²

The Directive Principles of State Policy (DPSP) are contained in part IV, articles 36 to 50, of the Indian Constitution.  Many of the provisions correspond to the provisions of the ICESCR.  For instance, article 43 provides that the state shall endeavor to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities, and in particular the state shall endeavor to promote cottage industries on an individual or cooperative basis in rural areas.  This corresponds more or less to articles 11 and 15 of the ICESCR.  However, some of the ICESCR rights, for instance, the right to health (art. 12), have been interpreted by the Indian Supreme Court to form part of the right to life under article 21 of the Constitution, thus making it directly enforceable and justiciable.³  As a party to the ICESCR, the Indian legis­lature has enacted laws giving effect to some of its treaty obligations and these laws are in turn enforceable in and by the courts.

Article 37 of the Constitution declares that the DPSP “shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.”  It is not a mere coincidence that the apparent distinction that is drawn by scholars between the ICCPR rights and ESC rights holds good for the distinction that is drawn in the Indian con­text between fundamental rights and DPSP.⁴ Thus the bar to justiciability of the DPSP is spelled out in some sense in the Constitution itself.  

However, the Indian judiciary has overcome this apparent limitation by a creative and inter­pretative exercise.  In what context that happened and how is what is proposed to be exam­ined in this case study.  After briefly tracing the development of this interpretative exercise through case law in the first three decades of the working of the Constitution, I propose to examine the response of the judiciary in the context of justiciability and enforceability of specific ESC rights.

Fundamental Rights versus DPSP

When the tussle for primacy between fundamental rights and DPSP came up before the Supreme Court first, the court said, “The directive principles have to conform to and run sub­sidiary to the chapter on fundamental rights.”⁵ Later, in the Fundamental Rights Case (referred to above), the majority opinions reflected the view that what is fundamental in the governance of the country cannot be less significant than what is significant in the life of the individual.  Another judge constituting the majority in that case said: “In building up a just social order it is sometimes imperative that the fundamental rights should be subordinated to directive prin­ciples.”⁶ This view, that the fundamental rights and DPSP are complementary, “neither part being superior to the other,” has held the field since.⁷

The DPSP have, through important constitutional amendments, become the benchmark to insulate legislation enacted to achieve social objectives, as enumerated in some of the DPSP, from attacks of invalidation by courts.  This way, legislation for achieving agrarian reforms, and specifically for achieving the objectives of articles 39(b) and (c) of the Constitution, has been immunized from challenge as to its violation of the right to equality (art. 14) and freedoms of speech, expression, etc. (art. 19).⁸ However, even here the court has retained its power of judicial review to examine if, in fact, the legislation is intended to achieve the objective of articles 39(b) and (c), and where the legislation is an amend­ment to the Constitution, whether it violates the basic structure of the constitution.⁹ Likewise, courts have used DPSP to uphold the constitutional validity of statutes that apparently impose restrictions on the fundamental rights under article 19 (freedoms of speech, expression, asso­ciation, residence, travel and to carry on a business, trade or profession), as long as they are stated to achieve the objective of the DPSP.¹⁰

The DPSP are seen as aids to interpret the Constitution, and more specifically to provide the basis, scope and extent of the content of a fundamental right.  To quote again from the  Fundamen­tal Rights case:

Fundamental rights have themselves no fixed content; most of them are empty vessels into which each generation must pour its content in the light of its experience.   Restrictions, abridgement, curtailment and even abrogation of these rights in circum­stances not visualised by the constitution makers might become necessary; their claim to supremacy or priority is liable to be overborne at particular stages in the history of the nation by the moral claims embodied in Part IV.¹¹

Judicial Activism and Public Interest Litigation

The internal emergency that was in force between 1975 and 1977 and its aftermath contrib­uted significantly to the change in the judiciary’s perception of its role in the working of the Constitution.  The period of the emergency witnessed large-scale violations of basic rights of life and liberty.  There were also blatant violations of the right to freedom of speech and expression.  The end of the emergency saw the emergence of a realignment of political forces.  Nevertheless, the popularly elected government was weak and in trying to find its feet, it did not last very long.  It was already collapsing by 1978/1979, which was when the judiciary initiated the public-interest litigation (PIL) movement.  The development of the jurisprudence of ESC rights is also inextricably linked to this significant development.

