Doctor of Philosophy

THE DOMESTIC IMPLEMENTATION OF THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS IN INDIA, NEPAL, AND SRI LANKA: A COMPARATIVE STUDY

Thesis

Submitted in Partial Fulfillment of the Requirements for the Award of the

Degree of

Doctor of Philosophy

In Human Rights

By Md Nazeer Hussain

Under the Supervision of Professor Abdulrahim P. Vijapur

Department of Political Science Aligarh Muslim University Aligarh, India

2017

Acknowledgements

The credible opportunity to complete the task on time is only possible with the blessings of Allah, the Creator of all the worlds. I am very thankful to Almighty Allah for giving me courage, patience, and sincerity throughout in completing this study.

The honest effort, care, and love of my parents – Mr. Md Zaheer Hussain and Mrs. Zahida Khatoon – to boost my career are the strongest things in this world that help me to achieve my goals. Words can’t express humble gratitude to them. May Allah give them better rewards in this world and hereafter?

The strength that helps me to achieve this academic height is none other than my respected mentor Professor Abdulrahim P. Vijapur. His incredible guidance and encouragement always inspire me to improve my research performance. The perceptive, substantial, and insightful comments on the earlier drafts of this thesis greatly improved its contents and readability of the final draft. Whenever I faced ambiguities in my academic expressions and writings while drafting many drafts of the study, it was my mentor who stood like a rock to rescue me from getting drowned in the muddy waters of academic chaos. I can’t express my gratitude in words.

I must mention the constructive suggestion of Professor Arif Hameed during the Pre-Submission Presentation of my thesis to improve the sixth chapter on the comparative study. I am deeply thankful to Professor Mirza Asmer Baig (Chairman of the Department) for granting required approvals at every stage of the study. I owe my esteem to all the rest of the faculties of the Department of Political Science, AMU specially Professor Iftekhar Ahemmed, Professor Nafees Ahmad Ansari, Dr. Muhibul Haque, Dr. Rahat, and Dr. Irfan.

I am also thankful to faculties of different departments of the Aligarh Muslim University for their support and cooperation including Professor Mohammad Azhar (D/O- West Asian Studies), Professor Nizamuddin Khan (D/O- Geography), Professor Masroor Akhtar Khan (D/O- Botany), and Dr. Rashid Ali (D/O- Computer Engineering).

My special thanks goes to my well wishers including Dr. Jamal Nasir, Dr. Aman M. Khan, Dr. Adil Gazhnawi, Dr. Amir Mahmood, Dr. Mushtaque Ahmad Siddidqi, Dr. Jameel, Master Rafeeq Ahmad, Md Amanullah, Tabarak Husain, Md Iliyas, and Iqrar Wali Khan. I also oblige my allegiance to my colleagues and friends whose best wishes always favoured me.

The personnel whose support makes the study easy includes administrative staff of the Department and thanks goes to Mr. Hammad, Mr. Muqeet, Mr. Arshad, Mr. Nizam, and Mr. Afzal. The special thanks goes to Mr. Asaf Khan (Seminar Library Incharge, D/O-Political Science) to provide invaluable books on South Asian studies. Thanks also goes to the staff of Maulana Azad Library, AMU, for their cooperation and help especially to Mr. M Khalid Siddiqi. Thanks also goes to the staff of Computer Centre, AMU, to access online books, journals, periodicals, research papers, etc., and to provide other technical support.

The person whose debt can’t be remitted for the moral support is my beloved wife Ms. Gulnaz Parveen and my little daughter Laaibah Firdausi. My gratitude also goes to family members and relatives specially my brother Mr. Md Shakir Hussain with his wife and children, my two sisters Ms. Mazhabi Kauser and Ms. Akbari Abida with their husbands and children, and my maternal father Mr. Nabi Ahmad.

The researcher has made utmost efforts to acknowledge all the sources that have been cited throughout the study. If invertently, some sources have not been cited properly, the researcher alone is responsible for this lapse.

The last but not the least, the researcher is highly indebted to the financial support provided for the smooth study by the University Grant Commission, New Delhi by awarding National Eligibility Test – Senior Research Fellowship (NET- SRF) for pursuing the research programme, leading to the award of the degree of PhD. The researcher also acknowledges the grant of Junior Research Fellowship by UGC pursuing the course leading to the award of the degree of M.Phil. in Human Rights.

Md Nazeer Hussain Abstract

The progress of social life is seen contingent to the magnitude of available material resources and its justiciable redistribution. The conventional social practices primarily support civil and political independence of the people. The elite culture preserves the State allegiance to safeguard the superiority of limited classes of people. The uniform supply of resources on the basis of principles of equality and non-discrimination is systematically denied to vast majority of people, specially belonging to marginalized and disadvantaged groups. The growth of self-determination and the dignified life is narrowed for millions devoid of basic needs. The non-recognition and non-realization of rights to food, clothes, housing, work, education, etc., make civil and political liberties ineffective and meaningless.

The nation States attempt loosely to enforce the comprehensive agenda on socio- economic rights. The division of human rights into justifiable (civil-political) and non-justifiable (social-economic) rights by the United Nations in the 1960s gave excuses to States to neglect the implementation of socio-economic rights. This blurred welfare policies enhanced the poverty, food scarcity, illiteracy, unemployment, malnourishment, etc., around the world. The State inaction to discharge its obligations to fulfill the socio-economic aspirations propels the larger masses to live in vulnerable conditions. The reluctance on part of the State institutions supports other actors to exploit the legitimate rights of the disadvantage groups. The pathetic monitoring of human rights instruments is unable to augment the accountability and transparency of the public institutions.

The demand of minimum essential resources to survive a dignified life mobilized the masses against the ruling classes around the world. Most of the historical movements, however, emphasized the significance of civil and political rights. The economic, social, and cultural rights are categorized as second class or second generation rights in comparison to its counterpart civil and political rights. It is only after the scourge of two World Wars that the world community recognizes the urgency of socio-economic well being of the millions of people suffering around the globe. The establishment of the United Nations unveils the armor of empowerment and strength to the voiceless people of the world. Abstract

The Charter of the United Nations (the Charter) proclaims the universal protection of fundamental human rights of all the people. The United Nations General Assembly (the Assembly) formulates to transform the provisions of the Charter into a Universal Declaration respected by all the countries and a binding Covenant on human rights. The final version comes with a proud Universal Declaration of Human Rights, 1948 and two separate Covenants viz. the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR or the Covenant) – both adopted by the Assembly on the same day in 1966.

The course of ICESCR is completely different from its counterpart ICCPR devoid of monitoring body of the instrument, like an eighteen members Human Rights Committee with individual complaints system. The monitoring function of ICESCR is vested with the United Nations Economic and Social Council (ECOSOC). Subsequently in 1985, the ECOSOC constituted the eighteen members Committee on Economic, Social, and Cultural Rights (CESCR or the Committee) with the reporting procedure to evaluate the periodic State reports over the progress and achievements in the fields of socio-economic developments. The individual complaint mechanism under the Optional Protocol of the ICESCR is adopted only in 2008 that entered into force in 2013. These developments reinforces that human rights are indivisible and interdependent and can’t be prioritized (as was done in the 1950s and 1960s in the background of Cold War) as justifiable civil-political (i.e., to be enforced immediately) and non-justifiable socio-economic (to be implemented progressively on the availability of resources) rights.

The freedom struggle of India integrates the entire population to attain the independence on cost of their life and possessions. Thousands of people shed their blood and lose their belongings to dismantle the colonial regime. The successive governments formulate inclusive policies to bring every section of the society into the mainstream of national life. The Constitution of India (1950) recognizes various provisions of the socio-economic field before the ICESCR is adopted by the Assembly in 1966. India ratifies the Covenant in 1979 after three years it enters into force in 1976.

2 Abstract

The provisions of the Covenant are non-justiciable before the Courts of India and are realized progressively. However, economic, social and cultural rights enshrined in part IV of the Constitution in the form of directive principles of the State policy are considered fundamental to the governance of the country. The judicial activism in India since 1980s plays significant role to change the priorities of the economic, social, and cultural rights. Many of these rights such as rights to education, food, housing, employment, etc., are enforced under the expanded ambit of the fundamental rights enshrined in part III of the Constitution particularly right to life (Article 21).

The periodic State reports on the ICESCR submitted by India – Initial in 1983 and Combined Second to Fifth in 2006 – to the monitoring Committee explain in detail, policies and plans of action of the government during the reporting years to promote and protect the economic, social, and cultural rights of the people. The Pre-Sessional Working Group of the Committee raises the List of Issues to which the government communicates the written replies. The Committee evaluates the periodic State reports in the light of written replies to the List of Issues and the Alternative Reports submitted by the Non-Governmental Organizations (NGOs). Finally, the Committee adopts functional recommendations to ameliorate the existing circumstances in India in the field of socio-economic rights.

The dynasty regime ruled the Nepali people until a few years ago. The governance of the region was totally based on the Hindu hierarchy. Hinduism was the declared State religion. The Muluki Ain (National Code) of 1854 itself was discriminatory toward the lower castes and promoted well being of the higher caste Hindus. The Jan Andolan I (People’s Movement) of 1990 called for the withdrawal of authoritarian rule. The reinstatement of the multi-party based government soon adopted the new Constitution retaining Hinduism as the State religion. The government of Nepal ratified the ICESCR in 1991.

The power lust and the illegitimate party allegiances failed to establish strong governance and incurred recurring State of emergency during the successive decade of 1990-2000. The then King Gayanendra tactfully urged the support of military and instituted the direct rule by the King in the country. The Jan Andolan II (popularly known as Democratic Movement 2006) boycotted the direct rule by the King and demanded the conflict-free democracy in the region. The Interim Constitution 2007

3 Abstract abolished Hinduism as the State religion; Nepal declared itself federal democratic republic on May 28, 2008. The recent Constitution is adopted in 2015 by the government of Nepal. It is evident in the Constitution that the socio-economic rights are sidelined again.

The government of Nepal submits the periodic State reports on the ICESCR – Initial (1999), Second (2006), and Third (2011) – to the Committee. The written replies to the List of Issues and the Alternative Reports submitted by the NGOs determine the evaluation of the State reports by the Committee. The Committee finally adopts important recommendations to improve the existing socio-economic plight in the country.

The peaceful transfer of power from the colonial masters to the local political elites in Sri Lanka doesn’t build confidence in the masses toward the successive governments. The quarter century after independence (as a Commonwealth Member of the British Empire) of Sri Lanka experiences the legacy of colonial administration and represents model democratic governance in the region. The majority Sinhala Buddhists (more than seventy percent of the total population) consider the sole beneficiary of independence is the Tamil Hindus and Christians (slightly more than twenty percent of the total population) trained in colonial administrations. The recognition of identity politics between the majority Sinhala Buddhists and minority Tamil Hindus fetches continuous civil wars throughout the country.

The Donoughmore Constitution of 1931 before independence and Soulbury Constitution of 1948 after independence in a way promoted the well being of the entire population. Sri Lanka becomes true republic only in 1972 after the removal of the Commonwealth status. The new Constitution 1972 comprises limited scope of the promotion of socio-economic rights. The shift of governance from the Parliamentary form to the Presidential form doesn’t enhance the Constitutional protection of the economic, social, and cultural rights. The new Constitution 1978 – it is the current Constitution with various amendments – doesn’t broaden the protection of the socio- economic concerns. The economic, social, and cultural rights are still non-justiciable before the Courts of Sri Lanka.

4 Abstract

Sri Lanka ratifies the ICESCR in 1980 and submits since then three periodic State reports – Initial (1996), Combined Second to Fourth (2008), and Fifth (2015) – to the Committee. The evaluation of the Initial and Combined State reports in the light of written replies to the List of Issues and the Alternative Reports submitted by the NGOs determines the substantive recommendations to reform the existing conditions in the country. The scheduled consideration of the Fifth periodic report is expected at the sixty-first session of the Committee on May 27 to June 23, 2017.

This thesis attempts a comparative study to highlight the better performance on the socio-economic indices by the three South Asian countries viz. India, Nepal, and Sri Lanka. These three States with different political backgrounds attempt domestically to enforce the provisions of the ICESCR distinctly in different ways. How far these countries achieve the success to promote and protect the economic, social, and cultural rights of the people, is the main thrust of the research. The analysis is based on the periodic State reports submitted and evaluated so far by the monitoring Committee in the light of Alternative Reports submitted by various NGOs. The thesis finally assesses the findings of the study and recommends thereof reorganizing the existing socio-economic plight of the nation.

Objectives of the Study

The research questions formally guide the research path, one has to undertake in successfully completing the study. It is the duty of the researcher to frame the scientific inquiries in line with the intended research analysis. The gist of the intended research is sometime portrayed by the well defined research objectives. The questions of the present study comprise following, including others:

? What is the significance of the economic, social, and cultural rights in international human rights law and how the enforcement of the provisions of ICESCR may be enhanced in the domestic legislations?

? Does the government of India promote and protect the provisions of socio- economic rights after independence and what are the observations of the Committee on the periodic State reports submitted by India?

5 Abstract

? How the frequent political transitions in Nepal promotes the provisions of economic, social, and cultural rights and what are the important observations of the Committee on the periodic State reports submitted by Nepal?

? Does the peaceful independence of Sri Lanka translate the provisions of economic, social, and cultural rights in the domestic legislation and how far the observations of the Committee on periodic State reports protect the socio- economic concerns of the people?

? Which among the three South Asian countries – India, Nepal, and Sri Lanka – performs better on the various indices of the ICESCR and what are the factors that hamper the implementation of the Covenant’s provisions domestically?

Research Methodology

The research methodology defines the whole philosophy of the thesis. The present study primarily focuses on highlighting the better position of variables on ESC rights in comparative perspective. The number of cases induced is restricted to three countries, i.e., small N viz. India, Nepal, and Sri Lanka. The study is seemed to be case-oriented qualitative research. At the same time, it examines a range of variables on ESC rights that qualifies the study to be variable-oriented quantitative research. However, in the absence of large number of cases as well as variables, the result can’t be generalized. Thus, the hypothesis testing is not the motto of the present comparative research.

It usually happens in comparative study that the number of cases taken under observation is small – in case of present study, it is restricted to three countries. The conclusions based on three countries (or three cases) can’t be taken for granted for generalization. It is suggested by great scholars like Charles C. Ragin and Claude Rubinson that a moderate number of cases say five to ten is manageable by comparativists and the results can be generalized. The present study in during the course of research discovers that, if the number of cases, i.e., countries is increased say more than five, the results can be generalized. The scope of hypotheses testing is strengthened if a comparative study is employed to more than five South Asian countries. This study is based on following three hypotheses:

6 Abstract

Hypotheses

(1) In South Asian countries, the will of the executive plays a significant role to determine the full realization of ESC rights of the entire population including persons belonging to the marginalized and disadvantaged communities.

(2) The proper decentralization of powers to public institutions with enhanced accountability and transparency on part of them will increase the scope of enforcement of the ESC rights.

(3) The rights awareness and dissemination of human rights education among all the stakeholders will possibly prevent the frequent violations of human rights in general and ESC rights in particular.

Limitations of the Research

The present research is primarily based on the in-depth study of domestic implementation of the International Covenant on Economic, Social, and Cultural Rights in India, Nepal, and Sri Lanka. It is the international responsibility of Member States, after ratification, to report the monitoring Committee periodically on the progress made on the enforcement of the Covenant’s provisions. India has submitted two periodic State reports so far – Initial in 1983 and Combined Second to Fifth in 2006. The government of India has adopted various policies and programmes to ameliorate the prevailing socio-economic conditions beyond 2006. These are not the part of present analysis in view of the non submission of the subsequent periodic State reports to the Committee.

The periodic State reports submitted so far by Nepal to the Committee include the Initial in 1999, the Second in 2006, and the Third in 2011. The Fourth periodic State report is expected to be submitted in 2019 as fixed by the Committee. The new Constitution of Nepal has been adopted in 2015 which is not the part of present analysis in view of the submission of Fourth periodic State report in 2019. The government of Sri Lanka has submitted two periodic State reports that have been evaluated so far by the Committee – Initial in 1996 and Combined Second to Fourth in 2008. The Fifth periodic State report has been submitted in 2015 by the government of Sri Lanka. The consideration of this report is expected at the sixty-first session

7 Abstract

(May 27 – June 23, 2017) of the Committee. The analysis of Fifth report of Sri Lanka is not the part of present research in view of its evaluation by the Committee at its sixty-first session.

The three State Parties to the ICESCR under study are yet to ratify the Optional Protocol 2008. Therefore, the in-depth study of individual complaint mechanism under the Optional Protocol to the ICESCR doesn’t form the comprehensive part of the present study.

Important Notes on Source Citations (Chicago Manual of Style)

The researcher for the purpose of source citations throughout the study has used Chicago style – ‘Notes and Bibliography’ not the ‘Author-Date’ – including footnotes, endnotes, and bibliography. The chapter fourteen of the sixteenth edition (section 14.44 Endnotes plus Footnotes) of the ‘Chicago Manual of Style’ occasionally allows to separate substantive/explanatory notes from source citations in a heavily documented work.9 In such a case, the citation notes should be numbered and appear as endnotes. The substantive notes, indicated by asterisks and other symbols, appear as footnotes. The first footnote on each printed page is referenced by an asterisk. If more than one footnote begins on a page, the sequence of symbols is * † ‡ §.

Chapterization of the Thesis

The thesis is divided into six chapters including introduction and conclusions. The brief summary of all the chapters thus follows:

Chapter 1: “Introduction” explains the importance, nature and scope of the research proposal. It describes the importance of ICESCR and its domestic implementation in India, Nepal, and Sri Lanka. The section that follows, comprehensively discusses the significance of the comparative study in social sciences. The section on review of literature highlights the importance of some of the existing literature on the subject area. The important research questions, research methodology, and the summary of different chapters of the thesis are discussed in this chapter.

8 Abstract

Chapter 2: “The Economic, Social, and Cultural Rights in International Human Rights Law” describes the philosophical and historical substances of this category of rights. The separation of ESC rights from its counterpart CPRs and the adoption of separate Covenant on ESC rights are discussed at length. The preferences of UN Specialized Agencies to the promotion of ESC rights are explained in detail. The justification of ESC rights in contrast to CPRs and the challenges and prospects of their domestic implementation in ratifying States is discussed at length. The meaning and nature of Covenant’s provisions are clarified in the light of General Comments of the Committee to enhance their enforcement prospects. The weightage of reporting procedure and the Optional Protocol to the Covenant is discussed at the end.

Chapter Three: “Promoting and Protecting Economic, Social, and Cultural Rights in India” begins discussing socio-political trauma impacted due to colonization. The independence boosts Constitutional protection and the status of the ESC rights in the national legislation. The gigantic role played by the Indian judiciary to expand the enforcement of the ESC rights under the justiciable fundamental rights is discussed in detail. The Initial (1983) and the Combined Second to Fifth (2006) periodic State reports to the Committee explore the ground reality of policies and programmes implemented by the government of India. The reliability of State reports is examined through the Alternative Reports submitted by NGOs. Finally, the Concluding Observations of the Committee to improve the existing situation are discussed at length.

Chapter Four: “Implementing Economic, Social, and Cultural Rights in Nepal” examines the outcomes of recurring political transitions in the nation. The renewed Constitutions of Nepal in 1990, 2007, and recently in 2015 don’t translate the socio- economic aspirations of the people at large. The introverted nature of Nepali judiciary lacks the enforcement persuasion on the ESC rights. The periodic State reports – Initial 1999, Second 2006, and Third 2011 – are discussed with the respective Concluding Observations of the Committee in detail. The Parallel Reports submitted by the civil society examine the reliability of the government reports.

Chapter Five: “Protecting Economic, Social, and Cultural Rights in Sri Lanka” begins describing the legacy of colonial administrative experiences that impart model democratic vision in the region. The retreat of Constitutional protection of the ESC

9 Abstract rights in the subsequent period is discussed in detail – Donoughmore Constitution 1931, Soulbury 1948, first Republican 1972, and finally the current 1978. The judiciary is undeveloped in view of the superiority of the executive. The Initial (1996) and the Combined Second to Fourth (2008) periodic State reports submitted to the Committee with their Concluding Observations are discussed in detail. The Joint Alternative Report on the Combined Second to Fourth periodic State report highlights the ground reality of the government initiatives and its achievements.

Chapter Six: “Conclusions, Assessments, and Recommendations: A Comparative Perspective” attempts to highlight the existing contemporary position of various social development indices in India, Nepal, and Sri Lanka respectively. The analysis of Covenant’s provisions and other benchmarks effecting enforcement of the ESC rights in the region are examined in a comparative perspective. The Committee’s recommendations in the light of NGOs reports and their suggestions are discussed in detail in the last chapter. The study by way of conclusion at the end, recommends country specific suggestions to ameliorate the existing ESC rights situations.

10 Table of Contents

Acknowledgements i -ii Table of Contents iii - v List of Abbreviations vi - xi List of Tables and Cases xii-xiv

Chapter: One “Introduction” 1-19

1.1 Significance of Economic, Social, and Cultural Rights 2-3 1.2 Analysing Implementation of the Economic, Social, 3-6 and Cultural Rights in India, Nepal, and Sri Lanka

1.3 Significance of the Study of Comparative Methods 6-8 1.4 Review of Literature 8-13 1.5 Research Questions/Objectives 13-14 1.6 Research Methodology 14-16 1.7 Chapterization of the Thesis 16-18 Endnotes 18-19

Chapter: Two “The Economic, Social, and Cultural Rights in 20-84

International Human Rights Law 2.1 Introductory Remarks 21-24 2.2 The Philosophical Foundation of the Economic, 24-25 Social, and Cultural Rights

2.3 The Historical Justification for the Economic, Social, 25-41 and Cultural Rights

2.4 The UN Specialized Agencies and the ESC Rights 41-47 2.5 The Domestic Implementation of the ESC 47- 52 Rights: The Justiciability Debate

2.6 The Civil and Political Vs Economic, Social and 52-54 Cultural Rights: The Justiciability Debate

2.7 The Optional Protocol: The Justiciability Debate 54-55 2.8 ICESCR: Provisions Revisited in the Light of General 55-70 Comments of the Committee

2.9 Overview of the Reporting Procedure of the Committee 70-72 on ESC Rights Table of Contents

2.10 Conclusions 72-74 Endnotes 74- 84

Chapter: Three “Promoting and Protecting Economic, Social, 85-152

and Cultural Rights in India” 3.1 Introduction to the Socio-Political Background of India 86-88 3.2 The Constitution of India and the Protection of ESC 88-91 Rights

3.3 ICESCR and DPSP of the Indian Constitution: 91-101 Legislation at Domestic Level 3.4 Periodic State Reports of India: Consideration by 102-131 the Committee on ESCRs 3.5 Alternative/ Shadow Reports: The Role of NGOs 131-137 3.6 Concluding Observations of the Committee on the 137-142 Combined Report of India, May 2008 3.7 Conclusions 142-144 Endnotes 144-152

Chapter: Four “Implementing Economic, Social, and Cultural 153-204

Rights in Nepal”

4.1 Historical Perspective on Political Background 154-157

4.2 History of the ESC Rights in Nepal: The Domestic 157-164 Implementation

4.3 Periodic State Reports of Nepal: Consideration by the 164-194 Committee

4.4 Status of the ICESCR in Nepal: Review Report of 194-195 the ‘Rural Reconstruction Nepal’ 2007

4.5 Economic, Social, and Cultural Rights in Nepal: A Civil 195-197 Society Parallel Report (2007-2013)

4.6 Conclusions 197-199 Endnotes 199-204

Chapter: Five “Protecting Economic, Social, and Cultural Rights 204-248 in Sri Lanka

5.1 Historical Perspective 206-208 Table of Contents

5.2 The Constitution and the Protection of ESC Rights 208-212 5.3 The Judicial Protection of the ESC Rights 212-214 5.4 Consideration of the Initial State Report of Sri Lanka 214-222 by the Committee

5.5 Combined Second, Third, and Fourth Periodic Report of 223-239 Sri Lanka (2008) 5.6 Joint Alternative Report on the Combined State Report 239-242 of Sri Lanka, 2010

5.7 The Fifth Periodic Report of Sri Lanka (2015) 242-243 5.8 Conclusions 243-244 Endnotes 245-248

Chapter: Six “Conclusions, Assessments, and Recommendations: 249- 277

A Comparative Perspective”

6.1 A Comparative Study of the Implementation of the ESC 250-263 Rights in India, Nepal, and Sri Lanka

6.2 Recommendations of the UN Committee on the ESC 263-270 Rights in the Light of NGOs Reports and their Suggestions

6.3 Assessments and Findings of the Study 270-276

6.4 Further/Future Research 277-277

Bibliography 278-297 List of Abbreviations

ACJP Ambedkar Center for Justice and Peace

AIIMS All India Institute of Medical Sciences

AITPN Asian Indigenous and Tribal Peoples Network

APRC All Party Representative Committee

CA Constituent Assembly

CADE Convention against Discrimination in Education

CCP Code of Criminal Procedure

CCHA Consultative Committee on Humanitarian Assistance

CEACR Committee of Experts on the Applications of Conventions and Recommendations

CEDAW Convention on the Elimination of All Forms of Discrimination against Women

CESCR Committee on Economic, Social, and Cultural Rights

CFA Comprehensive Framework for Action

CfA Ceasefire Agreement

CHR Commission on Human Rights

CP Communist Party

CPI Consumer Price Index

CPRs Civil and Political Rights

CRC Convention on the Rights of the Child

CRR Center for Reproductive Rights

CSWB Central Social Welfare Board

DAE Department of Atomic Energy

DNTs Denotified and Nomadic communities

DPEP District Primary Education Programme

DPO District Police Offices

vi Abbreviations

DPSP Directive Principles of State Policy

DPSPFD Directive Principles of the State Policies and Fundamental Duties

DSIR Department of Scientific and Industrial Research

DST Department of Science and Technology

ECOSOC Economic and Social Council

EPFO Employees Provident Fund Organisation

EPZs Export Processing Zones

ESCRs Economic, Social, and Cultural Rights

ESIC Employees State Insurance Corporation

FAO Food and Agriculture Organization

FCC Family Counselling Centres

FCI Food Corporation of India

FDI Foreign Direct Investment

FFDA Forum for Fact-finding Documentation and Advocacy

FIAN FoodFirst Information and Action Network

FIR First Information Report

GESI Gender Equality and Social Inclusion

GSF Global Strategic Framework

GBV Gender Based Violence

HCs Health Centres

HDI Human Development Index

HLRN Housing and Land Rights Network

HORs House of Representatives

HRC Human Rights Committee

HRTMCC Human Rights Treaty Monitoring Coordination Centre

HUDCO Hindustan Urban Development Corporation

IAY Indira Awas Yojana

vii Abbreviations

ICAO International Civil Aviation Organization

ICCR Indian Council for Cultural Relations

ICERD International Convention on the Elimination of All Forms of Racial Discrimination

ICESCR International Covenant on Economic, Social, and Cultural Rights

ICJ International Commission of Jurist

ICRC International Committee of the Red Cross

IDPs Internally Displaced Peoples

IEC Interim Election Council

IFAD International Fund for Agricultural Development

IGME Inter-agency Group for Child Mortality Estimation

ILO International Labour Organization

IMF International Monetary Fund

IMO International Maritime Organization

IMR Infant Mortality Rate

INs Indigenous Nationalities

IPC Indian Penal Code

IPO Interim Protection Order

ISSA International Social Security Association

ITU International Telecommunication Union

JCM Joint Consultative Machinery

JVP Janatha Vimukthi Peramuna

LIC Life Insurance Corporation

LSSP Lanka Sama Samaja Party

MDGs Millennium Development Goals

MMR Maternal Mortality Rate

MOPR Ministry of Peace and Reconstruction

viii Abbreviations

MOWCSW Ministry of Women, Children, and Social Welfare

MoUs Memorandum of Understandings

NCDs Non-Communicable Diseases

NCDHR National Campaign on Dalit Human Rights

NCERT National Council of Educational Research and Training

NCPA National Child Protection Authority

NCW National Commission for Women

NFBS National Family Benefit Scheme

NFDIN National Foundation for Development of Indigenous Nationalities

NFFWP National Food for Works Programme

NGOs Non-Governmental Organizations

NHPI National Human Poverty Index

NHRAP National Human Rights Action Plan

NHRC National Human Rights Commission

NMBS National Maternity Benefit Scheme

NOASP National Old Age Pension Scheme

NPAG Nutrition Programme for Adolescent Girls

NPE National Policy of Education

NREGA National Rural Employment Guarantee Act

NRESA Natural Resources, Energy and Science Authority

NSAP National Social Assistance Programme

NSDP National Slum Development Programme

NSS National Sample Survey

NSTEDB National Science and Technology Entrepreneurship Development Board

NUHHP National Urban Housing and Habitat Policy

NWC National Women’s Commission

ix Abbreviations

OHCHR Office of High Commissioner for Human Rights

OSH Occupational Safety and Health

PAF Poverty Alleviation Fund

PBC Peacebuilding Commission

PCESCR People’s Collective for Economic, Social, and Cultural Rights

PDS Public Distribution System

PDVA Prevention of Domestic Violence Act

PHCCs Primary Health Care Centres

PHI Poverty Headcount Index

PIL Public Interest Litigation

PMSSY Pradhan Mantri Swasthya Suraksha Yojana

PNB Police Narcotics Bureau

PO Protection Order

PRIs Panchayati Raj Institutions

PUCL People’s Union for Civil Liberties

PWDs People with Disabilities

PWESCR Programme on Women’s Economic, Social, and Cultural Rights

RCHP Reproductive and Child Health

RONAST Royal Nepal Academy of Science and Technology

RRN Rural Reconstruction Nepal

RTI Right to Information Act

SAARC South Asian Association for Regional Cooperation

SCs Schedule Castes

SDGs Sustainable Development Goals

SGRY Sampoorn Grameen Rozgar Yojana

SGSY Swaranjayanti Gram Swarozgar Yojana

SIL Social Interest Litigation

x Abbreviations

SLBFE Sri Lanka Bureau of Foreign Employment

SLFP Sri Lanka Freedom Party

STs Schedule Tribes

TRIs Tribal Research Institutes

UDHR Universal Declaration of Human Rights

UEE Universal Elementary Education

UIP Universal Immunization Programme

UIS UNESCO Institute for Statistics

UNESCO United Nations Educational, Scientific, and Cultural Organization

UNICEF United Nations International Children’s Emergency Fund/ United Nations Children’s Fund

UNIDO United Nations Industrial Development Organization

UNWTO World Tourism Organization

UPU Universal Postal Union

USA United States of America

USSR Union of Soviet Socialist Republics

VAMBAY Valmiki Ambedkar Awas Yojana

WB World Bank

WBNP Wheat Based Nutrition Programme

WFP World Food Programme

WFS World Food Summit

WHO World Health Organization

WIPO World Intellectual Property Organization

WMO World Meteorological Organization

xi List of Tables and Cases

List of Tables

2.1: Observation of the Member States on the inclusion of ESC rights in 37 the single Covenant on Human Rights

2.2: Contingent provisions of the ICESCR and the ILO Conventions 42

2.3: Vaguely worded provisions of the ESC rights and CPRs 53

2.4: Indirect Protection of the ESC rights through the Canon of CPRs 54

3.1: ESC Rights Enshrined in the Constitution of India 91

3.2: Contingent Provisions of the ICESCR and the DPSP India 93

3.3: Justiciable Provisions other than DPSP that have been included in 94 the ICESCR

3.4: Supreme Court verdicts making ESC rights enforceable contingent 101 to the provisions of the ICESCR

3.5: Growth in number of institutions of higher studies in India 122

4.1: List of the Enforceable and Unenforceable ESC Rights of the Interim 161 Constitution of Nepal

5.1: Quality of Life Indicators 216

List of Cases

Most cited worldwide

Brown v. Board of Education (1954) 48

Government of the Republic of South Africa and Others v. Grootboom and Others, (2000) 50

Olga Tellis v. Bombay Municipal Corporation (1986) 48,119

Viceconti v. Ministry of Health and Social Welfare 49

India

A K Gopalan v. The State of Madras (1950) 97

xii Tables and Cases

All India Bank Employee’s Association v. National Industrial Tribunal (1962) 111

BR Singh v. Union of India (1989) 110

CB Muthamma v. Union of India (1979) 114

Chintaman Rao v. State of M P (1950) 106

Crown Aluminium Works v. Their Workmen (1958) 108

DS Nakara v. Union of India (1983) 109

Francis Coralie Mullin v. The Administrator, Union Territory of Delhi (1981) 100

Hussainara Khatoon v. Home Secretary, State of Bihar (1979) 96

I. C. Golaknath v. State of Punjab (1967) 98

Indira Sawheny v. Union of India (1993) 109

Keshavananda Bharati and others v. State of Kerala (1973) 89, 95, 98

Madhu Kishwar v. State of Bihar (1996) 101

Maneka Gandhi v. Union of India (1978) 99

MC Mehta v. Kamal Nath (1997) 119

MC Mehta v. State of Tamil Nadu (1997) 116,119

Minerva Mills Ltd v. Union of India (1980) 89, 99

M/S Unichem Laboratories Ltd. v. Their Workmen (1972) 109

OKA Nair v. Union of India (1976) 111

PK Ram Chandra Iyer v. Union of India (1984) 109

Preeti Srivastva v. State of MP (1999) 121

PUCL v. State of Tamil Nadu (1997) 128

Randhir Singh v. Union of India (1982) 109

State of Haryana v. Rajpal Sharma (1997) 109

State of HP v. PD Attri (1993)` 109

State of Madras v. Srimathi Champakam Dorairajan (1951) 97

xiii Tables and Cases

State of Punjab v. Mohinder Singh Chawla (1997) 101

Unni Krishnan JP v. State of Andhra Pradesh (1993) 101

UP Avas Evam Vikas Parishad v. Friends Coo. Housing Society Ltd. (1996) 101

Vishaka v. State of Rajasthan (1997) 106

Nepal

Durga Dhimal v. HMG 173

Mira Dhungana v. Ministry of Law 163

Prem Bahadur Khadka & Ors. V. Government of Nepal & Ors. SCN (2009) 163

Pundevi Maharajan v. Government of Nepal (2008) 163

Radheshyam Adhikari v. Cabinet Secretariat (1992) 163

Yogi Naraharinath v. Prime Minister 1997 163

Sri Lanka

Bracegirdle Case (1948) 213

Perera v. University Grants Commission (2012) 214

xiv

Chapter One

INTRODUCTION

Image Courtesy: UN Flag by “Google Images” Introduction

Millions of people suffer worldwide not because of lack of material resources but because of lack of proper redistribution of the social goods. The State machineries to protect the universal human rights are often under the influence and control of elite classes. The moral bases of the protection of human rights has been largely transformed and institutionalized after the scourge of two World Wars. The sovereign nature of the State needs to strengthen the transparency and accountability of the public institutions. The principles of equality and non- discrimination are systematically employed to promote certain categories of rights, i.e., civil and political rights. On the other hand, the basic rights of food, health, housing, education, employment, etc., are subjugated in every corner of the world.

The independence of the nation States is envisioned to enlarge the scope of socio- economic prosperity of the native people. The three nations of the South Asian region viz. India, Nepal, and Sri Lanka after independence ratified the United Nation International Covenant on Economic, Social, and Cultural Rights (ICESCR or the Covenant) to redeem the social development. The consideration of the respective State reports by the Committee on Economic, Social, and Cultural Rights (CESCR or the Committee) in the light of Alternative Reports submitted by Non-Governmental Organizations (NGOs) determines the genuine status of development indices in the region. This chapter attempts to outline the complete proposal of the research agenda, pursued in the thesis.

This chapter is divided into seven sections. Section one briefly explains the historical and contemporary significance of the economic, social, and cultural rights on par with civil and political rights. Section two briefly examines the factors affecting domestic enforcement of the economic, social, and cultural rights in India, Nepal, and Sri Lanka. The section three discusses the significance of the comparative method of research in social sciences. The review of some of the important literatures on the subject is assessed in section four. The section five raises the important research questions in general as well as comparative perspective. The section six discusses the research methodology including hypotheses, limitations of the research, and notes on source citations. Finally, Chapterization of the thesis is described in section seven.

1 Introduction

1.1 Significance of Economic, Social, and Cultural Rights

The principle of inequality and discrimination creates channels of ignorance in the society. The violation of human rights makes a person vulnerable to unavoidable circumstances. It is in the human nature to control and preserve the life sustaining substances for better material condition. The social division begins while an individual accumulates excessive resources for better personal life. The social status of a person, in fact, is linked to the resources one claims to have. This is valid not only for human beings but also for the whole State as a social entity. The prosperity of the entire population is based on the availability of the resources in a particular State. A society is unable to abolish the discriminatory approaches if the available resources are insufficient.

The historical previews reveal the existence of class war in ancient civilizations to preserve the superiority of elites. The huge social and political gap has been corroborated to subjugate the oppressed people. The consistent exploitation of their rights keeps them apart of the mainstream public affairs. The benefits of public privileges and rights were restricted to small group of elites. The sporadic instances on the revival of rights regime narrowly expanded the political visions. It is only after popular movements of the late eighteenth and early nineteenth century that the world community touches the boundary of the principles of equality and non-discrimination. The enlarged vision on the rights and freedoms gradually obtains the institutional support.

The promotion of universal human rights has been struck by unfair redistribution of the State products. The weak institutional framework augments the vested interest of the privileged community of the society. The self-determination and the dignified life seem to suit small group of honoured people. The limited expansion of political participation doesn’t revolutionize the existing inequalities of the society. The lack of material resources never permit disadvantaged people to think beyond the sustenance of the dependents. The meaning of representation to mainstream national life is constricted to those unable to settle the basic needs of the family life.

