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The Potential of Directive Principles of State Policy for the Judicial Enforcement Of The Potential of Directive Principles of State Policy for the Judicial Enforcement of Socio-Economic Rights: A Comparative Study of Ethiopia and India By Berihun Adugna Gebeye CEU eTD Collection HR LL.M. Thesis Supervisor: Dr. Gedion Hessebon Central European University 1051 Budapest, Nador utca 9. Hungary © Central European University June 16, 2015 Table of Contents Acknowledgments .................................................................................................................................. iii Executive Summary ............................................................................................................................... iv Introduction ............................................................................................................................................. 1 1. Directive Principles of State Policy: A Background ....................................................................... 6 1.1 Introduction ............................................................................................................................. 6 1.2 Directive Principles of State policy: A Mere Constitutional Rhetoric or a Reality? ............ 6 1.3 Directive Principles of State Policy and Socio-Economic Rights: Locating the Connection13 1.4 Directive Principles of State Policy and the Judiciary: Examining the Suitability of DPSP for Judicial Enforcement ................................................................................................................... 17 1.5 Why the Ethiopian Judiciary Should Guard DPSP? ............................................................. 21 1.6 Conclusion ............................................................................................................................ 26 2. Exploring the Role of Directive Principles of State Policy in the Judicial Enforcement of Socio- Economic Rights in India ...................................................................................................................... 27 2.1 Introduction ........................................................................................................................... 27 2.2 The Place of DPSP in the Indian Constitution ...................................................................... 27 2.3 The Engines of DPSP ............................................................................................................ 32 2.3.1 Judicial Review ............................................................................................................. 33 2.3.2 Judicial Activism........................................................................................................... 37 2.3.3 Public Interest Litigation ............................................................................................... 40 2.4 Judicial Jurisprudence on DPSP ........................................................................................... 43 2.4.1 The Right to Food ......................................................................................................... 44 2.4.2 The Right to Shelter ...................................................................................................... 48 2.4.3 The Right to Health ....................................................................................................... 51 2.4.4 The Right to Livelihood ................................................................................................ 53 2.5 Conclusion ............................................................................................................................ 55 3. Directive Principles of State Policy in Ethiopia: Why they are relevant for the Judicial Enforcement of Socio-Economic Rights? ............................................................................................. 57 CEU eTD Collection 3.1 Introduction ........................................................................................................................... 57 3.2 Background on Human Rights .............................................................................................. 57 3.3 Directive Principles of State Policy ...................................................................................... 60 3.3.1 Principles for External Relations .................................................................................. 61 3.3.2 Principles for National Defence .................................................................................... 64 3.3.3 Political Objectives ....................................................................................................... 65 i 3.3.4 Economic Objectives .................................................................................................... 67 3.3.5 Social Objectives........................................................................................................... 70 3.3.6 Cultural Objectives ....................................................................................................... 72 3.3.7 Environmental Objectives ............................................................................................. 73 3.4 Duty Bearers of Directive Principles of State Policy ............................................................ 73 3.5 The Role of the Judiciary for the Enforcement of Human Rights ........................................ 77 3.6 Why Socio-Economic Rights through Directive Principles of State Policy? ....................... 82 3.7 Conclusion ............................................................................................................................ 88 4. Making DPSP Work for Socio-Economic Rights in Ethiopia: A Synthesis of the Comparative Experience............................................................................................................................................. 89 4.1 Introduction ........................................................................................................................... 89 4.2 Does Constitutional Stipulation of DPSP Matter? ................................................................ 89 4.3 The Role of the Judiciary in a Constitutional Democracy .......................................................... 94 4.4 Enforcing Socio-Economic Rights: Taking a Holistic Constitutional Approach ....................... 97 4.5 Conclusion ................................................................................................................................ 100 Conclusion .......................................................................................................................................... 101 Bibliography ....................................................................................................................................... 104 CEU eTD Collection ii Acknowledgments I am grateful to my supervisor Dr. Gedion Hessebon for his invaluable critical comments, suggestions and encouragements. I am also thankful to the Central European University for giving me fellowship which has enabled me to successfully complete my study. CEU eTD Collection iii Executive Summary This thesis examines and explores the potential of Directive Principles of State policy (DPSP) for the judicial enforcement of socio-economic rights by taking Ethiopia and India as a comparative study. DPSP have brought additional discourse on the constitutional protection of human rights in general and socio-economic rights in particular. The objective of this thesis is to assess whether DPSP as a constitutional principle are helpful for the judiciary to enforce socio-economic rights or whether they are ‘pious aspirations and mischievous generalities’ which did not have a judicial utility. Through systematic desk review of primary and secondary sources, this thesis has found that DPSP have a huge potential for the judicial enforcement of socio-economic rights. The Indian experience confirms that the innovative and harmonized interpretation of fundamental rights and DPSP have resulted in the enforcement of socio-economic rights. By reading DPSP with the right to life, the Indian judiciary has managed to enforce the right to food, the right to health, the right to shelter and the right to livelihood as part and parcel of the right to life. Although DPSP are non-justiciable and there is no socio-economic rights in the Indian Constitution, the judiciary by availing the power of judicial review, engaging in activism and liberalizing the standing rules has established enforceable biosphere of socio- economic rights within the ambits of the right to life. The Ethiopian experience, on the other side of the spectrum, shows that DPSP are mere constitutional principles which have been devoid of judicial application. Nonetheless, the CEU eTD Collection constitutional design of DPSP and socio-economic rights in the Ethiopian Constitution are more favourable for judicial application unlike the Indian Constitution. On the one hand, minimum socio-economic rights can be drawn from DPSP, on the other hand, the justiciability or otherwise of DPSP are not clearly stated in the Ethiopian Constitution and it iv gives the judiciary much space for application and interpretation respectively. In addition, the inclusion of socio-economic rights, although with unclear content, in the Bill of Rights gives the Ethiopian judiciary to take a holistic constitutional approach especially through DPSP to enforce socio-economic rights. Although the absence of judicial review in Ethiopia
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