The lifting of the emergency and the realignment of political forces had not resulted in any dramatic change in the social imbalances or executive excesses that had by then become en­demic.  The postemergency period then provided the right environment for the judiciary to redeem itself as a protector and enforcer of the rule of law.  Judges woke up to this need and PIL was the tool the judiciary shaped to achieve this end.  PIL was entirely a judge-led and judge-dominated movement.¹²

What made PIL unique was that it acknowledged that a majority of the population, on account of their social, economic and other disabilities, was unable to access the justice sys­tem.  The insurmountable walls of procedure were dismantled and suddenly the doors of the Supreme Court were open to people and issues that had never reached there before.  By relaxing the rules of standing and procedure to the point where even a postcard could be treated as a writ petition, the judiciary ushered in a new phase of activism where litigants were freed from the stranglehold of formal law and lawyering.

The Maneka Gandhi Case and Thereafter

Simultaneously, the judiciary took upon itself the task of infusing into the constitutional pro­visions the spirit of social justice.  This it did in a series of cases of which Maneka Gandhi v. Union of India was a landmark.¹³  The case involved the refusal by the government to grant a passport to the petitioner, which thus restrained her liberty to travel.  In answering the question whether this denial could be sustained without a predecisional hearing, the court proceeded to explain the scope and content of the right to life and liberty.  In a departure from the earlier view,¹⁴ the court asserted the doctrine of substantive due process as integral to the chapter on fundamental rights and emanating from a collective understanding of the scheme underlying articles 14 (the right to equality), 19 (the freedoms) and 21 (the right to life).  The power the court has to strike down legislation was thus broadened to include critical examination of the substantive due process element in statutes.

Once the court took a broader view of the scope and content of the fundamental right to life and liberty, there was no looking back.  Article 21 was interpreted to include a bundle of other incidental and integral rights, many of them in the nature of ESC rights. 

In Francis Coralie Mullin the court declared:

“The right to life includes the right to live with human dignity and all that goes with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and comingling with fellow human beings.  The magnitude and components of this right would depend upon the extent of economic develop­ment of the country, but it must, in any view of the matter, include the bare necessi­ties of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self.”¹⁵

The combined effect of the expanded interpretation of the right to life and the use of PIL as a tool led the court into areas where there was a crying need for social justice.  These were areas where there was a direct interaction between law and poverty, as in the case of bonded labor and child labor, and crime and poverty, as in the case of undertrials in jails.  In reading several of these concomitant rights of dignity, living conditions, health into the ambit of the right to life, the court overcame the difficulty of justiciability of these as economic and social rights, which were hitherto, in their manifestation as DPSP, considered nonenforceable.  A brief look at how some of these ESC rights were dealt with by the court in four specific contexts will help understand the development of the law in this area.

Right to Work

Article 41 of the Constitution provides that “the State shall within the limits of its economic capacity and development, make effective provision for securing the right to work, to educa­tion and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.”¹⁶ Article 38 states that the state shall strive to pro­mote the welfare of the people and article 43 states it shall endeavor to secure a living wage and a decent standard of life to all workers.  One of the contexts in which the problem of enforceability of such a right was posed before the Supreme Court was of large-scale aboli­tion of posts of village officers in the State of Tamil Nadu in India.  In negating the conten­tion that such an abolition of posts would fall foul of the DPSP, the court said:

It is no doubt true that Article 38 and Article 43 of the Constitution insist that the State should endeavour to find sufficient work for the people so that they may put their capacity to work into economic use and earn a fairly good living.  But these articles do not mean that everybody should be provided with a job in the civil service of the State and if a person is provided with one he should not be asked to leave it even for a just cause.  If it were not so, there would be justification for a small per­centage of the population being in Government service and in receipt of regular income and a large majority of them remaining outside with no guaranteed means of living.  It would certainly be an ideal state of affairs if work could be found for all the able-bodied men and women and everybody is guaranteed the right to participate in the production of national wealth and to enjoy the fruits thereof.  But we are today far away from that goal.  The question whether a person who ceases to be a government servant according to law should be rehabilitated by being given an alternative employment is, as the law stands today, a matter of policy on which the court has no voice.¹⁷