2 Introduction

The majority of participants of the mass revolts and revolutions were always the oppressed people. The demand for dignified life and political participation was the fundamental theme of these movements. However, the content that mobilized exploited people to join hands was the demand of security of food, education, employment, housing, health, etc. It is systematically incorporated to observe Civil and Political Rights (CPRs) are more important and Economic, Social, and Cultural Rights (ESCRs or ESC Rights/rights) are less. The establishment of the United Nations (UN) as the world organization begins to fill the virtual gap of division between CPRs and the ESC rights.

The sovereign nature of the State easily supports the institution of CPRs. However, it is a proven fact that enforcement of the CPRs equally exhausts the available resources as its counterpart ESC rights. The international instruments on the protection of human rights expand the enforcement possibility of each and every right. It is now considered that all the rights are inalienable, indivisible, interrelated, and interdependent. A particular set of rights cannot be enjoyed individually. All sets/types of rights are important for the development of human personality. The rights awareness and accountability beyond the national borders obligate the State government to respect and protect the aspirations of the people.

In perusal of the enforcement of ESC rights, constructive researches have been made by great scholars. The country specific studies of development indices highlight different aspects of social life. In the present study, three countries of South Asian region viz. India, Nepal, and Sri Lanka with different political background have been selected for a comparative study. The broad objective is to highlight the domestic implementation of the International Covenant on Economic, Social, and Cultural Rights in these countries. Finally, a comparative analysis is made to highlight strong and weak position of individual country on specific provisions of the Covenant.

1.2 Analysing Implementation of the Economic, Social, and Cultural Rights in India, Nepal, and Sri Lanka

The security of better social life for the entire population including marginalized and disadvantaged groups, defines the vision of governance in the region. The degree of transparency and accountability of the public institutions is the

3 Introduction

comprehensive benchmark that determines the social development. The uniformity of redistribution in social goods is the predestination of welfare States. The realization of welfare policies and programmes is the reflection of preservation of democratic values. The independence of judiciary and oversight bodies improves the hope of social justice. The awareness among the people as well as law enforcement officials toward the socio-economic rights enhances the possibility of realization of the rights.

The political background of the three countries – India, Nepal, and Sri Lanka – is totally different. India and Sri Lanka were the colonies of British Empire before they got independence. Nepal was ruled under the dynasty regime before the independence. The struggle of independence takes three different routes. In India, thousands of people shed their blood and lost their possessions to the freedom movement. The integration of entire mass was well provoked under the auspicious leadership from every corner of the country. The independence thus brought public confidence in the local political elites. The social prosperity and the improvement in development indices is the priority area of successive governments of independent India.

The independence of Sri Lanka is peacefully transferred to the local political elites from the British Empire. The peaceful transfer of power completely lacks blood sheds and other loss unlike the Indian independence movement. The integration of the entire nation to the freedom struggle is negligible. The attitude of enmity for colonial masters gradually shifts toward the local political elites (Sinhala Buddhist nationalist considers, major benefit of the independence goes to Tamil Hindus and Christians trained in colonial administration system). The subsequent quarter century on the pattern of colonial administration presents a model democracy among the developing countries. Thereafter, the separatist politics and civil wars consistently hamper the socio-economic life of the entire nation.

The frequent political transition in Nepal is yet to anticipate the strong governance system in the region. The dynasty regime was highly under the influence of caste system based on Hindu hierarchy. The Jan Andolan I (People’s

4 Introduction

* Movement, 1990) uproots the thirty years Partyless Panchayat Democracy . It was tactfully implemented by King Gayanendra after a very short period of multi party based governance for eighteen months led by Nepali Congress. The unstable government was the main hurdle to promote the socio-economic rights in the region. The Jan Andolan II (popularly known as Democratic Movement, 2006) successfully envisions true democracy; Nepal declares itself federal democratic republic on May 28, 2008. The loophole during political transitions is that the socio-economic rights are marginalized every time.

The governments of individual country made distinct efforts to protect the ESC rights of the people. The national protection is enhanced when the State Party to the Covenant undertakes legislative, administrative and other measures to give effect to the international obligations of ESC rights. India becomes party to the ICESCR in 1979, Sri Lanka in 1980, and Nepal in 1991respectively. The State reports submitted so far and their evaluation by the UN Committee on Economic, Social, and Cultural Rights determine the true spirit of ESC rights protection in the respective countries.

The study attempts to investigate the success of rights regime in respective regions. The influence of numerous factors including State and non-State actors is closely examined to ascertain the equitable and non-discriminatory approaches promoting ESC rights. A comparative perspective is employed to observe the strong position of the individual country on the implementation of Covenant’s provisions. The comparison is exercised to different benchmarks including stability of the democracy, public representation, Constitutional protection of the ESC rights, role of judiciary, and awareness among general masses, law enforcement officers, civil society, human rights defenders, etc.

The comparative study is employed to see how the three States are making efforts to enforce Covenant provisions like self-determination of the people, State

* The deployment of multi-party based governance in 1959 redeems the aristocratic powers in the hands of people of Nepal. The King was supposed to be the nominal head and the real power was seemed to be vested with the Prime Minister. King Mahendra urged the military support and after eighteen months, tactfully banned the multi-party system in view to strengthen the democracy. Subsequently, he deployed the authoritarian rule under ‘Partyless Panchayat System’, himself being the head of the State.

5 Introduction

obligations to fulfill ESC rights, and the promotion of principles of equality and non-discrimination. The substantive section attempts a comparative analysis of better position of employment, working conditions, trade unions, social security, protection of the family and children, adequate standard of living including right to food, physical and mental health, education, and cultural and scientific rights in the respective countries. In conclusion, a paragraph is devoted to each of the benchmark to sum up better performance of the individual country in comparison to others.

1.3 Significance of the Study of Comparative Methods

The comparative study to examine the similarities and differences among social entity is the ingrained nature of human society. The important variants having immense impact on the social life are identified by this method which is neglected otherwise. The great analysis of historical importance uses the comparative study as a fundamental tool to reach the intended result. The comparison of social entity broadly employs qualitative as well as quantitative methods. The geographical or political aspect of the society forms one of the base lines of comparison. It is often oriented toward cross-national as well as regional phenomenon. The cross-national study compares the trends in unemployment, healthcare system, measurement of socio-economic variables, etc. while the regional research is bound to the study of social group, e.g., social stratification 1 or ethnic classifications.

The comparative method is used in all the sciences while in social sciences it has played a significant role to develop the discipline as a scientific discipline. It is age old practice in this discipline that the comparative study is employed to a small number of cases (sometime referred as ‘small N’). The reformulation of research questions according to the traditional statistical techniques has a long history. The case-oriented research is considered easily manageable by comparativists rather to examine variable-oriented study. The emphasis is clearly visible to the use of qualitative methods in-contrast to quantitative counterpart. The alternate way to minimize the qualitative/quantitative split in comparative research is to incorporate the multivariate statistical techniques. It is assumed to

6 Introduction

enlarge the scope of the study to deal with the important research questions often 2 overlooked or asked with distortion.

The historical assumption that the comparativists focus on case-oriented qualitative study in contrast to variables-oriented quantitative study is somehow valid. The technique is most useful when applied to a small number of cases. The researcher is expected to have in-depth knowledge of the theme researched while studying small number of cases. He/she can easily highlight the distinctive features of each case. Alexander George and Andrew Bennett in their famous book “Case Studies and Theory Development in the Social Sciences” argue that 3 because of the small number of cases, result can’t be generalized. The difficulty is faced to the hypotheses testing in the absence of generalization. The focused study thus helps facilitate theory development. The in-depth knowledge of a case easily recognizes the relevant aspect of the study to fit into the research question. This understanding can formulate new theory or revise the existing one and alternately generate new hypotheses for their future testing.

The case-oriented research can’t engage in hypothesis testing is not the widely accepted proposition. It is indeed agreed to include examples of ‘crucial’, ‘most- likely’, and ‘least-likely’ case studies that test whether a theory operates as 4 predicted. The general view as discussed by Charles Ragin and Claude Rubinson is that to develop new theory, researchers examine small Ns through qualitative case-oriented techniques and to test theory, they apply quantitative variable- 5 oriented methods to large Ns. Most of the research studies prefer to examine either small Ns or large Ns to conclude the results. The gap of studies between small Ns and large Ns in social sciences can be bridged by the comparative methods. It is employed through the examination of moderate number of cases where cross-case pattern as well as details of each case can be preserved. It maintains integrity of the cases like case-oriented methods and examines pattern of relationships among variables like variable-oriented methods.

Arend Lijphart in his famous research paper “Comparative Politics and the Comparative Method” highlights the strength and potentialities of the 6 comparative method as follows :

7 Introduction

 Within the limited opportunity of time, energy, and financial resources, the intensive comparative analysis of a few cases can be more promising than a superficial statistical analysis of many cases.   The comparative analysis can formulate hypotheses of the research at the first stage to which the second stage can be the testing of these hypotheses through statistical analysis in as large a sample as possible.   The comparative method resembles to statistical method in all respect except one, i.e., the number of cases it deals with is too small.   The comparative analysis of the geographical and historical variables particularly in comparative politics brings countries finding its own places in relation to others.   The comparative method restricts itself to the analysis of really key variables omitting those of only marginal importance.

In this way, comparison is routinely considered to be used to test the hypotheses, 7 to induct the discovery of new hypotheses, and to develop the theories.

1.4 Review of Literature

The research study is the incessant process over the existing efforts in the field. The novel inspirations attempt to introduce the important perspectives on the usual ideas. The great scholars and beginners like me have attempted to analyse the subject area with several inclinations. The current study in a different political background attempts a comparative study to highlight the implementation position of Covenant’s provisions in India, Nepal, and Sri Lanka. The immense and useful literatures on the subject area are easily available online as well as offline. A vast number of important documents are easily accessible through the United Nations official homepage and its auxiliary webpages particularly the Office of High Commissioner for Human Rights (OHCHR).

The number of research papers, journal articles, and books that have been cited in the text are too many; only some of the important among them are discussed below:

8 Introduction

Arend Lijphart “Comparative Politics and Comparative Method” (1971) is a milestone to discuss the significance of the comparative methods in social sciences. He evaluates a distinct relation among experimental, statistical, and comparative methods. The paper then highlights the strength and weakness of the comparative method. In conclusion Lijphart agrees that despite weaknesses, comparative method is a highly useful instrument in scientific political enquiry.

Charles C. Ragin The Comparative Method (2014) is a unique book which promotes the scope of application of Boolean algebra in comparative study. It combines the strengths of both qualitative and quantitative sociology. This book is highly accessible and germane to the work of all the social sciences in comparative perspectives.

Johannes Morsink The Universal Declaration of Human Rights (1999) is a detailed book on the drafting of the Universal Declaration of Human Rights (UDHR) 1948. The book separately deals with the importance of every provision of the UDHR including civil and political rights as well as economic, social, and cultural rights. It further deals with the issue of why some rights are included and some are avoided.

Matthew C. R. Craven The International Covenant on Economic, Social and Cultural Rights (1995) represents the first ever detailed study of the origin and development of the ICESCR, drawing in-particular upon the work of the Committee. The author addresses in detail, particular aspects of the Covenant such as the role of the Committee in the supervision process, the nature of State obligations, the principle of non-discrimination, and the rights to work, to join and form Trade Unions, to housing, to food, etc.

Phillip Alston and Ryan Goodman International Human Rights (2012) provides a comprehensive analysis of this wide and diverse subject area. This book widely selects materials from primary and secondary sources – legislation, case laws, and academic writings – in order to demonstrate and illuminate key themes. The book is highly useful on materials including women’s rights, economic and social rights, the UN human rights machinery, the International

9 Introduction

Criminal Court, the responsibility to protect, universal jurisdiction, and conflicts in culture and traditional practices, etc.

Henry Shue Basic Rights (1996) proposes that which human rights ought to be the first honoured and the last sacrificed. It outlines an original conception of basic rights that illuminates nature of moral rights generally. It also attempts to determine that which specific rights are the basic ones. The author in his classical statement attempts to affirm that the rich nations are required by justice and by international law to share their abundance of resources with those millions who are chronically malnourished.

Rhona K. M. Smith Textbook on International Human Rights (2016) provides a concise introduction to the subject. It attempts to give a concise introduction to international human rights including regional systems of protection of the key substantive rights. The author attempts to guide through the complexities of the subject, making it accessible to those with little or no prior legal knowledge.

Jack Donnelly Universal Human Rights in Theory and Practice (2013) explains and defends a rich interdisciplinary account of human rights as universal rights. The author attempts to show that any conception of human rights – and the idea of human rights itself – is historically specific and contingent.

Michael J. Dennis and David P. Stewart “Justiciability of Economic, Social, and Cultural Rights” (2004) explains the feasibility of elaborating an Optional Protocol to the ICESCR. The authors strategically attempt to highlight that the individual and group complaint mechanism against State inaction/exploitation will augment the adequate standard of living of the people worldwide.

Manisuli Ssenyonjo Economic, Social and Cultural Rights in International

Law (2009) attempts to highlight the deeper analysis of the protection of ESC rights enshrined in the Covenant. The author attempts to analyse the Committee’s practice while taking into account other relevant sources of the protection of ESC rights at national, regional, and international level.

Ben Saul, David Kinley, and Jacqueline Mowbray The International

Covenant on Economic, Social and Cultural Rights (2014) attempts to bring

10 Introduction

together all essential documents, materials, and case laws relating to the ICESCR and its Optional Protocol. The book highlights the enhanced recognition of ESC rights internationally, regionally, and in domestic legal systems worldwide. The importance of individual communication under the Optional Protocol of the ICESCR 2008 that enters into force in 2013 is discussed at length.

Graniville Austin The Indian Constitution (2011) systematically provides the political history of the Constituent Assembly during the drafting of the Indian Constitution. It discusses how and why the members of the Assembly favoured and supported particular themes that should be included in the Constitution.

Durga Das Basu Introduction to the Constitution of India (2015) is a milestone to know anything about the Constitution of India. The author describes in a very simple language every aspect of the drafting, adoption, and amendments of the Constitution. It gives a detailed analysis of the fundamental rights and directive principles of the State policy including other provisions.

Yash Ghai and Jill Cottrell The Millennium Declaration, Rights, and Constitutions (2011) examines the achievement of different countries protecting ESC rights through their Constitutional frameworks so as to meet the Millennium Development Goals. The authors emphasize that the Constitution should provide concrete institutions and procedures to translate its ideals into reality.

P. N. Bhagwati “Judicial Activism and Public Interest Litigation” (1984) examines the in-depth nature of judicial activism in India. The author argues that the judicial activism is the central feature of the political system that vests adjudicatory power to free and independent judiciary.

Craig Baxter, Yogendra K. Malik, Charles H. Kennedy, and Robert C.

Oberst Government and Politics in South Asia (1998) comprehensively introduces the comparative political study of the leading nations of South Asia – India, Pakistan, Bangladesh, Sri Lanka, and Nepal. The authors provide systematic enquiry on various topics in different region including political culture and heritage, government structure and institutions, political parties and leaders, conflict and resolution, and modernization and development.

11 Introduction

Ali Riaz and Subho Basu Paradise Lost?: State Failure in Nepal (2007) examines the State-society relationships in Nepal. The authors attempt to explain the nature of the State, disjuncture between the State and the society, and the rupture of the ideological hegemony of the ruling class of Nepal. It creates according to them a situation where existing institutional frameworks are disintegrating and the State is rapidly unravelling.

Mahendra Lawoti Towards a Democratic Nepal (2005) is an attempt to analyse the problem of increasing political exclusion of ethnic, caste, and gender groups in democratic Nepal. The author discusses its diverse consequences on stable democracy in the region. The book outlines alternative democratic institutions and proposes specific institutions that can promote inclusiveness of diverse socio- cultural groups in Nepal.

Yash Ghai and Jill Cottrell (eds.) Creating the New Constitution: A Guide for Nepali Citizens (2008) outlines a brief history of the past Constitutions of Nepal from the perspective of Constitution making. It highlights a more detailed examination of the substance of the 1990 Constitution.

Malcolm Langford and Ananda Mohan Bhattarai “Constitutional Rights and Social Exclusion in Nepal” (2011) systematically reports, how poverty in Nepal is highly correlated with an individual’s ethnicity, caste, language, religion or membership to a particular indigenous group. The authors set a parameter in order to address social inequalities that socio-economic and affirmative action rights must be included in the drafting of the new Constitution in Nepal.

Paul R. Brass (ed.) Routledge Handbook of South Asian politics (2010) examines key issues in politics of the five independent States of the South Asian region – India, Pakistan, Bangladesh, Sri Lanka, and Nepal. The authors systematically examine the pre-independence and post-independence political development in the respective countries.

Nira Wickramasinghe “Sri Lanka’s Independence: Shadows over a Colonial

Graft” (2010) is a substantive chapter in Paul R. Brass Handbook on South Asia (2010). The author discusses the detailed political history of the pre-colonial and post-colonial Sri Lanka. She attempts to discuss the political situation just before

12 Introduction

the independence, its extension in independent era, and finally addresses the legacies of unsolved issues – dominion status, citizenship, ethnic mistrust – that persist in the following decades.

K. M. De Silva A tale of Three Constitutions 1946-8, 1972 and 1978 explains in detail the history of three Constitutions of Sri Lanka after independence. It attempts to compare distinct drafting procedure of all the three Constitutions in different circumstances. The author highlights diverse features and its successes in terms of enforcement in the country.

Rohini Hensman “Independent Judiciary and Rule of Law: Demolished in

Sri Lanka” (2013) explains how the authoritarian rule in recent years demoralizes the sanctity of the Sri Lankan judiciary. The author attempts to explain that despite repressive and autocratic regime, opposition join hands with civil society to protest against the oppressive dominion.

1.5 Research Questions/Objectives

The research questions formally advise the path, one has to delve for a particular direction of study. It is the duty of the researcher to frame the scientific inquiries in line with the intended research analysis. The gist of the intended research is sometime portrayed by the well defined research objectives. The questions of the present study comprise following, including others:

? Does the government of India promote and protect the provisions of socio-economic rights after independence and what are the observations of the Committee on the periodic State reports submitted by India?

? How the frequent political transitions in Nepal promote the provisions of economic, social, and cultural rights and what are the important observations of the Committee on the periodic State reports submitted by Nepal?

13 Introduction

1.6 Research Methodology

The research methodology defines the whole philosophy of the thesis. The present study primarily focuses to highlight the better position of variables on ESC rights in comparative perspective. The number of cases induced is restricted to three countries, i.e., small N viz. India, Nepal, and Sri Lanka. The study is seemed to be case-oriented qualitative research. At the same time, it examines a range of variables on ESC rights that qualifies the study to be variable-oriented quantitative research. However, in absence of large number of cases as well as variables, the result can’t be generalized. Thus, the hypothesis testing is not the motto of the present comparative research.

It usually happens in comparative study that the number of cases taken under observation is small – in case of present study, it is restricted to three countries. The conclusions based on three countries (or three cases) can’t be taken for granted for generalization. It is suggested by great scholars like Charles C Ragin and Claude Rubinson that a moderate number of cases say five to ten is manageable by comparativists and results can be generalized. The present study in due course of research discovers at the end, if the number of cases, i.e., countries is increased say more than five, the results can be generalized. The scope of future hypotheses testing is strengthened if a comparative study is employed to more than five South Asian countries. In such a case, three broad hypotheses for future testing can be formulated as follows:

14 Introduction

Hypotheses

(2) The proper decentralization of powers to the public institutions with enhanced accountability and transparency on part of them will increase the scope of enforcement of the ESC rights.

(3) The rights awareness and dissemination of human rights education among all the stakeholders will possibly prevent the frequent violations of human rights in general and ESC rights in particular.

Limitations of the Research

The present research is primarily based on the in-depth study of domestic implementation of the International Covenant on Economic, Social, and Cultural Rights in India, Nepal, and Sri Lanka. It is the international responsibility of Member States, after ratification, to report the monitoring Committee periodically on the progress made on the enforcement of the Covenant’s provisions. India has submitted two State reports so far – Initial in 1983 and Combined Second to Fifth in 2006. The government of India has adopted various policies and programmes to ameliorate the prevailing socio-economic conditions beyond 2006. These are not the part of present analysis in view of the non submission of the subsequent periodic State reports to the Committee.

The State reports submitted so far by Nepal to the Committee include the Initial in 1999, the Second in 2006, and the Third in 2011. The Fourth State report is expected to be submitted in 2019 as fixed by the Committee. The new Constitution of Nepal has been adopted in 2015 which is not the part of present analysis in view of the submission of Fourth periodic State report in 2019. The government of Sri Lanka has submitted two State reports that have been evaluated so far by the Committee – Initial in 1996 and Combined Second to Fourth in 2008. The Fifth periodic State report has been submitted in 2015 by the government of Sri Lanka. The consideration of this report is expected at the sixty-

15 Introduction

first session (May 27 – June 23, 2017) of the Committee. The analysis of Fifth State report of Sri Lanka is not the part of present research in view of its evaluation by the Committee at its sixty-first session.

The three Member States of the ICESCR under study are yet to ratify the Optional Protocol 2008. The in-depth study of individual complaint mechanism under the Optional Protocol of the ICESCR doesn’t form the comprehensive part of the present study.

Important Notes on Source Citations (Chicago Manual of Style)

The researcher for the purpose of source citations throughout the study has used Chicago style – ‘Notes and Bibliography’ not the ‘Author-Date’ – including footnotes, endnotes, and bibliography. The chapter fourteen of the sixteenth edition (section 14.44 Endnotes plus Footnotes) of the ‘Chicago Manual of Style’ occasionally allows to separate substantive/explanatory notes from source 9 citations in a heavily documented work. In such a case, the citation notes should be numbered and appear as endnotes. The substantive notes, indicated by asterisks and other symbols, appear as footnotes. The first footnote on each printed page is referenced by an asterisk. If more than one footnote begins on a page, the sequence of symbols is * † ‡ §.

1.7 Chapterization of the Thesis

The thesis is divided into six chapters including introduction and conclusions.

The brief summary of all the chapters are discussed below:

Chapter 1: “Introduction” gives detailed information on the complete research proposal. It describes the importance of ICESCR and its domestic implementation in India, Nepal, and Sri Lanka. The section that follows, comprehensively discusses the significance of the comparative study in social sciences. The section on review of literature highlights the importance of some of the existing literature on the subject area. The important research questions and research methodology are discussed at length. Finally, it provides Chapterization of the thesis with.

Chapter 2: “The Economic, Social, and Cultural Rights in International

Human Rights Law” describes the philosophical and historical substances of

16 Introduction

this category of rights. The separation of ESC rights from its counterpart CPRs and the adoption of final draft are discussed at length. The preferences of UN Specialized Agencies to the promotion of ESC rights are explained in detail. The justification of ESC rights in contrast to CPRs and possibility of domestic implementation in the national legislation is discussed at length. The meaning and nature of Covenant’s provisions are clarified in the light of General Comments of the Committee to enhance the enforcement prospects. The weightage of reporting procedure and the Optional Protocol to the Covenant is discussed at the end.

Chapter Three: “Promoting and Protecting Economic, Social, and Cultural

Rights in India” begins discussing socio-political trauma imparted due to colonization. The independence boosts Constitutional protection and the status of the ESC rights in the national legislation. The gigantic role played by the Indian judiciary to expand the enforcement of the ESC rights under the justiciable fundamental rights is discussed in detail. The Initial (1983) and the Combined Second to Fifth (2006) periodic State reports to the Committee explore the ground reality of policies and programmes implemented by the government of India. The reliability of State reports is examined through the Alternative Reports submitted by NGOs. Finally, the Concluding Observations of the Committee to improve the existing situation are discussed at length.

Chapter Four: “Implementing Economic, Social, and Cultural Rights in Nepal” examines the outcomes of recurring political transitions in the nation. The renewed Constitutions of Nepal in 1990, 2007, and recently in 2015 don’t translate the socio-economic aspirations of the people at large. The inhibited nature of Nepali judiciary lacks the enforcement persuasion on the ESC rights. The periodic State reports – Initial 1999, Second 2006, and Third 2011 – are discussed with the respective Concluding Observations of the Committee in detail. The Parallel Reports submitted by the civil society examine the reliability of the government reports to the monitoring Committee.

Chapter Five: “Protecting Economic, Social, and Cultural Rights in Sri

Lanka” begins describing the legacy of colonial administrative experiences that impart model democratic vision in the region. The retreat of Constitutional protection of the ESC rights in the subsequent period is discussed in detail –

17 Introduction

Donoughmore Constitution 1931, Soulbury 1948, first Republican 1972, and finally the current 1978. The judiciary is undeveloped in view of the superiority of the executive. The Initial (1996) and the Combined Second to Fourth (2008) periodic State reports submitted to the Committee with their Concluding Observations are discussed in detail. The Joint Alternative Report on the Combined Second to Fourth periodic State report highlights the ground reality of the government initiatives and its achievements.

Chapter Six: “Conclusions, Assessments, and Recommendations: A

Comparative Perspective” attempts to highlight the existing contemporary position of various social development indices in India, Nepal, and Sri Lanka respectively. The analysis of Covenant’s provisions and other benchmarks effecting enforcement of the ESC rights in the region are examined in a comparative perspective. The Committee’s recommendations in the light of NGOs reports and their suggestions are discussed in detail in the last chapter. The study by way of conclusion at the end, recommends country specific suggestions to ameliorate the existing ESC rights situations.

Endnotes

1. Melinda Mills, Gerhard G Van de Bunt, and Jeanne De Bruijn, “Comparative Research: Persistent Problems and Promising Solutions,” International Sociology 21, no.5 (2006): 619-631.

2. Charles C Ragin, The Comparative Method: Moving Beyond Qualitative and Quantitative Strategies (California: University of California Press, 2014), vii-viii.

3. Alexander L George and Andrew Bennett, Case Studies and Theory Development in the Social Sciences (Cambridge: MIT Press, 2005).

4. Harry Eckstein, Regarding Politics: Essays on Political Theory, Stability, and Change (California/England: University of California Press, 1992), 117-173.

5. Charles C Ragin and Claude Rubinson, “The Distinctiveness of the Comparative Research,” in The SAGE Handbook of Comparative Politics, eds. Todd Landman and Neil Robinson (London: Sage Publications Ltd, 2009), 13-15.

6. Arend Lijphart, “Comparative Politics and the Comparative Method,” American Political Science Review 65, no.03 (1971): 682-693.

18 Introduction

7. David Collier, “The Comparative Method,” in Political Science: The State of the Discipline II, ed. Ada W Finifter (Washington, DC: American Political Science Association, 1993).

8. See Ragin and Cloude, “Distinctiveness of the Comparative Research”, note.5.

9. See the Section 14.44 “Endnotes plus Footnotes” in Chicago Manual of Style th Online (Chicago: Chicago University Press, 2010), 16 edition. (accessed on June 20, 2017 at the link below): (http://www.chicagomanualofstyle.org/home.html).

Chapter Two

THE ECONOMIC, SOCIAL, AND CULTURAL RIGHTS IN INTERNATIONAL HUMAN RIGHTS LAW

Image Courtesy: UN Headquarter, Geneva by “Google Images” Economic, Social, and Cultural Rights

The conscience of socio-economic rights can determine the prosperity of the entire population. The elite class of the world systematically controls the redistribution of the resources to preserve their superiority in the society. The allocation of insufficient resources to social fields impoverishes vulnerability of the disadvantaged communities worldwide. The exclusive promotion of certain categories of rights (e.g., civil and political) is largely transformed after the establishment of the United Nations as a world organization. The world community now proclaims that all the rights are inalienable, indivisible, interrelated, and interdependent. This chapter attempts to analyse the importance of economic, social, and cultural rights in the light of international treaties adopted primarily by the UN.

This chapter is broadly divided into ten sections with various subsections. Section one introduces the nature, scope, and significance of the ESC rights in the world of differences. The section two examines the philosophical debates argued by political theorists to rationalize the necessity of ESC rights. The section three highlights the social impacts of the popular human rights movements over the drafting of the UN Charter, the UDHR, and the International Bill of Human Rights. This section also attempts to analyse the rationale behind the separation of ESC rights from its counterpart CPRs, the theories of separation, and the final draft of the Covenant on ESC rights. Section four discusses in detail that how the UN Specialised Agencies promote and favour the realization of socio-economic rights. Section five examines the possibility of domestic implementation of the ESC rights in the national legislations. The justification of ESC rights viz-a-viz CPRs is discussed in section six. The importance of Optional Protocol of the ICESCR is explained in section seven. The section eight interprets the enforceability of the provisions of ICESCR in the light of General Comments of the Committee. The section nine examines the reporting procedure of the Committee. The section ten concludes the chapter.

20 Economic, Social, and Cultural Rights

2.1 Introductory Remarks

The life of human beings is shaped within the interaction of different socio-economic conditions. A child is born with blessed circumstances while another hardly survives the child mortality. According to the United Nations International Children’s Emergency Fund (UNICEF), millions of children die before the age of five globally * because of the lack of accessibility to the proper healthcare services. Those who survive become the target of continuous malnutrition and unhygienic circumstances. According to the figures from the Food and Agriculture Organization (FAO) a Specialized Agency of the UN, every year six million children die directly or indirectly from the consequences of undernourishment and malnutrition (one child † every five seconds). The literacy rate of the children around the world is no more celebrating. According to the United Nations Educational, Scientific, and Cultural Organization (UNESCO), every year millions of children, adolescent, and youth are ‡ out-of-school globally. The ideal social standards to the fullest personality development primarily include health and education. It is of immense value to the

* The UNICEF annual report “The State of the World’s Children” estimates the number of under-five deaths worldwide including others. It is based on the work of the United Nations Inter-agency Group for Child Mortality Estimation (IGME) – an organization in collaboration with UNICEF, WHO, the World Bank and the United Nations Population Division. In 2013, the number of under-five death was estimated to be 6.3 millions according to the annual report 2015. See also George Kent, Freedom from Want: The Human Right to Adequate Food (Washington, DC: Georgetown University Press, 2005): 19.

† The 2012 report of the FAO entitled “The Right to Food and Global Strategic Frameworks:

The Global Strategic Framework for Food Security and Nutrition (GSF) and the UN Comprehensive Framework for Action (CFA)” highlights the vicious situation of undernourishment worldwide and the commitment of the States to halve the number of undernourished people by 2015 during the 1996 Rome Declaration on World Food Security and the Plan of Action of the World Food Summit (WFS). See also Christophe Golay, “The Food Crisis and Food Security: Towards a New World Food Order?” International Development Policy 1, (2010): 215-232. The details of child mortality figures can be studied at FAO The State of Food Insecurity in the World 2005 (Rome, 2005): 20.

‡ According to the UNESCO Institute for Statistics (UIS; see Policy Paper 27/ Fact Sheet 37, July 2016) about two hundred sixty-three million children and youth are out-of-school worldwide. This number includes sixty-one million children of primary school age (about 6 to 11 years), sixty million young adolescents of lower secondary school age (about 12 to 14 years), and one hundred forty-two million youth of upper secondary school age (about 15 to

17 years) for the school year ending in 2014.

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affairs of the State that how the policies and programmes in this regard are planned and implemented.

The sovereign nature of the States failed to promote equality and non-discrimination in socio-economic fields since time immemorial. The violation of human rights within the territory, in most of the cases, wasn’t to be examined by supra-national bodies besides some weak and regional arrangements. The world community especially after the establishment of the United Nations has formulated many of the international instruments to reduce the plights of existing socio-economic circumstances. The UN Charter determines the values of fundamental human rights to have a dignified life by all the men and women of the world on the equal basis.The Charter doesn’t divide the rights into distinct categories to be implemented with immediate effect or to be realized progressively.

The UN General Assembly in an attempt to have a bill of rights, proclaims in 1948 the Universal Declaration of Human Rights. It is regarded as “the common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance ….” The UDHR contains substantive provisions on all the rights including social, economic, civil, political, cultural, etc. The Declaration nowhere delineates which rights are of more significance and which are of less.

The UDHR despite being the ‘Magna Carta’ of the modern age is of declaratory nature. The Assembly decides to transform the provisions of the UN Charter and the UDHR into a Covenant of obligatory nature. The anticipated single Covenant on human rights was persistently opposed either by the Soviet bloc or the United States of America (the two Super-Powers of the world). In the following years, more and more Eastern European countries were becoming the members of the UN. They disagreed that the single Covenant would safeguard the socio-economic and cultural commitments. The underlying fear was of the Western influence over the drafting 1 procedure of the Covenant. The anticipated single Covenant simultaneously dealt with provisions on social and economic rights. It was as well having a Committee of experts for monitoring the enforcement of the provisions immediately by ratifying

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States. Many of the scholars believe that small nation-States (members of the UN) favoured the single binding Covenant which was persistently opposed by the Union of Soviet Socialist Republics (USSR) and the United States of America (USA) in view of 2 the interference to the sovereign nature of the State. The rationale behind the demand to a separate Covenant on the Economic, Social, and Cultural rights was justified in the name of territorial integrity and representation. The drafting controversies and other ambiguities to the International Covenant on the Economic, Social, and Cultural Rights which is separated from its counterpart – the International Covenant on Civil and Political Rights – will be discussed in the ensuing pages.

The preliminary decision of the Assembly to have a monitoring Committee for the enforcement of the provisions of the single Covenant on human rights was later confined to the ICCPR only. A Human Rights Committee (HRC) of eighteen independent experts with equitable geographical representation was envisaged. The ICCPR entered into force in 1976; under the Covenant the HRC was given mandate to examine periodic State reports and under its first Optional Protocol the Individual Communications (individual complaint system). In the same year ICESCR entered into force without a monitoring Committee and individual petition system under the Optional Protocol. The primary responsibility of the implementation to the provisions of the ICESCR was endowed to the UN Economic and Social Council (ECOSOC or the Council). The implementation of ESC rights were considered to involve the availability of the resources and thus immediate enforcement was intentionally 3 avoided in view of the progressive realization. Moreover, the individual petition system was not approved by the UN members during the drafting of the ICESCR.

The later development in the field of human rights exclaimed the universality of all the rights. The Vienna Declaration and Programme of Action at the Second World Conference on Human Rights (1993) proclaimed that all the rights are inalienable, indivisible, interrelated, and interdependent. Rights can’t be enjoyed individually separated from other rights. All the rights are important to the dignity and survival of the human beings. The emphasis on one set of rights (e.g., civil and political) over another set of rights (e.g., Economic, Social, and Cultural) is untenable. The ‘right to vote’ has no meaning if one finds difficulty to feed his/her off-springs out of his/her earnings. It is the age old political tactic to subjugate certain categories of rights over

23 Economic, Social, and Cultural Rights

others to benefit the elites of the society. The legacy of degrading the ESC rights has been largely transformed by various General Comments of the Committee on the Economic, Social, and Cultural Rights – the monitoring body of the ICESCR.

2.2 The Philosophical Foundation of the Economic, Social, and Cultural Rights

The foundation of every subject-matter is examined back to the philosophical efforts made by the great scholars. The thought provoking hypotheses, works as guiding star in distinct thrust areas. The philosophical debates over the socio-economic rights date 4 back to Thomas Paine, Karl Marx, Immanuel Kant and John Rawls among others. Paine has argued that Aristocratic society and unequal distribution of property create poverty. He further goes on to say that there are two types of property – natural and acquired – equality at former (e.g., land, air, water, etc.) but unequal distribution of the latter generates the gap of rich and poor. The solution is the democratic politics making people economically independent by avoiding private property and thus socio- 5 economic rights can’t be separated from political rights.

6 Marx criticises the concept of rights, as human beings isn’t free from egoism. He talks about the classless society to favour the equal distribution of the resources a society owns. A later defender of human rights in response to Marx, argues that socio-economic rights 7 or group rights give equal status and if respected leads to minimal descent human life. Kantian views of socio-economic rights express beyond the justiciability debate that the accountability is not over the judiciary alone. The responsibility comes to society in the shape of voters (to whom rights protections were promised), i.e., legal justiciability might 8 be replaced to political accountability. At this stage socio-economic rights can’t be separated from political rights. John Rawls’s ‘Second Principle of Justice as Fairness’ explicitly demands equality of opportunity despite the gap of rich and poor to denigrate the differences of the class of origin. The ‘difference principle’ supports to establish such a social institution that can bridge the gap of inequalities in wealth and income to benefit 9 the worst-off of the society.

Amartya Sen, the Noble Prize-winning Economist, argues in “Development as Freedom” that development is linked to the freedom of choice which is bound by different sets of capabilities – different level of freedom to achieve. He emphasizes that individual capability or the freedom to achieve is often influenced by social

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arrangements, the market and the democratic system, the media and the public distribution system, and, most significantly, the political freedoms and the 10 understanding and fulfilment of economic needs. Thus the economic and political rights are indivisible and complementary to each other. Sen has argued in “The Idea of Justice” against those criticizing ESC rights on the grounds of institutionalization and 11 feasibility. He explains that the imposed obligations by the institutions might be perfect or imperfect. And the feasibility is not attached to ESC rights alone, but to all the rights. The non-realization in itself to a claimed right doesn’t make it a non-right.

The philosophical arguments sometimes doubt the relevance of socio-economic rights as real human rights. Hans Kelsen (cited by Andrew Fagan) argues that only those human rights are meaningful which are legally recognized by legally sovereign 12 authority. If the conflict arises, argues Maurice William Cranston, between the protection of civil and political rights and the economic, social, and cultural rights, the priority should be given to the former because they are somehow more incontestably 13 human rights than its counterpart. Many of the scholars consider the latter to be the substantive rights with empty proclamations based on the lack of institutional 14 obligations to bind individuals to perform positive duties. Henry Shue, amongst others, argues against this proposition that in case of non-compliance to ESC rights 15 (subsistence rights as considered by Shue), there is clear human rights violation. It is the moral duty to help those in need, if one is capable.

