Lessons from South Africa

A recent judgment by the Constitutional Court of South Africa is important in the Indian context, says D.J. RAVINDRAN.

THE Constitutional Court of South Africa in a landmark judgment delivered on October 4, 2000 has taken a major leap in developing jurisprudence for the protection of economic, social and cultural rights. Traditionally, economic and social rights are considered non-justifiable or falling outside the purview of courts. On the other hand, State actions that impinge on civil and political rights come under the purview of courts. The Constitution reflects this division between the two sets of rights. The fundamental rights that guarantee rights of individuals, including the right to life, are enforceable in the high courts and the Supreme Court. In contrast, the Directive Principles of State Policy (DPSP) enumerated in part IV of the Constitution and which contain many economic and social rights are not enforceable by any court.

However, the Indian Supreme Court has been creative in bridging the gap between fundamental rights and the DPSP. They are now held to be complementary and "neither part being superior to the other." The Supreme Court has said that Directive Principles are enforceable not by themselves but only when they provide the content of a fundamental right.

The Constitutional Court of South Africa has gone one step further in reviewing the enforcement of State programmes in the field of economic and social rights, thus, advancing the principle that government policies and programmes that have an impact on the enjoyment of economic, social and cultural rights also fall within the ambit of judicial review. The highest court of South Africa has also paved the ground for interpretation and domestic application of rights enshrined in the International Covenant on Economic, Social and Cultural Rights. This is particularly important in the Indian context since India has also ratified the Covenant.

The South African case, known as "Irene Grootboom and others", dealt with the obligation of State authorities in ensuring the right of access to adequate housing. Mrs. Irene Grootboom and others were rendered homeless due to eviction and destruction of their shacks situated on private land earmarked for a low-cost housing project. They had originally lived under very poor conditions in an area called Wallacede. Many of them had applied for subsidised low-cost housing from the municipality and had been on the waiting list for seven years. Concerned that they may have to live in these intolerable conditions indefinitely, they decided to move to a vacant piece of land that had been earmarked for low-cost housing. The owner obtained eviction orders against them. One rainy and winter day, in May 1999, they were forcibly evicted at the municipality's expense.

The affected people - 510 children and 390 adults - approached the High Court for an order requiring that the Government provide them with adequate basic shelter or housing until they obtained permanent accommodation. They approached the court on the basis of two provisions in the South African Constitution. The first is Section 26, which provides that everyone has the right of access to adequate housing. Section 26 (2) that imposes obligation upon the State to take reasonable legislative and other measures to ensure the progressive realisation of this right within its available resources.

The High Court ordered the authorities concerned to provide the affected people with shelter. It also held that provision of tents, portable latrines and regular supply of water would constitute the bare minimum. Consequently, the authorities approached the Constitutional Court for setting aside the order. Under the South African Constitution, socio-economic rights fall under the Bill of Rights.

Previously, the Constitutional Court had held that socio-economic rights are justifiable under the Constitution. Therefore, in the present case, the Constitutional Court was not concerned with the justifiability of the claims made but how to enforce them in a given case. In short, the Constitutional Court examined the obligation imposed on the State for ensuring the right of access to adequate housing.

In examining the obligations of the State for ensuring socio- economic rights, the Constitutional Court relied on the provisions of the International Convenant on Economic, Social and Cultural Rights and the General Comments (clarifying the content of rights) made by the Committee established under the Covenant. Article 11 of the Covenant "recognises the right of everyone to an adequate standard of living ... including adequate food, clothing and housing and the continuous improvement of living conditions. The Covenant also obliges State parties to take appropriate steps for the realisation of these rights. The ESC Rights Committee has affirmed that each State Party (governments that have agreed to be bound by the Covenant provisions are called State parties) is obliged to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights contained in the Covenant. The Committee has also stated that a State Party in which "any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education, is prima facie, failing to discharge its obligations under the Covenant."

The Constitutional Court of South Africa concurred with the general comments made by the ESC Rights Committee regarding the obligation of a State party to demonstrate that every effort has been made to use all the resources at its disposal to satisfy the minimum core of the right. The court, therefore, held that the real question was whether the measures taken by the authorities to realise the right of access to adequate housing under Section 26 of the Constitution are reasonable.

The court concluded that at least a negative obligation is placed upon the State and all other entities and persons to desist from preventing or impairing the right of access to adequate housing. It held that negative right includes prohibition from arbitrary eviction, and affirmed that, "access to adequate housing under the Constitution entails more than bricks and mortar.

It requires available land, appropriate services such as the provision of water and the removal of sewage and the financing of all these, including the building of the house itself. For a person to have access to adequate housing, all of these conditions need to be met: there must be land, there must be services, there must be a dwelling".

The Constitutional Court examined the extent of a "State's obligation arising from Section 26(2) which requires the 'State to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right'." Regarding what constitutes reasonable legislative and other measures, the court held that it requires adoption of legislation at the national level, allocation of revenues on an equitable basis to the provincial and local governments and government at all levels ensuring that the obligations arising from the legislation are met. "The measures must establish a coherent public housing programme directed towards the progressive realisation of the right of access to adequate housing within the State's available means".

The court held that the State could adopt a wide range of possible measures to meet its obligations but they have to meet the test of reasonableness. Therefore, mere adoption of legislation is not sufficient. Policies and programmes that are reasonable in their conception and their implementation must accompany the legislation.

A reasonable programme that is not implemented would amount to non-compliance of the obligation arising from the Constitution. It stated that exclusion of a significant segment of society cannot be said to be reasonable. It is not sufficient to show that measures adopted are capable of achieving a statistical advance. If the measures, though statistically successful, fail to respond to the needs of those most desperate, they would fail the test of reasonableness.

Realisation of economic and social rights is normally assumed to be achieved progressively. The court examined the meaning of progressive realisation in the implementation of the right of access to adequate housing. It held that the State must take steps to achieve this goal and should examine legal, administrative, operational and financial hurdles to minimise them over a period of time. The court adopted the ESC Rights Committee's interpretation that progressive realisation does not deprive the obligation of all meaningful content. On the other hand, it imposes an obligation to move as expeditiously and effectively as possible towards the goal of achieving the realisation of rights.

The court examined the State housing programme adopted by the South African Government in 1994 and concluded that the "nationwide housing programme falls short of obligations imposed upon the national government to the extent that it fails to recognise that the State must provide relief for those in desperate need. They are not to be ignored in the interests of an overall programme focussed on medium and long-term objectives. It is essential that a reasonable part of the national housing budget be devoted to this, but the precise allocation is for the national government to decide in the first instance".

The court held that the State was not meeting its obligation imposed upon it by Section 26(2) since no provision was made for relief to the categories of people in desperate need. The court made an order that the State has an obligation to devise, fund, implement and supervise measures to provide relief to those in desperate need. It directed the Human Rights Commission to monitor and report on the efforts made by the State to comply with its obligations.

The court's approach to the problem of ensuring the right of access to adequate housing was premised on the notion of respecting the inherent dignity of human beings. In the words of the court, "it is fundamental to an evaluation of the reasonableness of State action that account be taken of the inherent dignity of human beings. The Constitution will be worth infinitely less than its paper if the reasonableness of State action concerned with housing is determined without regard to the fundamental constitutional value of human dignity. Section 26, read in the context of the Bill of Rights as a whole, must mean that the respondents have a right to reasonable action by the State in all circumstances and with particular regard to human dignity".

The author is with the Law Society Trust, Sri Lanka.

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