But the court has since then felt freer to interfere even in areas which would have been con­sidered to be in the domain of the policy of the executive.  Where the issue was of regulariz­ing the services of a large number of casual (nonpermanent) workers in the posts and tele­graphs department of the government, the court has not hesitated to invoke the DPSP to direct such regularization.  The explanation was:

Even though the above directive principle may not be enforceable as such by virtue of Article 37 of the Constitution of India, it may be relied upon by the petitioners to show that in the instant case they have been subjected to hostile discrimination.  It is urged that the State cannot deny at least the minimum pay in the pay scales of regu­larly employed workmen even though the Government may not be compelled to extend all the benefits enjoyed by regularly recruited employees.  We are of the view that such denial amounts to exploitation of labour.   The Government cannot take ad­vantage of its dominant position, and compel any worker to work even as a casual labourer on starvation wages.  It may be that the casual labourer has agreed to work on such low wages.  That he has done because he has no other choice.  It is poverty that has driven him to that state.  The Government should be a model employer.  We are of the view that on the facts and in the circumstances of this case the classifica­tion of employees into regularly recruited employees and casual employees for the purpose of paying less than the minimum pay payable to employees in the corre­sponding regular cadres particularly in the lowest rungs of the department where the pay scales are the lowest is not tenable . . . It is true that all these rights cannot be extended simultaneously.  But they do indicate the socialist goal.  The degree of achievement in this direction depends upon the economic resources, willingness of the people to produce and more than all the existence of industrial peace throughout the country.  Of those rights the question of security of work is of utmost importance.¹⁸

In Bandhua Mukti Morcha v. Union of India,¹⁹ a PIL by an NGO highlighted the deplorable condition of bonded laborers in a quarry in Haryana, not very far from the Supreme Court.    A host of protective and welfare-oriented labor legislation, including the Bonded Labour (Abolition) Act and the Minimum Wages Act, were being observed in the breach.  In giving extensive directions to the state government to enable it to discharge its constitutional obligation towards the bonded laborers, the court said:²⁰

The right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39 and Article 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of chil­dren against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief.  These are the minimum require­ments which must exist in order to enable a person to live with human dignity and no State has the right to take any action which will deprive a person of the enjoyment of these basic essentials.  Since the Directive Principles of State Policy contained in clauses (e) and (f) of Article 39, Articles 41 and 42 are not enforceable in a court of law, it may not be possible to compel the State through the judicial process to make provision by statutory enactment or executive fiat for ensuring these basic essentials which go to make up a life of human dignity, but where legislation is already enacted by the State providing these basic requirements to the workmen and thus investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation, for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 21, more so in the context of Article 256 which provides that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State.²¹

Thus the court converted what seemed a non-justiciable issue into a justiciable one by in­voking the wide sweep of the enforceable article 21.  More recently, the court performed a similar exercise when, in the context of articles 21 and 42, it evolved legally binding guide­lines to deal with the problems of sexual harassment of women at the work place.²²

The right of workmen to be heard at the stage of winding up of a company was a contentious issue.  In a bench of five judges that heard the case the judges that constituted the majority that upheld the right were three.  The justification for the right was traced to the newly inserted article 43-A, which asked the state to take suitable steps to secure participation of workers in management.   The court observed:

It is therefore idle to contend 32 years after coming into force of the Constitution and particularly after the introduction of article 43-A in the Constitution that the workers should have no voice in the determination of the question whether the enterprises should continue to run or be shut down under an order of the court.   It would indeed be strange that the workers who have contributed to the building of the enterprise as a centre of economic power should have no right to be heard when it is sought to demolish that centre of economic power.²³

Right to Shelter

Unlike certain other ESC rights, the right to shelter, which forms part of the right to an ade­quate standard of living under article 11 of the ICESCR, finds no corresponding expression in the DPSP.  This right has been seen as forming part of article 21 itself.  The court has gone as far as to say, “The right to life . . . would take within its sweep the right to food . . . and a reasonable accommodation to live in.”²⁴ However, given that these observations were not made in a petition by a homeless person seeking shelter, it is doubtful that this declaration would be in the nature of a positive right that could be said to be enforceable.  On the other hand, in certain other contexts with regard to housing for the poor, the court has actually refused to recognize any such absolute right. 