2.3 The Historical Justification for the Economic, Social, and Cultural Rights

The debate over the justification of the economic, social, and cultural rights in contrast to the civil and political rights dates back to the different human rights movements. The famous ‘Magna Carta’ of 1215 with sixty-three clauses talks largely to redress the powers of the King, the English Church, the Barons of the King, as well as the Free Men (comprised only a small proportion of the population in medieval England). So that King’s powers are to be curtailed. It states that:

…no taxes could be demanded without the ‘general consent of the realm’, meaning the leading barons and churchmen. It re-established privileges which had been lost, and it linked fines to the severity of the offence so as not to

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threaten an individual’s livelihood. It also confirmed that a widow could not be 16 forced to remarry against her wishes.

The protection of socio-economic concerns is one of the evident facts of the humane contents of the famous Magna Carta.

The English Bill of Rights of 1689 primarily talks about the constitutional matters, so that, the excessive powers of the King and the Queen is to be curtailed and Parliamentary supremacy is to be promoted. The document endorses civil and political liberties of the English Subjects including some of the economic rights, e.g., prohibition of excessive taxes levied by the Monarch without the prior consent of the 17 Parliament.

The French Declaration of 1789 with a limited scope to the socio-economic concerns elaborates in its first Article, the notion of social democracy based on the absence of illegitimate discrimination in the society. The discrimination in the society is anticipated only in case of common good. The French Declaration also recognizes economic freedom to the property rights (limited only to the elite classes) as 18 inviolable and sacred.

The American Declaration of Independence, 1776 was signed by thirteen States of the USA to show their solidarity against the colonial rulers for the poor governance in the region. The American Declaration envisages the equality of all the men with certain inalienable rights including life, liberty, and the pursuit of happiness. The government among men is instituted deriving just powers from the consent of the governed to secure these rights. This Declaration encourages the people to alter or abolish the government if it doesn’t fulfil the just wishes of the people. It surmises illegitimate deeds of the government based on the sufferings of the people in the backdrop of civil 19 and political as well as socio-economic claims.

The substances raised in the above human rights movements are primarily concerned with the promotion of the civil liberties and political freedoms. The voices of antagonism got solid backing of the peoples suffering from the injustice prevalent in the society. The rights of the people whether civil and political or socio-economic, were nowhere secured. The demands of social goods in the name of civil and political rights couldn’t be separated from the socio-economic claims in all the human rights

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movements. The dignified life is secured through the protection of civil and political as well as socio-economic concerns which attract the masses to celebrate the success of these movements. The impacts of these documents are widely seen in the modern human rights agenda of the new era.

2.3.1 The UN Charter and the Economic, Social, and Cultural Aspirations

The foundation of the United Nations is seen by the world community as a voice to the aspirations of the disadvantaged and marginalized people of the whole world. The scourge of both the World Wars has raged the entire humanity leaving them to the vulnerable situations. The philanthropists of the allied powers (the victorious countries) perceived the endurance of the larger part of the earth, very difficult. They joined their hands to establish certain global organization to work independently for the promotion of dignity and self-respect to each and every individual of the world. The creation of the United Nations in 1945 is the dreams-come-true to the aspirations of the suppressed and distressed people around the world.

The prevailed and pressing socio-economic circumstances after the World Wars were unavoidable to be ignored. The UN took the earnest notice and without any further delays included hefty numbers of related provisions to the UN Charter. In its chapter IX, the Charter discusses the International Economic and Social Cooperation among the nations with an opinion that for peaceful and friendly relations, conditions of stability and well-being are necessary. It is the responsibility of the UN to promote among the nations:

(a) Higher standards of living, full employment, and conditions of economic and social progress and development;

(b) Solutions of international economic, social, health, and related problems; and 20 international cultural and educational cooperation....

The power to regulate such functions is vested in the Assembly and under the 21 authority of the Assembly to one of principal organs of the UN, the ECOSOC. The ECOSOC under the Charter’s provision bears to advance particular reports and studies in the fields of international economic, social, cultural, educational, health, and related matters. It has to make recommendations to take appropriate steps to the Assembly,

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the Member States of the UN, and the UN Specialized Agencies concerned, with respect to any such matters.

* The ECOSOC over the years has created many of the subsidiary bodies to work in † collaboration with the UN Specialized Agencies . Its development in the fields of economic, social, technical, scientific, etc., has received great appreciations. The focus of the Council in the field of economic development is to promote the industrialization of the developing countries conducive with the rest of the world. The appropriate policies over the conservation of the natural resources, effective trade relations, proper capital flow, technical assistances, and application of the recent advances of the science and technology in the developing nations have applauded the 22 Council for the modern world economy.

The Council expressed its special attention to the social concerns essential for self- respect and dignity. The milestone efforts to upgrade the situations of world’s

* The ECOSOC has delegated its massive tasks to many of the subsidiary bodies created over the years in different fields to promote and protect human rights around the world. The principal bodies which carry various functions include eight Functional Commissions (Statistical, Population and Development, Social Development, Status of Women, Narcotic Drugs, Crime Prevention and Criminal Justice, Science and Technology for Development, and UN Forum on Forest), five Regional Commissions (Africa, Asia and Pacific, Europe, America and Caribbean, and Western Asia), three Standing Committees (Programme and Coordination, NGOs, and

Negotiation with Inter-governmental Agencies), and various other Committees composed of governmental experts as well as serving in their personal capacities. See for the detailed study “Subsidiary Bodies of ECOSOC” (accessed on Jan. 20, 2016 at the link below): (https://www.un.org/ecosoc/en/content/subsidiary-bodies-ecosoc); See also Rhona KM Smith, Texts and Materials on International Human Rights (Oxon/New York: Routledge, Taylor and Francis Group, 2010): 129.

† There are various UN Specialized Agencies which assist the ECOSOC and its subsidiary bodies to discharge various functions in their field of competence. These include International Labour Organization (ILO), Food and Agriculture Organization of the United Nations (FAO), United Nations Educational, Scientific and Cultural Organization (UNESCO), World Health Organization (WHO), World Bank (WB), International Monetary Fund (IMF), International Civil Aviation Organization (ICAO), International Maritime Organization (IMO), International Telecommunication Union (ITU), Universal Postal Union (UPU), World Meteorological Organization (WMO), World Intellectual Property Organization (WIPO),

International Fund for Agricultural Development (IFAD), United Nations Industrial Development Organization (UNIDO), World Tourism Organization (UNWTO); see for more detail “ECOSOC SYSTEM” (accessed on Dec.27, 2015 at the link below): (http://www.un.org/en/ecosoc/about/pdf/ecosoc_chart.pdf).

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refugees and displaced people have helped to prevent the deterioration of human security in many of the conflict-torn States. The Council played an active role in peace agreements of 1990s in southern Africa, Central America and Cambodia to the Balkans, Timor-Leste, and West Africa as well as the contemporary peacebuilding 23 operations in Afghanistan, Haiti, and Sudan. The creation of Peacebuilding * Commission (PBC) in 2005 didn’t downgrade the association of the ECOSOC in the field. The Assembly through the resolutions 60/180 (2005) and 61/16 (2007) affirmed the importance of experience of the Council and envisioned better peacebuilding management in future with the interaction to each other.

The prominent contributions to enhance the living standard of the people around the world, the persistent efforts of the Council in the fields of environment, population policies, family planning, housing conditions, the welfare of the children, ageing and the disabled, urbanization, human trafficking, drug trafficking, forest conservation, etc., are worth appreciation. The special attention is given to the status of women around the world. The ECOSOC established a separate functional ‘Commission on the Status of Women’ in 1946 to promote gender equality and empowerment of women in 24 political, economic, social, civil, and educational fields. One of the important fields which has greater impact over the socio-economic conditions of the people is the statistics and correct data. The ECOSOC with a vision that data has invaluable importance in the life of human being celebrated the Second World Statistical Day on 25 October 20, 2015 highlighting the theme “Better Data. Better Lives.”

The ECOSOC has been criticised from the very beginning despite its numerous socio- economic activities favourable to the world community. The near dead status of the Council has been re-energized by the approval of the resolution 61/16 of the Assembly 26 in 2007 on “Strengthening of the Economic and Social Council”. The new

* The Assembly and the Security Council to respond better to the challenges of peacebuilding underlined the expanding role of the UN and approved the creation of new PBC in 2005 World Summit through the resolutions 16/180 and 1645 (2005) respectively. The roles assigned are to bring together all relevant actors to advice on the proposed integrated strategies for post conflict peacebuilding and recovery; to marshal resources and help ensure predictable financing for these activities; and to develop best practices in collaboration with political, security, humanitarian, and development actors.

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* role to monitor the progress of Millennium Development Goals (MDGs) imparted fresh stuff to the life of the Council. The scholars around the world credit the Council to make a harmonious patch-up between issues of social, economic, and environment for the sustainable development.

2.3.2 The Universal Declaration of Human Rights (1948) and the Economic,

Social, and Cultural Rights

The episode of Second World War rearticulated the progress of world organization to oversee the affairs of international peace and security. The predecessor of the UN, the League of Nation’s similar mandate during inter-war period was almost frustrated by 27 the aggression of Nazi Germany, Italy, and Imperial Japan against their neighbours. The estimated casualties between the War of Allied and Axis Powers were more than seventy millions including civilians. One of the serious incidents among these was the Holocaust – the Jews and other undesirable groups of Germany were forced to live in concentration camps devoid of survival chances – to destroy the whole generation of particular community. This is perhaps one of the central reasons that the world community thought of certain type of ‘human rights declaration’ to be respected by 28 the whole world.

† The vision of the UN Charter to translate the meaning of the ‘Four Freedoms’ aspired by the President Roosevelt to promote rights regime in the world ultimately reached the destination in the form of the UDHR (1948). The drafting Committee experts including Rene Cassin, John Humphrey, and Eleanor Roosevelt (in chair), etc., had

* See details about “Millennium Development Goals,” (accessed on Dec.25, 2015) at (http://www.unmillenniumproject.org/goals/index.htm); see also for more detailed study of the origin and achievements of the MDGs Jeff Waage et.al, “The Millennium Development Goals: a Cross-Sectoral Analysis and Principles for Goal Setting after 2015” The Lancet 376, no. 9745 (2010): 991-1023; See also to study how the MDGs progressed toward Sustainable Development Goals (SDGs) Jeffrey D Sachs, “From Millennium Development Goals to Sustainable Development Goals” The Lancet 379, no. 9832 (2012): 2206-2211.

† A historic speech “The Four Freedoms” delivered on January 6, 1941 before the 77th

Congress by US President Roosevelt dreamt a world founded upon four essential human freedoms – the first ‘freedom of speech and expression’, second ‘freedom of every person to worship God in his own way’, third ‘freedom from want’, and the fourth ‘freedom from fear’. The complete speech can be downloaded (accessed on July 18, 2016 at the link below): (http://www.americanrhetoric.com/speeches/fdrthefourfreedoms.htm)

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well confronted the inter-war situations. They worked in close connection to different organizations in quest of the protection and promotion of the human security. Rene Cassin, the man considered by many as the father of the Universal Declaration, experienced the barbarous impact of the seizure of power by the Nazi what he termed the Leviathan State. The lack of individual representation as an element of international law during the League of Nations framed another line of ideology. And the most important of the Cassin future framework of human rights was the work over the platform of ILO in 1920s for the just rights of combatant disabled during war. The critical obligations to check the ultimate sovereignty of the State and the violation of individual’s rights within the State steered the campaign of civil and political rights immediately the post-war period. The radical impact of international labour movement emerged as an important source to Cassin promoting economic and social rights 29 alongside political rights in the Declaration.

The Assembly on December 10, 1948 adopted the UDHR without a single vote of dissent. Six nations abstained in voting but none said no to the unanimous proclamation of the Declaration. The years ahead were not favourable to the promotion of human rights. The Cold War was on but the document of 1948 was never blamed to be the document of the Cold War. It favoured everyone denying the criticisms of being unenforceable stock of human rights. The opinion of drafters was totally different at the foundational level of human rights. The time was not ripe to accept a Covenant of binding nature instead a Declaration conveying past and future at the same time. The capsule of mild dose worked better which changed the face of entire human rights world.

The UDHR disintegrates the dominant approach to favour excessively the civil and political rights in contrast to the economic, social, and cultural rights. The drafter’s inclinations toward the promotion of economic, social, and cultural rights are well preserved in the following Articles of the Declaration:

 Article 16 – Right to marriage and foundation of family   Article 20 – Freedom of assembly and association   Article 22 – Social security   Article 23 – Right to work   Article 24 – Right to rest and leisure

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 Article 25 – Right to adequate standard of living   Article 26 – Right to education   Article 27 – Right to cultural life

The solidarity of these Articles with the other provisions of the UDHR has been unanimously agreed upon by all the members present in the UN fora. The distinction is never made to draw a subtle line between the set of CPRs and the ESC rights in the Declaration. The relevance of Declaration against the Communist Manifesto which expresses open support to the socialism in the seventeenth century is far deeper in a sense that it holds both socialism and liberalism as a tenet in the modern times to 30 promote human rights agenda. The balance of Declaration celebrates it to be the corner stone to the later developments in the human rights world. Most of the human rights documents drafted after the Declaration have visible impact including many of the national constitutions drafted after the decolonization. The scope never limits indivisibility and the universality of the rights. This is the reason that makes the UDHR, Magna Carta of human rights of modern times and the most referred 31 document.

2.3.3 The Inclusion of the ESC Rights within the International Bill of Human

Rights

The Commission on Human Rights (CHR or the Commission) was formed under the obligation of the Article 68 of the Charter. The ECOSOC assigned the Commission to prepare and submit reports and proposals on the international bill of human rights and its effective implementation. The eight members Drafting Committee was appointed amongst the Commission members in 1947 to prepare the preliminary draft. The opinion of members divided over the nature of the draft. Some representatives supported the draft should take the form of a Declaration, while others urged the form 32 of a Convention. The former path was chosen and on December 10, 1948 the Assembly adopted the Declaration. Those who favoured the Declaration form also agreed it to be followed by a Convention of enforceable nature. The British delegate wanted a binding treaty while Mrs. Roosevelt apprehended the likely rejection to ratify any such treaty by the US Senate and insisted a Declaration of general nature 33 followed by a treaty to be drafted later.

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The Drafting Committee prepared working paper both on draft Declaration and draft Convention to submit before the Commission. The Commission at its second session established ‘Third Working Group’ in 1947 to draft the implementation mechanism behind the draft Convention. The Assembly at its third session in 1948 after the adoption of the UDHR through the resolutions 217 E and B (III) urged the ECOSOC to ask the Commission to prepare a draft Covenant on human rights and draft measures of implementation. The Commission finalized a draft Covenant on the first eighteen Articles of the UDHR representing most of the fundamental rights and civil freedoms with the monitoring body in the form of a permanent Human Rights Committee. The Commission further decided that additional Covenant and measures dealing with economic, social, cultural, political and other categories of human rights would be considered later. The ECOSOC through the resolution 303I (XI) of 1950 submitted the approved proposals of the Commission before the Assembly at its fifth session in 1950.

The Assembly’s role to promote the universality of all the human rights is incredible. The decision of the Assembly at its fifth session in 1950 belies all the odds of justification regarding economic, social, and cultural rights. The Assembly through the resolution 421(V), section E, declared the following:

…that the enjoyment of civil and political freedoms and of economic, social and cultural rights are interconnected and interdependent and that when deprived of economic, social and cultural rights man does not represent the human person...as the ideal of the free man; and decided to include in the Covenant on human rights economic, social and cultural rights…and requested the Commission through the Council to include in the draft Covenant a clear expression of economic, social and cultural rights in a manner which relates them to the civil and political 34 freedoms proclaimed by the draft Covenant.

The Assembly also recommended the Council to ask the Commission through the resolution 421(V), section F, 1950 to consider the proposals on the implementation mechanism. It should receive and examine the complaints of individual and organization for the alleged violation of the Covenant’s provisions.

The Commission on the basis of proposals of the governments and the suggestions of the UN Specialized Agencies like ILO, UNESCO, and WHO, drafted fourteen

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Articles on the economic, social, and cultural rights. Ten separate Articles were drafted to the measures of the implementation where States had to report periodically on the progress and achievements made in implementing the Covenant. It was not clarified by the Commission which mode of enforcement mechanism viz. reporting procedure or the Human Rights Committee would be applicable to the economic, social, and cultural rights and to the civil and political rights respectively. However, many of the delegates expressed their opinion at the seventh session of the Commission in 1951 that despite the equal importance of all the rights, economic, social, and cultural rights were of different nature including non justiciability. The Council at its thirteenth session in 1951 made the Assembly aware of the difficulty to embody all the rights in a single Covenant and the importance of the economic, social, 35 and cultural rights on par with civil and political rights.

The Assembly at its sixth session in 1952 resolved to have two separate Covenants on economic, social, ad cultural rights and the civil and political rights respectively. Although the Assembly preserved the universality of all the rights and requested the Council through the resolution 543(VI) to ask the Commission “To draft two Covenants on human rights…one to contain civil and political rights and the other to contain economic, social and cultural rights, in order that the General Assembly may approve the two Covenants simultaneously and open them at the same time for signature, the two Covenants to contain, in order to emphasize the unity of the aim in view and to ensure respect for and observance of human rights, as many similar 36 provisions as possible….” Besides the debate over the nature and status of the two categories, the Assembly stressed the unity to expand the equal importance of all the rights.

2.3.3.1 What Went Wrong to the ESC Rights during the Drafting Procedure?

The decision of the Assembly to divide the single Covenant on human rights in two distinct categories viz. civil and political and economic, social, and cultural isn’t solely because of political controversy. The regional values and cultural identity played crucial role bifurcating the single Covenant. The Cold War supremacy instinct of East and West – the centrally controlled society of the East and the free market approach of the West – supported distinct categories of rights. At the same time, Third World Countries represented their concern in support of the distinct values they

34 Economic, Social, and Cultural Rights

preserved in the name of right to development or group rights, e.g., right to * environment.

Prof. Jack Donnelly makes an intelligible argument denying all the myths propagated 37 to disregard the universality of ESC rights. He explains, besides political controversy born out-of working class struggle and Cold War ideological rivalry, philosophical dichotomy is also promoted to subjugate the rights. The relevance of rights to work, education, food, healthcare, etc., are as important as the rights to vote, life, freedom of speech, etc. The non-universal character is not limited to ESC rights alone; many of the CPRs, e.g., right to vote is restricted to citizens of required age who have completed other administrative formalities. The prolonged inaccessibility to the employment will have the same impact as the restrictions on the freedom of speech. The right to life is meaningless if not secured with the adequate food supply and proper healthcare services.

The debate over the origin of right to development – an offshoot of the World War II

– is largely believed to be responsible for the propagation of socio-economic rights inclusion at the global level. A large circle of scholars believe that higher number of representation by the Third World to the UN fora changed the features of socio- economic rights. The age old stigma of subjugation has been transformed to be given equal importance like CPRs. Some of the scholars believe that most of the developing countries were having fear of compulsory enforcement of the resource laden socio- economic provisions of the single Covenant on human rights. They were not in a position to fulfil the aspirations of the Human Rights Committee attached to the single Covenant. They demanded separate Covenant in view of deemed justice to the socio- 38 economic rights neglected in the single Covenant on human rights.

The other side of the debate is complicated enough. Many of the scholars believe that it is the developed countries, not the developing ones, who opposed the ESC rights to 39 be included in the single Covenant. The reason behind this is the Human Rights Committee associated with the single Covenant for the enforcement of its provisions.

* The aftermath of Second World War brought the freedom of colonized world and various countries (including from Latin America, South Africa, and Central Asia) got democratized. Most of the developing and the under-developed countries were not a part of the east-west divide. They were worried to preserve their culture and natural resources not to be raged by the allied and axis powers.

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They are not in favour of subjecting themselves to interrogate from outside for the steps taken to improve the lives of their citizens. They supported the notion of domestic jurisdiction of the State is above the interrogation and outside * accountability. The age long tradition of liberal democracy is sufficient enough to fulfil the aspirations of the entire country. It is outside to be questioned and free from suspects for whatever steps taken to the welfare of the citizen. The ultimate authority to the service of the citizen within the territory is the sole discretion of the sovereign States. The State is liable to introduce and enforce various policies and programmes according to the needs and for different circumstances. It further decides the mechanisms and tools to promote different agenda. The agenda in the field of socio- economic rights heavily depend on the availability and dissemination of the resources. The debate over here is; whether cross-border accountability encroaches upon the sovereign nature of the State or the States support this notion to cover up their inability to fulfil the ESC rights aspirations of the people.

The former opinion of the Member States to the single Covenant on human rights translates the real weightage of the ESC rights. The item 3(b) of the agenda of seventh session (1951) of the Commission raises the concern to include the provisions on † economic, social and cultural rights in the single Covenant on Human Rights. The observations of the government of Member States sought by the UN Secretary General reflect the reluctance of the world community to accept the importance of this category of rights in comparison to its counterpart CPRs. Majority of the Member States fear the mandatory implementation of the provisions which they doubt are heavily resource laden. The controversy of resource expenses to realize both the categories of rights will be discussed in the ensuing sections. The opinion reflected by Member States whether to include ESC rights in the single Covenant somehow signify

* There is a strong notion that the domestic jurisdiction of the independent States can not be interrogated from outside its territory. To have a discussion on the subject matter, see Abdulrahim P. Vijapur, “Question of Domestic Jurisdiction and the Evolution of United Nations Law of Human Rights,” in The United Nations, eds. Sam Daws and Natalie

Samarasinghe (UK: Sage Publications Ltd, 2014) vol.6.

† See UN General Assembly resolution 421 (V), section E on the desirability of including Articles on economic, social and cultural rights; see also Economic and Social Council resolution 349 (XII), paragraphs 3 and 4.

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its importance. The following table highlights the observation of some of the Member States on the inclusion of the ESCRs in the single Covenant:

Table 2.1: Observation of the Member States on the inclusion of ESC rights in the

single Covenant on Human Rights

Country Observations on ESC Rights

USSR Omit Articles 19-41 of the single

Covenant (which largely promote ESC

rights); Implementation intervene with

internal affairs of the State; Violates

sovereignty of the independent States,

(UN Doc. E/CN,4/553)

Netherlands Adopt in a separate Covenant (UN Doc.

E/CN.V515/Add.18)

Yugoslavia Omit the measure of implementation and

embody in a separate instrument (UN

Doc. E/CN.4/551)

New Zealand Adopt in a separate Covenant

India Distinct category of rights, Might be drafted later, Adopt in a separate Covenant, (UN Doc. E/CN. 4/619)

Majority of the Member States have differences over the implementation mechanisms as the ESC rights can be achieved only progressively. It depends over the availability of the resources for which State’s capacity is different. It is thus impractical to govern and bind them all with the similar provisions of the enforcement. This was rather the root cause for the differences over the inclusion of the ESC rights in a single Covenant which was bound by the immediate enforcement provisions of the Human Rights Committee. The Soviet bloc, which championed the causes of the ESC rights, reiterated that the category must be bound by separate implementation instrument. Majority of the members supported separate implementation in view of the progressive enforcement of the category.

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The UN Specialized Agencies like ILO, UNESCO, IMF, FAO, WHO, etc., too supported that the ESC rights are to be progressively achieved. The immediate implementation connected to civil and political rights is nonetheless impractical in the case of ESC rights. The provisions are to be included in a separate Covenant with distinct implementation mechanisms.

2.3.3.2 The Theory of Separation of the Covenants

The debate over the separation of the ESC rights gets impetus during the drafting of the Covenant on human rights. Different groups of countries had different opinion o the matter. Three important theories being underlined by certain groups of countries are discussed below:

 The first group argued that the separation of economic, social, and cultural rights from the civil and political rights would defuse the idea of the need for unity of all the rights propagated by the UDHR. They demanded the equal importance to be maintained by drafting single Covenant including all the categories of rights. The primary supporters including others at the fifth session (1950) of the Assembly are Poland, USSR, Mexico, Yugoslavia, Iran,  40 Iraq, etc. The Indonesian and Cuban delegates supported the similar 41 provision at the sixth session of the Assembly (1951-52). The single Covenant was also supported by Saudi Arabia, Czechoslovakia, Argentina, 42 Syria, etc., at the fifth session.   The second argument in favour of separate Covenant is based on three major components, i.e., the different nature which makes it difficult to define ESC rights in comparison to CPRs; the progressive realization; and thus a distinct implementation mechanism. The initial supporters of separate Covenants are 43 USA, Netherland, UK, Venezuela, Dominican Republic, India, etc. Some States including Liberia, France, USA, Canada, etc., favoured the separation in the view of available resources and stage of development in a particular State * which might not be as conducive as others.    * It was argued that the existing legislative and administrative set-up would be sufficient to implement CPRs while for most of the ESC rights, long policies and programmes needed to be instituted. The financial stability and will of the government may differ from State to State.

Thus the uniform implementation in a differing world would not work better. See the different

38 Economic, Social, and Cultural Rights

 The way-out and the third argument was to devise middle ground between the provisions already enshrined within the UDHR and the detailed provisions of the Covenant – the enforcement of which seemed hurdle to the majority of ratifying States. As advocated by Uruguay, “the principal matter of concern was that international protection should be extended immediately to the greatest possible number of human rights by the greatest possible number of 44 States”. The approach of France was rather more realistic. It advocated that besides the technicalities of the separation viz., origin, history, nature, development, etc., the two Covenants would enhance the convenience, reduce 45 the disagreement, and would enjoy the greater support. 

2.3.3.3 The Final Road to the ESC Rights

The Assembly has finally reversed its views at the sixth session in 1951-52 to have two distinct Covenants devoted to serve the complete range of all the human rights. The previous decision of the Assembly at the fifth session in 1950 through the resolution 421 (V), section E was to include provisions on economic, social, and cultural rights together with the civil and political rights in the single Covenant. The Commission at its sixth session in 1950 re-examined the first eighteen Articles on civil rights already drafted. It has also drafted measures of complaint mechanisms for the permanent Human Rights Committee. The Commission at its seventh session in 1951 drafted the Articles on economic, social, and cultural rights and provisions on a 46 system of reporting procedure by the Member States. It was not clear till the seventh session of the Commission that which machinery would be applicable to civil and political rights and which would to the economic, social, and cultural rights or which to both the categories. Although opinion was expressed that the latter were non justiciable rights and the method of their implementation should therefore be different. The Commission requested the Assembly through the Council to revise its views to draft single Covenant for both the categories. However this proposal was not adopted at that stage.

opinions of Member States, GAOR, session 6 (1951-1952), 3rd Cttee, Doc. A/C.3/SR.366, p.115, para.21 (Liberia); Doc. A/C.3/SR.360, p.78, paras.9-13 (USA); Doc. A/C.3/SR.362, p.91, paras.30-31 (Canada); and GAOR, session 5 (1950), 3rd Cttee, Doc. A/C.3/SR.298, pp.177-178, paras.6-8 (France).

39 Economic, Social, and Cultural Rights

The ECOSOC at its thirteenth session in 1951 considered the draft Covenant on human rights. The opinions varied regarding the measures of implementation. There was no consensus whether the procedure of Human Rights Committee or the reporting procedure or both would be applicable to civil and political rights or to the economic, social, and cultural rights. The Council highlighting the importance of both the categories of rights expressed the difficulties of embodying them in a single Covenant. The Assembly at its sixth session in 1951-52 reversed the decision of single Covenant and requested the Council to ask the Commission to draft two separate * Covenants on human rights. It also requested the Member States and the Specialized Agencies to submit their observations.

The Commission at its tenth session (Feb.23 to Apr.16, 1954) after the consideration of the observations submitted by the different governments, specialized agencies, and the NGOs, was able to conclude its work on the draft Covenants. It has decided not to apply all the implementing procedure of the ICCPR especially individual complaint system to the ICESCR. The latter will have only inter-State communication systems.

* The Assembly declared at its fifth session (Sept.19 to Dec.15, 1950) in the resolution 421 (V), section E, that: “the enjoyment of civil and political freedoms and of economic, social and cultural rights are interconnected and interdependent” and that “when deprived of economic, social and cultural rights man does not represent the human person whom the Universal Declaration regards as the ideal of the free man”; and decided “to include in the covenant on human rights economic, social and cultural rights and an explicit recognition of equality of man and woman in related rights as set forth in the Charter of the United Nations”, and requested the Commission through the Council “to include in the draft Covenant a clear expression of economic, social and cultural rights in a manner which relates them to the civic and political freedoms proclaimed by the draft Covenant”. The Assembly at the sixth session (Nov.6, 1951 to Feb.5, 1952) in a resolution 543 (VI) requested the Council to ask the Commission: “To draft two Covenants on human rights..., one to contain civil and political rights and the other to contain economic, social and cultural rights, in order that the General Assembly may approve the two Covenants simultaneously and open them at the same time for signature, the two Covenants to contain, in order to emphasize the unity of the aim in view and to ensure respect for and observance of human rights, as many similar provisions as possible....”

40 Economic, Social, and Cultural Rights

The draft Covenant on Economic, Social and Cultural Rights as thus prepared by the

Commission contains the following:

 Preamble   Part I (Article 1): The right of self-determination   Part II (Articles 2-5): General provisions on State obligations   Part III (Articles 6-16): Substantive provisions on economic, social and cultural rights   Part IV (Articles 17-25): Measures of implementation (system of periodic reports by the Member States)   Part V (Articles 26-29): Final clauses

2.4 The UN Specialized Agencies and the ESC Rights

The Specialized Agencies and other organs of the UN are also having jurisdiction to take part in implementing ESC rights.

2.4.1 ILO and ESC Rights

The curse of First World War forced the international community to trace the permanent solution. The subsequent progress was the formation of ILO and the League of Nations. The founding mission of ILO was to create universal and lasting 47 peace through the application of social justice. The organization is only one of its kind exercising tripartite system including representatives from governments, employers, as well as from workers to decide policy implementation. It has become the first Specialized Agency of the UN in 1946. The common unique feature of ILO and the UN is to seek permanent peace to the world community.

The service field of the ILO is primarily the world of work. It tries to promote rights at work, encourages decent employment opportunities, enhances social protection and strengthens dialogue on work-related issues. These are the precepts to which the UN stresses to uplift the socio-economic awareness particularly for marginalized and disadvantaged people. The Commission at its sixth session through the draft resolution IV (E/168I, Annex IV) urged a better cooperation for the consideration of ESC rights between the Specialized Agencies and other organs of the UN and the Commission itself. The ECOSOC at its eleventh session adopted resolution 303 D (XI) requesting

41 Economic, Social, and Cultural Rights

the UN Secretary General to promote such collaboration between Specialized Agencies and other organs of the UN, in particular the ILO, to the Commission’s * initiatives in the field of ESC rights.

The expansion of the ICESCR, at many instances, is influenced by the Conventions of the ILO. The Articles 6-10 and 13 of the Covenant are particularly relevant to the provisions of the various Conventions of the ILO adopted before the adoption of ICESCR. The most relevant is the Article 8 of the Covenant which deals with the 48 freedom of association. The basic tenets of this Article are derived from the ILO Convention no.87 (Freedom of Association and Protection of the Right to Organize Convention, 1948) and Convention no.98 (Right to Organize and Collective Bargaining Convention, 1949). Similarly, some of the other provisions having contingent to each other are mentioned in the following table:

† Table 2.2: Contingent provisions of the ICESCR and the ILO Conventions

Provisions of the ICESCR Conventions of the ILO

Article 6 (right to work) No.29 (Forced Labour Convention, 1930)

No.105 (Abolition of Forced Labour Convention, 1957)

No.111 (Discrimination(Employment and

Occupation) Convention, 1958), etc.

Article 7 (favourable conditions of No.26 (Minimum Wage-Fixing Machinery work) Convention, 1928)

* The UN Secretary-General circulated a memorandum (UN Doc. E/CN.4/534 Mar.28, 1951) to promote the co-operation between the Commission and the Specialized Agencies and other organs of the UN in the consideration of ESC rights toward the Draft International Covenant on Human Rights and Measures of Implementation.

† This table includes only some of the Conventions of the ILO while many others are relevant to the Articles 6-10 and 13 of the Covenant. The complete range of contingent provisions of both the documents is discussed in the Annex.1 of Sibbel, Lejo “ILO Conventions and the Covenant on Economic, Social and Cultural Rights: One goal, two systems” Dialogue and Cooperation 1, no. 2001 (2001): 62-63.

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No.100 (Equal Remuneration Convention, 1951)

No.13 (White Lead (Painting) Convention, 1921)

No.1 (Hours of Work (Industry) Convention, 1919), etc.

Article 8 (trade unions) No.87 (Freedom of Association and Protection of the Right to Organize Convention, 1948)

No.98 (Right to Organize and Collective Bargaining Convention, 1949), etc.

Article 9 (social security) No.12 (Workmen’s Compensation (Agriculture) Convention, 1921)

No.102 (Social Security (Minimum Standards) Convention, 1952)

No.118 (Equality of Treatment (Social Security) Convention, 1962), etc.

Article 10 (protection of family and No.3 (Maternity Protection Convention, children) 1919)

No.5 (Minimum Age (Industry) Convention, 1919)

No.117 (Social Policy (Basic Aims and Standards) Convention, 1952), etc.

Article 13 (right to education) No.142 (Human Resources Development

Convention, 1975).

It is believed that the provisions of the ESC rights being promoted by the UN are of general nature while the ILO focuses on the detailed mechanisms to realize it. Thus the Covenant on economic, social, and cultural rights and the ILO are complementary to each other.

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2.4.2 UNESCO and ESC Rights

The incidence of two World Wars within a single generation signifies that the political and economic solidarity alone can’t serve the lasting peace. It is the elemental force of humanism with the moral and intellectual solidarity that will reconcile the 49 international harmony. The founding mission of UNESCO is rightly based on its slogan “building peace in the minds of men and women”. To institutionalize the international solidarity, the organization strives following measures including:

 Mobilizing for education – Education is considered as structural prerequisite to the complete human development.   Building intercultural understanding – Promoting respect for cultural diversity in interconnected societies.   Pursuing scientific cooperation – To save the nations from disasters like tsunami and other sustainable loss.   Protecting freedom of expression – Denominator of democracy, development, and dignified life.

The transformation to socio-economic circumstances is highly encouraged by the uniform accessibility to the right to education. The UNESCO has constitutional mandate to promote the right to education as an international norm. Hence in 1960, it has adopted Convention against Discrimination in Education (CADE), the first international instrument in the field of right to education. Article 13 of the ICESCR, comprehensively covers the right to education, is drafted at the suggestion of the 50 UNESCO’s Director-General. Both CADE and ICESCR create legal obligation to promote education for all without discrimination or exclusion.

The importance of bare minimum education bears the exercise of all the other human rights including civil, political, economic, social, etc. The essential feature of right to education (Article 13 of the ICESCR) is elaborated by the General Comment no.13 of the Committee on ESCRs in cooperation with the UNESCO in 1999. Now the Member States are bound to the four essential elements to fulfil the right to education viz. availability, accessibility, acceptability and adaptability.

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2.4.3 IMF and the ESC Rights

The aftermath of World War II was panic to the international monetary stability. The nations were terrified by the exchange instability and were caught in balance of payment deficits. The International Monetary Fund (also known as the Fund) was established in 1944 with a view to short-out the international problems of monetary cooperation, trade, exchange stability, system of payments, and the balance of 51 payments difficulties. It doesn’t bear direct linkage to the promotion of economic, social, and cultural rights. It has thus initially denied to attend the meetings of the * Commission when it was drafting the provisions of the ICESCR.

The IMF is not a development agency and doesn’t lend any project directly related to health, education, etc. The Member States are entitled to borrow monetary support primarily to discharge their balance of payments deficit. However, in changing circumstances, the mandates are expanded with the indirect implications to the social 52 policies of the Member States. The economic growth of the poor countries out of the monetary lending is encouraged during the 1995 World Summit for Social Development. The resources are diverted to reduce the poverty in a crisis situation including better health, education, employment, etc. The ICESCR is mandated to achieve the above goals progressively to which the IMF now indirectly supports the Member States under the obligation of international laws.

2.4.4 FAO and the ESC Rights

The great depression of 1930s accelerated the world community to think of an alternate path to the food crisis at large. The League of Nations was encouraged to

* The UN Secretary-General over the request of the ECOSOC circulated a memorandum (UN Doc. E/CN.4/534) seeking an observation to the co-operation between the Commission and the Specialized Agencies and other organs of the UN in the consideration of economic, social and cultural rights. The Letter from the Managing director of the IMF which is annexed to the above UN document is reproduced here:

While the work of the Commission on Human Rights is of great interest to the Fund, the limits set on our activities, by our Articles of Agreement do not appear to cover this field of work. It will therefore not be possible to send a representative to the seventh session of the Commission on Human Rights opening in Geneva on April 16, 1951.

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promote nutritious supplements including protective foods (e.g., milk, vegetables, fruits, and other such foods) to minimize health related problems and agricultural 53 crisis. After the collapse of the League, Frank McDougall (economic advisor to a former Prime Minister of Australia, Stanley Bruce) in 1942 drafted a memorandum on the subject, “United Nations Programme for Freedom from Want of Food” influenced by the ideology of “Freedom from Want” of the US President Roosevelt. McDougall further proposed to President Roosevelt that food should be the first economic problem tackled by the UN. On the basis of the slogan declared in the 1943 meeting of Hot Springs, “the first cause of hunger and malnutrition is poverty,” FAO was established with the following goals to eradicate hunger from around the world:

 the eradication of hunger, food insecurity and malnutrition;   the elimination of poverty and the driving forward of economic and social progress for all; and,   the sustainable management and utilization of natural resources, including land, water, air, climate, and genetic resources for the benefit of present and future generations.