In Olga Tellis v. Bombay Municipal Corporation,²⁵ the court held that the right to life included the right to livelihood.  The petitioners contended that since they would be deprived of their livelihood if they were evicted from their slum and pavement dwellings, their evic­tion would be tantamount to deprivation of their life and hence be unconstitutional.   The court, however, was not prepared to go that far.  It denied that contention, saying:

No one has the right to make use of a public property for a private purpose without requisite authorisation and, therefore, it is erroneous to contend that pavement dwellers have the right to encroach upon pavements by constructing dwellings thereon . . . If a person puts up a dwelling on the pavement, whatever may be the economic compulsions behind such an act, his use of the pavement would become unauthorised.

Later benches of the Supreme Court have followed the Olga Tellis dictum with approval.  In Municipal Corporation of Delhi v. Gurnam Kaur,²⁶ the court held that the Municipal  Corpo­ration of Delhi had no legal obligation to provide pavement squatters alternative shops for rehabilitation as the squatters had no legal enforceable right.  In Sodan Singh v. NDMC²⁷ a constitution bench of the Supreme Court reiterated that the question whether there can at all be a fundamental right of a citizen to occupy a particular place on the pavement where he can squat and engage in trade must be answered in the negative.  These cases fail to account for socioeconomic compulsions that give rise to pavement dwelling and restrict their examina­tion of the problem from a purely statutory point of view rather than the human rights perspective.

Fortunately, a different note has been struck in a recent decision of the court.  In Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan,²⁸ in the context of eviction of encroach­ers in a busy locality of Ahmedabad city, the court said:

Due to want of facilities and opportunities, the right to residence and settlement is an illusion to the rural and urban poor.  Articles 38, 39 and 46 mandate the State, as its economic policy, to provide socio-economic justice to minimise inequalities in income and in opportunities and status.  It positively charges the State to distribute its largesse to the weaker sections of the society envisaged in Article 46 to make socio-economic justice a reality, meaningful and fruitful so as to make life worth living with dignity of person and equality of status and to constantly improve excellence.  Though no person has a right to encroach and erect structures or otherwise on foot­paths, pavements or public streets or any other place reserved or earmarked for a public purpose, the State has the constitutional duty to provide adequate facilities and opportunities by distributing its wealth and resources for settlement of life and erection of shelter over their heads to make the right to life meaningful.²⁹

Right to Health

The right to health has been perhaps the least difficult area for the court in terms of justiciability, but not in terms of enforceability.  Article 47 of DPSP provides for the duty of the state to improve public health.  However, the court has always recognized the right to health as being an inte­gral part of the right to life.³⁰ The principle got tested in the case of an agricultural laborer whose condition, after a fall from a running train, worsened considerably when as many as seven government hospitals in Calcutta refused to admit him as they did not have beds vacant.  The Supreme Court did not stop at declaring the right to health to be a fundamental right and at enforcing that right of the laborer by asking the Government of West Bengal to pay him compensation for the loss suffered.  It directed the government to formulate a blue print for primary health care with particular reference to treatment of patients during an emergency.³¹

In Consumer Education and Research Centre v. Union of India³² the court, in a PIL, tackled the problem of the health of workers in the asbestos industry.  Noticing that long years of expo­sure to the harmful chemical could result in debilitating asbestosis, the court mandated com­pulsory health insurance for every worker as enforcement of the worker’s fundamental right to health.  It is again in PIL that the court has had occasion to examine the quality of drugs and medicines being marketed in the country and even ask that some of them be banned.³³

A note of caution was struck when government employees protested against the reduction of their entitlements to medical care.  The court said:

No State or country can have unlimited resources to spend on any of its projects.  That is why it only approves its projects to the extent it is feasible.  The same holds good for providing medical facilities to its citizens including its employees.  Provi­sion on facilities cannot be unlimited.  It has to be to the extent finances permit.  If no scale or rate is fixed then in case private clinics or hospitals increase their rate to exorbitant scales, the State would be bound to reimburse the same.  The principle of fixation of rate and scale under the new policy is justified and cannot be held to be violative of article 21 or article 47 of the Constitution.³⁴

Right to Education

Article 45 of the DPSP, which corresponds to article 13(1) of the ICESCR, states, “The State shall endeavour to provide, within a period of ten years from the commencement of this Con­stitution, for free and compulsory education for all children until they complete the age of fourteen years.”  Thus, while the right of a child not to be employed in hazardous industries was, by virtue of article 24, recognized to be a fundamental right, the child’s right to educa­tion was put into the DPSP in part IV and deferred for a period of ten years. 