The focus of the FAO moved beyond the mere production and supply of food to the security of food, i.e., availability of sufficient food to each and everyone with quality assurances. The mandate has expanded far beyond to support the progressive realization of the right to adequate food. The recognition of the right to adequate food and rights to be free from hunger as one of the fundamental human rights within the UN instruments especially Article 25 of the UDHR 1948 and Article 11(1, 2) of the ICESCR 1966 are commendable. The timely lobbying of the FAO Director-General at the Assembly toward the above rights within the ICESCR lacked high level political 54 will to the immediate enforcement. It was in 1996 World Food Summit (WFS) organized by FAO, that the political leaders from around the world requested to better define the attributes of the right to adequate food. The Committee on ESCRs in response to these invitations adopted General Comment no.12 in 1999. It was further assisted by the Right to Food Guidelines adopted unanimously by the FAO Council in November 2004 to promote practical facets of the implementation to the right to adequate food.

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2.4.5 UNICEF and the ESC Rights

Created in December 1946 by the UN, the central mission of the UNICEF was to provide food, clothing, and healthcare largely to the European children facing famine 55 and diseases after the Second World War. The mandates are broadened in 1950 to address the long term needs of the children and women everywhere with particular emphasis to the developing world. It has become the permanent body of the UN system in 1953 while its name is shortened to the United Nations Children’s Fund. However, UNICEF retains its original acronym.

The organization doesn’t bear direct linkage to the ICESCR. It hasn’t participated in the meetings of the Committee until 1986. The Assembly adopted the Convention on the Rights of the Child (CRC) in 1989. Since then, the organization is guided by the CRC and participated actively in the meetings of the Committee for the concerned causes. The functions it plays practically translate the true spirit of the ESC rights. The mission statement spells that the protection of the children is integral to the full human development. It promotes to the full participation of women and girls in political, social, and economic development of the community through its various country programmes. It has suggested various structural reforms to the ECOSOC in the field of sustainable development, method of works, and the UN funds, programmes, and specialized agencies. The Executive Director’s annual report to the ECOSOC in 2004 56 has shown growing evidence of the collaboration between the two.

2.5 The Domestic Implementation of the ESC Rights: The Justiciability Debate

The age old culpability to the ESC rights that it cannot be adjudicated in the domestic laws is seen by many as one of the historical roots of subjugation to this category of rights. This is rather because of the ideological rivalry of the Cold War, and some 57 others believe, it is mistakenly induced as non-justiciable. Pritam Singh in his book “Economy, Culture, and Human Rights: Turbulence in Punjab, India and Beyond” observes a different perspective on the subjugation of certain categories of rights as * connected with the economic interests of the people.

* The author describes with historical evidences in favour of his argument that in most of the rights’ movements people were mobilized to protest against the violation of certain distinct categories of rights. At the same time, protests were not raised against the violation of other

47 Economic, Social, and Cultural Rights

After the Second World War, many of the States have adjudicated justiciable provisions of the ESC rights in domestic legislation, however, with different methods of jurisdiction. The Hungarian Constitution, for example, contains a number of 58 specific social welfare rights that are legally enforceable. The South African Constitution instructs the government to ‘respect, protect and fulfil’ the socio- economic rights. The Constitution of India contains the provisions on ESC rights in the name of Directives to the States as fundamental to the governance.

The implementation of ESC rights is more difficult in a country where it isn’t incorporated in domestic laws. In such cases, the jurisdictions rely over the socio- economic dimensions of the more traditional laws on civil and political rights which are considered actionable. The socio-economic dimensions of the CPRs have broadly taken two forms. The first is the enforcement of ESC rights through Public Interest Litigation (PIL) or the Social Action Litigations (SIL) of the Indian jurisprudence. The exercise of ESC rights is directly derived from the CPRs (e.g., the right to life implies the obligation to provide right to livelihood). For example, Olga Tellis v. Bombay Municipal Corporation; the Writ Petitioner rely over the context of right to life (Article 21of the Indian Constitution), that life without livelihood is not secured. The eviction of lakhs of pavement and slum dwellers seems to destroy their livelihood. It is contrary even to directives contained in Article 39(a) (right to an adequate means of livelihood) and Article 41 (right to work) of the Indian constitution. The obligation of the State under the above Articles expresses that denying the right to livelihood is a sheer rejection of the right to life under fundamental rights. The Court has ordered to arrange alternate sites for the 59 resettlement.

The second form relies over the CPRs viz. the principles of equality and non- discriminations, as in the USA. The advocates have challenged the prison’s condition, segregation in education and housing, criminalization of homelessness, and denial of social security in the USA. The landmark case of 1954 Brown v. Board of Education;

categories of rights. This division, he argues, is completely influenced by economic interests among others, of the people. The categories of rights that served the economic interests (particularly of elite class) were promoted otherwise, systematically subjugated. See for the detailed discussion, Pritam Singh, Economy, Culture and Human Rights: Turbulence in Punjab, India and Beyond (Gurgaon: Three Essays Collective, 2010).

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the victim was segregated in the school premises on the basis of skin colour. The Court establishes that discrimination in issues of education must be avoided and 60 declared it to be a right which must be made available to all on equal terms.

The other wave of ESC rights enforcement came in 1980s and 1990s when many of the South African and Latin American countries got democratised. Many of the States have incorporated ESC rights as fully justiciable in their domestic laws. The enforcement was although with internal limitations of resource availability and other legal measures. The Constitutional Court of South Africa and Argentina particularly have made decisions to constitutionalise the laws in this regard. The Argentinean Federal Courts of Appeal in the case Viceconti v. Ministry of Health and Social Welfare held under Article 25 of the UDHR and Article 12 of the ICESCR, that it is the legal obligation of the government to provide healthcare services when self-care 61 and private sector fail to provide proper services. In this case, the State is ordered to produce Candid 1 vaccine as swiftly as possible to the 3.5 million people caught in hemorrhagic fever.

One of the doctrines says that the lack of legal regulations and the case laws or jurisprudences in the field of ESC rights isn’t because of its non-justiciable nature. It is the ideology of eighteenth and nineteenth century which supported the development 62 of laws principally to give a legal underpinning to the capitalist structure. The progress of welfare State is limited only to few countries. It is a customary consensus that the ESC rights are ‘programmatic rights’ and thus requires the will of the political branches of the government to the enforcement viz. policies and implementation. The State’s failure to provide appropriate measures to the implementation of particular 63 norm doesn’t make the provision non-justiciable. It is not the ESC rights or CPRs that is enforceable or unenforceable. It is the aspect or configuration of the rights that decide the due course of action and limits of the State machinery on the implementation.

It is theoretically argued that ESC rights are not justiciable. There are numerous case laws worldwide which illustrate the potential strength for future legal action in this field. The Courts can play active role to supervise positive obligations where the governmental action is inadequate or doesn’t comply the existing policies and 64 programmes or is discriminatory enough. The best example is the case of

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* Government of the Republic of South Africa and Others v. Grootboom and Others (famously known as the Grootboom case) where the victim has been evicted from the land set aside for low-cost housing. The Court finds that mere legislation isn’t enough. It is the responsibility of the State to imply legislative measures well directed by appropriate policies and programmes. It must be carried-out further by the executives toward intended results. Thus the justiciability relies over the three interdependent levels – the will of the judiciary to adjudicate the provisions, the action thereof of the government, and finally the compliance by the executives.

The drafting debate shows that separation of ESC rights doesn’t incumbent degradation to the justiciability of the provisions. The proposal submitted of the non- justiciable nature of ESC rights by the Indian representatives to the Commission has † been starkly rejected particularly by Yugoslavia, Guatemala, and USSR. The ‡ proposal however, was rejected by the Commission (12 to 5 votes, 1 abstention) and the separation was followed due to the need of different implementation mechanisms. The Assembly resolution 543 (VI) has emphasized the integration of all the human

* See Government of the Republic of South Africa and Others v. Grootboom and Others, 2000 (11) BCLR 1169 (CC), (accessed on Aug.25, 2016 at the link below): (http://www.constitutionalcourt.org.za/uhtbin/cgisirsi/x/0/0/5/0).

† The Indian delegation suspected the ‘lack of equilibrium’ to both the sets of rights if included within single Covenant. The ESC rights and CPRs were of different nature, former being non- justiciable. See CHR, session 7 (1951), UN Doc. E/CN.4/SR.248, p.6. The Yugoslav delegates expressed that the basics of right to life (one of the CPRs) can’t be protected if the means of existence (ESC rights) are not guaranteed. Thus non-justiciability to ESC rights is a wrong assumption. See CHR, session 7 (1951), UN Doc. E/CN.4/SR.248, p.19. The Guatemalan representatives supported the same causes and expressed that it was incorrect and dangerous to say ESC rights were non-justiciable. See CHR, session 7 (1951), UN Doc. E/CN.4/SR.248, p.21. The USSR representatives objected that the debate over the justiciability and non-justiciability to the ESC rights is completely arbitrary. See CHR, session 7 (1951), UN Doc. E/CN.4/SR.248 p.13.

‡ The following countries voted in favour of the resolution: Denmark, Greece, India, the United Kingdom and the United States of America; the following countries voted against: Chile, China, Egypt, France, Guatemala, Lebanon, Pakistan, Sweden, Ukrainian SSR, USSR, Uruguay and Yugoslavia; Australia abstained. See CHR, session 7 (1951), UN Doc.

E/CN.4/SR.248, p. 26.

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rights while having two Covenants of equal importance with as much similar provisions as possible.

The Committee in its General Comment no.3 recognizes ‘the minimum core obligation’ on the States to satisfy the minimum essential level of each of the rights. At the same time, Article 2(1) of the Covenant obligates State to use maximum of the available resources. The justiciability principle requires State parties to act in * sustaining the life of vulnerable groups. The Limburg Principles on the Implementation of Economic, Social and Cultural Rights explains that the realization of the ESC rights is attached to progressive implementation. It also suggests that some of the provisions on ESC rights will be realized over time while some others are immediately justiciable. The Committee in its General Comment no.3 expresses that following provisions of the ESC rights have the elemental force that must be 65 implemented with immediate effect:

 the right to equality between men and women (Article 3);   the right to fair wages and equal remuneration for work of equal value (Article 7(a)(i));   the right to form trade unions and to strike (Article 8);   the right of children and young people to special measures of protection without discrimination (Article 10(3));   the right to free and compulsory primary education for all (Article 13(2)(a));   the right to freedom of religious convictions (Article 13(3));   the right to establish and direct educational institutions in conformity with legal standards (Article 13(4)); and,   the freedom indispensable for scientific research and creative activity (Article 15(3)).    * The Limburg Principles has been unanimously approved by a group of 29 distinguished

experts in international law meeting at Maastricht on June 2-6, 1986 to consider the nature and scope of the obligations of States parties to the ICESCR, the consideration of States parties reports by the newly constituted ECOSOC’s Committee on ESCRs, and international cooperation under Part IV of the Covenant. The complete document is available at (accessed on Aug.25, 2016 at the link below): (http://www.refworld.org/docid/48abd5790.html).

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The Committee in its General Comment no.9 clarifies that the justiciability of ESC rights doesn’t necessarily require judicial remedies all the time, administrative 66 remedies might fulfill the gap of realization. It also recognizes some level of justiciability to all the rights enshrined in the Covenant taking note of general approaches of majority of the legal systems of the world. It is now upto the Member States to incorporate judicial remedies to implement certain ESC rights.

2.6 The Civil and Political Vs Economic, Social and Cultural Rights: The Justiciability Debate

The ‘right to life’ is sacrosanct to every new born in this world. Human beings enter this world with natural guarantee to the protection of his/her life within the territory of Origin State. The existing governance in any authority can’t take away the life of the new born for any public purposes. It is rather the responsibility of the State to prohibit such practices in any form relegating it to a new born. The right to life is perhaps the first and foremost right that is decreed to a new born juristically in any government of * the modern world.

The protection of life immediately after birth depends on availability and accessibility of better healthcare practices such as hygienic space for baby and mother, emergency medical support within reach, nutritious supplies, and overall continuous care and warmth. The right to life – the most basic fundamental human rights – thus requires the support of the ‘right to health’, immediately the journey of human life begins. The † right to life practically begins when the embryo is formed within (or outside) the womb of the mother. The expectant mother (or test-tube baby) needs continuous concerns including social, economic, cultural, etc., for the new life to exist.

The division of human rights into generations (three generations – first CPRs, second ESC rights, and third Collective rights) or into durations (eighteenth century – CPRs,

* If life comes into being so does the right to life and consequently rights to health, education, vote, equality, etc. If a human foetus comes dead then nowhere it is considered worthy to the righteous entitlements. Thus the first and foremost effort is to protect the life.

† The formation of human embryo depends on the compulsory fusion of eggs (female) and sperms (male) inside the womb of expectant mother. Now-a-days, the fusion is possible in a test-tube through the technique of in-vitro fertilization. An advanced form is the ‘surrogacy’ where the embryo is placed in the womb of a hired mother if the original parents desire so.

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nineteenth century – ESC rights, and twentieth century – Development rights) doesn’t formulate them less or more important. These notions signify the evolution of theoretical aspect of particular rights. The development of enforcement obligations behind the rights solely depends on the political agenda of the government. The degree of enforcement obligations make certain rights less or more important. The civil and political rights (e.g., right to life) from the very beginning have given greater importance while economic, social, and cultural rights (e.g., right to health) have less. The factors that are often underlined to distinguish the nature and importance of CPRs from ESC rights includes following:

 Negative-positive dichotomy   Justiciable; Non-justiciable   Resource free; Resource laden   Clearly worded; Vaguely worded   Real human rights; Virtual human rights

However, all the above distinctions are considered to be diminishing in the contemporary world. Many of the CPRs during the emergency period are withdrawn. On the other hand, State can’t unlawfully interfere with the freedom of trade unions. Many of the provisions of ESC rights are immediately enforceable (as discussed above). All the CPRs equally require heavy amount of State resources to run the established machinery, e.g., right to vote imply the huge budgetary allocation to the Election Commission. The provisions of the ESC rights are blamed to be vaguely worded which is equally true for many of the CPRs. Consider the following examples:

Table 2.3: Vaguely worded provisions of the ESC rights and CPRs

Economic, social and cultural Civil and political rights

rights

The right to take part in cultural The right to take part in the conduct of public life. affairs.

The right to be free from hunger. The right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment.

Source: Fact Sheet no.33 Frequently Asked Question on ESCRs (published by the OHCHR).

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The Assembly at the Second World Conference on Human Rights (1993) has clearly stated that all the human rights (whether CPRs or ESC rights) are universal, indivisible, interdependent, and interrelated.

2.7 The Optional Protocol: The Justiciability Debate

The two Covenants on human rights ICCPR and ICESCR were adopted by the Assembly on the same day in 1966. The enforcement of former was entrusted to the newly formed Human Rights Committee with individual complaints system. The enforcement of latter was limited only to reporting procedure to the ECOSOC and subsequently to the Committee in 1987. The justiciability of the ESC rights was a matter of debate until December 10, 2008 when the Assembly adopted Optional Protocol of the ICESCR at par to its sister Covenant ICCPR. It entered into force on * May 5, 2013 after the required ratification by the Member States. Now the provisions on the ESC rights are equally enforceable at the international level with individual complaint procedure. The individual victims – after exhausting all the domestic

* Currently (as of July 6, 2017) there are 22 States that have ratified the Protocol and 26 have signatory status. The rest 150 Member States of the UN has taken no action. The State Parties and the Signatories (region-wise) to the Protocol are given in the table below:

Table 2.4: States Parties and the Signatories to the Optional Protocol of the ICESCR

Regions Member States Signatory States Asia Mongolia Armenia, Azerbaijan, Kazakhstan, Maldives, and Timor- Leste Europe Belgium, Bosnia and Herzegovina, Ireland, Netherland, Slovenia, Finland, France, Italy, Luxembourg, Yugoslav, and Ukraine Montenegro, Portugal, San Marino, Slovakia, and Spain Africa Cabo Verde, Central African Republic, Angola, Benin, Burkina Faso, Congo, Gabon, and Niger Democratic Republic of the Congo, Ghana, Guinea-Bissau, Madagascar, Mali, Senegal, and Togo Latin Argentina, Bolivia, Costa Rica, Ecuador, Chile, Guatemala, Paraguay, and America El-Salvador, and Uruguay Venezuela and Caribbean Oceania Nil Solomon Islands North Nil Nil

America Source: United Nations OHCHR (accessed at the link) (http://indicators.ohchr.org/).

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remedies – can communicate the violations of their rights to the competent UN authority.

The Optional Protocol covers a range of rights to be recognized, definitions of individual and groups entitled to submit communications, the conditions of the admissibility of the communication, and the norms of the Committee that would be

67 employed to determine the alleged violation of the ESC rights. The final text of the Protocol adopted by the UN, however, mentions little about the State’s international obligation and the international cooperation and assistance to the promotion of ESC rights. The responsibility to decide the admissibility of the complaints (formally ‘communications’) is vested with the Committee. It can also initiate inquiries by its own if finds the grave breaches of the Covenant’s provisions.

The adoption of Protocol is seen by many as historic, closing the gap of many decades to the protection of international human rights. It has once again unified the vision of the UDHR to the promotion of all the categories of rights including civil and political 68 as well as economic, social, and cultural. The enthusiasm, however, isn’t free of

justiciability debate. Many of the Member States of the Covenant have raised concern to the unenforceability of the complaint mechanism in view of the progressive nature.

Despite the ongoing debates, the Protocol has been adopted by the Assembly without 69 any formal ‘explanation of vote’ by any State Party. The current study is limited only to India, Nepal, and Sri Lanka – none has ratified, nor is signatory to the Protocol

– that is why the detailed study is left to future research.

2.8 ICESCR: Provisions Revisited in the Light of General Comments of the

Committee

The implementation of the provisions on the ESC rights is formally denied or delayed to millions of people. It is not because of the unavailability of the resources. It is because of the lack of the political and judicial will to understand, how one could go about practical implementation. The obligations, from the very beginning, under the civil and political rights have been largely clarified by the General Comments of the Human Rights Committee through the cases under its Optional Protocol. The situation of the ESC rights is totally reversed. The responsibility of monitoring was formally vested to the ECOSOC which was considered to be a political organization having

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governmental representatives as its members. The Committee on Economic, Social, and Cultural Rights was established in 1985 having 18 independent experts to 70 examine the State reports with individual capacity. The Committee has adopted since then various General Comments to enhance the enforceability of the provisions of the Covenant.

The last few decades after the extended neglect of the ESC rights have received pragmatic attention toward its enforcement. The Vienna World Conference on Human Rights 1993 has played vital role in this regard by urging its wide recognition at national, regional, and international level. The respect within the UN system has augmented by the contemporary incorporation of the provisions on ESC rights within different national Constitutions and legal systems. The implementation is anticipated by various instruments including the Committee in its General Comment no.10 that 71 expands the greater involvement of the national human rights institutions. The opinion of international experts on the subject is helpful to define the process of law making and incorporation of ESC rights at domestic level. Besides the General Comments of the treaty bodies, soft laws like Limburg Principles (1986) and the Maastricht Guidelines (1997) in case of ESC rights have developed mechanisms to * clarify legal duties including when they are violated.

The UN Commission on Human Rights and its Sub-Commission on the Promotion and Protection of Human Rights have appointed various Special Rapporteurs to study different aspects of the ESC rights to enhance its implementation. One such Special Rapporteur, ‘Danilo Turk’ was appointed by the Sub-Commission in 1992 to devise

* The Limburg Principles were adopted in an expert conference held in Maastricht (the Netherlands), convened by the International Commission of Jurists, the Faculty of Law of the University of Limburg (Maastricht, the Netherlands) and the Urban Morgan Institute for Human Rights, University of Cincinnati (Ohio, United States of America), from 2 to 6 June

1986, and reproduced in UN doc. E/CN.4/1987/17.

The Maastricht Guidelines were adopted in an expert conference held in Maastricht, from 22- 26 January 1997, at the invitation of the International Commission of Jurists (Geneva, Switzerland), the Urban Morgan Institute on Human Rights (Cincinnati, Ohio, USA) and the Centre for Human Rights of the Faculty of Law of Maastricht University (the Netherlands).

Both the instruments have been extensively employed by the Committee on ESCRs to interpret the provisions of the ICESCR.

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72 postulates on the nature of State obligations related to these rights. Another edition of enforceability to the ESC rights is elaborated at the Bangalore Declaration and Plan of Action (1995). It declares, if there is ambiguity in domestic Constitution or Statute or apparent gap in the law, or inconsistency with the international standard, it is the responsibility of the Judges to resolve the situation by taking into account the 73 jurisprudence of international human rights bodies.

The Covenant begins with Preamble similar to its sister Covenant reminding the commitment of the Charter to the universal respect and observance of the human rights. The only similar provision – in contrast to the Assembly’s decision to have two separate Covenants on human rights with as much similar provisions as to show the general unity – is the self-determination (Article 1 of both the Covenants). The realization of the self-determination is the prerequisite to the protection of individual 74 rights which ultimately preserves the national sovereignty. The stark difference arises with the State obligations (Article 2) to the Covenants while the details below highlight the case of the ICESCR.

2.8.1 Expanded Meaning of the State Obligations to Respect, Protect, and Fulfill

This provision is of utmost importance because mere principles are worthless unless the State authority owes the allegiance. The State’s obligations to fulfill the rights contained in the international treaties are threefold – ‘to respect,’ means not to interfere with the enjoyment; ‘to protect,’ means preventing violations of such rights by third parties; and ‘to fulfill,’ means taking appropriate legislative, administrative, 75 budgetary, judicial, and other measures towards the full realization of such rights.

The International Law Commission (1977) declares that the obligation arising under

76 ICESCR is obligation of result only, and not of conduct. The Committee in General

Comment no.3 (1990) declares that the ICESCR contains both the obligations of conduct as well as result. The Maastricht Guidelines further examines that the obligation to respect, protect, and fulfill contains both the elements of ‘obligation of conduct’ and ‘obligation of result’. The former requires reasonable actions (‘means’) to realize the enjoyment of a particular right while the latter requires States to achieve 77 specific targets (‘ends’) to satisfy a detailed substantive standard.

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The terms of Article 2 (State’s obligations) of the ICESCR is considered to be weak in

comparison to the Article 2 of the ICCPR, with the general meaning leaving intentions 78 ‘ambiguous or obscure’ or ‘manifestly absurd or unreasonable’. According to

Matthew CR Craven:

Article 2(1) itself is somewhat confused and unsatisfactory provision. The combination of convoluted phraseology and numerous qualifying sub-clauses seems to defy any real sense of obligation. Indeed it has been read by some as giving States an almost total freedom of choice and action as to how the rights * should be implemented.

The subsequent developments especially Limburg Principles and the Maastricht Guidelines – although not a legally binding instrument – illuminate the nature and scope of the States Party’s obligations. These explore the terms of violations of ESC

rights and appropriate responses and remedies under the Covenant including the provisions of the Article 2(1). The Committee’s numerous General Comments which spell-out the content of the obligations and rights under the Covenant have never

received formal objections from any of the State. The Article 2(1) indicates many requirements that enhance the State Party’s obligations to the full realization of the Covenant’s provisions including:

 Undertakes to take steps;   Maximum of its available resources;   Achieving progressively the full realization;   All appropriate means;   Adoption of legislative measures; and,   International assistance and cooperation.

The State Party can’t delay the implementation of the Covenant’s provisions

indefinitely. The Committee in General Comment no.3 clarifies, while the full

* Matthew CR Craven, “The Justiciability of Economic, Social and Cultural Rights”

Economic, Social and Cultural Rights: Their Implementation in United Kingdom Law (1999): 1-12. See also the scholarly debate by the same author to the understanding of state obligations with respect to ESC rights envisioned by Article 2(1) of the ICESCR, Matthew CR Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Oxford: Clarendon Press, 1995): 106-152.

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realization of the relevant rights may be achieved progressively, steps toward that goal must be taken within a reasonably short time. The careful understanding of the General Comment no.3 signifies that State Parties can’t deny doing nothing, while the steps taken must be specific, expeditious, and effective. Such steps must be further 79 deliberate, concrete, and targeted as clearly in terms as possible. The State as indicated in this Article, must exhaust all appropriate means, including particularly the adoption of legislative measures. The Committee clarifies, in certain circumstances legislation is not only desirable but becomes indispensible, e.g., to employ non- discrimination clauses (Article 2(2) clearly specifies to implement the Covenant’s * provisions without any discriminations ). The Limburg Principles, e.g., necessitate the legislative actions whenever existing legislation is in violation of the obligations 80 assumed under the Covenant. It is desirable that the State Party shouldn’t only indicate the appropriate measures but the grounds on the basis of which it is taken. Finally, it is the Committee that determines whether all the appropriate measures have been taken or not. All the other appropriate means include, but are not limited to, judicial, administrative, financial, educational, and social measures.

The obligation to progressive realization is sometime taken as granted for the slow or no action by the concerned authority. It is often emphasized that rights would only be realized until the State reaches a certain level of economic development. The Committee in General Comment no.3 recognizes the inability of majority of the Member States that full realisation of all the ESC rights generally will not be achieved 81 in a short span of time. The CPRs under the ICCPR is in contrast obliges the States Parties under Article 2(1) to ‘respect and ensure’ the substantive rights with immediate effect. It is also evident that the realization of the CPRs is heavily

* The Article 2(2) resists discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status to the enjoyment of the Covenant’s rights. The General Comment no.20 (see the UN CESCR, session 42 (May 4-22, 2009), Doc. ‘E/C.12/GC/20’ (July 2, 2009)) defines in detail the prohibited grounds of discriminations in ESC rights as expressed in this Article (paras.15-26). It also identifies the ‘Other Status’ being used as grounds for differential treatment comparable to the nature of grounds expressly recognized in Article 2(2) including disability, age, nationality, marital and family status, sexual orientation and gender identity, health status, place of residence, economic and social situations (paras.27-35). It obliges the States Parties to guarantee the elimination of all the forms of discrimination including ‘formal’ (based on Constitution, laws, policy documents, etc.) and ‘substantive’ (adopting practical measures to prevent de facto discriminations including in private spheres).

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dependent on the resource availability and the development of the conjunct societal 82 structure. However, the Committee has made clear that the obligation arising out of the progressive realization is not compatible to all the provisions of the ESC rights; there are various provisions that qualify the immediate enforcement. These include among others, the recognition of the Covenant’s provisions within the domestic laws and the guarantees to the prohibition of discriminations. The Committee also negates the imposition of deliberately retrogressive measures to the progressive realization of 83 the provisions. Finally, it is the responsibility of the State Party to adopt coherent national policy and plan of action in this regard.

The Committee argues that the notion of progressive realization must be justified in the context of the full use of the maximum available resources of the States. Audrey R Chapman highlights two difficulties associated to it; first, how to assess what is available to a particular State and second, how to determine that the State has used 84 such available resources to the maximum. However, the Committee has formulated the concept of ‘minimum core obligation’ to which it is the responsibility of the State to provide with subsistence rights even in scarcity. The burden to prove that the State Party has employed every effort to use its available resources to the rights in question with the least minimum essential level, doesn’t leave the mandatory discretion of the State to choose its own means of implementation. If the State Party fails to discharge 85 such minimum core obligation prima facie it amounts to a violation of ESC rights.

The final element of the Article 2(1) is “to take steps, individually and through international assistance and cooperation, especially economic and technical ...”. It is again associated to the utilization of the ‘maximum of its available resources’. The drafter hasn’t left the State Parties in poor financial conditions to rely on the internal resources alone. They are free to seek international assistance and cooperation to provide the minimum basic level of survival to each and everyone. Bertrand Ramcharan specifies that the primary responsibility to fulfill the ESC rights is of the concerned State Parties while the international assistance is based on the sovereign 86 nature of the States. It doesn’t imply legal duty to provide the assistance rather it can be provided in mutual cooperation.

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2.8.2 Articles 3-5 (Principles of Equality and Limitations on the Rights)

The clauses on the principle of equality (Article 3) begin immediately after the clauses on non-discrimination (Article 2(2)), which according to Matthew CR Craven is 87 considered to be the essence of the Covenant. The nature of principles of equality and non-discrimination is considered to be the positive and negative statement of the 88 same principle. This is because, according to Rhona KM Smith, the goal of equality 89 is achieved in the first instance through the prohibition on the discrimination. The Committee in its General Comments no.16 (2005) ensures that all the rights should be recognized for ‘men and women’ on equal footings and emphasizes that special measures should be taken to protect the rights of ‘women’. All the positive measures should be taken to implement de jure (formal) as well as de facto (substantive) equality between men and women by the States Parties. The Committee confirms that the fulfilment of equal rights of men and women is mandatory and immediate obligation of the States Parties. It further outlines the three-fold obligations viz. ‘to respect’, ‘to protect’, and ‘to fulfill’. The obligation to fulfill further mandates the State Parties to ‘provide, promote, and facilitate’ with every efforts to all the 90 substantive provisions.

The rights can only be limited by the State Parties in conformity with the laws of the democratic society and that is too, for the promotion of general welfare of the individuals. It can’t be imposed in any arbitrary, unreasonable or discriminatory ways. It must be compatible with the nature and essence of the ESC rights. The Article 5(1) provides protection from the abusive interpretation by the State Parties to impose limitations beyond those not specifically granted by the law. The Committee has yet to 91 adopt General Comments over the issues of limitations as of July 2017.

2.8.3 Articles 6-15 (Substantive Provisions of the Covenant)

The significance of an international treaty depends over the substantive provisions it encompasses. The constraint of rights to work, food, health, education, etc., are somehow having greater impact over the life of common human being. A starving, illiterate, or unemployed man has no meaning of right to vote or other similar rights in his life. The substantive provisions of the ICESCR attempt to uplift the aspirations of the common people in a comprehensive manner. The ensuing pages attempt to explore

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the State Party’s obligations as highlighted by the General Comments of the Committee in this regard.

2.8.3.1 Articles 6-8 (Right to Work and Rights at Work)

The right to work (Article 6) is considered to be a basic precept to the protection of human dignity as being necessary to the survival of individual’s life and his/her family. The Committee in its General Comment no.18 (2005) illustrates the vicinity of right to work indispensible to the enjoyment of other rights and a dignified life in the 92 community. The Committee defines the obligations of State Parties to ensure the right to freely chosen or accepted work for every individual, including the right not to be deprived of work unfairly. The work must be descent, protecting the fundamental rights of the human persons. The Committee advices to employ three essential elements – availability, accessibility, and acceptability – to secure descent work for all. The Committee broadens the application in consonance with the Articles 2(2) (non-discrimination) and 3 (equality) of the Covenant to the specific disadvantaged and marginalized groups.

The Committee obligates the State parties to ensure ‘as quickly as possible’ the realization of the full employment through all the appropriate measures mentioned in 93 Article 2(1) of the Covenant. It includes besides general legal obligations, specific obligations to prohibit non-State Actors creating difficulties in the realization of full and descent work. The minimum core obligation as defined by General Comment no.3 with regard to Article 6 owes the State Parties to ensure at least non-discriminatory and equal protection of the employment especially to the marginalized and 94 disadvantaged groups. The Committee also point-out the distinction between the ‘inability’ and ‘unwillingness’ of the State Parties to comply with obligations under the Article. The commission of unwillingness on part of the State Party and its associates to the full employment is considered to be in clear violation of the right to 95 work.

Article 7 (favourable conditions of work) and Article 8 (to form and join trade unions) are interdependent and complimentary to each other including the right to work (Article 6). The Article 7 explains the individual dimensions of the right to work, e.g., just working hours. The Committee in General Comment no.23 (2016)

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rightly recognizes that just and favourable conditions of work are corollary to the right to work freely chosen and accepted. And the right to join and form trade unions is 96 means to introduce, maintain, and defend the favourable conditions of work. The just and favourable conditions of work must be secured to every worker in all settings without any discriminations (including marginalized and disadvantaged groups). The Committee identifies following fundamental elements must be guaranteed to enjoy just and favourable conditions of work including:

97  Remuneration: in term of fare wages, equality, and decency;    Working conditions: hazard-free working environment to prevent occupational 98 accidents and work-related health injuries;    Equal opportunity for promotion: through fair, merit-based and transparent processes; and,   Rest and leisure: daily and weekly limits of working hours and rest periods, 99 paid public holidays and annual leaves, and flexible working arrangements. 

Besides the general legal obligation as imposed by Article 2(1) and (2) of the Covenant, the State Parties are obliged to establish a functioning system of labour inspectorates, with the involvement of social partners, to monitor all the aspects of the 100 Article for all the workers. The State Parties are encouraged to formulate coherent policies with the involvement of social partners from all the groups of workers. The core obligation under the Article requires the State Parties to comply with the notion of non-discrimination and equality especially to implement the fundamental elements discussed above. The Committee promotes to establish comprehensive system to combat discriminations at work through national policies and plan of actions. The act of omission and commission by the State Party amounts to the violation of just and favourable conditions of work.

The right to form and join trade unions (Article 8) is the collective dimension of the right to work. The State Party must ensure the right of all the workers to form trade union and to join trade union of his/her choice for the promotion of socio-economic interests. The trade union has freedom to work at national level as well as in collaboration to the international organizations. The trade unions are free to function in any capacity, subject only to the laws prescribed by the democratic society in lieu

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of the national security and public order. The Committee has yet to adopt General 101 Comment over this right as of July 2017.

2.8.3.2 Articles 9-11 (Social Security, Family Protection, and Adequate Standard of Living including Right to Food)

The right to social security (Article 9) guarantees all the persons a dignified life when they are not in a position to be fully benefitted from the Covenant’s provisions. The Committee in General Comment no.19 (2007) confirms that the social security is not primarily a mere instrument of economic or financial policy but must be treated as a 102 social good. The fundamental elements which must be guaranteed to the realization of social security include, but not limited to, the following factors:

 Availability: of the social security systems;   Principle social risk and contingencies: healthcare, sickness, old age, unemployment, employment injury, family and child support, maternity, disability, survivors and orphans;   Adequacy: in amount and duration; and,   Accessibility: genuine coverage, eligibility, affordability, participation and 103 information, and physical access. 

The State Party is obliged to ensure the realization of right to social security in conformity to the provisions of Articles 2(1) and (2), and 3 of the Covenant. The Committee clarifies that inclusive measures should be taken including:

 Contributory or insurance-based schemes such as social insurances;   Non-contributory schemes such as universal schemes (providing benefit to all those who experiences a particular risk or contingency) or targeted social assistance schemes (where benefits are received by those in a situation of need); and,   Other forms including (a) privately run schemes, and (b) self-help or other 104 measures, such as community-based or mutual schemes. 

It is further urged for incorporating national laws and policies in this regard with 105 appropriate priority and adequate fiscal allocation. The retrogressive measures are only permitted while all the alternatives are exhausted and must comply the

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Committee’s instructions. The core obligation requires State Parties under the social security scheme at least to provide essential healthcare, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education. The Committee highlights that the responsibility to the implementation of the right to social security is delegated to local and regional authorities while the State Party itself 106 should monitor effective implementation of the system.

The right to protection and assistance for the family (Article10) requires respecting the free consent of marriage, protection of mothers including at work, and fulfilling the aspirations of children including prohibition of child labour. The full realization of this provision is based on other prominent rights including, work (Article 6-8), social security (Article 9), non-discrimination (Article 2(2)), and equality (article 3) of the 107 Covenant. The nature, nonetheless, of certain socio-economic rights is manifested uniquely in family and parental relationships. The Article also overlaps with the Articles 23(1), 24(1), and 17 of the ICCPR but the ambit of ICESCR encompasses the 108 widest possible measures of protection and assistance to the family. The Committee is yet to adopt General Comment (as of July 2017) on the content of the Article 10, e.g., progressive realization, core obligation, etc. The State Party is still obliged to ensure all the facets of Article 2(1) and (2), and 3 of the Covenant to the protection of family, mother, and children.

The right to adequate standard of living (Article 11) necessitates the importance of ‘food, clothing, and house’ that are directly reciprocal to the survival of dignified human life. The Committee, by noting the vulnerability, has adopted three separate General Comments – no.4 on right to adequate housing (1991); no.7 on right to adequate housing: forced eviction (1997); and no.11 on right to adequate food (1999)

– to save humanity moving in a situation where existence becomes worthless. The Committee in General Comment no.4 notes severe lack of adequate housing in Member States as well as around the world as reported by other UN organs. It devises 109 various elements must be guaranteed by the State Parties including:

 Non-discrimination: wording of the Article ‘for himself and his family’ must be taken in a wide sense (including, e.g., female-headed households);

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 Right to housing merely doesn’t mean acquiring a roof over the head but to live somewhere in security, peace, and dignity – the State must ensure the following factors in this regard: o Legal security of tenure;  o Availability of services, materials, facilities, and infrastructure; o Affordability;  o Habitability; o Accessibility; o Location; and,  o Cultural adequacy.

Besides the general and specific obligations accorded by Article 2(1), the Committee considers forced eviction is prima facie incompatible to the Covenant except in the 110 most exceptional circumstances in conformity with the international norms.

The Committee in General Comment no.7 recognizes that the instances of forced evictions are widespread. Thus the State Party isn’t only obligated to realize the right to adequate housing by refraining itself from forced eviction but to prevent (by laws) 111 all those involved in such instances. The State Parties must implement effective systems to the protection from forced eviction and if, it is carried-out in unavoidable circumstances, appropriate alternative measures must be provided immediately. It must be ensured that such eviction doesn’t incumbent homelessness and vulnerability 112 leading to the violation of other human rights.