The question whether the right to education was a fundamental right and enforceable as such was answered by the Supreme Court in the affirmative in Mohini Jain v. State of Karna­taka.³⁵ The correctness of this decision was examined by a larger bench of five judges in Unnikrishnan J.P. v. State of Andhra Pradesh.³⁶ The occasion was the challenge, by private medical and engineering colleges, to state legislation regulating the charging of “capitation” fees from students seeking admission.  The college management was seeking enforcement of their right to business.  The court expressly denied this claim and proceeded to examine the nature of the right to education.  The court refused to accept the nonenforceablity of the DPSP.  It asked:

It is noteworthy that among the several articles in Part IV, only Article 45 speaks of a time-limit; no other article does.  Has it no significance?  Is it a mere pious wish, even after 44 years of the Constitution?  Can the State flout the said direction even after 44 years on the ground that the article merely calls upon it to endeavour to pro­vide the same and on the further ground that the said article is not enforceable by virtue of the declaration in Article 37.  Does not the passage of 44 years—more than four times the period stipulated in Article 45—convert the obligation created by the article into an enforceable right?  In this context, we feel constrained to say that allo­cation of available funds to different sectors of education in India discloses an inver­sion of priorities indicated by the Constitution.  The Constitution contemplated a crash programme being undertaken by the State to achieve the goal set out in Article 45.  It is relevant to notice that Article 45 does not speak of the “limits of its economic capacity and development” as does Article 41, which inter alia speaks of right to education.  What has actually happened is more money is spent and more attention is directed to higher education than to—and at the cost of—primary educa­tion.  (By primary education, we mean the education which a normal child receives by the time he completes 14 years of age.)  Neglected more so are the rural sectors, and the weaker sections of the society referred to in Article 46.  We clarify, we are not seeking to lay down the priorities for the Government—we are only emphasising the constitutional policy as disclosed by Articles 45, 46 and 41.  Surely the wisdom of these constitutional provisions is beyond question. ³⁷

The court then proceeded to examine how this right would be enforceable and to what extent.  It clarified the issue thus:

The right to education further means that a citizen has a right to call upon the State to provide educational facilities to him within the limits of its economic capacity and development.  By saying so, we are not transferring Article 41 from Part IV to Part III—we are merely relying upon Article 41 to illustrate the content of the right to education flowing from Article 21.  We cannot believe that any State would say that it need not provide education to its people even within the limits of its economic capacity and development.  It goes without saying that the limits of economic capac­ity are, ordinarily speaking, matters within the subjective satisfaction of the State. ³⁸

More caution followed.  The court’s apprehension clearly was that recognition of such a right might open the flood gates for other claims.  It clarified:

We must hasten to add that just because we have relied upon some of the directive principles to locate the parameters of the right to education implicit in Article 21, it does not follow automatically that each and every obligation referred to in Part IV gets automatically included within the purview of Article 21.  We have held the right to education to be implicit in the right to life because of its inherent fundamental importance.  As a matter of fact, we have referred to Articles 41, 45 and 46 merely to determine the parameters of the said right. ³⁹

In fact, the court had broken new ground in the matter of justiciability and enforceability of the DPSP.  The decision in Unnikrishnan has been applied by the court in formulating broad parameters for compliance by the government in the matter of eradication of child labor.  This it did in a PIL where it said:

Now, strictly speaking a strong case exists to invoke the aid of Article 41 of the Con­stitution regarding the right to work and to give meaning to what has been provided in Article 47 relating to raising of standard of living of the population, and Articles 39 (e) and (f) as to non-abuse of tender age of children and giving opportunities and facilities to them to develop in a healthy manner, for asking the State to see that an adult member of the family, whose child is in employment in a factory or a mine or in other hazardous work, gets a job anywhere, in lieu of the child.  This would also see the fulfilment of the wish contained in Article 41 after about half a century of its being in the paramount parchment, like primary education desired by Article 45, having been given the status of fundamental right by the decision in Unnikrishnan.  We are, however, not asking the State at this stage to ensure alternative employment in every case covered by Article 24, as Article 41 speaks about right to work “within the limits of the economic capacity and development of the State”.  The very large number of child labour in the aforesaid occupations would require giving of job to a very large number of adults, if we were to ask the appropriate Government to assure alternative employment in every case, which would strain the resources of the State, in case it would not have been able to secure job for an adult in a private sector es­tablishment or, for that matter, in a public sector organisation.  We are not issuing any direction to do so presently.  Instead, we leave the matter to be sorted out by the appropriate Government.  In those cases where it would not be possible to provide job as above mentioned, the appropriate Government would, as its contribution/grant, deposit in the aforesaid Fund a sum of Rs.5000/- for each child employed in a factory or mine or in any other hazardous employment.⁴⁰