The Committee in General Comment no.12 affirms the indivisibility of right to adequate food with the inherent dignity of human persons and thus indispensible to 113 fulfill other human rights. The Committee explains that the State Party must guarantee following features to realize right to adequate food:

 Adequacy: in sustainable manner (both for present and future generations);   Dietary need: must contain a mix of all the essential nutrients;   Free from adverse substances: prevention of contamination;   Cultural or consumer acceptability: value based food supplies;   Availability: proper distribution system; and,   Accessibility: economic as well as physical.

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The State Party, besides the general and specific features contained in Articles 2(1) and (2), and (3) of the Covenant, is obliged to secure core content of availability of sufficient food (in quantity and quality) and sustainable accessibility to the end 114 hunger-free state.

The right to food is broadly an entitlement to nutrition that is adequate to maintain good health. The water is one of the compulsory ingredients of this nutrition. This imparts indispensible union of right to food and health to right to water. The Committee in General Comment no. 15 (2002) notes the importance of right to water 115 in line with adequate food (Article 11) and health (Article 12). The State Party is required to ensure the full realization in conformity with the obligations of Article 2(1) and (2), and (3) of the Covenant to provide the supply of safe drinking water to all.

2.8.3.3 Article 12 (Highest Attainable Standard of Mental and Physical Health)

The right to health (Article 12) is one of the most defended rights in international and regional treaties. It is estimated that every State in the world is now Party to at least 116 one human rights treaty which contain key provisions protecting the right to health. The Committee in General Comment no.14 (2000) defines to guarantee by the State 117 Party the following factors to the full realization of the right to health :

 Availability: public health and healthcare facilities, services, goods, and programmes in sufficient quantity;   Accessibility: non-discrimination, physical accessibility, economic accessibility (affordability), and information accessibility;   Acceptability: ethically and culturally; and,   Quality: scientifically and medically good.

The Committee underlines specific measures the State Parties should broadly enforce to protect the health rights of maternity, childcare, and reproduction. The attention must be given to environmental and industrial hygiene along with preventive measures 118 to control epidemic, endemic, and other occupational diseases, e.g., HIV/AIDS. There is strong assumption that retrogressive measures to health rights, in comparison to other rights of the Covenant, is not permissible in any settings.

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The Committee, because of the numerous barriers to access the full range of sexual and reproductive health facilities, services, goods and information, has adopted separate General Comment no.22 (2016) on the right to sexual and reproductive health under Article 12. The State Parties must ensure the freedom of choice regarding the matters relating to one’s body, and sexual and reproductive health 119 specially by women and girls. Besides the general, specific, and core content duties, the Committee identifies social determinants limiting the choices of sexual and reproductive health of individuals to which State must ensure to prevent such 120 practices in laws and policies.

2.8.3.4 Articles 13-14 (Right to Education)

The right to education (Articles 13 and 14) as identified by the Committee is the empowerment right, lifting marginalized communities to the mainstream social life. The State Parties must arrange free and compulsory primary education for all, secondary education with technical and vocational training, higher education within reach, fundamental education for elderly persons, and improved material condition for 121 the whole schooling systems including fellowships for disadvantaged groups. To these ends, the Committee instructs in General Comment no.13 (December 1999) to ensure the following factors:

 Availability: functioning educational institutions and programmes;   Accessibility: non-discrimination, physical accessibility, and economic accessibility;   Acceptability: curricula and teaching methods (culturally relevant); and,   Adaptability: flexible to diverse social settings.

The State Party must respect the liberty of parents and legal guardians to choose educational institution in conformity with their religious and cultural convictions. The Committee opines, besides general and specific obligations, the State Party must ensure positive non-violent approaches to school disciplines preventing any form of 122 corporal punishment including public humiliations.

The Committee before the General Comment no.13 has adopted General Comment no.11 (May 1999) over the plans of action for primary education (Article 14). This

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comment limits State Parties to the progressive realization of the free and compulsory 123 primary education within reasonable number of years.

2.8.3.5 Article 15 (Cultural and Scientific Rights)

The right to culture and benefit from scientific progress (Article 15) is an integral part of human rights. The Committee in General Comment no.21 (2009) recognizes that the protection of cultural rights requires both abstention and positive action by the 124 State Party to the cultural life of individuals. The Committee urges the State Parties to guarantee following factors for everyone to take part in cultural life:

 Availability: cultural goods and services open to all;   Accessibility: culture within physical and financial reach;   Acceptability: laws, policies, programmes, and measures in conformity with individual and communities;   Adaptability: flexible with diverse culture; and,   Appropriateness: ways to enjoy human rights must respect culture and cultural life.

The State Party is obliged to ensure the respect for everyone the freedoms to choice of cultural identity, choice of languages, to create cultural arts, to access cultural and linguistic heritages, and to take part in decision-making processes having impact on 125 his/her way of life. It is further urged to ensure the protection of cultural diversity preserving heritages, traditional knowledge, medicines, rituals, folklores through various policies and programmes by the State Parties.

The Committee in General Comment no.17 (2005) differentiates the human rights to the protection of the moral and material interests of the author to that of intellectual property systems. The rights in the former are timeless expression of fundamental entitlements while the latter is limited in time and scope, safeguarding the interests 126 primarily of business and corporate. The State Parties are urged to guarantee following factors to ensure the realization of the rights to the protection of the moral and material interests of the author within their jurisdiction:

 Availability: appropriate legislative, executive, and judicial remedies;

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 Accessibility: remedies must be accessible to all the authors including physically, economically, i.e., affordable, and accessibility of information; and,   Quality: procedure of protection administered by competent authority.

The State Parties are specifically obliged to protect the infringement of recognition of the authors as the creator of their scientific, literary or artistic productions by 127 abstaining itself as well as by third parties.

Articles 16-25 of the Covenant illustrates general nature of reporting procedures by the State Parties, general recommendation by the Committee thereof, further comments by member governments and UN Specialized Agencies concerned, summary reports of the incidents to the Assembly time to time, and finally, procedure of international technical assistance to implement the provisions of ESC rights worldwide.

Articles 26-31 discuss in detail the procedures of signature, ratification, dissemination, amendment, and the official languages of the Covenant.

2.9 Overview of the Reporting Procedure of the Committee on ESC Rights

All the UN human rights treaties have a reporting procedure to which State Parties have to submit a periodic State report to the progress made on the domestic implementation of the provisions. The Committee in General Comment no.1: Reporting by States Parties (1989) explicitly disagrees that submission of report by States, to say, is procedural formality while it serves to achieve a variety of 128 objectives. The State Parties under Article 16 of the ICESCR are obliged to submit a periodic State report to the Committee initially after two years of ratification and subsequently every five years. The reporting procedure generally consists of the following stages:

(a) Submission of the periodic State reports: The Member States submit a detailed report on the steps taken to realize the Covenant’s provisions within its jurisdiction in

compliance to reporting guidelines to be examined in a given timeframe. The State Parties are encouraged to highlight the achievements as well as difficulties in

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implementing particular rights. The real status of ESC rights in State Parties is made reliable by the Alternative/Shadow reports submitted by NGOs and information provided by other agencies of the UN to the Committee.

(b) Pre-Sessional Working Group and the ‘List of Issues’: The Committee appoints few of its members before the regular session begins to point-out principal issues of discussion in advance on the periodic report of a particular Member State. This ‘Pre- Sessional Working Group’ communicates the underlined ‘List of Issues’ to the permanent delegation of the concerned Member State well prior to the regular session begins. The State Party concerned has to provide written ‘Replies to the List of Issues’ well in advance to the Committee members to make the constructive dialogue more effective and productive during the consideration of the report.

(c) Consideration of the periodic report: The Committee examines the detailed report submitted by State Party in the light of List of Issues prepared by Pre-Sessional Working Group during its regular session. The State representatives are urged to be present during the examination of State report to answer the queries by the Committee members. This discussion between the government representatives and the Committee members is termed to be ‘the constructive dialogue’. The Committee after the completion of the dialogue with the State representatives in a closed meeting with its members draft and adopt the Concluding Observations in the light of suggestions recommended by NGOs.

(d) Concluding Observations: The Concluding Observations usually consist of an introduction, the positive aspects of the State report, the principal subjects of concern to the enforcement, and the suggestions and recommendations to improve the prevailing situation in the concerned State.

Participation of NGOs in the working of the Committee: The Alternative/Shadow reports of the NGOs can be submitted anytime before the consideration of the concerned State report. The UN Secretariat is urged by the Committee to make available written informations formally submitted to it by the NGOs as soon as possible to the representatives of concerned State. The Pre-Sessional Working Group is also open to any such submissions as may be relevant to its agenda items. Besides

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this, the Committee devotes certain part of the first day at each of its sessions to 129 enable representatives of NGOs to provide oral information.

2.10 Conclusions

The enforcement of the ESC rights is arbitrarily denied in view of the progressive nature of the category. The philosophical foundation, however, is further strengthened by the historical movements of human rights enhancing the protection of ESC rights. The establishment of the UN is seen as a departure of the social neglects and thus new era of the indivisibility of all the rights – civil, political, social, economic, cultural, etc., – get articulated universally. The justiciability of ESC rights is no more a matter of debate as having adjudicated in domestic laws of the various countries. The large number of ratifications to the ICESCR (currently 165 Member States as of July 2017) confirms the intention of the world community to protect the rights of the vulnerable and disadvantaged groups of the society. The Committee sincerely has explored the every possible horizon to enhance the enforcement of the ESC rights (currently 24 General Comments have been adapted by the Committee on various provisions of the Covenant as of July 2017). In December 2008, much awaited Optional Protocol to the ICESCR (currently 22 State Parties, 26 Signatories, and 150 States has taken no action as of July 2017) filled the historical gap by providing individual communications to suppress the violations of these rights.

Most of the UN Specialized Agencies from its very beginning have promoted the protection of the provisions of ESC rights. The leading and prominent among them, but not limited to, are ILO (work related rights), UNESCO (rights related to education), IMF (economic rights), FAO (rights related to food security), and UNICEF (protection of the children). The growing relevance of the NGOs in the fields of promotion of the ESC rights has strong impact on the monitoring of implementation worldwide. The Alternative Reports of the NGOs submitted to the Committee in particular, have shaped various Concluding Observations conducive with the protection of ESC rights.

The indirect protection of the various provisions on the ESC rights is also realized through the canon of the civil and political rights (the ICCPR enters into force on the same day as the ICESCR but with Optional Protocol to its treaty to allow Human

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Rights Committee to consider communications from individuals for alleged violation of their CPRs). The following table will illustrate that which of the CPRs is broadly adjudicated to protect the provisions of the ESC rights by the judiciary around the world:

Table 2.4: Indirect Protection of the ESC rights through the Canon of CPRs

Invoked Civil and Political Rights Protected ESC Rights

Right to Life Rights to Health, Food, Water, and Education.

Freedom from Torture/Degrading Rights to Health, and Housing. Treatment

Right to Private/Family Life and Home Rights to Health, and Housing.

Right to Property Right to Social Security, Housing, and Collective Right to Ancestral Land of Indigenous People.

Protection of the Child Rights to Health, Food, and Education.

Freedom of Movement/Residence Rights to Housing, and Collective Right to Ancestral Land of Indigenous People.

Freedom of Association Right to Form and Join Trade Unions, and Right to Collective Bargaining.

Freedom from Forced/Compulsory Right to Work/ to Fair Conditions of Labour Work.

Source: Christian Courtis, Courts and the legal enforcement of economic, social and cultural rights: Comparative experiences of justiciability Geneva: International Commission of Jurists, (2008) p.72.

The indirect protection to the provisions of the ESC rights isn’t only provided through the canon of the ICCPR but there are other international human rights treaties whose principles are borrowed to justify the essence of the former. These include, but not limited to, International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Convention on the Rights of the Child

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(CRC), International Convention on the Protection of the Rights of All Migrant

Workers and Members of Their Families, Convention on the Rights of Persons with

Disabilities, etc. Besides, there are several regional treaties, e.g., European Social

Charter, African Charter, Charter of the Inter-American Court of Justice, etc., have undertaken to achieve the enforcement of the ESC rights.

The justiciability debate keeps lesser relevance while many examples around the legal systems of the world celebrate the adjudication of the ESC rights in the contemporary age. Moreover, the political and judicial will is needed to incorporate the laws in domestic jurisdiction. The State Parties are highly encouraged to employ the true spirit of three levels of obligations, ‘to respect’, ‘to protect’, and ‘to fulfill’ every aspect of the Covenant’s provisions.

Endnotes

1. Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Pennsylvania: University of Pennsylvania Press, 1999): 12-20. See also Elizabeth Willmott Harrop, “The Universal Declaration’s Bias towards Western Democracies,” libertyandhumanity.com (January 2003), (accessed on Sept.5, 2016 at the link below): (http://libertyandhumanity.com/themes/international-human-rights-law/the-universal- declarations-bias-towards-western-democracies/).

2. Morsink, The Universal Declaration of Human Rights, Ibid, 15.

3. Matthew CR Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (Oxford: Clarendon Press, 1995): 16-22.

4. Henry J. Steiner, Phillip Alston, and Ryan Goodman, International Human Rights rd in Context: Law, Politics, Morals (New York: Oxford University Press, 2008), 3 edition: 269.

5. Sean Monahan, “Reading Paine from the Left,” Jacobin, (accessed on Sept.10, 2016 at the link below): (https://www.jacobinmag.com/2015/03/thomas-paine- american-revolution-common-sense/).

See also Thomas Paine, Rights of Man, ed. Claire Grogan (Canada: Broadview Press, 2011), no.718.

6. Rowan Cruft, S. Matthew Liao, and Massimo Renzo, eds., Philosophical Foundations of Human Rights (Oxford: Oxford University Press, 2015): 34-36.

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7. Cruft, Philosophical Foundations, Ibid.

8. Manuel Couret Branco, Economics versus Human Rights (Oxon/New York: Routledge, Taylor and Francis Group, 2009): 13.

9. See “John Rawls,” in Stanford Encyclopedia of Philosophy, (accessed on Sept.10, 2016 at the link below): (http://plato.stanford.edu/entries/rawls/#TwoPriJusFai). See also John Rawls, Justice as Fairness: A Restatement, ed. Erin Kelly (Massachusetts/England: Harvard University Press, 2001): 42-44. See also John Rawls, A Theory of Justice (Massachusetts: Harvard University Press 2009), revised edition.

10. Linda M Keller, “The Indivisibility of Economic and Political Rights,” Human Rights and Human Welfare 1, no.3 (2001): 9-14. See also Amartya Sen, Development as Freedom (Oxford University Press, 2001).

11. Philip Alston and Ryan Goodman, International Human Rights (Oxford University Press, 2012): 305-306. See also Amartya Sen, The Idea of Justice (Massachusetts: Harvard University Press, 2011).

12. Andrew Fagan, “Philosophical Foundations of Human Rights,” in Handbook of Human Rights, ed. Thomas Cushman (Oxon/New York: Routledge, Taylor and Francis Group, 2014): 9-22.

13. Maurice William Cranston, What are Human Rights? (New York: Taplinger Publishing Corporation, 1973).

14. Ozlem Ayse Ozgur, “Human Rights Duties are Collective Duties of Justice,” in Kantian Theory and Human Rights, eds. Andreas Follesdal and Reidar Maliks (New York/Oxon: Routledge, Taylor and Francis Group, 2014), vol.56.

15. Henry Shue, Basic Rights: Subsistence, Affluence, and US Foreign Policy (New Jersey: Princeton University Press, 1996).

16. See Claire Breay and Julian Harrison, Magna Carta: An Introduction, (accessed on June 15, 2016 at the link below): (http://www.bl.uk/magna-carta/articles/magna- carta-an-introduction).

17. See the full text of The English Bill of Rights 1689, (accessed on June 15, 2016 at the link below): (http://avalon.law.yale.edu/17th_century/england.asp).

18. See the full text of The Declaration of the Rights of Man 1789, (accessed on June 15, 2016 at the link below): (http://avalon.law.yale.edu/18th_century/rightsof.asp).

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19. See the full text of The Declaration of Independence 1776, (accessed on June 16, 2016 at the link below): (http://www.ushistory.org/declaration/document/).

20. See the Article 55 of Chapter IX of the UN Charter.

21. See the Article 60 of Chapter IX of the UN Charter.

22. See the Worldmark Encyclopedia of Nations, “The Economic and Social Council,” Encyclopedia.com (2007), (accessed on Dec.15, 2015 at the link below): (http://www.encyclopedia.com/doc/1G2-2586700029.html).

23. See the official homepage of United Nations ECOSOC (Hot Topics) Peacebuilding and Post-Conflict Recovery, (accessed on Dec.25, 2015 at the link below): (http://www.un.org/en/ecosoc/about/peacebuilding.shtml).

24. See The Commission on the Status of Women 1946, (accessed on Dec.25, 2015 at the link below): (http://www.unwomen.org/en/csw).

25. See the United Nations Statistics Division, (accessed on Dec.28, 2015 at the link below): (http://unstats.un.org/unsd/default.htm).

26. See the UN General Assembly resolution 61/16 UNGA (2006). See also Thomas G. Weiss, “ECOSOC and the MDGs: what can be done?,” The Global Poverty Summit (Johannesburg, 2011), (accessed on July 20, 2016 at the link below): (https://www.researchgate.net/profile/Thomas_Weiss10/publication/265533392_ECO SOC_and_the_MDGs_What_can_be_done/links/56cae26b08ae5488f0da8d4c.pdf).

27. Susan Muaddi Darraj, The Universal Declaration of Human Rights (New York: Infobase Publishing, 2010): 15.

28. Darraj, Universal Declaration, Ibid, 16.

29. The universal nature of human rights is starkly visible in the Universal Declaration of 1948 entailing the mastery of intellectuals involved without favour to particular circumstances of that time. The detailed study about the members of drafting Committee of the UDHR, see e.g., Mary A. Glendon, “Knowing the Universal Declaration of Human Rights,” Notre Dame L. Rev. 73, issue 5 (1998): 1153-90.

30. See Laksiri Fernando, Human Rights Day: Importance of the UDHR (Colombo Telegraph, Dec.9, 2012), (accessed on Jan.04, 2016 at the link below): (https://www.colombotelegraph.com/index.php/human-rights-day-importance-of-the- udhr/).

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31. The full story of origin, drafting, and substances of the Universal Declaration can be seen within the detailed study of the famous book by Morsink, The Universal Declaration of Human Rights, note 1. See also Anja Mihr and Mark Gibney, eds., The SAGE Handbook of Human Rights: Two Volume Set (London: Sage Publications Ltd, 2014), vol.1: 76. See also Rhona KM Smith, Texts and Materials on International nd Human Rights (Oxon/New York: Routledge, Taylor and Francis Group, 2010), 2 edition: 11-13. See also the full text of the UDHR 1948, (accessed on Jan.04, 2016 at the link below): (http://www.un.org/en/universal-declaration-human-rights/).

32. The efforts of Drafting Committee of the Commission on Human Rights can be studied for the insight of the UDHR and draft Covenants on human rights thereof, see e.g., The Annotations on the text of the Draft International Covenants on Human Rights, UN Doc. A/2929 (July 1, 1955): 2/5, (accessed on Jan.05, 2016 at the link below): (http://www2.ohchr.org/english/issues/opinion/articles1920_iccpr/docs/A-2929.pdf). See also Alston, International Human Rights, note 11, 141. See also Karin Kjellin, “Socio-Economic Rights: What Relevance in an Era of Globalization?” (Master Thesis, Stockholm University Department of Law, Stockholm, Nov.2007), (accessed on Jan.05, 2016 at the link below): (http://www.juridicum.su.se/juruppsatser/2007/ht_2010_karin_kjellin.pdf).

33. Michael Haas, International Human Rights: A Comprehensive Introduction nd (Oxon/New York: Routledge, Taylor and Francis Group, 2014), 2 edition: 91-92.

34. See The Annotations on the text of the Draft International Covenants, note 17, chap.1/21, 4. See also The UN General Assembly resolution 421(V), section E, (accessed on Jan.06, 2016 at the link below): (http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/421(V)).

35. See The UN Doc. A/RES/543(VI) 1952, (accessed on Jan.06, 2016 at the link below): (http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/543(VI)).

36. See The UN General Assembly resolution 543(VI), (Feb.05, 1951).

37. Jack Donnelly, Universal Human Rights in Theory and Practice (New York: rd Cornell University Press, 2013) 3 edition: 40-43.

38. See e.g., Stephen P. Marks, “The Past and Future of the Separation of Human Rights into Categories,” Md. J. Int’l L. 24, issue 1 (2013): 209-243.

39. The opposition of the United States of America over the inclusion of full employment in the UN Charter reflects the mentality of the developed countries towards the promotion of ESC rights. For detail see Alston, International Human Rights, note 11, 279.

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rd 40. See the GAOR, session 5 (1950), 3 Cttee, Doc. A/C.3/SR.297, pp. 174-76 (Poland and USSR), and Doc. A/C.3/SR.298, pp.178-83(Mexico, Yugoslavia, Iran, and Iraq).

rd 41. See the GAOR, session 6 (1951-52), 3 Cttee, Doc. A/C.3/SR.366, pp. 114-16 (Indonesia and Cuba).

rd 42. See the GAOR, session 5 (1950), 3 Cttee, Doc. A/C.3/SR.299, pp. 187-89.

rd 43. See the GAOR, session 5 (1950), 3 Cttee, Doc. A/C.3/SR.297, pp. 172-74 (USA, Netherlands, UK) and Doc. A/C.3/SR.298, pp.80-82 (Venezuela and Dominican Republic) and Doc. A/C.3/SR.299, pp.186 (India).

rd 44. See the GAOR, session 6 (1951-1952), 3 Cttee, Doc. A/C.3/SR.365, p. 110, para.31.

rd 45. See the GAOR, session 6 (1951-1952), 3 Cttee, Doc. A/C.3/SR.371, p. 142, para.16.

46. See for the historical chronology, why two human rights Covenants instead of single one, Annotations on the text of the draft International Covenants on Human Rights prepared by the Secretary-General, GAOR, session 10 (July 1955), Doc. A/2929, pp. 2-7. See also the OHCHR Professional Training Series No.9 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers (New York/Geneva: United Nations, 2003): 683-85.

47. See for the detailed history of the ILO, the official website of the organization, (accessed on June 10, 2016 at the link below): (http://www.ilo.org/global/about-the- ilo/history/lang--en/index.htm).

48. For more detailed study of the relationships between the ILO and the ICESCR see Lejo Sibbel, “ILO Conventions and the Covenant on Economic, Social and Cultural Rights: One Goal, Two Systems,” Dialogue and Cooperation 1, no.2001 (2001): 51- 66.

49. See the official website of the UNESCO, (accessed on June 8, 2016 at the link below): (http://en.unesco.org/about-us/introducing-unesco).

50. See the UNESCO Report, UNESCO Convention against Discrimination in Education (1960) and Articles 13 and 14 (Right to Education) of the International Covenant on Economic, Social and Cultural Rights: A comparative analysis (France: UNESCO, 2006).

51. See the official homepage of the IMF, About the IMF, Fast Facts, (accessed on June 10, 2016 at the link below):

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(http://www.imf.org/external/about.htm).

52. For better understanding of the relationships between ESC Rights and the IMF see generally, François Gianviti, “Economic, Social and Cultural Rights and the International Monetary Fund” IMF Seminar on Current Developments in Monetary and Financial Law (Washington, DC, May 7-17, 2002).

53. See the FAO Corporate Document Repository produced by Agriculture and Consumer Protection, (accessed on July 15, 2016 at the link below): (http://www.fao.org/docrep/u8480e/U8480E03.htm).

54. See ChristopheGolay and Michaela Büschi,The Right to Food and Global Strategic Frameworks: The Global Strategic Framework for Food Security and Nutrition (GSF) and the UN Comprehensive Framework for Action (CFA)(Rome: UNFAO, 2012): 10. See also J. Cartwright Traylor, “FAO and the Right to Food” in Food as a Human Right, A. Eideet al., (Singapore: United Nations University, 1988), 2nd edition: 190-192. See also the FAO Corporate Document Repository produced by Economic and Social Development Department,(accessed on July 15, 2016 at the link below): (http://www.fao.org/docrep/009/y7937e/Y7937E02.htm).

55. See the history of UNICEF at its official website (accessed on Aug.25, 2016 at the link below): (http://www.unicef.org/about/who/index_history.html).

56. See S. Mendelsohn and A. Mackenzie, Assessment of UNICEF’s Contribution to UN Reform and its Impact on UNICEF: UN Reform under the UN Development Group (New York: UNICEF, 2004): 24.

57. Michael J. Dennis and David P. Stewart, “Justiciability of Economic, Social, and Cultural Rights: Should there be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?,” American Journal of International Law 98, no.3 (July 2004): 462-515.

58. R. Uitiz and A. Sajo, “Welfare Rights in Hungarian Constitutional Jurisprudence,” in Justiciability of Economic and Social Rights – Experiences from Domestic Systems, ed. Coomans (Netherland: Intersentia, 2006): 97-127.

59. See Olga Tellis v. Bombay Municipal Corporation, Supreme Court of India (1985), [AIR 1986 SC 18]. See also Alston, International Human Rights, note 11, 347-49.

60. See Brown v. Board of Education, 347 U.S. 483 (1954).

61. See Viceconti v. Ministry of Health and Social Welfare, Argentinian Federal Court of Appeals, Causa no. 31.777/96, June 2, 1998.

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62. Christian Courtis, Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Experiences of Justiciability (Geneva: International Commission of Jurists, 2008): 13.

63. Michael K. Addo, “The Justiciability of Economic, Social and Cultural Rights,” Commonwealth Law Bulletin 14, no. 4 (1988): 1425-1432.

64. Alicia Ely Yamin, “The Future in the Mirror: Incorporating Strategies for the Defense and Promotion of Economic, Social and Cultural Rights into the Mainstream Human Rights Agenda,” Human Rights Quarterly 27, no.4 (2005): 1200-1244.

65. See the General Comment No.3: The Nature of States Parties Obligations (Art.2, Para.1 of the Covenant), UN CESCR, session 5 (Dec.14, 1990), Doc. E/1991/23 (accessed on Sept.6, 2016 at the link below): (http://www.refworld.org/docid/4538838e10.html).

66. See the General Comment No.9: The Domestic Application of the Covenant, UN CESCR, session 9 (Nov.16 – Dec.4, 1998), Doc. E/C.12/1998/24 (accessed on Sept.6, 2016 at the link below): (http://www.refworld.org/docid/47a7079d6.html).

67. Irene Biglino and Christophe Golay, The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (Geneva: Geneva Academy of International Humanitarian Law and Human Rights, 2013): 6.

68. Malcolm Langford, “Closing the Gap – An Introduction to the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights,” Nordisk tidsskrift for menneskerettigheter 27, no.1 (2009): 2.

th 69. See the GAOR, 66 plen. mtg., Doc. A/63/PV. 66 (Dec.10, 2008 at 4.30pm).

70. See the ECOSOC resolution establishing new Committee on ESC Rights, UN Doc. 1985/17 (May 28, 1985).

71. See the General Comment No.10: The Role of National Human Rights Institutions in the Protection of Economic, Social and Cultural Rights, UN CESCR, session 9 (Nov.16 – Dec.4, 1998), Doc. E/C.12/1998/25 (accessed on Sept.10, 2016 at the link below): (http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=E %2fC.12%2f1998%2f25&Lang=en). See also Maastricht Guidelines on Violations of Economic, Social and Cultural Right 1998 (Guideline 25), (accessed on Sept.20, 2016 at the link below): (http://hrlibrary.umn.edu/instree/Maastrichtguidelines_.html). See also “Protecting Human Rights: The Role of National Institutions,” Commonwealth Conference of National Human Rights Institutions (Cambridge: Commonwealth Secretariat, July 4-6, 2000), 20.

80 Economic, Social, and Cultural Rights

72. To see the important postulates drafted by Special Rapporteur ‘Danilo Turk’ of the Sub-Commission on the Promotion and Protection of Human Rights to the realization of the ESC Rights, see UN Doc. E/CN.4/Subb.2/1991/ l7, para.52.

73. The International Commission of Jurist (ICJ) convened a Conference on Economic, Social, and Cultural Rights and the Role of Lawyers (Oct.23-25, 1995) at Bangalore, India. See the Bangalore Declaration and Plan of Action, para.18(5)(4).

74. See the CESCR Fact Sheet No.16 (Rev.1), Vienna Declaration and Programme of Action (June 25, 1993), Doc. A/CONF. 157/24 (part 1), chap.III.

75. See Maastricht Guidelines, note 71 (Guideline 6).

76. Jeff King, An Activist’s Manual on the International Covenant on Economic, Social and Cultural Rights (Sri Lanka: Law and Society Trust, 2003): 37-38.

77. See Maastricht Guidelines, note 71 (Guideline 7).

78. Manisuli Ssenyonjo, Economic, Social and Cultural Rights in International Law (USA: Bloomsbury Publishing, 2009): 50-52.

79. See the General Comment No.3, note 65 para.2. All of these points are repeated with emphasis in General Comments No. 12, para.14; No. 13, paras.43-44; and No.14 paras.30-31. See also King, An Activist’s Manual on the International Covenant, note 76, 41.

80. See the Limburg Principles on the Implementation of Economic, Social, and Cultural Rights (principle no.18), (accessed on Aug.25, 2016 at the link below): (http://www.refworld.org/docid/48abd5790.html).

81. See the General Comment No.3, note 65 para.9.

82. Phillip Alston and G. Quinn, “The Nature and Scope of States Parties Obligations under the International Covenant on Economic, Social and Cultural Rights,” Human Rights Quarterly 9, no.2 (May 1987): 172.

83. See Ssenyonjo, Economic, Social and Cultural Rights, note 78, 61.

84. Audrey R. Chapman, “A Violations Approach for Monitoring the International Covenant on Economic, Social and Cultural Rights,” Human Rights Quarterly 18, no.1 (Feb.1996): 23-66.

85. Phillip Alston, “Out of the Abyss: The Challenges Confronting the New UN Committee on Economic, Social and Cultural Rights,” Human Rights Quarterly 9, no.3 (Aug.1987): 332–81. See also Asbjørn Eide, “Making Human Rights Universal: Achievements and Prospects,” Human Rights in Development Online 6, no. 1 (1999): 22-23.

81 Economic, Social, and Cultural Rights

86. Bertrand G. Ramcharan, ed., Judicial Protection of Economic, Social and Cultural Rights: Cases and Materials (Boston: M. Nijhoff Publishers, 2005): 23.

87. Craven, The International Covenant on Economic, Social and Cultural Rights, note 3, 153-193.

88. Warwick Alexander McKean, Equality and Discrimination under International Law (New York: Oxford University Press, 1983): 287-88.

89. See Rhona KM Smith, Textbook on International Human Rights (Oxford: Oxford th University Press, 2016), 7 edition.

90. See the General Comment No.16: The Equal Right of Men and Women to the Enjoyment of all Economic, Social and Cultural Rights, UN CESCR, session 34 (Apr.25 – May 13, 2005), Doc. E/C.12/2005/4 (accessed on Oct.5, 2016 at the link below): (http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&Tre atyID=9&DocTypeID=11.).

91. See the Limburg Principles, note 80 (principle nos.48-52, and 55-56) for the definitions of the limitations as imposed by Articles 4 and 5 of the Covenant. See also Ssenyonjo, Economic, Social and Cultural Rights, note 78, 110-102.

92. See the General Comment No.18: The Right to Work, UN CESCR, session 35 (Nov.7-25, 2005), Doc. E/C.12/GC/18 (Feb.6, 2006).

93. The General Comment No.18, Ibid paras.19-30. See also for a detailed discussion on the right to work Craven, The International Covenant on Economic, Social and Cultural Rights, note 3, 195-218.

94. The General Comment No.18, Ibid para.31.

95. The General Comment No.18, Ibid paras.32-36.

96. See the General Comment No.23: The Right to Just and Favourable Conditions of Work, UN CESCR (Mar.8, 2016), Doc. E/C.12/GC/23 (Apr.27, 2016).

97. The General Comment No.23, Ibid paras.7-24.

98. The General Comment No.23, Ibid paras.25-30.

99. The General Comment No.23, Ibid paras.34-46.

100. The General Comment No.23, Ibid para.54.

101. See for the discussion of Article 8 of the Covenant, Craven, The International Covenant on Economic, Social and Cultural Rights, note 3, 265-280. See also C.

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Fenwick, “Minimum Obligations with Respect to Article 8 of the International Covenant on Economic, Social and Cultural Rights,” in Core Obligations: Building a Framework for Economic, Social and Cultural Rights, AR Chapman and S Russell et al. (Antwerp: Intersentia, 2002): 53-86.

102. See the General Comment No.19: The Right to Social Security, UN CESCR, session 39 (Nov.5-23, 2007), Doc. E/C.12/GC/19 (Feb.4, 2008).

103. The General Comment No.19, Ibid paras.11-27.

104. The General Comment No.19, Ibid paras.4-5.

105. The General Comment No.19, Ibid para.41.

106. The General Comment No.19, Ibid para.73.

107. Ben Saul, David Kinley, and Jaqueline Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials (Oxford: Oxford University Press, 2014): 723-27.

108. Saul, The International Covenant on Economic, Social and Cultural Rights, Ibid.

109. See the General Comment No.4: The Right to Adequate Housing, UN CESCR, session 6 (1991), Doc. E/1992/23, paras.6-8. See also for the discussion on the right to adequate housing, Craven, The International Covenant on Economic, Social and Cultural Rights, note 3, 330-32.

110. The General Comment No.4, Ibid paras.18-19.

111. See the General Comment No.7: The Right to Adequate Housing (Forced Eviction), UN CESCR, session 16 (May 20, 1997), Doc. E/1998/22, annex IV paras.3- 8. See also for the nature and scope of forced eviction, Craven, The International Covenant on Economic, Social and Cultural Rights, note 3, 341.

112. The General Comment No.7, Ibid paras.9-16.

113. See the General Comment No.12: The Right to Adequate Food, UN CESCR, session 20 (Apr.26 – May 14, 1999), Doc. E/C.12/1999/5, para.4.

114. The General Comment No.12, Ibid para.8.

115. See the General Comment No.15: The Right to Water, UN CESCR, session 29 (Nov.11-29, 2002), Doc. E/C.12/2002/11 (Jan.20, 2003).

116. See UN OHCHR Ratifications and Reservations (discussed by Ssenyonjo, Economic, Social and Cultural Rights, note 78, 313), (accessed on Dec.20, 2016 at): (http://www2.ohchr.org/english/bodies/ratification/.).

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117. See the General Comment No.14: The Right to Highest Attainable Standard of Health, UN CESCR, session 22 (Apr.25 – May 12, 2000), Doc. E/C.12/2000/4, paras.11-12.

118. The General Comment No.14, Ibid paras.13-18.

119. See the General Comment No.22: The Right to Sexual and Reproductive Health, UN CESCR (Mar.7, 2016), Doc. E/C.12/GC/22, paras.1-6.

120. The General Comment No.22, Ibid paras.7-8. See also for example, WHO Commission on Social Determinants of Health, Closing the Gap in a Generation: Health Equity through Action on the Social Determinants of Health – Final Report of the Commission on Social Determinants of Health, 2008.

121. See the General Comment No.13: The Right to Education, UN CESCR, session 21 (Nov.15 – Dec.3, 1999), Doc. E/C.12/1999/10, paras.4-27.

122. The General Comment No.13, Ibid para.41.

123. See the General Comment No.11: Plans of Action for Primary Education, UN CESCR, session 20 (Apr.26 – May 14, 1999), Doc. E/C.12/1999/4.

124. See the General Comment No.21: Right of Everyone to Take part in Cultural Life, UN CESCR, session 43 (Nov.2-20, 2009), Doc. E/C.12/GC/21, para.6.

125. The General Comment No.21, Ibid para.103.

126. See the General Comment No.17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from any Scientific, Literary or Artistic Production of which He or She is the Author, UN CESCR, session 35 (Nov.7-25, 2005), Doc. E/C.12/GC/17, paras.1-3.

127. The General Comment No.1, Ibid paras.30-31.

128. See the General Comment No.1: Reporting by States Parties, UN CESCR, session 3 (Jan.01, 1989) available at the official website of UN OHCHR (accessed on Oct.25, 2016 at the link blow): (http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&Tre atyID=9&DocTypeID=11).

129. See the details of the ‘Working Methods’ of the Committee on the official website of the UN OHCHR (accessed on Oct.5, 2016 at the link blow): (http://www.ohchr.org/EN/HRBodies/CESCR/Pages/WorkingMethods.aspx).

Chapter Three

PROMOTING AND PROTECTING ECONOMIC, SOCIAL, AND CULTURAL RIGHTS IN INDIA

Image Courtesy: National Flag of India by “Google Images” India

The security of social and economic development under the colonial rule by no means, brings laurel to Indian people. It was a great challenge in-front of the political elites to impart the inclusive growth agenda post independence. The Constitution of India protects the larger interest of the entire masses including marginalized and disadvantaged communities. The devolution of powers enlarge the scope of rule of law and justice for voiceless and have-nots of the society. The upsurge of judicial activism at the end of twentieth century revolutionizes the delivery of justice to the victims including individual as well as groups. The overcrowding population hampers the equal distribution of social products among the entire society. This chapter attempts to explain how the succeeding governments manage to implement effective policies and programmes to alleviate poverty, hunger, illiteracy, unemployment, and other development indices.

The chapter is divided into seven broad sections having various subsections. Section one describes the general socio-political circumstances of the nation post independence. Section two highlights the Constitutional protection of the ESC rights in conformity with the ICESCR. The status of the ESC rights in the national legislation is discussed in detail in the third section. The section three also draws attention to the judicial interpretation of the ESC rights highlighting various Supreme Court verdicts that expand the ambit of judicious enforcement. The section four introduces with the brief summary of the Initial periodic State report on the ICESCR (1983), the detailed discussion on the Combined Second to Fifth periodic State report

(2006), their List of Issues, Replies to the List of Issues, and the Additional Replies by the government of India. The section five examines the Alternative Reports submitted by various NGOs. The section six highlights the Concluding Observations adopted by the Committee on the Combined Second to Fifth periodic State report of India. The section seven concludes the chapter with the assumption that the huge progress has been made in the field of socio-economic arena after the Combined Report 2006 (the detailed discussion of that is outside the purview of the present research as the study is limited to the State reports submitted so far).

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3.1 Introduction to the Socio-Political Background of India

It is one of the obvious outcomes for nations under colonization that the socio- economic degradation is faced by the native peoples. The scarcity of resources to improve in development indices are not an exception to Indians under the British rule. The two hundred years of imperial experiences crush the entire initiatives of development within the nation at every social stratum. The maximum of the available resources were used for the development of imperial interests. The conditions of local population were becoming more and more impoverished. The rate of poverty, unemployment, illiteracy, insecurity, etc., was increasing across every region of the country. The founding fathers (members of the Drafting Committee) of the Indian Constitution were well aware of the prevailing situations. Accordingly, the Constitution of India was drafted to achieve the social revolution and economic 1 development for each and every Indian.

The Constitution of India is the largest functional Constitution of the world. It is supposed to borrow most excellent ideals of the contemporary Constitutions of the world. Particularly, justiciable ‘fundamental rights’ of the individual (part III of the Constitution) on the model of the amendments of the American Constitution and the non-justiciable ‘directive principles’ which is considered fundamental in the governance of the country (part IV) as contained in the Constitution of Eire (i.e., the 2 Republic of Ireland). The active participation of the Indian delegation during the drafting of the UDHR 1948 culminates as a visible influence over the final draft of the Indian Constitution 1950. The elite class of the Indian politics presupposes universal political participation (equal voting rights to all the citizens) as an effective institutional tool to create political stability in the country. This in turn enhances the 3 legitimacy of the system to achieve economic growth and social justice. The focus is inclusive not to ignore the socio-economic developments in view of the superiority of civil and political freedoms.

The democratization of most of the Third World Countries after the Second World War brings three broad categories to incorporate economic, social and cultural rights * within the domestic legislation. The regime change in some of the countries, e.g.,

* The immediate protection of the ESC rights, e.g., after the apartheid South Africa and post- authoritarian Brazil incorporate fully justiciable ESC rights in the national Constitution. The

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Brazil and South Africa opens the door to the enforceable recognition of the ESC rights in the Constitution of the land. The second category articulates directive principles to be included in the Constitution that shape the welfare policies of the country. The third category of the States decides to give effect to the ESC rights by ratifying international Conventions in this regard. India adopts the Directive Principles of State Policy (DPSP or the directives); its non-justiciable nature doesn’t prohibit the successive governments to enforce policies in this regard. The part IV of the Indian Constitution (Articles 36-51) contains many corresponding provisions on employment, family protection, social security, health, food, housing, education, etc. The changing trend, believe many of the scholars, begins after 1980s to the destiny of the ESC rights in the Indian jurisprudence. The non-justiciability, e.g., of health, food, housing, etc., have been explored under the working interpretations of the right to life 4 (Article 21), a justiciable fundamental right.

The invaluable transformations commencing with the twenty-first century enable 5 social policies more accessible to the common man of India. The Right to Information Act (RTI), 2005 empowers a citizen to seek the lawful informations of the governmental activities in a timely manner. This enhances confidence in the enforcement mechanisms and a sense of the accountability on part of the public institutions. Another milestone to realize the socio-economic progress is the National Rural Employment Guarantee Act (NREGA), 2005 enabling members of the rural households, the right to demand at least hundred days of wage employment (every year) from the State authority. The conservation of forest and the protection of tribal land – to improve the livelihood opportunity – have been guaranteed by the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. The free and compulsory education for every child under the Right of Children to Free and Compulsory Education Act, 2009 enlightens the hope of better social future. The recent attempt to minimize the prevalent situation of hunger (one of the

‘directive principles of social policies’ (Republic of Ireland being the originator of the concept) or the ‘directive principles of State policies’ (in case of India) are non-justiciable part of the Constitution but are fundamental to shape the government policies. Many countries, e.g., Mexico opted to become Party to the international Conventions protecting socio-economic concerns.

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important Millennium Development Goals) by adopting the National Food Security Bill, 2012 is praiseworthy step of the government of India.

* India becomes Party to the ICESCR as early as 1979. The Constitution of India safeguards many of the contingent provisions of the Covenant before it enters into force. The DPSP particularly translates the aspirations of millions of disadvantaged and marginalized people throughout the country. The normative attempts are made to ensure the equality of income, adequate means of livelihood, equal pay for equal work, protection of the children, right to work, education, and assistances to 6 unemployment, old age, sickness, disablement, etc. The federal government is committed to fully realize the provisions of the ESC rights through specific national policies and programmes and measures of implementations. The active role of the judiciary and the civil society exemplify the success of socio-economic concern for more than a billion people. The protection of ESC rights in India is discussed in the ensuing pages including the evaluation of periodic State reports by the Committee.

3.2 The Constitution of India and the Protection of ESC Rights

The independence if India served the purpose of dignified life and self-respect for each and every Indian. It is the State institution that secures the lost pride of its citizens. The national Constitution is considered the primary instrument to ensure the equal protection of human rights of the individuals without discriminations as to race, sex, colour, creed, religion, language, social or political status, etc. The Preamble of the Constitution of India declares it to be a ‘democratic republic’. Justice DD Basu argues that the democratic status here necessitates the State to act not only based on 7 the political standpoint but at the same time on the social standings. It envisions a State to uphold a democratic government in conformity with the democratic society

* Fifty-three States have ratified the ICESCR before India in April 1979 globally. Among the Asian nations, India is the ninth to ratify the Covenant – other nations include Cyprus (1969), Lebanon (1972), Iran (1975), Iraq (1971), Jordon (1975), Mongolia (1974), Philippines (1974), and Syrian Arab Republic (1969). There are 165 Members of the Covenant at present (as of July 2017) and thirty-nine have ratified among the Asian nations. Such early ratification shows the commitment of the Indian government to the promotion of the ESC rights of its citizens.

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which keeps the governance upright. The society must embrace the spirit of justice, liberty, equality, and fraternity.

The drafter of the Indian Constitution takes the broad path of inclusive growth for the welfare of all the people. The theme preserves the notion of ‘Welfare State’ which inspires the directive principles of the State policy of the Indian Constitution. The scholars believe that economic justice can’t be achieved by political democracy alone; social democracy is an indivisible factor. The first Prime Minister Pandit Jawaharlal Nehru in his inaugural speech at a seminar on parliamentary democracy held on February 25, 1956 emphasises that political democracy, e.g., right to vote alone can 8 do nothing to those who are starving and hungry. Dr. Radhakrishnan supports the similar views at the above seminar in his capacity as first Vice-President of India that 9 poor people devoid of basic amenities can’t be proud of Constitution or its laws. The chairman of the drafting Committee of the Constitution of India, Dr. BR Ambedkar, rightly concludes that political democracy runs parallel to the social democracy where 10 liberty, equality, and fraternity work in trinity (inseparable to each-other).

The imprint of social democracy is visibly seen in the part IV (Article 36-51) of the Constitution. The DPSP together with the fundamental rights of part III is considered * to be the conscience of the Indian Constitution. Justice PN Bhagwati in Minerva Mills Case (1980) declares that fundamental rights (part III) and DPSP (part IV) maintains balanced bedrock over which Constitution of India is founded. To give primacy to one over the other is to disturb the harmony of the Constitution which is one of the important elements of the basic structure doctrine. The directives enshrined in the Constitution are discussed here briefly:

 The Article 38 suggests the State to secure social, political, and economic justice for the welfare of the people. The means to this end is to minimize the inequalities of income, status, facilities, and opportunities.   The Article 39 has laid down principles to be followed to implement various policies including:   * Before the Keshavananda Bharati and others v. State of Kerala (1973), the Supreme Court of India was reluctant to give proper recognition to the directives in the cases related to the socio-economic rights. In this case the top Court held that the directives must be viewed as

the guidelines by means of which the fundamental rights are realised.

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o Equality – in means of livelihood, and the remuneration held;

o Common good – e.g., ownership and control of material resources, and

operation of economic system; and,

o Protection – of health and strength, exploitation against childhood and youth.

nd  After the 42 Amendment Act 1976, a new directive is added as Article 39A making ‘free legal aid’ possible to all those unable to access Courts. It is an example of equality of justice.   Articles 41-43: The State must ensure the rights to work, education, and public assistances to unemployed, old age, sick, disabled people, etc. The humane conditions at workplace, maternity relief, living wages, rest, and leisure must be ensured  nd  The 42 Amendment Act adds a new Article 43A that enhances the participation of the workers in the management of the organization. It is an th example of fairness. The 97 Amendment Act 2011 adds Article 43B that inspires the State to promote voluntary formation of co-operative societies. It is an example of empowerment.   The Article 45 inculcates the provision of free and compulsory education for th all children until the age of fourteen. The 86 Amendment Act 2002 replaces this provision to early childhood care and education below the age of six years and made the elementary education a fundamental right under Article 21A. This right enters into force in April 2010 and it is now, a fully justiciable right for the age group of six to fourteen. The educational and economic interest of weaker sections including Schedule Castes (SCs) and Schedule Tribes (STs) must be protected (Article 46).   It is the responsibility of the State to raise the standard of healthy life and the nutritional requirement of the people (Article 47).   The Article 48 encourages the State to employ scientific advancement in the nd agricultural and farming techniques. The 42 Amendment 1976 also added Article 48A to protect the environment and to preserve the forest and wildlife.

It is evidently concluded that the Indian Constitution contains many comprehensive socio-economic rights in conformity with the international treaties protecting ESC rights as illustrated by the following table:

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* Table 3.1: ESC Rights Enshrined in the Constitution of India

Provision on the ESC Rights Corresponding Article

(Constitution of India)

Right to adequate means of Livelihood 39 (a)

Right to the health and strength of workers 39 (e)

Right to work, to education and to public assistance in 41 cases of unemployment, old age, sickness, disablement and undeserved wants

Right to living wage for workers 43

Right to decent standard of living, and the increased 47, 43

level of nutrition and public health

Right to education 45, 46

Right to environment 48A

Source: part IV of the Constitution of India (accessed on Oct.15, 2016 at the link below): (http://lawmin.nic.in/olwing/coi/coi-english/Const.Pock%202Pg.Rom8Fsss(7).pdf)

3.3 ICESCR and DPSP of the Indian Constitution: Legislation at Domestic Level

The DPSP is adopted by the Constituent Assembly of India sixteen years before the ICESCR was adopted by the UN General Assembly in 1966. The former is considered to contain social issues even before the international community decided the universal enforcement of the similar provisions. The extents to which the directive principles explore the ESC rights protection along with certain other provisions comprehensively define the aspirations of the marginalized and disadvantaged communities under the Constitution. The ensuing pages attempts to analyse the

* The above table is not exhaustive while most of the provisions correspond to the different international treaties on the protection of the ESC rights around the world.

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position of the ICESCR, DPSP, and other ESC rights provisions in the Indian Constitution, i.e., the domestic arrangement to eradicate social disparities.

3.3.1 Substantive Provisions of the ICESCR and the DPSP

The demand to the protection of the ESC rights is imperative since the beginning of the human society. It is only in the twentieth century that the international community approached the issue to evolve universal consensus to implement the principles of equality and non-discriminations in the social fields. The adoption of the ICESCR without any vote of dissent by the Member States of the UN enhanced the strength of the social revolutions. The success of the rights regime is celebrated while various international treaties are incorporated within domestic legislations. India is one of the States Parties to the ICESCR, where ESC rights are available in the Constitution. It is one of the reasons that it doesn’t face much of the incorporation difficulties since its * adoption within the domestic legislation.

India made a declaration on Article 1 (self-determination) of the ICESCR. This, as the government argues, is applicable to the people under colonial regime. In India, the Constitution preserves the right of the people to participation in the political affairs of the State. It ultimately protects the self-determination of the people. However, it was harshly objected by many State Parties including, France, Germany, Netherlands, and Pakistan. They argue that the concept of self-determination enshrined in the UN Charter and the two Covenants on human rights is applicable to all the people either from independent States or from colonial denomination. The ratification status by the Member States shows that the declaration made on Articles 4 and 8 of the Covenant by India is to be implemented in compliance with the Article 19 of the Constitution 11 and Article 7(c) with the Article 16(4) respectively. The subsequent juridical development enlarges the scope of ESC rights enforcement through the Constitutional provisions in India that is discussed in the ensuing pages.

* India is among the few of the Member States that has ratified the Covenant without any objection. Furthermore, the declarations made in no way are denial to the provisions rather they will be enforced in accordance with certain existing provisions of the Constitution of

India.

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The directive principles contain the visions of the Covenant in one or other form keeping the spirit of the rights in their own manner. The nature of the State obligations to fulfil the ESC rights of the people has been expanded after India ratifies the ICESCR. The government is now accountable, not only to its own citizens but to the international community as well. The analytical study of the ICESCR and the DPSP has been shown in the following table:

* Table 3.2: Contingent Provisions of the ICESCR and the DPSP India

Subject Matters (Relative) ICESCR DPSP India (Article) (Article)

International Assistance and Cooperation 2 51

Socio-Economic Equality 3 38(2)

Right to Work 6 41

Humane Conditions of Work 7 42, 39(d)

Descent Standard of Living and Cultural 11, 15 43, 39(a) Life

Social Security 9 41, 42

Protection of Family and Children 10 39(e & f), 42

Health and Environment 12 47, 48A

Education 13, 14 45, 46

Source: M Nazeer Hussain, “ICESCR and India: At Fiftieth Anniversary,” Social Action 66 (April-June 2016): 118-119.

* The present list is not exhaustive. The corresponding Articles might not translate the provisions of the other side as a whole. But the crux is almost similar in nature. The protection of ESC rights provided on both the sides promotes the spirit of the social goals to achieve the objective of the life with dignity.

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3.3.2 ESC Rights in the Indian Constitution other than DPSP

Majority of the ESC rights have been protected by the DPSP of the Indian 12 Constitution. There are certain other provisions of the Constitution that abreast the spirit of some of the provisions of the ICESCR which isn’t included in the DPSP. The credit goes to the drafter of the Constitution to touch every prospective corner of the social life. The social democracy is the vision of the founding fathers in a country with the limited resources and low per-capita income. The high trance to keep the inclusive growth, many of the social rights has been grounded as justiciable in the Constitution. Some of the fundamental rights of part III of the Indian Constitution that have been included in the ICESCR are discussed in the following table:

Table 3.3: Justiciable Provisions other than DPSP that have been included in the

ICESCR

Contingent Provisions ICESCR Part III (Indian (Article) Constitution)

Right against Discrimination 2(2) 14

Prohibition on Discrimination against Women 3 15

Right to Form Trade Unions 8 19 (1) (c)

Protection of Children against Exploitation and 10(3) 24 Forced Labour

Right to Cultural Life 15(1) 25, 29, 30

Source: Paper Prepared for the National Commission for Review of the Constitution of India, (accessed on Oct.25, 2016 at the link below): (indiacode.nic.in/mjr/En.%20of%20FR.doc).

3.3.3 Judicial Interpretation and Public Interest Litigation: Expanding the

Ambit of the ESC Rights in India

The directive principles are considered to be fundamental in the governance of the country. The policies and plans of action must be drafted in the light of the directives. The allocation of resources and adoption of measures to implement the policies are

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vested with the government and its institutions. The sanction behind the directives in India is political not the juridical – the reason to avoid the latter includes that its decisions are binding upon the final review. It is the fundamental rights not the directives, the violation of that, can augment the role of the judicial rulings in India. The largest democracy of the world, however, follows the mass participation toward * its governance. The people’s representatives take oath to govern the country in the right directions. It is the government of the people, by the people, and for the 13 people. The elected members campaign and attempt to shape the social progress of the people, who send them to govern. They are accountable to the people and if fail to discharge proper duties, then, in the next election face the defeat. Thus, despite the lack of judicial patronages, DPSP in India preserves the aspirations of the beneficiaries.

The framers of the Indian Constitution maintained the scope of the useful amendments with due procedures. There are around one hundred one amendments 14 (the last is GST Bill in August 2016) so far have been approved. The major nd transformations to the status of directives came through the 42 Amendment Act, 1976 that gave primacy over the fundamental rights contained in Articles 14, 19, and 15 31 of the part III. This is adopted to serve the linkage between the possible restrictions over the fundamental rights by the law and the better implementation of the directives. It is said that if the lawful restrictions on the fundamental rights bring better implementation of the directives, then it is valid. The larger part of the rd th modification, however, had been revoked by the 43 and 44 Amendment Acts (1976-78) and the basic structure doctrine was preserved by the Supreme Court of † India. The pro-active role of the judiciary has changed the perception of the

* The Universal Adult Suffrage provides equal opportunity to each and every one of the country to elect the representatives of his/her choice. Every five years, members of the Legislature of the Unions are being elected by the entire adult population of the territory on the basis of the principle ‘one person, one vote’. The Election Commission of India has evolved various principles on the direction of the Supreme Court; one of these is the option of negative voting rejecting all the candidates considered unworthy being elected. The voters in this case have to press the NOTA button.

† A new principle, the ‘basic structure doctrine’ of the Constitution was evolved in the famous case Keshavananda Bharati v. State of Kerala (1973) to preserve the ‘essential features’ of the Constitution.

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contemporary Indian jurisdiction. The framers have never foreseen that the judiciary will decide for the government, the measures to redistribute excess foods, the selection of crops to grow, the value of the economic projects that will bring more statistic to the country, the fuel that should be used in motor cars and scooters to 16 minimize the pollution, etc.

The rise of Public Interest Litigation in the late 1970s revolutionised the judiciary to change the social and political construction of India. The deemed justice to the poor and disadvantaged people in particular, is now a strong tool in the hands of Indians to develop as a welfare State. The PIL was originated in the USA jurisprudence in 17 1960s. It was initiated and led by the judiciary in India. The PIL has empowered the judges as well as private actors to proceed the concern of public interests as against the traditional justice system which was restricted to the victims only. The scope of litigation isn’t limited to environment, pollution, road accidents, terrorism, constructional hazards, etc., but is open to the enjoyment of basic human rights in 18 every field. One of the first reported cases of PIL was filed in 1979; Hussainara Khatoon v. Home Secretary, State of Bihar. In this case, a lawyer moved to the Supreme Court of India on the basis of the news reports published in the Indian Express that highlight the plight of thousands of under-trial prisoners in the jails of Bihar including children and women. The top Court noticed the vulnerability of these helpless people and passed the judgements in six phases including right to speedy 19 justice as a fundamental right.

The subsequent judgments elaborate many of the untouched and pressing decisions under the aegis of the PIL for the inclusive justice. The debate over the expansion of the enforceability of the ESC rights is accentuated in 1969 when the political theorist Henry Shue argues that the division on the rights as positive and negative is 20 misleading. He agrees that the duties behind every basic right are three-fold – duties to avoid depriving, to protect from deprivation, and to aid the deprived. The notions of minimum entitlement, economic equality, and basic material needs are considered to be essential for the dignified life in a society. It places onus on the State to fulfil 21 these rights to achieve minimum social respect. The Indian Constitution, despite the ongoing debates, endorses the directives as a fundamental goal of the State some six decades ago. The judiciary isn’t given bigger role to the protection of the directives,

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as Dr Ambedkar puts it, “in any breach of the directive principles, the leaders will have to answer to the electorate”.22

The Indian judiciary in 1970s alongside the PIL movement come to explore the possible harmony between the fundamental rights and the directive principles. The previous stand of the Supreme Court during the first three decades of independence is that the social rights are part of DPSP which is subservient to the fundamental rights. By the 1980s and 1990s the Supreme Court takes the account of ‘right to life’ (Article

21) as the basis to guarantee life sustaining entitlements and minimum needs, i.e., * certain social rights as the justiciable rights. The corollary stands of the top Court before, during, and after emergency period are discussed here with selective landmark verdicts on the enforcement of the directives.

23 (i) A K Gopalan v. The State of Madras (1950)

The Supreme Court was of the view that social rights under DPSP are non-justiciable and hence the expanded interpretation of the right to life under Article 21 was restricted to be incorporated by the Courts.

The petitioner in this case draws on the US Constitution to argue that certain provisions of the ‘Preventative Detention Act, 1950’ violate part of the Articles 13, 19, and 21 of the Indian Constitution. The bench of the Chief Justice Mr. HJ Kania rejected the argument and confined the meaning of ‘liberty’ as ‘personal liberty’ in case of the Article 21 of the Indian Constitution while liberty in the American cases had more expendable meanings.

24 (ii) The State of Madras v. Srimathi Champakam Dorairajan (1951)

The Supreme Court held that the DPSP in no way can override the fundamental rights of the people enshrined in part III of the Constitution. The paramountcy of the

* The Article 21 of the Constitution guarantees that life and personal liberty can’t be denied without due procedure established by the law. Based on this provision, mere ‘right to life’ has been transformed to ‘life with dignity’ that necessitate food, education, health, etc., (socio- economic protections) to be included under the existing gamut. See for detailed discussion, Rehan Abeyratne, “Socio-Economic Rights in the Indian Constitution: Toward a Broader Conception of Legitimacy,” Brooklyn Journal of International Law 39, no.1 (2014): 2-67. The electronic copy is available at (accessed on Oct.26, 2016 at the link below): (http://ssrn.com/abstract=2189277).

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fundamental rights were maintained and declared that directives must conform and run subsidiary to it.

The petitioner challenged the reservation policy of Madras government in the educational institution on the communal/religious lines (called Communal G.O.) in Medical and Engineering colleges. The full bench of Chief Justice HJ Kania held that the policy was completely violative of the fundamental rights of the citizens enshrined in Article 29(2).

25 (iii) I. C. Golaknath v. State of Punjab (1967)

The judiciary faced single party dominance in the first couple of decades after independence for all the political purposes. The focus was to balance the abuses of executive as well as legislative powers. The Supreme Court turned thereafter to restrict the frequent amendments of the Constitution by the Parliamentary affairs. It held that fundamental rights can’t be abridged or taken away by the amending procedure of the Constitution.

The petitioner in this case challenged the validity of Constitutional Seventeenth Amendment Act, 1964 on the ground of Article 32 of the Constitution. The full bench of the Chief Justice K Subba Rao upheld that Parliament had no power to amend fundamental rights in Part III of the Constitution.

26 (iv) Keshavananda Bharati v. State of Kerala (1973)

The Supreme Court under the basic structure doctrine of the Constitution upheld the importance of fundamental rights vis-a-vis DPSP supplementing each other to achieve the spirit of social justice. The case is famously known as the Fundamental Right’s Case. The evolution of the basic structure doctrine of the Constitution has levelled this case as the defender of the Indian democracy.

The petitioner a senior head of Hindu Mutt (religious organization) challenged under Article 32 of the Constitution for the enforcement of his fundamental rights under Articles 25, 26, 14, 19(1)(f) and 31 of the Constitution to the restrictions imposed by the State government to manage the Mutt property. The full bench of 13 judges (largest ever Constitutional bench) including Chief Justice SM Sikri upheld with the

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majority that certain inviolable principles within the framework of Indian Constitution can’t be amended by the Parliament. These principles were commonly termed as ‘Basic Structure’. The relevance of this judgement is seen in the denouncement of the th 39 amendment of the Constitution by the government of Mrs. Indira Gandhi during emergency period. The amendment is made to the election of the President, the Vice President, the Prime Minister, and the Speaker of the Lok Sabha beyond the scrutiny of the Indian Courts.

27 (v) Maneka Gandhi v. Union of India (1978)

The right to life and personal liberty has been greatly hampered by the infamous national emergency of 1975. The Supreme Court came with great transformation of the judicial attitude toward the safeguard of personal liberty. It upheld that right to life and personal liberty imply many more fundamental rights under Article 21 of the Constitution including many socio-economic rights.

The petitioner challenged the action of the government in impounding her passport and declining to give reasons for doing so. The full bench of Chief Justice M Hameedullah Beg held that personal liberty under Article 21 of the Constitution isn’t an exclusive or limited fundamental right but engulf a variety of rights within itself. The Court further observes that fundamental rights should be given wider interpretation rather than to constrict its meaning and content.

28 (vi) Minerva Mills Ltd v. Union of India (1980)

nd The government of Mrs. Gandhi during the emergency period rules through the 42 amendment to the Constitution that DPSP are superior to the fundamental rights. The Supreme Court in Minerva Mills Case overruled the stand of the government and maintained the Keshavananda verdict that DPSP and fundamental rights are equivalent parts of the basic structure of the Constitution.

The petitioner challenged the order of the government to undertake the Minerva Mills Ltd by a nationalised agency under the Central government. The full bench of the Chief Justice YV Chandrachud declares that the Parliament has given the power to amend the Constitution but that power can’t be exercised so as to damage the basic features of the Constitution or so as to destroy its basic structure.

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29 (vii) Francis Coralie Mullin v. The Administrator, Union Territory of Delhi (1981)

The Supreme Court in this case held that prisoner or detenu has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarceration. The Court supports that right to life implies inter alia rights to education, food, shelter, health, and above all the right to livelihood (all these are a distinct category of socio-economic rights).

The petitioner in this case was a British national challenging the restriction of interview with her lawyer and members of her family including her minor daughter while she was detained in Tihar Central Jail. The bench of Chief Justice PN Bhagwati rules that the right to life includes broader interpretation of life with human dignity and all that assists it, to be dignified. The bench declares that the necessities of dignified life includes, but are not limited to, the adequate nutrition, clothing, shelter, and facilities for reading, writing, and expressing oneself in diverse forms, freely moving about, and mixing and commingling with fellow human beings.

30 (viii) Unni Krishnan JP v. State of Andhra Pradesh (1993)

The appex Court in this case held that the parameters of right must be understood in the context of the DPSP. In particular, Article 45 obliges the State to provide free and compulsory education to all the children under the age-group of six to fourteen within a period of ten years from the commencement of the Constitution. The Court further declares that the right to life under Article 21 is in conjunction to the Article 45 of the DPSP.

The petitioner in this case has challenged the constitutionality of the Article 21 implying fundamental right to education on the basis of interplay between DPSP and fundamental rights of the Constitution. The bench of the Chief Justice LM Sharma held that the provisions of part III and IV work supplementary and complementary to each other and not exclusionary of each other. It is further stated that the fundamental rights are but a means to achieve the goal indicated in part IV.

The contemporary stand of the Supreme Court of India to the enforcement of various directives is continued to be of Unni Krishnan (1993). Many of the socio-economic rights in the last couple of decades have been incorporated as enforceable within the

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wide scope of the right to life under Article 21. The following table registers some of the recent verdicts of the Supreme Court making socio-economic rights enforceable under the gamut of fundamental rights contingent to the ICESCR.

Table 3.4: Supreme Court verdicts making ESC rights enforceable contingent to the

provisions of the ICESCR

Sl. Case Laws (Supreme Court of India) Enforceable ESC ICESCR Rights (Indian (Articles) Constitution)

1. Unni Krishnan JP v. State of Andhra Right to primary 13(2)a Pradesh (1993) [AIR 1993 SC 2178] education (Art.21)

2. State of Punjab v. Mohinder Singh Right to Health 12(1)a Chawla (1997) [AIR 1997 SC 1225] (Art.21)

3. UP Avas Evam Vikas Parishad v. Friends Right to Shelter 11(1) Coo. Housing Society Ltd. (1996) [AIR (Art.21, 19(1)e ) 1996 SC 114]

4. Madhu Kishwar v. State of Bihar (1996) Right to Food (as 11(1) [AIR 1996 SC 1864] part of right to livelihood)

5. Randhir Singh v. Union of India (1982) Equal Pay for Equal 7a(1) [AIR 1982 SC 879] Work (Art. 21, 14)

Source: Paper Prepared for the National Commission for Review of the Constitution of India p.16 (accessed on Oct.25, 2016 at the link): (indiacode.nic.in/mjr/En.%20of%20FR.doc).

Thus, as of recent times, many ESC rights and other rights have become part of the fundamental rights under part III of the Indian Constitution. This has become possible either by initial incorporation in 1950 or by amendments to the Constitution or by the judicial activism in India.

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3.4 Periodic State Reports of India: Consideration by the Committee on ESCRs

The domestic implementation of the rights is properly judged when the State is Party to the international treaty in the concerned field. Since the ratification, India has submitted two periodic State reports to the Committee on ESCRs – Initial in 1983, and Combined Second, Third, Fourth, and Fifth in 2006. The pace of report submission is slow as five years limit is fixed by the Committee for the consecutive * submission. The submission of the subsequent periodic State report of India is due in 2011 but till date it hasn’t been submitted. The chapter is, however, limited to the analysis of the reports submitted so far besides making an attempt to explore the pros and cons of these reports.

The evaluation process of the periodic State reports by the Committee is not unilateral. It seeks relevant information in the field of enforcement of the provisions by the Member States (which is termed as periodic State report). The Committee seeks further information over the country under consideration by other sources 31 including:

 The UN Secretariat – it provides country file in which relevant information from other UN organs as well as NGOs submissions are placed.  The UN Specialized Agencies – ILO, UNESCO, WHO, FAO,  UNICEF,UNDP   The Alternative/Shadow Reports from NGOs– this has gained exclusive importance in the contemporary age to judge the reliability of the State reports.    * The initial proposal for the submission of periodic State reports of every two years was not adopted. The Secretary General over the consultations decided to report on an annual basis over a period of six years. The initial system after the modification by the ECOSOC of a three-stage biennial reporting process within a six years cycle was adopted. This procedure was very cumbersome to the State Parties as well as to the Committee to observe the reports. The Committee at its second session in 1988 recommended the present model of initial periodic State report within two years after the ratification and thereafter at every five-yearly intervals. See for the detailed discussion Matthew CR Craven, The International Covenant on Economic, Social, and Cultural Rights: A Perspective on its Development (Oxford: Clarendon

Press, 1995): 61-62.

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 The general information provided by the Committee’s members as experts in their respective fields.

The Committee updates itself with the developments made by other UN human rights Committees in the relevant fields. It appoints to discharge such activities, the ‘liaison- officers’ to each of the monitoring Committee concerned. The role of the Alternative Reports has been enlarged many-fold since the Committee has devoted certain parts 32 of the first day at each session to the oral representation by the competent NGOs.

3.4.1 Initial Periodic State Report: The Republic of India

It is very difficult to a nation, liberated soon after the menace of British Empire, to manage absolute protection of the ESC rights. The vision of the first government of the independent India led by Pandit Jawaharlal Nehru toward the non-alignment 33 policy defended further devastation incurred by the Cold War of Super-Powers. The strong social foundations are clearly visible in the Initial periodic State report 1983. The larger population of India reside in rural areas and depend heavily on agriculture and farming. This report highlights that the domestic implementation of the Articles 10-12 of the Covenant are well protected by the Constitutional provisions including 34 DPSP as well as fundamental rights. These includes Articles 38(1), 38(2), 39(a-f), 42, 43, and 47 from DPSP and 23(1), 23(2), and 24 from fundamental rights.

Besides the Constitutional provisions, the report underlines twenty-seven Statutes enforceable in different social fields relevant to Articles 10-12 of the Covenant. What are striking to Article 10 are the changes introduced to the Hindu Marriage Act 1955 in particular, and various other provisions related to marriages in general by various 35 amendments of the Constitution. The careful attention is given to improve the status of women and children in all walks of life including to provide proper healthcare facilities at various levels. India is considered as one of the few countries, adopting National Policy for Children 1974 for the comprehensive growth of the children. The Children’s Act adopted by the Central government in 1960 serves to rehabilitate and treatment to the socially neglected and destitute children. The child labour (under 14 years) is strongly prohibited by the Constitution of India. There are various other enactments that safeguard to employ children at hazardous places.

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The government of India under existing conditions is committed to improve the living standard of its citizens (Article 11). The majority population (more than seventy percent) resides in far-flung rural areas, dependent primarily on natural resources for their livelihood. The government, however, is committed to eradicate the poverty as one of its primary goals. Different Five-Year Plans are implemented to provide basic minimum need of food, clothing, and housing to all. The agrarian reform has brought greater social and economic justice. The Sixth Five-Year Plan (1980-85) has allocated increased amount of budget to the alleviation of poverty through the Integrated Rural Development Programme (including every aspect of improved production and supply 36 of basic amenities). The government is committed to provide cheap and good quality clothing by improving the infrastructure of the textile mills of the nation. These textile mills are not only the source of clothing but a cumbersome source to labour market for natives. The government is further committed to arrange housing sites and construction of dwellings to the marginalized people under Five-Year Plans. An apex institution, the Hindustan Urban Development Corporation (HUDCO) was established in 1970 to regulate the urban housing schemes as well as around the Country.

The Initial State report of India was considered at the sixth meeting of the first regular session 1984 of the Sessional Working Group of Governmental Experts on the 37 Implementation of the ICESCR. The report was construed with various technical praises as well as concerns over marriage, family planning, malnutrition, credit for farming activities, public distribution system for food, water supply, etc. The Indian representative Mr. Rathore provided with the detailed reply at the eighth meeting of 38 the same session. The Chairman Mr. Bendix (Denmark) approved the acceptance of the report with mix of praises and concerns.

3.4.2 Combined Second, Third, Fourth, and Fifth Periodic Report of India (2006)

The Combined Second to Fifth report was submitted by India after two decades of the 39 submission of Initial report, on October 23, 2006. The report was scheduled to be considered by the Committee at its fortieth session during April 28 – May 16, 2008 to be held at Geneva. The brief summary of the Combined State report and its evaluation by the Committee – List of Issues, Replies to the List of Issues, consideration of the report, Concluding Observations – are reproduced here.

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3.4.2.1 Brief Summary of the Combined Second to Fifth Report

The report consists of detailed information on the progress made in the fields of substantive provisions (Articles 6-15) of the Covenant. It highlights the measures taken to achieve the goals set by the Covenant during the reporting years. The national policies and plans of action have played crucial role to change the social structure of the society. The exercise of each right is discussed simultaneously in the ensuing pages.

40 (a) The Right to Work (Article 6)

The government conveys that the Constitutional provisions on various labour legislations are sufficient to safeguard the right to work of its citizens. It underlines the upsurge of employment opportunities and employability after 1990 with the policy of mixed economy and liberalized market. The Five-Year Plans since its inception, enhanced the protection of right to work by generating meaningful job opportunities. In particular, the Sixth Five-Year Plan (1980-85) draws attention to train and guide rural youths for self employment. Seventh Five-Year Plan (1985-90) gives emphasis on the generation of employment in rural areas, capacity building in industries, safety management, and appropriate wage policy in conformity with the productivity. Eighth Five-Year Plan (1992-97) talks of measures to increase the production capacity of the nation. The Ninth Five-Year Plan (1997-2002) and the Tenth (2002-07) specifically focus on the plight of the bonded labour, the migrant labour, and the child labour with appropriate remedies to stop exploitations of the victims.

In the field of labour protection, India has ratified various Conventions of the ILO. Two of these make specific mention (a) the ILO Employment Policy Convention, 1964 (No. 122) that deals with the freedom of choice of employment and (b) the ILO Discrimination (Employment and Occupation) Convention, 1958 (No.111) that deals with non-discriminations in employment.

The International Convention on the Elimination of all Forms of Racial Discrimination and the International Convention on the Elimination of All Forms of Discrimination against Women, to which India is Party and has sent various periodic State reports to the respective monitoring Committee shows the commitment of the

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government to promote the principle of non-discriminations in employment opportunities.

The generation of potential employment opportunities targeted during the Tenth Five- 41 Year Plan of 10 million per year, has touched 8.4 million during 2000-02. The ratio of employment among the disabled people is low as much as twenty-six percent only according to the NSS 2004. The rate of unemployment among the youth (15-29 years) is high that comprises 25 to 29 percent of the total population of India. The freedom of choice of employment in India is defended by the absence of any form of compulsion to undertake a particular job. It is primarily safeguarded by different Constitutional provisions. The Supreme Court of India has overruled various case laws in this regard of governmental restrictions on the grounds that they violate 42 19(1)g of the Constitution, e.g., Chintaman Rao v. State of M P (1950).

The protection of employment of weaker sections of the society is well preserved by the reservation policies in government jobs under Article 16(4) of the Constitution. The reservation of twenty-seven percent seats for backward classes in the government services was challenged in the Supreme Court of India. The Court in Indira Sawheny v. Union of India (1993) held that the reservation policy is strengthening the social 43 justice embodied in the Constitution of India. The workplace safety especially of female workers from exploitations has been laid down by the Supreme Court in a 44 famous case Vishaka v. State of Rajasthan (1997).

The government of India has implemented various plans to generate employment opportunities and to alleviate a Grpoverty on regular basis. The specific poverty alleviation programmes in rural areas need special attention includes:

 Sampoorn Grameen Rozgar Yojana (SGRY), 2001 – It provides additional wage employment in all rural areas and thereby enhances food security.  Swaranjayanti Gram Swarozgar Yojana (SGSY), 1999 – It assists the self- employed poor families by providing training and other skills  Indira Awas Yojana (IAY), 2000 – Construction of houses to be given to the poor, free of cost.

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 National Food for Works Programme (NFFWP), 2004 – It provides additional resources to 150 most backward Districts of the Country for food security through supplementary wage employment.   National Rural Employment Guarantee Act (NREGA), 2005 – It provides hundred days of wage employment in a financial year to rural households for unskilled manual work.

The government has reformed its policies since 1990 to cultivate the benefits of globalization. The trade norms with foreign investors have been liberalized. The Foreign Direct Investment (FDI) is expected to raise the productivity as well as the employment opportunities within country.