The court, while recognizing the importance of declaring the child’s negative right against exploitation and positive right to education, chose a pragmatic approach when it came to en­forceability.  Earlier the court would have shrugged off the whole issue as not being within its domain.  That has now changed as is clear from the recent trend of cases.

Conclusion

This much is clear from the above narration—that ESC rights are no less important than fun­damental rights in the constitutional scheme.  They are enforceable when they are projected as supplying the content of a fundamental right,⁴¹ but not just by themselves.⁴²

The judiciary will not be fettered by any apparent injunction in the Constitution against non-enforceability of the DPSP.  It will, on the other hand, pin the state to its obligations towards the citizens by referring to the DPSP.  Such obligation, the court has explained in the context of right to environment, can confer corresponding rights on the citizen:

It need hardly be added that the duty cast on the State under Articles 47 and 48-A in particular of Part IV of the Constitution is to be read as conferring a corresponding right on the citizens and, therefore, the right under Article 21 at least must be read to include the same within its ambit.  At this point of time, the effect of the quality of the environment on the life of the inhabitants is much too obvious to require any emphasis or elaboration.⁴³

The ESC rights that the DPSP symbolize can demonstrably be read as forming part of an enforceable regime of fundamental rights.  What then is crucial is the will of the state to im­plement this constitutional mandate.  The agenda of the state can be shaped to a considerable extent by a creative and activist judiciary.  The state has to be constantly reminded of its ob­ligations and duties.  The actual realization of ESC rights may be a long-drawn affair, but keeping it on the agenda is more than half that effort.  The Indian judiciary has through a combination of strategies done just that.  That is the Indian experience.