The government of India has identified three major problems to the full employment. These are (a) low proportion of labour force, (b) substantial proportion of labour force is unemployed or underemployed, and (c) those employed are very low productive. The government through various policies and Five-Year Plans during these years has achieved mix success in the field of work. The government is further assisted by international trends in labour especially by the ILO. The ILO assists to adopt advanced skills and technologies to organize the labour market and to generate more employment opportunities.

45 (b) The Right to Just and Favourable Conditions of Work (Article 7)

The report claims that the rights of working population in India are well preserved by the Constitutional provisions. The minimum wage, descent standard of living, working hours, rest and leisure, paid holidays, just conditions at workplace, etc., are the core prerequisites to protect the worker’s rights. Besides the ILO’s Minimum Wage-Fixing Convention, 1970 (No.131), India has ratified various other Conventions of the ILO that * protect the just rights of workers. The reporting schedule

* India has ratified various Conventions of the ILO to protect the just and favourable working

conditions for the working populations including women. The list includes:

  Minimum Wage-Fixing Machinery, 1928 (No.26);   Equal Remuneration Convention, 1951 (No.100);   Weekly Rest (Industry) Convention, 1921 (No.14);  Hours of Works (Industry) Convention, 1919 (No.1);

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to the Committee of Experts on the Applications of Conventions and Recommendations (CEACR) of the ILO shows regular reporting status by India for 46 various Conventions that defend the just working rights.

The report describes that minimum wage in the Indian context can’t be fixed as the larger population are employed in unorganized sector. Although government has made continuous efforts to resolve the problem in view of fair wages, minimum wages, floor wages, and living wages. The Minimum Wage Act, 1943 equally guides both Central and State governments for the fixation, review, revision, and enforcement of the minimum wages. The wage amendment bills and policies attempt to fulfill the gap of progressive rise in real wages through additional dearness allowances linked to the Consumer Price Index (CPI). This scheme protects the erosion of purchasing power of workers from both the sectors – organized and unorganized. The absence of uniform national minimum wage forced the Central government to fix it at rupees thirty-five a day in 1996 based on the concept of National Floor Level Minimum Wages. In 2002 before the submission of this report, this was at rupees fifty a day.

The Supreme Court of India through various case laws, has also laid down various principles in this regard including as follows:

 Crown Aluminium Works v. Their Workmen (1958): It declares that the existence of Enterprises is restricted without bare subsistence or minimum 47 wage.    Unichoyi v. State of Kerala (1961): It clarifies that the component of minimum wage includes the wage which is essential to cover the bare physical needs of 48 a worker and his family.        Night Work (Women) Convention, 1919 (No.4); Revised in 1932 (No.41); Revised in  1948 (No.89);  Night Work of Young Persons (Industry) Convention, 1919 (No.6); and Revised in 1948 (No.90).

India is yet to ratify (as of July 2017) the ILO’s Minimum Wage-Fixing Convention, 1970 (No.131) but the principles of this Convention are well implemented within Indian context as discussed above.

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 M/S Unichem Laboratories Ltd. v. Their Workmen (1972): It declares that the fixation of wages and dearness allowances must be determined on the basis of 49 industry-cum-region principle. 

The Central government to ensure equal pay for equal work has enacted the Equal Remuneration Act, 1976. The enforcement of the principles of this Act by the States/Union Territories isn’t effective. The Supreme Court of India has given landmark judgements to nullify the unequal scales of pay based on irrational classifications of status in many of the cases, e.g.,:

 DS Nakara v. Union of India (1983) [AIR 1983 SC 130]   PK Ram Chandra Iyer v. Union of India (1984) [AIR 1984 SC 541]   Randhir Singh v. Union of India (1982) [AIR 1982 SC 879]   State of Haryana v. Rajpal Sharma (1997) [AIR 1997 SC 449]   State of HP v. PD Attri (1993) [1999 3 SCC 217]

The recurring efforts of the Supreme Court have transformed the nature of Article 39(d) – one of the directive principles protecting equal pay for equal work – to become a virtual fundamental right enforceable by the Court.

The government of India highly promotes the health and safety of the workers that are well preserved by the Constitution. The particular attention is given to protect the childhood and youth from the exploitative work conditions. Various laws are enacted to promote the safety management at dangerous workplaces including heavy factories, coal mines, oil mines, chemical plants, etc. Other laws are enacted that regulate the conditions of work in unorganized sectors specifically, home-based and construction works.

The opportunity of departmental promotions is equally entitled to every citizen by the Constitution. Various judgements of the Supreme Court, especially Indira Sawhney v. Union of India (1993), overruled the earlier stand that there is reservation in th promotion. The government enacted 77 Constitution Amendment Act, 1995 to nullify the Court’s stand in Indira Sawhney and empowered States to continue reservation in promotion in government jobs in favour of SCs and STs.

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The rights to rest, leisure, and reasonable working hour are guaranteed by many labour laws in India. The Ministry of Labour has emphasized that work culture shouldn’t be linked with working hours and holidays. It is the aim of the government to bring uniformity in daily and weekly hours of work and holidays.

50 (c) The Right to Form and Join Trade Unions (Article 8)

The Constitution of India under the fundamental rights guarantees the formation of associations for the resolution of worker’s grievances. The method of collective bargaining for the industrial disputes is acceptable to the extent it doesn’t breach peace and public order. The government of India is Party to the ICCPR that recognizes the legitimacy of the right to form association to accelerate collective bargaining. The CEACR of the ILO in 2004 appreciates India to implement the principles contained in the Conventions of the ILO No.87 and 98 in this regard * without ratifying the same. The government, taking note of the agrarian population (one-third of the India’s workforce is engaged in agriculture), ratified the ILO Convention No.11 – the Right to Association (Agriculture) Convention, 1921. It empowers workers from agriculture sector, the right of association on par with the industrial workers.

There is urgent demand from the trade unions to reform the existing norms protecting the worker’s right of association and collective bargaining. The government is urged to amend the Trade Union Act, 1926, the Industrial Disputes Act, 1947, and Contract Labour (Regulation and Abolition) Act, 1970. The Supreme Court of India in the landmark judgements has supported that the right to form association includes the right to form trade unions for lawful purposes, e.g., BR Singh v. Union of India 51 (1989).

The Central and State civil service employee’s associations are recognized by the respective governments. The grievances of civil servants in India are settled through

* India is yet to ratify ILO Convention No.87 – Freedom of Association and Protection of the Right to Organise Convention, 1948 and No.98 – Right to Organise and Collective

Bargaining Convention, 1949. The provisions of these Conventions are well preserved by the Article 19(1)(c) of the Indian Constitution, a fundamental right enforceable by the Courts. A very detailed coverage is available in India’s report on the ILO Global Report as well as in Declaration Follow-up 2004.

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the Joint Consultative Machinery (JCM) and Service Tribunals established by the respective governments. The Board of Arbitration under the JCM was established in July 1968 and during 1999-2000, 248 cases were referred to the Board of which 238 were settled. The restricted categories of employees that can’t form trade unions under Article 33 of the Constitution are (a) the member of the armed forces or (b) the * forces charged with the maintenance of public order. The recognition of trade unions is still not uniform; some of the States have their own laws to enhance the activities of the associations and collective bargaining culture.

The right to strike is lawful in India if undertaken in pursuance of the legitimate trade unions activities and without the use or threat of the force. The employee’s position to interpret the right to form association with the right to strike and collective bargaining was overturned by the Court in All India Bank Employee’s Association v. National Industrial Tribunal (1962). The Court argued that it was not visioned by the framers 52 of the Constitution. The legitimacy of right to strike isn’t altogether discarded. It is permissible after exhausting all the possible remedies to further the objectives of the union but in a peaceful manner.

53 (d) The Right to Social Security (Article 9)

The Constitution of India protects the social security of every people of the society. The plans and policies of the government are aimed to ensure the descent standard of living to all the citizens. India has ratified four of the following ILO Conventions that deal with the protection of social security provisions:

 No.18 Workmen’s Compensation (Occupational Disease) Convention, 1925 –  Payment of compensation to workmen for occupational diseases;   No.19 Equality of Treatment (Accident Compensation) Convention, 1925 – Equality of treatment to national and foreign workers as regards compensation payable to workmen for injury/death caused due to accidents;   * The scope of Article 19(1)(c), i.e., right to form association and Article 33 has been considered by the Supreme Court in OKA Nair v. Union of India (1976) [AIR 1976 SC 1179]. The Court held that the civilian employees of the Defence Establishments are responsible to answer the description of the members of the Armed Forces within the meaning of Article 33

and therefore are not entitled to form trade unions.

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 No.42 Workmen’s Compensation (Occupational Diseases) Convention (Revised), 1934 – Revised compensation for occupational diseases; and,  No.118 Equality of Treatment (Social Security) Convention, 1962.

The government is yet to ratify many other Conventions of the ILO in this regard. The report of the study group of the Second National Commission on Labour (2002) suggests that the principles, however, of these Conventions are operational in many cases in India. The full adoption isn’t instantaneous. Gradually these principles will * take the shape in compliance with these Conventions. The government funded social security benefits at par with Developed Countries isn’t possible in India. The fund raising schemes are promoted at large. Since the Ninth Five-Year Plan, the State governments are requested to support unorganized sectors within the existing social security plans. In the organized sector, the Employees Provident Fund Organisation (EPFO) and Employees State Insurance Corporation (ESIC) schemes are operational.

The brief summary of major security laws enacted in India is discussed below:

(1) The Employees State Insurance Act, 1949 (ESI Act)

It provides sickness insurance in the industry including (i) Medical care, and (ii) Cash benefit. The benefits are provided in the events of sickness, maternity, disablement, medical benefit after retirement, dependent benefits, funeral expenses, rehabilitation allowance, standard benefit, and in case of employment injury. The increasing number of employees under the scheme shows the effort of the government to include even smallest pocket of industry within the ambit of the ESI coverage.

(2) The Employees Provident Fund and Miscellaneous Provisions Act, 1952 (EPF & MP Act)

* The Conventions of ILO on social security yet to be ratified by India are:

  No.102 Social Security (Minimum Standards) Convention, 1952   No.121 Employee Injury Benefits Convention, 1964   No.128 Invalidity, Old-Age and Survivor’s Benefits Convention, 1967   No.130 Medical Care and Sickness Benefits Convention, 1969  No.168 Employment Promotion and Protection Against Unemployment Convention, 1988

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In the organized sector, retirement benefits take the forms of provident fund, pension plans connected with the provident funds, and the gratuity. The unorganized sector of the country is regulated by the EPF & MP Act. The act is empowered by the Employee’s Pension Scheme, 1995 which introduces the payment of monthly pension in the following contingencies:

 Superannuation on attaining the age of 58 years;   Retirement;   Permanent total disablement;   Death during service;   Death after retirement/superannuation/permanent total disablement;   Children Pension; and,   Orphan pension.  (3) The Workmen’s Compensation Act, 1923 (WC Act)

It provides minimum and maximum rates of compensation for permanent total disablement and death of workmen.

(4) The Maternity Benefit Act, 1961 (MB Act)

This act under Central legislation covers the whole country and every establishment except those to which the ESI Act is applicable. It lays down the eligibility conditions, the period for which the benefit is payable, and the rates of benefit.

(5) The Payment of Gratuity Act, 1972 (PG Act)

It is a kind of retirement benefit but in India payable only after the completion of five years of service. The act was passed to provide payment of gratuity to the employees in every factory, mine, oil-field, plantation, and railways and also to every shop and establishment in which ten or more persons are employed.

The National Sample Survey (NSS) reports 1999-2000 declares that almost ninety- three percent of the employees in India are from the unorganized sector. The existing arrangements to their social security are grouped in the following categories:

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 Centrally funded social assistance programmes – e.g., National Social Assistance Programme (NSAP);  Social insurance schemes – operates through Life Insurance Corporation (LIC) in unorganized sector;   Social assistance through welfare funds of Central and State governments; and,   Public initiatives by NGOs like self-help groups.

The protection of the right to social security is so vital that it can’t be realized without the international cooperation and assistances. The Government of India and the Employee’s Provident Fund Organisations are associate members of the International Social Security Association (ISSA), Geneva while the Employee’s State Insurance Corporation is an affiliate member.

54 (e) The right to the Protection of the Family (Article 10)

Two kinds of families are prevalent in Indian society – the joint or extended families and the nuclear or elementary families. The joint families, largely in rural areas, comprise a male head (in most of the household), his wife, sons and their wives with children, unmarried daughters, and some other dependents. The impact of urbanization compels a woman to join the workforce that indirectly changes the family relations between wife-husband and parents-children (common in nuclear families). The domain of family in India is by and large regulated by religious and personal laws. The government, however, with the least intrusion in the privacy, makes effort to preserve the institution of family and its relations. The progressive realization of Articles 14, 15(3), 21, 39(e) & (f), 41, 42, and 44 of the Constitution is the key to the protection of the family in India.

The right to marry and form a family in India isn’t restricted by any illegal dominion. The Supreme Court in a landmark case CB Muthamma v. Union of India (1979) has declares that seeking permission of the higher authority before the marriage of a 55 lady officer is unconstitutional. The government attempts to reform the personal laws save Muslims and some other denomination based on religious conscience. The Special Marriage Act, 1954 serves the purpose of civil marriage between male and

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* female of full age irrespective of religious belief. The Child Marriage Restraint Act, 1929 prohibits marriage under 18 and 21 years for girls and boys respectively. The child marriage is a menace to the Indian society. The National Commission for Women (NCW) and National Human Rights Commission (NHRC) in collaboration with the government has made wider awareness campaign to avoid the child marriage. The registration of marriage is compulsory now, for most of the communities in various States.

India is Party to CEDAW and gradually enacts various Statutes followed by certain amendments to enhance the status of women within and outside the family. The Supreme Court under the Code of Criminal Procedure (CCP) is actively involved to secularize the personal laws. In a landmark case Danial Latifie v. Union of India (2001), it declares that the responsibility of maintenance of Muslim women in case of † Talaq (divorce) is liable on husband even after Iddat period. Similarly various amendment have been made to succession laws, special marriage acts, divorce acts, etc., to personal laws of different communities in recent years.

The growing disputes of family protection (especially joint family) are the concern of the Central Social Welfare Board (CSWB) under the Department of Women and Child Development. It has established Family Courts in eighty-four cities/towns to provide Family Counselling Centres (FCC). The government, in a move to protect the institution of family, has recognized domestic violence/ harassment a greatest hurdle 56 and subsequently penalized it under Indian Penal Code (IPC). The Protection of Women was enhanced after the enactment of Domestic Violence Act 2005. The government has established various alternative arrangements for destitute women including widows and those deserted by their family.

* The Christian Marriage Act 1872, The Hindu Marriage Act 1955, The Indian Divorce Act 1969, The Parsi Marriage and Divorce Act 1936 are some of the enactments that govern major communities.

† See Danial Latifie v, Union of India (2001) [AIR 2001 SC 3958]. The Court extends the right to maintenance after Talaq (divorce) of Muslim women for the whole future. The earlier stand of the maintenance under Muslim personal law upto the Iddat period (four months ten days after Talaq) or upto the delivery of the child if the woman under case is pregnant, is void. The Iddat is a short period after Talaq of four months and ten days after that woman is free to enter next marriage contract with anyone suitable.

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The Maternity Benefit Act provides the possible benefits to all the women workers. The Department of Family Welfare implements the advanced protection of Janani Suraksha Yojana to the unorganized sectors with dual purpose to reduce the Maternal Mortality Rate (MMR)/ Infant Mortality Rate (IMR) and to honour the female foetus. The protection of the children’s right is one of the primary concerns of the government of India. The National Charter for Children 2003 emphasizes the government’s commitment to the complete development of the children including boys and girls. Various schemes are run by the Central and State governments to cover the healthcare, crèches, nutrition, safe drinking water supply, sanitation programme, reproductive health programmes, education programmes, etc., to the welfare of the children. The recent initiative for the implementation of the above programmes is the National Plan of Action for Children, 2005.

The Constitution of India protects the rights of the children through its various * provisions in compliance with the Convention on the Rights of the Child. India is committed to eradicate child labour completely in all its forms. In addition to Constitutional mandates, it has ratified six of the ILO Conventions relating to child labour. The total figure of the child labour is 12.50 million out of the total population of 250.2 million children according to the Census of 2001. It covers 3.12 percent of the total workforce in the same year. Differences persist over the definition of the child labour and thus the World Bank in its report of 1998 acknowledges that all the 57 child labour is not harmful. It is then the priority of the government to enact legislation prohibiting child labour in hazardous occupations first. The Supreme Court of India in a landmark case MC Mehta v. State of Tamil Nadu (1997) deals with the rehabilitation of children working in hazardous occupation and regulation on children 58 working in non-hazardous occupation.

The Country is committed to ameliorate the situation of the children under difficult circumstances including disability, street children, destitute children and juvenile offenders, etc. The Ministry of Social Justice and Empowerment through various schemes guarantees proper rehabilitation of children of such categories. To deal with

* The Convention on the Rights of the Child is an international instrument that deals comprehensively with the welfare of the children worldwide. It entered into force on November 20, 1989. India became Party to it on December 2, 1992 and since then has submitted two periodic State reports (recently in 2004).

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the problem of the female foeticide and infanticide, the Preconception and Pre-Natal Diagnostic Techniques (Regulation of Sex Selection) Act, 1994 is operational in all the States and UTs. According to the report of the Central Social Welfare Board (2000), thirty percent of the prostitutes in the country are among children. The Immoral Traffic Prevention Act 1956 as amended in the year 1986 provides for the punishment of those running brothels and is involved in child prostitution. The Supreme Court has given directions to the government to combat trafficking and sexual exploitation of women and children and for their rehabilitation. The Ministry of Women and Child Development on the Court directives has formulated a plan of 59 action to rescue the affected persons.

60 (f) The Right to an Adequate Standard of Living (Article 11)

The Preambular mandate of the socialistic pattern of society is being augmented by the establishment of Planning Commission of India in 1951. One of the important aims was to increase per-capita income so that growth and development would trickle down to the lower levels and would raise the standard of living of the poor. In the following decades, focus was shifted to expand the opportunities and human capabilities. The Twenty Point Programme (TPP-86) is operative since 1975 to monitor twenty items on a monthly basis out of hundred and nineteen items identified particularly in the fields of adequate access to food, clothing, and housing. The Human Development Index of India has slightly improved from 0.416 (1975) to 0.590 (2001) according to the UNDP report. The advantage of various programmes to reach the deserving beneficiaries at the grass root levels, various local bodies/ Panchayati * Raj Institutions (PRIs) ensure the community participation. The National Sample Survey report claims a considerable decline in number of poor people (below national poverty line) from 323 million in 1983 to 260 million in 1999-2000 despite enormous increase in the population of the Country.

* The 73rd and 74th amendments of the Constitution of India enable the State governments to establish the three-tier local bodies (Panchayati Raj Institutions) viz., Municipalities (town level), Zilla Parishads (intermediate level), and Panchayats (village level) giving them jurisdiction over local affairs. Almost all the States save a few, have established these institutions.

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The improved measures in the field of agriculture, livestock, and animal husbandry have attained self-sufficiency in the production of the food grains. The Country doesn’t face a famine or large scale mass hunger like situation save some sort of the chronic hunger and malnutrition in some of the parts of a few social groups. The biggest trouble is the deficient calorie intake – the recommended is 2400 Kcal/day – particularly of protein and vitamins among all the social groups especially in rural areas. The government through the Public Distribution System (PDS) ensures the supply of sufficient food grains at reasonable prices to the most needy and vulnerable groups. The Central government for the decentralised procurement of food grains has channelized the State governments to purchase directly on behalf of the government of India. The Food Corporation of India (FCI) is responsible to the central pool stock and provides deficit of food grains throughout the Country.

The schemes/programmes targeting to eradicate hunger and malnutrition from vulnerable groups are worth appreciation. The Mid-Day Meal Scheme was launched on August 15, 1995 to cover students of class I-V of primary schools (government, aided, or run by local bodies). The other schemes of importance include Wheat Based Nutrition Programme (WBNP), scheme for the supply of food grains to SCs/STs/OBCs hostels and welfare institutions, Annapurna scheme, special component of Sampoorna Gramin Rozgar Yojana, Integrated Child Development Services, Nutrition Programme for Adolescent Girls (NPAG), emergency feeding programme and the Grain Bank Schemes, etc. The government is committed to promote Consumer Cooperatives and prohibition on food adulteration and black marketing.

The efforts of Central government and the State governments have reduced the houselessness through various housing programmes in India. The report of the National Building Organization has estimated the housing shortage of 24.68 million (14.12 million rural and10.56 million urban) in India based on the 2001 Census. The Supreme Court has recognized in many cases that the right to shelter is an integral 61 part of the right to life under the Constitution of India. The National Housing Policy (1988) is committed to eradicate houselessness with improved housing conditions. The National Housing and Habitat Policy 1998 (NH&HP) is further mandated to promote sustainable development, infrastructure development, and strong public

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private partnerships for shelter delivery. A further revision was underway since the Conference of Housing Minister’s of all the States in November, 2004.

The government attempts to relax the legislations related to the land acquisition and registration process. The Model Rent Act, Model Apartment Ownership Act, and Model Property Regulation Act have already been adopted by many States. A large number of people dwell in slums in urban areas where the government policy insist * in-situ up gradation and relocation rather than forcible removal. The Housing and Urban Development Corporation Ltd was established as a fully government owned undertaking to finance and provide housing solutions in every set-up. The housing schemes in rural as well as urban areas include Valmiki Ambedkar Awas Yojana (VAMBAY) 2001, National Slum Development Programme (NSDP) 1996, Night Shelter Scheme, Indira Awas Yojana 1985, Samagra Awas Yojana, etc. The government is further committed through various schemes to provide basic amenities viz., water supply, sanitation, electricity, road connectivity, etc., to all the households.

62 (g) The Right to the Enjoyment of the Physical and Mental Health (Article 12)

The Supreme Court of India has reiterated in various cases that the right to healthy life is the integral part of the right to life under the Constitution. It is the responsibility of the government to provide the adequate medical facilities upto the extent the

63 budget of the State permit. The Court in a landmark decision MC Mehta v. Kamal

Nath (1997) notices that hygienic environment is integral to the healthy life of the

64 people. The National Health Policy 1983 was launched in the backdrop of the Alma Ata Declaration 1978 to which India is signatory with the goal ‘Health for All’ by the year 2000. The goal ‘Health for All’ is still to be achieved; the Country has made advances in providing healthcare services, the coverage of the immunization programmes, and the control of the communicable diseases. The growing mental health problems viz., stress, strain, mental disorders, etc. are a serious concern of

India in modern times.

* The Supreme Court in a landmark judgement Olga Tellis v. Bombay Municipal Corporation (1986) [AIR 1986 SC 180] held that eviction of a slum dweller should be according to fair, just, and reasonable processes. It not only results in deprivation of the shelter but inevitably leads to the deprivation of the means of livelihood.

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The Census report and other data (upto 2001) on various health indicators highlight significant urban-rural gap that reflect the ineffective accessibility of healthcare facilities in rural areas. The indicators also show the poor health status of the SCs, STs and other disadvantaged groups. The budgetary allocation on the aggregate health expenditure is too little – it was only 5.2 percent of the GDP in 1999. The reformed National Health Policy was launched in 2002 to ensure the acceptable standard of good health for the whole Country. The government has decentralized the healthcare services on the basis of population density. The primary healthcare infrastructure (Sub-Centres, Primary Health Care, and Community Health Care) covers the rural population. It is linked to the District and urban hospitals (secondary healthcare). The Tertiary Care/Super Specialty Institutions have been set up both by government and private entrepreneurs.

The State Health Development Projects with the assistance of the World Bank are functional in various States at secondary healthcare area. The Pradhan Mantri Swasthya Suraksha Yojana (PMSSY) was launched with the aim to establish institutions like All India Institute of Medical Sciences (AIIMS), New Delhi in other backward States. A significant eye-care services in remote and rural areas are visualized by organizing eye-camps with trained manpower – about seventy percent population are get operated for cataract surgery (survey 2001-02). The Directorate of General Health Services runs the separate Tribal Development Planning Cell to promote the healthcare schemes for the SCs and STs. The private sector health services, in addition to government initiatives, are providing substantive amount of healthcare facilities across the Country.

The complementary healthcare systems are also operative in India including Ayurveda, Siddha, Unani, Homeopathy, and therapies such as Yoga and Naturopathy. The government laid focus on standard medical education and research to ensure adequate human resources for the entire health sector. The Indian Pharmaceutical Industry plays a significant role to meet the demands of domestic production of cost effective medicines for all purposes. The government also bothers quality control and pollution control through various legislations. The Court also expands the ill effect of the environment over the occupational health under the doctrine ‘polluter pays’ and 65 the doctrine of ‘absolute liability’ and the doctrine of ‘public trust’, etc.

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The Central government is committed to eradicate communicable, non- communicable, and mental health problems through various policies and programmes. The National Institute of Communicable Diseases implements the programmes to eradicate Malaria, Filarial, Kala-azar, Japanese Encephalitis, Dengue, Tuberculosis, Leprosy, and sexually transmitted diseases like AIDS, etc. The most common Non- Communicable Diseases (NCDs) identified in India are Cardiovascular Diseases, Diabetes, Mellitus, Cancer, and Chronic Obstructive Pulmonary diseases. Individual comprehensive National Programme for each of the NCD operates throughout the Country. Mental health to all the people is ensured by National and District Mental Health Programmes. The government launched various programmes to promote maternal and child health including the Universal Immunization Programme (UIP) 1985, the Pulse Polio Immunization Programme 1995, the Reproductive and Child Health Programme (RCHP) 1997, etc.

66 (h) The Right to Education (Articles 13 and 14)

The impressive implementation of the educational policies in India since independence improved the grass root participation in the mainstream socio-political life of the nation. The Constitution of India preserves the diversity of the nation. It provides for every minority (either religious or linguistic group) to establish and * administer own educational institutions. The Supreme Court in a landmark judgement Preeti Srivastva v. State of MP (1999) directs the government to implement preferential treatment to the socially and educationally backward classes 67 including SCs and STs. The National Policy of Education (NPE) 1986 was expanded with the goal to achieve ‘Universal Elementary Education (UEE)’ under the project National Literacy Mission 1992.

The school education in India comprises a uniform 10+2 pattern including primary, upper primary, secondary, and higher secondary levels across the States. The government envisages elementary education of eight years (in two stages – grade I-V and VI-VIII) as th integral part to the compulsory education (included in DPSP).The 86

* The Article 29(1) guarantees to any section of the society residing in any part of India having a distinct language, script or culture of its own, the right to conserve the same, i.e., language, script or culture. A minority community can preserve its language, script or culture by and through educational institutions.

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Amendment Act makes elementary education a fundamental rights under the initiative Sarva Shiksha Abhiyan (Education for All). The secondary education comprises grades IX and X in some States while in others, it is VIII, IX, and X. The structure of education, in most of the States, after the ten years of schooling is 2+3+2 (2 years higher secondary, 3 years first degree, and 2 years post-graduation). The education facilities are expanded uniformly in the post independent India particularly primary and upper primary education.

The government has started informal education system in 1979-80 for those under the age group of six to fourteen and are unable to complete their education because of the poor socio-economic circumstances. The following table shows the significant growth of the higher education facilities in India during 1950-51 and 1998-99:

Table 3.5: Growth in number of institutions of higher studies in India

Sl. Institutions of Higher Studies 1950-51 1998-99 no

1. Colleges of General Education 370 11,089

2. Colleges of Professional Education 208 2,113

3. Universities 27 237

Source: Combined II, III, IV, and V periodic State report to the CESCR India (2006), p.153.

The participation of girls at all stages of education is remarkably impressive since 1950-51 to 2001-2002. In 2001-02 the enrolment percentage of girls to total enrolment nationwide is 44.1 at primary level, 41.8 at middle level, 39.5 at secondary/higher secondary level, and 39.9 at higher education (degree and above level).

The government under the goal of Universal Elementary Education amends the Constitution in 2002 to provide the free and compulsory education as a fundamental right under the age group of six to fourteen years (and free primary education for 68 all). It alters Article 45 of the DPSP to provide early childhood care and education for all the children until they attain the age of 6 years. The Sarva Shiksha Abhiyan

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provides centrally sponsored incentives to the District Primary Education Programme (DPEP) in 273 Districts. Some of the important achievements of the DPEP are as discussed below:

 It has so far opened more than 1,60,000 new schools, including almost 84,000 alternative schooling centers.   Enrolment in DPEP-I Districts has increased from 7.93 million in 1997-98 to 9.26 million in 2001-02.   Works completed include 52,758 school buildings, 58,604 additional classrooms, 16,619 resource centers, 29,307 repair works, 64,592 toilets, and 24,909 drinking water facilities. Another considerable phase in each sector is under progress.   The total number of children with disabilities enrolled in DPEP is 4,20,203 that represent almost seventy-six percent of 5,53,844 children with disabilities identified in the nine DPEP States.   The high drop-out rate in a large number of Districts is a matter of grave concern.   Besides, there are various initiatives undertaken in DPEP for quality improvement.

Janshala is a community based programme of the government of India to promote primary education in collaboration with five of the UN agencies (UNDP, UNICEF, UNESCO, ILO, and UNFAA). It is more accessible and effective especially to girls and children in deprived communities, marginalised groups, SCs & STs minorities, working children, etc. The expenditure on elementary education in 2001-02 was 2.02 percent of the GDP.

The number of secondary and senior secondary schools increases from 1,16,000 in 1999-2000 to 1,21,951 as on September 30, 2002, with a student enrolment of 28.8 million (private sectors included). The government promotes open schooling and vocational training at the secondary/higher secondary level to meet the educational demands. Despite the serious handicaps of means and resources, the country has developed a number of new Universities and institutions of higher learning in specialized areas during the last fifty years. The Distance Learning Programmes and

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Adult Education are other non-formal education systems that fulfil the educational incentives of India for millions.

The literacy rate fluctuates in different States while it is more than 90 percent in case of Kerala; it is less than 50 percent in States like Bihar, etc., (Census 2001). The total th adult literacy rate by 54 round of the NSSO report for 1998 has fifty-seven percent (70 percent for Male and only 44 percent for Female). India is language rich land having almost 1652 mother tongues (Census 1961). The various Committees have been appointed to explore the language policy for or as a part of the total educational system favouring three-language formula. The National Council of Educational Research and Training (NCERT) conclude that there are forty-four languages used in schools as the First, the Second, or the Third Languages of instruction. The active role of various international agencies (in collaboration with Central as well as State governments) are creating milestones to visualize the educational needs of the entire Country including disadvantaged and marginalized communities.

(h) The Right to Take Part in Cultural Activities and Enjoy the Benefits of 69 Scientific Progress (Article 15)

The Constitution of India under part III preserves the cultural freedom – protection and promotion of distinct languages, cultures, or religions of India. The DPSP to that end requires the protection of monuments, places and objects of historical interest and national importance. The nodal agency is the Ministry of Culture with two attached offices – the Archaeological Survey of India and the National Archives of India – a number of subordinate offices and other autonomous organizations to deal specific cultural matters. The government has established eminent institutions of excellence like the Lalit Kala Academy 1954 (Fine Arts), the Sangeet Natak Akademy 1953 (Music, Dance, and Drama), the Sahitya Akademy 1956 (Literature). The National School of Drama was established to promote different aspects of the theatre in 1959.

The Archaeological Survey of India (1861) maintains and preserves the monuments/sites and remains of national importance. There are different National Museums which acquire, exhibit, conserve, publicize, educate, reorganize, and modernize galleries related to the objects of arts. The cultural heritage of economic, political, and social development of the Country is recorded to the National Archives of India. The well organized channel of Central and State Libraries act as the

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repository to the current publications, books, newspapers, and journals of repute. The Anthropological Survey of India (1945) has launched a project called “People of India” to study the cohesive cultural, social, and anthropological factors that unite the various communities in India. The National School of Drama significantly has explored the new horizons for the cultural manifestation by young minds.

The government of India has been actively pursuing 114 cultural cooperation agreements so far with various countries of the world. The Indian Council for Cultural Relations (ICCR), 1959 is responsible to promote inter-country cultural activities. The government has introduced fellowship programmes since 1989-90 to encourage the application of modern ideas, principles, methodologies, science and technology to explore the cultural life in different field. The national media instrument, the Parasar Bharati (Doordarshan plus All India Radio) promotes the people’s participation to the cultural life through the adequate coverage to the diverse cultures, sports and games, and youth affairs. The film industry is a non-governmental sector to the expression of the cultural and scientific life of the past and present.

The Country is always committed to the high level of scientific progress to which every citizen has a share to get benefitted. The Ministry of Science and Technology is the nodal agency at the Centre with three departments – Department of Science and Technology (DST), Department of Scientific and Industrial Research (DSIR), and the Department of Atomic Energy (DAE). The initial policies with imported technologies on science and technology didn’t cater the domestic circumstances. A stride was taken in 1983 to develop the indigenous technology and the better absorption of imported technology to reach the grass root level. Consequently the living standard of the people improved across the Country.

The impact of globalization led the evolution of the new set of technology policy statement in 1993 to upgrade the existing one. The focus was to improve the research and development, and engineering and the human resources. The new policy after a decade with wider participation was implemented in 2003. The government in collaboration with the public and private institutions encourages to develop the advanced infrastructure. It is the endeavour of the DST to identify new talent to provide financial assistance in the form of fellowship to pursue research in front-line areas of science and technology. A National Science and Technology

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Entrepreneurship Development Board (NSTEDB) was established in 1982 that operates various entrepreneurship development programmes to encourage young scientists to become entrepreneur. They are encouraged to apply scientific and technological development to the social sector, especially in backward and the tribal areas.

3.4.3 List of Issues to the Combined Second to Fifth Periodic Report, India

(2006)

The Pre-Sessional Working Group of the CESCR on September 14, 2007 adopts the 70 ‘List of Issues’ to be taken in connection with the Combined report (2006) of India. It raises the following subject matters, the detailed information on these are not covered in the Combined report submitted by the government of India:

 The enforcement progress of the Article 1-5 of the Covenant is missing;   Difficulties to implement general provisions through-out the Country;   Establishment of special Courts under Scheduled Castes and Scheduled Tribes (Prevention and Atrocities) Act, 1989 and its activities;   Prevention of discriminatory acts against Dalits ad Tribals;   Implementation of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006;   Post-Tsunami rehabilitation process (in the Districts of Tamil Nadu);   Equality of men and women (particularly to Dalit and Tribal women);   Non ratification of the ILO Conventions No.2 (on unemployment 1919), No.102 (on social security 1952), No.138 (on the fixation of minimum age for work 1973), No.169 (indigenous and tribal people 1989), No. 174 (prevention of major industrial accidents 1993), and No. 182 (on worst form of child labour 1999);  Article 6 – updated statistical data on unemployment and underemployment (specifically SCs, STs, persons with disabilities, reservation policies under affirmative action);   Article 7 – detailed information on gender gap in relation to equal pay for equal work, sexual harassment, occupational safety, manual scavenging, and bonded labour;

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 Article 9 – non-contributory social security scheme, unemployment benefits (specially SCs and STs), and dignity of older persons;  Article 10 – update statistical data on domestic violence, prohibition on dowry, trafficking in persons, and on child protection (prostitution, marriage, labour);   Article 11 – statistics of poverty level (SCs, STs, and forest dwellers), equitable distribution of food, starvation deaths, alternative to the displacement/forced eviction of persons, homelessness, and slum development;  Article 12 – public expenditure allocated to the healthcare (disaggregated by States/UTs), person affected with HIV/AIDS, maternal mortality, family planning, female sterilization, and accesses to the safe-drinking water;   Article 13 and 14 – public expenditure allocated to the education(disaggregated by States/UTs), enrolment of marginalized groups (Dalits and Tribes), and vocational and technical education; and,   Article 15 – promotion of tolerance and respect in the official curricula, traditional arts and crafts, cultural heritage (SCs and STs), linguistic rights to use the language before the Court and other authorities, and the protection of Bodhgaya Temple of Bihar.

3.4.4 Replies to the List of Issues by the Government of India (February 2008)

The government of India has submitted the Replies to the List of Issues raised by the Pre-Sessional Working Group at the fortieth session of the Committee (April 28 – 71 May 16, 2008). The replies mention, the number of cases registered under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is decreasing. There are 137 exclusive special Courts under the Act have been established in the States including Andhra Pradesh (12), Bihar (11), Chhattisgarh (7), Gujarat (10), Karnataka (7), Madhya Pradesh (29), Rajasthan (17), Tamil Nadu (4), and Uttar Pradesh (40).

Article 6 – The rate of unemployment on usual principal status and current weekly status remains unchanged for males while increases by two percent in case of females (2004-05). The incidence of underemployment is relatively high in India. It is usually

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more serious among employed females of rural areas (seventeen percent) than among males (four percent).

Education and employment of SCs, STs, and Other Backward Classes – During 2004- 05, literacy rate is lowest among STs (fifty-two percent), SCs (fifty-eight percent), and OBC (sixty-four percent). The school attendance is steadily increasing among all social groups particularly in rural areas than urban areas.

Article 7 – According to NSS (2004-05), gender gap in average wage/salaries received per day by regular employee differs in different States and between rural and urban India. It is of the order rupees sixty and rupees fifty for rural and urban respectively.

Bonded Labour – The Apex Court in a decision PUCL v. State of Tamil Nadu (1997) ordered the NHRC to supervise the issue on bonded labour. The NHRC established a Central Action Group to sensitize the District Magistrates and other functionaries dealing with identification, release, and rehabilitation of bonded labour. The report shows that incidence of the cases of the bonded labour declines steadily.