NOTES
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1. Keshavananda Bharati v. State of Kerala (1973) 4 SCC 225 (cited hereafter as the Fundamental Rights case).
2. Union of India v. Raghubir Singh (1989) 2 SCC 754 at 766 para. 7. Article 142 of the Constitution declares that any order of the Supreme Court is enforceable throughout the territory of India and article 144 mandates that all civil and judicial authorities shall act in aid of the Supreme Court.
3. Francis Coralie Mullin v. The Administrator, Union Territory of Delhi (1981) 2 SCR 516.
4. See D. J. Ravindran, Human Rights Praxis: A Resource Book for Study, Action and Reflection (Bangkok: Asian Forum for Human Rights and Development, 1998), 124, where he questions the validity of the view that civil and political rights are human rights and economic, social and cultural rights are only aspirations.
5. State of Madras v. Champakam Dorairajan (1951) SCR 525.
6. Mathew, J. in the Fundamental Rights case, note 1 above, SCC para. 1707, p. 879.
7. V.R.Krishna Iyer,J. in State of Kerala v. N. M.. Thomas (1976) 2 SCC 310 at para. 134, p. 367.
8. Articles 39(a) and (b) provide that:
The State shall, in particular, direct its policy towards securing:-
(a) that the citizens, men and women equally, have the right to an adequate means to livelihood.
(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;
Articles 31B and 31C of the Constitution were introduced by the 1st and 25th amendments to the Constitution. In fact the Fundamental Rights case concerned the constitutional validity of article 31C of the Constitution.
9. Minerva Mills v. Union of India (1980) 3 SCC 625; Waman Rao v. Union of India (1981) 2 SCC 362.
10. For instance Article 43 dealing with living wages and conditions of work has been relied upon to sustain the reasonableness of the restriction imposed by the Minimum Wages Act, 1948. Chandra Bhavan v. State of Mysore (1970) 2 SCR 600.
11. See note 1, SCC para. 1714, p. 881.
12. For an analytical account see Upendra Baxi, "Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India," in Supreme Court on Public Interest Litigation, ed. Jagga Kapur, vol. I (1998), p. A-91.
13. (1978) 1 SCC 248.
14. Until the decision in Maneka Gandhi, the court stuck to the view it first took in A.K.Gopalan v. State of Madras 1950 SCR 88, that article 21, which stated that "No person shall be deprived of his life or personal liberty except according to the procedure established by law," meant that as long as there was a law made by the legislature taking away a person's liberty, such law could never be challenged as being violative of fundamental rights.
15. Francis Coralie Mullin case, note 3 above, p. 529 B-F.
16. This corresponds to article 6 of the ICESCR.
17. K.Rajendran v. State of Tamil Nadu (1982) 2 SCC 273, para. 34, p. 294.
18. Daily Rated Casual Labour Employed under P & T Department v. Union of India (1988) 1 SCC 122 at paras. 7 and 9. Similar orders were made in Dharwad P. W. D. Employees Association v. State of Karnataka (1990) 2 SCC 396; Jacob M. Puthuparambil v. Kerala Water Authority (1991) 1 SCC 28; Air India Statutory Corporation v. United Labour Union (1997) 9 SCC 425.
19. (1984) 3 SCC 161.
20. Ibid., para. 10, p. 183. In Central Inland Water Transport Corporation v. Brojo Nath Ganguly (1986) 3 SCC 227, the court held a hire and fire policy of a government corporation to be untenable as it would be inconsistent with the DPSP.
21. Article 42 provides for just and humane conditions of work and maternity relief. Article 39(e) asks the state to direct its policy towards securing that citizens are not by economic necessity forced into avocations unsuited to their age and strength.
22. Vishaka v. State of Rajasthan (1997) 6 SCC 241.
23. National Textile Workers Union v. P. R. Ramakrishnan (1983) 1 SCC 249.
24. Shanti Star Builders v. Narayan K. Totame (1990) 1 SCC 520. In Bandhua Mukti Morcha v. Union of India (1991) 4 SCC 177, the court recognized the right of rescued bonded labor to accommodation as part of their rehabilitation, but the enforcement of the judgments in relation to bonded labor is still a distant dream.
25. (1985) 3 SCC 545.
26. (1989) 1 SCC 101.
27. (1989) 4 SCC 155.
28. (1997) 11 SCC 123
29. Ibid., para. 13, p.133
30. See Francis Coralie Mullin, note 3 above; Parmanand Katara v. Union of India (1989) 4 SCC 286.
31. Paschim Banga Khet Majoor Samity v. State of West Bengal (1996) 4 SCC 37.
32. (1995) 3 SCC 42.
33. Vincent Pannikulangura v. Union of India (1987) 2 SCC 165; Drug Action Forum v. Union of India (1997) 6 SCC 609; All India Democratic Women Association v. Union of India 1998 (2) SCALE 360. For PIL cases seeking to enforce fundamental rights of the mentally ill, see Rakesh Chandra Narayan v. Union of India, 1991 Supp. (2) 626, 1989 Supp. (1) SCC 644, 1994 Supp. (3) SCC 478; Supreme Court Legal Aid Committee v. State of Madhya Pradesh (1994) 5 SCC 27, 1994 Supp. (3) SCC 489; Sheela Barse v. Union of India (1993) 4 SCC 204.
34. State of Punjab v. Ram Lubhaya Bagga (1998) 4 SCC 117, para. 29, p.130.
35. (1992) 3 SCC 666.
36. (1993) 1 SCC 645.
37. Ibid., paras. 172, 181 and 183, p. 733.
38. Ibid., paras. 181 and 182, p. 737.
39. Ibid., para. 183, p. 738.
40. M.C.Mehta v. State of Tamil Nadu (1996) 6 SCC 772, para. 31
41. The DPSP regarding equal pay for equal work (Article 39[d]) has had always to be projected in the context of discrimination under article 14 to merit recognition and enforceability. See Randhir Singh v. Union of India (1982) 1 SCC 618.
42. B. Krishna Bhat v. Union of India (1990) 3 SCC 65. Here the PIL petitioner sought enforcement of a prohibition policy basing his claim entirely on article 47. The plea was not entertained.
43. M. C. Mehta v. Union of India (1998) 9 SCC 591 para. 6.