Article 10 – The National Family Health Survey III (2005-06) concludes that domestic violence against women includes physical violence only, sexual violence only, physical and sexual violence, and physical or sexual violence. The perpetrator in most of the cases (about ninety-five percent) of sexual violence against a married woman is current or former husband. The rate of sexual violence against a non- married woman is high by a relative (twenty-seven percent) than a stranger (sixteen percent). However, physical violence alone is the most common form; sexual violence rarely occurs without physical violence. The violence of any kind is most common in Bihar (fifty-six percent) followed by Rajasthan, Madhya Pradesh, and Tripura (45-47 percent).

HIV/AIDS – The National Family Health Survey III (2005-06) indicates that 0.28 percent of adults (aged 15-49 years) are infected with HIV, i.e., 1.7 million HIV- positive persons in India.

Article 11 – The incidence of poverty declines in the reporting years but the number of poor people remains high because of the huge multiplication of the population in

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India. The poverty ratios for SCs and STs are significantly higher than the national poverty ratio continually.

Article 12 – The overall average rate of Maternal Mortality Rate declines during the period (1997-2003) and has been estimated a decline of sixteen points per year.

Safe Drinking Water – The Census data (1991) reveals that only sixty-two percent households have access to safe drinking water that increased in 2001 upto eighty-five percent. The rural India increase in percentage is slightly high (1991 – 55.5, 2001 – 86.8, and 2005 – 90).

Article 13 and 14 – According to the NSS date (2004-05), the receiver of the vocational training during the period is highest among the unemployed youths (especially female).

Article 15 – The management of Bodhgaya Temple is regulated by Bodhgaya Temple Act (Bihar XVII of 1949).

3.4.5 Additional Replies to the List of Issues by the Government of India (April 2008)

The government of India submits the additional Replies to the List of Issues raised by the pre-sessional working group at the fortieth session of the Committee (April 28 – 72 May 16, 2008). The acquittal of the accused in the cases of SCs & STs Act is rampant according to the National Commission for SCs and STs – the factors include, e.g., delay in lodging the First Information Report (FIR), etc. However, the active role played by the Ministry of Social Justice & Empowerment and the State governments, the rate of conviction has improved from twelve percent in 2001 to twenty-nine percent in 2005. The government has taken special care to the improvement of the SCs and STs at every sphere including through sub plans, specific finance and development corporations, and reservation policies in services, educational institutions, and legislature, etc.

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 seeks to recognize and vest the forest rights and occupations to forest dwelling Scheduled Tribes and other traditional forest dwellers. The provisions of the Act have entered into force with effect from December 31, 2007.

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Equality of Men and Women (particularly Dalit and Tribal women) – Despite the Constitutional provisions (Articles 14 and 15 (2)), women in general and Dalit and Tribal women in particular, lag behind in equality to men. The government has taken various initiatives including representation of women in the decision making bodies at the grass root levels and reservation of seats for women in general and SCs/STs women in particular.

Employment of Persons with Disabilities – The Persons with Disabilities Act, 1995 provides for reservation of three percent for persons with disabilities in the identified posts. In the year 2005, out of the total 5600 direct recruitments, 389 were provided to persons with disabilities (6.94 percent of the total).

Manual Scavenging – The Employment of Manual Scavengers and Construction of Dry Latrines (prohibition) Act, 1993 has been enacted successfully by many States. The government implements programmes to rehabilitate and liberate scavengers into alternative occupations including self employment.

Article 9 – The National Social Assistance Programme (NSAP) comprises the National Old Age Pension Scheme (NOAPS), the National Family Benefit Scheme (NFBS), and the National Maternity Benefit Scheme (NMBS). Apart from the NSAP, several State governments have formulated their own social assistance programmes.

Article 11 – The reduction of overall poverty includes the reduction level of poverty for SCs and STs especially of rural areas where the majority population reside. The National Urban Housing and Habitat Policy (NUHHP), 2007 ensures the upgraded development of slums and viable relocation if necessary. It also promotes the housing needs in collaboration with the Private Sectors, the Cooperative Sectors, and the Industrial Sectors.

Article 13 and 14 – The participation of the SCs has increased in all streams of higher technical education and vocational education. More remarkable has been the increase in the participation of the SC females.

Discrimination against Dalit and Tribal Groups – The Constitutional provisions under Articles 15(4) & (5), and 46 protects the educational and economic interest of

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SCs and STs. The government provides various scholarships and other assistances to educational enhancement.

Article 15 – The Article 29 of the Constitution serves the purpose to preserve the cultural distinctiveness of all the communities in India. There have been seventeen Tribal Research Institutes (TRIs) so far established to promote the tribal culture. The TRIs construct tribal museums within its premises to preserve the tribal art, craft and material culture.

3.5 Alternative/ Shadow Reports: The Role of NGOs

The Committee receives alternative information parallel to the periodic State report from the UN specialized agencies, the UN Secretariat, and most importantly but not the last, from the NGOs of competence around the world. The written submission by the NGOs to the Secretariat of the Committee can be made any-time well before the consideration of the State report during regular session. It is worthwhile to submit the Alternative Reports before the meetings of Pre-Sessional Working Group that will help to draft focussed List of Issues for the country under consideration. In other way, it will help the State Party to highlight those issues raised by NGOs before the 73 consideration of the report by the Committee. The Pre-Sessional Working Group usually adopts the List of Issues before six months to the expected session of the Committee in which the State report will be considered. The Committee devotes certain parts of the first day of each session (usually after-noon) to make oral representation by the NGOs. The Pre-Sessional Working Group also invites the NGOs to represent orally before its own session to the concerned State.

The submission by the NGOs and other alternate informations against the State report enlarge the scope to explore the unnoticeable issues neglected since time immemorial. The submission by various NGOs in the context of the Combined Second to Fifth periodic State report of India (2006) and their primary issues of concern are being discussed in the following pages.

ActionAid India – The Shadow Report against the Combined Second to Fifth periodic State report India (2006) was submitted by ActionAid on April 2008 in collaboration 74 with 152 NGOs across India. The organization primarily focuses on the excluded population including dalits, tribals, muslims, urban poor, and most backward

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communities (e.g., fisherflok), women, children, and persons with disabilities. The report highlights that these social groups are generally self-employed in their traditional occupations. These range from agriculture, artisanal, fisheries, etc., at one hand and at the other hand, rickshaw-pulling, labourer, and other small manual works in the urban areas. The State and other actors (where State remains silent), frequently destroy the means of livelihood through displacement in view of development. The report emphasizes that the act of commission or omission on part of the State, raises the risk of starvation, illiteracy, health problems, unemployment, acquiring deadly diseases, and causes danger to life. The destruction of livelihood conclusively violates each and every single right contained in the ICESCR.

The report emphasizes that the more serious problem is the invisibility of destruction of livelihood in the public domain. The government intentionally ignores the recommendations of various monitoring Committees to their plight (in absence of the firm political pressure from the group affected). It is evident that the rate of employment generation is much lower than the job seekers and in such a situation excluded categories have no or little chances to secure a job. It is thus better to protect the existing habitats, trades, professions, and occupations to preserve the socio- economic rights of these social groups.

Ambedkar Center for Justice and Peace (ACJP) India – The ACJP submits Alternate Report to the Committee by the India chapter of the organization based in 75 Mumbai on May 2008. The report outlines that twenty-five percent population of India comprises SCs and STs – together referred as Dalits – (Census 2001) of which ninety percent reside in rural India. The community faces serious challenges such as child labour, bonded labour, forced labour, child mortality, illiteracy, malnutrition, sanitation, etc. According to the reports of UNICEF, ILO, and World Bank that nearly half of the world’s child labour and half of the number of people in the income group of one dollar a day are from India; the alternative report of ACJP claims that mostly they are Dalits.

The atrocities against dalits are rampant including rapes, beatings, naked parade of women, manual scavenging, street cleanings, discrimination in promotion, and recruitment in government offices, etc. The report claims that Constitutional provisions are rarely a paper work in context of the protection of the rights of Dalits.

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The report stresses that the age old discriminations with Dalits in Hindu religion still persist today. The root cause to their substandard living is the treatment they occupy in the caste order – ‘the untouchables’; they can’t even sit with the higher caste Hindus. The report recommends that the implementation of the ESC rights shouldn’t be left to the discretion of State governments in context of the protection of the interests of Dalits. The Central government should take the responsibility on equal footings.

National Campaign on Dalit Human Rights (NCDHR) – The NCDHR submits its Alternate Report in association with various NGOs across the country to the 76 Committee on the Combined State report in 2008. The report highlights the importance of various Constitutional provisions aiming to safeguard the interest of Dalits in social, economic, educational, political, and service affairs. Various legislations as well as special component plans are in force to protect the rights of the community. The report highlights that despite all these, there is stark discrimination in the budgetary allocation for the welfare of the community. The post-Tsunami relief and rehabilitation fund were not properly released to the community in view of discriminations based on casteism despite being one of the highly affected communities.

The employment status of the community is very pathetic in rural areas where majority of the population resides. The implementation of NREGA (2005) isn’t free from alleged corruption, inefficiency, diversion and mis-utilisation of funds, and intrusion of unreliable figures. The discrimination is rampant in wage earnings, implementation of the reservation policies in employment and educational institutions, etc. The community lag behind quality education, proper healthcare services, electricity, safe drinking water, sanitation, housing, etc. Despite the increase in number of enrolment of the Dalit children in the schools, cultural barrier still prohibit to access the education uniformly.

People’s Collective for Economic, Social, and Cultural Rights (PCESCR) – The PCESCR submits its Shadow Report entitled ‘Divided Destines Unequal Lives’ in 77 2008. The report highlights the key issues of the ICESCR in different sections that is discussed briefly as follows:

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Articles 1-5

 Persistent violence against Indigenous Communities, forced eviction, and non- inclusion in decision making processes;   Insufficient budgetary allocation to implement the welfare programmes; and,   ESC rights of women are not protected (especially Dalit women).

Articles 6-9

 High growth rate of economy couldn’t generate descent employments;   Informalization of work has decreased the trend in real wages;   Trade union rights are under threat; and,   Social security isn’t ensured to the workers of the unorganized sectors that comprise ninety-three percent of the workforce (one-third are women).

Articles 10-12

 The true spirit of the protection of family isn’t fulfilled;   Child sex ratio is declining;   Chronic undernourishment and severe micronutrient malnutrition promote the elemental force of hunger and starvation;   Deceleration in agriculture sectors impact livelihood of over sixty percent of the Indians;   Uncontrolled population growth renders millions of people homeless or forced to live in inadequate housings set up;   Displacement in view of development without proper rehabilitation destroys livelihood of millions; and,   Ill-formulated policies to the quality healthcare services.

Articles 13-15

 Continuing disparities in educational status of Dalit (SCs), Tribal (STs), and Muslim communities in general and Women and Girls in particular, at all levels of education;

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th  Ineffective implementation of the 86 Constitutional Amendment that made education free and compulsory for children between the age group six-fourteen years; and,   Commitment of six percent of the GDP for education isn’t fulfilled.

Forum for Fact-finding Documentation and Advocacy (FFDA) – The FFDA 78 submits its Shadow report to the Committee on March 2008. The report highlights the socio-economic plight of the invisible Denotified and Nomadic communities (DNTs) which is totally missing in the Combined State report of India 2006. The report of FFDA on the basis of consultations with the communities and civil society groups working on this issue for the last three decades as well as field studies estimates sixty million people belonging to this category across the country. The government fails to address the difficulties faced by the community at all levels. The urgent requirement is to repeal the Habitual Offenders Act, 1952 that bear legacy of the British rule to suspect them as a criminal.

Center for Reproductive Rights (CRR) – The CRR based in New York has submitted 79 its Alternate Report to the Committee on April 2008. The report highlights the women’s reproductive health and rights in India. The study analyses the persistent ambiguities in the following areas to those government fails to address at all levels:

 High rates of maternal mortality;   Prevalence of unsafe abortion;   Inadequate access to family planning services;   Lack of sex education; and,   Recent Court decisions threaten women’s health and rights in India.

FoodFirst Information and Action Network (FIAN) – The FIAN India has submitted its 80 Parallel Report to the Committee on the right to adequate food in India. It highlights

several policies that are implemented to overcome food insecurity and to fight against hunger and malnutrition. The report concludes that the policies aren’t sufficient to bridge the gap between the effective implementation and the prevalent hunger situations. The routine corruption, inefficiency, and discrimination make the survival of the poor people very hard and force them to face endemic hunger. The report claims that bulk of the government fund doesn’t reach the rural areas or the

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urban poor. The redistributive system is highly influenced by the powerful elites and diverted to their vested interests. The social welfare schemes are poorly implemented and are frequently neglected by the State governments. The report emphasizes that the well organized and non-discriminatory redistribution system will help to combat the widespread hunger in a society of plenty resources.

Housing and Land Rights Network (HLRN) – The HLRN of Habitat International 81 Coalition submits its Alternate Report to the Committee in April 2008. The report, under the State obligations to fulfil the minimum essential level of the right to adequate housing and land, highlights the following limitations of the government of India:

 Inadequate housing and living conditions in urban as well as rural areas;   Large number of slums and informal settlements across the country;   Severe housing shortage;   Rampant forced evictions and displacement;   Denial of Dalit’s rights to adequate housing and land;   Discrimination and denial of women’s equal rights to adequate housing, land, property, and inheritance;  Inadequate rehabilitation of Tsunami survivors; and,   Plight of internally displaced in Gujarat.

Programme on Women’s Economic, Social, and Cultural Rights (PWESCR) – The PWESCR in collaboration with various NGOs that work to protect social, economic, and cultural rights of Muslims in India, submits this Alternate Report on the plight of 82 Muslims in Gujarat after 2002. The report concludes that Muslims in Gujarat, women in particular, is continually denied the access of rights enshrined in the ICESCR specifically the rights to work, an adequate standard of living, education, health, cultural life, and non-discrimination.

Asian Indigenous and Tribal Peoples Network (AITPN) – The AITPN India submits its Shadow Report on the problems of non-implementation of the ESC rights in India 83 (specifically highlighting the Tribal dimension) to the Committee in 2008. The report highlights the inadequacy of various policies and programmes in context of the

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supervision of implementation. There is lack of gross accountability on the non- implementation of the provisions at all level of political affairs.

3.6 Concluding Observations of the Committee on the Combined Report of India, May 2008

The Committee considers the State report of India at the fortieth session in its three subsequent meetings on May 7-8, 2008. The Committee members discuss the Articles 1-5 of the Covenant at its fourteenth meeting on May 7, 2008 with the Indian 84 delegates. The Articles 6-9 of the Covenant is discussed at the fifteenth meeting on 85 May 8, 2008 (morning shift) by the Committee members. The fifteenth meeting begins with the discussion of the remaining of article 1-5 of the Covenant from the last meeting and then move to Articles 6-9. The Committee members discuss the last cluster of Articles 10-15 of the Covenant at the sixteenth meeting on May 8, 2008 86 (after-noon shift) with the Indian delegates.

The Indian delegate introduces the Combined State report and outlines the broad developments that have been made in the twenty years period covered by the report (1986-2006). The delegates attempt to explore that how these developments have influenced the realization of economic, social, and cultural rights of Indian citizens. The Committee members in the light of the List of Issues and the Alternate Reports received from various NGOs, elaborate each and every aspect of the socio-economic circumstances prevalent in the country. The Committee members appreciate certain initiatives while highly regret the exclusion of social groups (especially SCs, STs, women, children, disabled, etc.) at every spheres say employment, literacy, health, food, housing, etc around the country.

In the light of the discussions in different meetings with the Indian delegates, the Committee adopts the Concluding Observation at the twenty-fifth meeting on May 16, 87 2008 of the fortieth session 2008. The basic tenets of the Concluding Observations are divided into five sections viz., introduction, positive aspects, difficulties in the implementation of the Covenant, principal subjects of concern, and the suggestions and recommendations. The ensuing pages discuss every section briefly:

Introduction – The Committee appreciates the Combined Report 2006 in conformity with the general guidelines despite a gap of fifteen years. It regrets over the missing

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informations on Articles 1-5 of the Covenant and some of the questions of the List of Issues that remain unanswered. The interactions of the Indian delegations with the Committee member are sizeable while some of the details are insufficient to the implementation of the ESC rights in India.

Positive Aspects – The Committee recognizes the expansion of legislations in the field of ESC rights particularly in the following areas:

 Employment – NREGA (2005), Bharat Nirman (2005);  th  Education – Sarva Shikasha Abhiyan (2005), 86 Constitutional Amendment Act (2002) makes free and compulsory education for all the children between the age group six to fourteen, a fundamental right;   Women and Children – Prohibition of Child Marriage Act (2006), Protection of Women from Domestic Violence Act (2005), Amendments of the Indian Divorce Act and the Hindu Succession Act (2004), Amendments of the Pre- conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act (2003), Juvenile Justice (Care and Protection of Children) Amendment Act (2003), etc.;  Health – National Rural Health Mission (2005); and,   Accountability – Right to Information Act (2005).

The Committee admires the pro-active role of the Indian judiciary to inculcate the wider scope of the international jurisprudence in favour of the enforcement of the ESC rights within the interpretative provisions of fundamental rights.

Difficulties in the implementation of the Covenant – The Committee declares the absence of any factors and difficulties to the implementation of the Covenant in India.

Principal Subjects of Concern

Gross lack of the legal obligations behind the provisions of the ESC rights in India make them entirely progressive in nature. The pro-active role of the Supreme Court of India enhances the justiciablity of the ESC rights that are still to be incorporated in the domestic legislations. The effective enforcement mechanisms are absent at both federal and the State level. The resource constraints to the NHRC and State HRCs hamper their effective performance. A few District Human Rights Courts are

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operational with ineffective mandates. The lack of concrete national security legislations encourages State Officials to violate ESC rights of the people. The frequent discriminations against the disadvantaged and marginalized sections of the society are prevalent and the speedy trial to their plight is a distant dream. The discriminatory attitude of the police is usual to the promotion of justice of the excluded groups especially SCs and STs. The recommendations of the Rajinder Sachar Committee report 2006 on the plight of the Muslims are still to be effectively implemented.

The women suffer the equal enjoyment of the ESC rights. The rampant abortion of the girl foetus results in skewed sex ratio. The worst form of the child labour exists despite the child labour legislations in the State. The personal laws are needed to be amended and uniformalized. The domestic violence against women and sexual exploitation of children at home are highly concerned. There is lack of concrete legislation that specifically criminalizes trafficking in persons.

The rapid economic growth hasn’t been catered to large scale employment generation in the country. In the rural areas, unemployment and underemployment continually persist despite the enforcement of NREGA 2005. The insufficient minimum wages impede workers adequate standard of living. The informal sectors lag behind the organized infrastructure of the trade unions and the social security benefits.

The high level of poverty, and food insecurity and shortage persist particularly in rural areas. The increasing incidence of suicide by farmers explains the inefficiency of the State mechanism to combat poverty.

There is lack of national housing policy to address the plight of slum dwellers and other marginalized groups. The displacement and forced eviction are rampant and the rehabilitation and compensation are insufficient.

The budgetary allocation on healthcare services despite the rapid economic growth touches the lower level of one percent of the GDP. The access to safe drinking water is limited only to few sections of the society. The victims of Bhopal pesticide plant still suffer ill health effects because of inadequate State support. The absence of sexual education attributes to the spread of HIV/AIDS and maternal mortality.

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The drop-out rate in primary schools and the disparity in enrolment still persists particularly affecting girls, Muslim children, and children belonging to SCs ad STs. The adult illiteracy rate continues to remain high. The human rights education is absent from the school curricula.

Suggestions and Recommendations of the Committee

The Committee urges to implement the true spirit of the State obligation to use ‘maximum of its available resources’ to enforce the ESC rights in India. It is recommended that the domestic legislation should incorporate the Covenant provisions and to that end Committee’s General Comment no.9 (1998) to enhance the domestic application should be followed. The State authorities must abide by the decisions of the judiciary in favour of the ESC rights. There must be realistic cooperation between the federal and State governments to enforcement the Covenant. The NHRC and State HRCs should be made effective in particular through adequate budgetary allocation and the establishment of human rights Courts must be ensured.

The government must ensure the protection and freedom of human rights defenders/activists. A proper training must be imparted on the enforcement officials specially the police officers to implement ESC rights. The investigations must accomplish the prosecution of the perpetrators. The criminal justice system must ensure the protection of the marginalized groups including SCs and STs particularly women against all spheres of discriminations and exploitations.

The Committee recommends to strengthen the anti-discrimination legislations in employment, education, health, social security, housing, etc., on the grounds of Article 2(2) of the Covenant. The legitimate interests of Muslim OBCs and Muslim women (as recommended by the Rajinder Sachar Committee) should be implemented with immediate effect. The discriminatory personal laws and gender-based prejudices harmful to women and girls must be eliminated.

The role of National Commission for Women and State Commission for Women should be enhanced to minimize the gender gap in different fields. The prohibition laws on the sex selection (pre-conception and prenatal) must be made effective. The equality of men and women should be ensured in the labour market viz., equal pay for equal work both in public and private sectors. The representation of women in the

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political affairs of the country must be enhanced. The trafficking in persons (especially women and children) must be criminalized stringently. The domestic violence against women should be strictly penalized.

The conditions of descent work must be inspected periodically in all the working sectors. The worst form of child labour, bonded labour, manual scavenging, etc., must be prosecuted stringently and the rehabilitation should be made accessible. The policies designed to reduce unemployment should prioritize the most affected groups and regions primarily. The uniform minimum wage sufficient to adequate standard of living should be amended periodically and must be enforced across the country. The freedom to exercise trade union’s rights should be ensured in all the sectors. The social security benefits must be provided to the vast unorganized/informal sectors without delay and to that end Committee’s General Comment no.19 (2007) on the right to social security must be followed.

The Committee recommends to the effective implementation of the specific mechanisms to reduce the poverty and the food insecurity. The urgent attention should be given to the needs of the farmer viz. debt waiver, financial assistance to the families of suicide victims, insurance schemes, State subsidies, calamity relief fund, etc.

The affordable housing schemes at national level must be initiated to address the needs of low income groups particularly slum dwellers. The Committee urges to refer Article 11 of the Covenant and its General Comment no.4 (1991). The displacement and forced eviction for any development projects must ensure in advance the sufficient compensation and/or alternate accommodation suitable to the affected groups. The Committee urges to refer its General Comment no.7 (1999) on the right to adequate housing and forced eviction.

The Committee draws attention of the State party to increase its healthcare expenditure with the highest priority in budgetary allocation to reduce maternal and child mortality rate and to reduce and treat communicable diseases like HIV/AIDS. The supply of safe drinking water must be accessible to all. The State party must ensure reproductive and sexual health information to all. The universal access to primary healthcare and proper regulation to private health sectors must be ensured.

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The Committee urges to ensure compulsory and free, universal primary education by allocating increased funds. The literacy awareness programmes must prioritize marginalized groups specially women and poor. The promotion of human rights education, values and tolerance, social inclusion and participation, etc., must begin at the school curricula.

The government must move beyond the mere preservation of museums and hosting exhibitions to protect the legacy of diverse cultures. The State must consult local communities before taking any initiatives that negatively affect their culture and must ensure the right of everyone to take part in cultural life.

Besides, the Committee repeatedly urges the State party to provide update information of the achievements to the measures taken to implement various provisions of the Covenant in the next periodic report. The Committee requests the State party to disseminate this Concluding Observation widely among all the sections of the society particularly government officials and judicial authorities. The Committee also requests the government to consult local NGOs before the submission of the next periodic State report.

3.7 Conclusions

The protection of ESC rights is one of the primary concerns of the drafter of the Indian Constitution. The prevailing unemployment, illiteracy, poverty, etc., compelled the political elites that the civil and political freedoms alone couldn’t serve the purpose of development. The unity of vision of the welfare State compels the inclusion of various provisions of the ESC Rights in the Constitution of India. The focus is to draft the DPSP of part IV which interpret the aspirations of every section including the marginalized and the disadvantaged communities. The enforcement of DPSP isn’t justiciable by the Courts of India although it is considered fundamental to the governance of the country. There are, however, other provisions of the ESC rights contained in the Constitution that are enforceable under the expanded ambit of fundamental rights such as right to livelihood under the mandate of right to life.

The growing needs of the country after independence bring consensus to amend the existing legislations to the maximum benefit of the citizens. Various Constitutional Amendments have been adopted to enhance the social protection of all the

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communities. The pro-active role of the Indian judiciary opens the door to expand the interpretative inclusion of the socio-economic rights under the ambit of justiciable rights. The Public Interest Litigation revolutionised the Indian judiciary to transform the Supreme Court of India into the Supreme Court of Indian. The affirmative discriminations in government policies and programmes to uplift the downtrodden people to the mainstream social life defended the identity of excluded communities. The Five-Year Plans, NREGA (2005), Sarva Siksha Aviyan, National Health Polices, Right to Information Act (2005), etc., are some of the effective instrument to minimize the huge poverty gap.

The pace of the submission of the periodic State report by India to the Committee isn’t quite regular. After the initial State report in 1983, the country submits the Combined Second to Fifth periodic State report after two decades in 2006. The Combined report fulfils the general submission guidelines of the Committee. The List of Issues raised by the Pre-Sessional Working Group underline the lack of inclusive growth of social groups including SCs, STs, OBCs, Women, Children, PWDs, etc., at every sphere of life. The Committee considers the Combined State report along with the Replies to the List of Issued by the government in the light of Alternate/Shadow Reports submitted by different NGOs at fortieth session 2008.

The Alternative Reports played an important role to shape the views of the Committee to adopt Concluding Observations on the Combined State report of India. These outlined ground reality of the achievements of policies and programmes implemented by the government of India in different fields. The statistical information on vulnerability, exclusion, and neglect on part of marginalized communities was raised by different NGOs across the country. Some of the crucial issues underlined by NGOs that played vital role to shape the Concluding Observations on the Combined State report of India (2006) include:

 Rights of excluded communities (ActionAid);   Rights of SCs and STs (ACJP);   Plight of Dalits (NCDHR);   Issues of indigenous people, women, and Dalits (PCESCR);   Problems of Denotified and Nomadic Tribes (FFDA);   Reproductive health of women (CRR);

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 Right to adequate food (FIAN);   Issues of housing and land rights (HLRN);   Plight of Muslims in Gujarat (PWESCR); and,   Issues of effective implementation of ESC rights (AITPN), etc.

The Committee highlights the positive steps of the government and specially the pro- active role of the Supreme Court of India to expand the enforceability of the ESC rights. It, however, regrets the inability of the State institutions to abide by the instructions of the Court with regard to implementation. The weak political will, lack of accountability, implementation policies not bound by time-limits, etc., impede the effective realization of the ESC rights. It is recommended that legal obligations to fulfil the Covenant’s provisions must be enhanced beyond progressive implementation. The judges are advised to incorporate the example of international case laws on ESC rights within the domestic proceedings. It is suggested to strictly follow various General Comments of the Committee to enhance the effectiveness of the monitoring instruments that can change the destination of social life of the country. The Committee recommends to provide the updated information on the progress made in the fields of ESC rights in the next periodic State report on time.

The study is limited to the periodic State reports submitted so far, of which Combined Second to Fifth report (2006) forms the greater part of the analysis. The human development reports, however, on various indices highlight massive improvements in different sectors including education, employment, health, housing, poverty, food, etc., in India beyond the Combined State report 2006. The next periodic State report is due by 2011, but till the completion of the study, the overdue report wasn’t submitted. The course of further submission will determine the real face of Indian social life whether it is participatory or still discriminatory.

Endnotes

1. Graniville Austin, The Indian Constitution: Cornerstone of a Nation (New Delhi: Oxford University Press, 2011): 26-27. See also Manoj Kumar Sinha, Enforcement of Economic, Social, and Cultural Rights: International and National Perspectives (New Delhi: Manak Publications, 2006): 26.

2. Durga Das Basu, Introduction to the Constitution of India (Haryana: LexisNexis, nd 2015), 22 edition: 38.

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3. Craig Baxter, et al., Government and Politics in South Asia (Oxford: Westview th Press, 1998), 4 edition: 151.

4. Jayna Kothari, “Social Rights and the Indian Constitution,” Law, Social Justice & Global Development Journal 2, (2004).

5. Sanjay Ruparelia, “Enacting Socioeconomic Rights: Lessons Learned from India,” Global Thematic Consultation (2012). See also Sanjay Ruparelia, “India’s New Rights Agenda: Genesis, Promises, Risks,” Pacific Affairs 86, no.3 (2013): 569-590.

6. Yash Ghai and Jill Cottrell, The Millennium Declaration, Rights, and Constitutions (New Delhi: Oxford University Press, 2011): 38.

7. See Basu, Introduction, note 2, 23.

8. Jawaharlal Nehru, “Parliamentary Democracy: Report of the first All-India Seminar,” (Inaugural Speech, New Delhi, 1956), Indian Bureau of Parliamentary Studies.

9. Dr. S. Radhakrishnan, “Parliamentary Democracy: Report of the first All-India Seminar,” (Speech, New Delhi, 1956), Indian Bureau of Parliamentary Studies.

10. BR Ambedkar, “the Constituent Assembly of India,” (Concluding Speech, Nov.25, 1949), (accessed on Oct.11, 2016 at the link below): (http://parliamentofindia.nic.in/ls/debates/vol11p11.htm).

11. See for more details of the ratification status and the declarations/reservations made by the Member States of the Covenant, (accessed on Oct.20, 2016 at the link below): (https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV3&chap ter=4&lang=en#top). See also M Nazeer Hussain, “ICESCR and India: At Fiftieth Anniversary,” Social

Action 66, (April-June 2016): 111-129.

12. J C Johari, Indian Polity: A Concise Study of the Indian Constitution, Government and Politics (New Delhi: Lotus Press, 2004): 17.

13. See James MacGregor Burns, Government by the People (Prentice Hall College Div., 1997). See also Basu, Introduction, note 2, 24.

st 14. See the Constitution 101 Amendment Act, 2016, (accessed on Oct.26, 2016 at the link below): (http://www.gktoday.in/blog/constitution-101st-amendment-act- 2016/).

nd 15. CL Verma, “Amendments Made under 42 Constitutional Amendment Act,” UPSC Guide.com, (accessed on Oct.22, 2016 at the link below):

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(http://upscguide.com/content/ammendments-made-under-42nd- constitutional-amendment-act).

16. Fali S Nariman, “The Constitution and Human Rights: An Overview,” Journal of the National Human Rights Commission of India 1, (2002): 30.

17. MJ Antony, Social Action through Courts: Landmark Judgements in Public Interest Litigation (New Delhi: Indian Social Institute, 1997): 15.

18. PN Bhagwati, “Judicial Activism and Public Interest Litigation,” Colum. J. Transnat'l L. 23, (1984): 561.

19. See the full proceedings of Hussainara Khatoon v. Home Secretary, State of Bihar (1979) [AIR 1979 SC 1360]. The details of all the decisions in different phases of this case are available at (accessed on Oct.25, 2016 at the link below): (http://judis.nic.in/supremecourt/Chrseq.aspx). See also Antony, Social Action through Courts, note 17, 21-26.

20. Shylashri Shankar, Scaling Justice: India’s Supreme Court, Anti-Terror Laws, and Social Rights (New Delhi: Oxford University Press, 2009): 121.

21. C. Michael MacMillan, “Social Versus Political Rights,” Canadian Journal of Political Science 19, no.2 (1986): 283-304.

22. See the Constituent Assembly Debates vol.VII (Nov.4, 1948 – Jan.8, 1949), (accessed on Oct.29, 2016 at the link below): (http://164.100.47.132/LssNew/cadebatefiles/vol7.html). See also Shankar, Scaling Justice, note 20: 123.

23. See AK Gopalan v. The State of Madras (1950) [AIR 1950 SC 27]. The detail of full judgement of this case is available at (accessed on Oct.27, 2016 at the link below): (http://judis.nic.in/supremecourt/imgs1.aspx?filename=1251).

24. See The State of Madras v. Srimathi Champakam Dorairajan (1951) [AIR 1951 SC 226]. The detail of full judgement of this case is available at (accessed on Oct.27, 2016 at the link below): (http://judis.nic.in/supremecourt/imgs1.aspx?filename=1194).

25. See IC Golaknath v. State of Punjab (1967) [AIR 1967 SC 1643]. The detail of full judgement of this case is available at (accessed on Oct.27, 2016 at the link below): (http://judis.nic.in/supremecourt/imgs1.aspx?filename=2449).

26. See Keshavananda Bharati v. State of Kerala (1973) [AIR 1973 SC 1461]. The detail of full proceeding of this case is available at (accessed on Oct.28, 2016 at the link below):

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(http://judis.nic.in/supremecourt/imgs1.aspx?filename=29981).

See also David Gwynn Morgan, “The Indian ‘Essential Features’ Case” The International and Comparative Law Quarterly 30, no.2 (April 1981): 307-337.

27. See Maneka Gandhi v. Union of India (1978) [AIR 1978 SC 597]. The full proceeding of this case is available at (accessed on Oct.28, 2016 at the link below): (http://judis.nic.in/supremecourt/imgs1.aspx?filename=5154).

28. See Minerva Mills Ltd v. Union of India (1980) [AIR 1980 SC 1789]. The full proceeding of this case is available at (accessed on Oct.28, 2016 at the link below): (http://judis.nic.in/supremecourt/imgs1.aspx?filename=4488).

29. See Francis Coralie Mullin v. The Administrator, Union Territory of Delhi (1981) [AIR 1981 SC 746]. The detail of full judgement of this case is available at (accessed on Oct.29, 2016 at the link below): (http://judis.nic.in/supremecourt/imgs1.aspx?filename=10150)

30. See Unni Krishnan JP v. State of Andhra Pradesh (1993) [AIR 1993 SC 2178]. The detail of full judgement of this case is available at (accessed on Oct.29, 2016 at the link below): (http://judis.nic.in/supremecourt/imgs1.aspx?filename=12220).

31. Jeff King, An Activist’s Manual on the International Covenant on Economic, Social and Cultural Rights (Sri Lanka: Law and Society Trust, 2003): 30.

32. See for the detailed analysis on the importance of the Alternative Reports submitted by the NGOs to the Committee, Phillip Alston and Bruno Simma, “First Session of the UN Committee on Economic, Social and Cultural Rights,” The American Journal of International Law 81, no.3 (1987): 747-756. See also Phillip Alston, “Out of the Abyss: The Challenges Confronting the New UN Committee on Economic, Social and Cultural Rights,” Human Rights Quarterly 9, (1987): 332-381.

33. PV Narasimha Rao, “Nehru and Non-alignment,” Mainstream XLVII, no. 24 (May 30, 2009). The electronic copy is available at (accessed on Nov.3, 2016 at the link below): (https://www.mainstreamweekly.net/article1399.html).

34. See the Initial periodic State report of India on the ICESCR (1983), UN Doc. E/1980/6/Add.34 (Nov.15, 1983) paras.1-3.

35. The Initial periodic State report of India, Ibid paras.5-8.

36. The Initial periodic State report of India, Ibid paras.52-54.

th 37. See the summary record of the 6 meeting (consideration of State reports including India) of the first regular session 1984 of the Sessional Working Group of

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Governmental Experts on the Implementation of the ICESCR, UN Doc. E/1984/WG.1/SR.6 (Apr.24, 1984).

th 38. See the summary record of the 8 meeting (consideration of State reports including India) of the first regular session 1984 of the Sessional Working Group of Governmental Experts on the Implementation of the ICESCR UN Doc. E/1984/WG.1/SR.8 (Apr.25, 1984).

39. See the Combined Second, Third, Fourth and Fifth periodic State report of India on the ICESCR (2006) submitted to the CESCR, UN Doc. E/C.12/IND/5 (Mar.1, 2007).

40. The Combined Second, Third, Fourth and Fifth periodic State report of India, Ibid paras.1-87.

41. See the Economic Survey of India 2003-04, (accessed on Oct.25, 2016 at the link below): (http://indiabudget.nic.in/es2003-04/chapt2004/chap104.pdf).

42. See Chintaman Rao v. State of MP (1950) [AIR 1951 SC 118]. The full proceeding of this case is available at (accessed on Nov.1, 2016 at the link below): (http://judis.nic.in/supremecourt/imgs1.aspx?filename=1235).

43. See Indira Sawheny v. Union of India (1993) [AIR 1993 SC 477]. The full proceeding of this case is available at (accessed on Nov.1, 2016 at the link below):

44. See Vishakha v. State of Rajasthan (1997) [AIR 1997 SC 3014]. The detail of decision in this case is available at (accessed on Nov.1, 2016 at the link below): (http://judis.nic.in/supremecourt/imgs1.aspx?filename=13856).

45. See The Combined Second, Third, Fourth and Fifth periodic State report of India, note 39, paras.88-137.

46. See the official website of the ILO, the Requested Reports and Replies to CESCR Comments: India, (accessed on Nov.5, 2016 at the link below): (http://www.ilo.org/dyn/normlex/en/f?p=1000:14000:0::NO:14000:P14000_COUNT RY_ID:102691).

47. See Messrs. Crown Aluminium Works v. Their Workmen (1958) [AIR 1958 SC 30]. The full proceeding of this case is available at (accessed on Nov.3, 2016 at the link below): (http://judis.nic.in/supremecourt/imgs1.aspx?filename=601).

48. See U Unichoyi v. State of Kerala (1961) [AIR 1961 SC 12]. The full proceeding of this case is available at (accessed on Nov.3, 2016 at the link below): (http://judis.nic.in/supremecourt/imgs1.aspx?filename=4236).

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49. Se Unichem Laboratories Ltd v. Their Workmen (1972) [AIR 1972 SC 2332]. The full proceeding of this case is available at (accessed on Nov.3, 2016 at the link below): (http://judis.nic.in/supremecourt/imgs1.aspx?filename=6879).

50. See The Combined Second, Third, Fourth and Fifth periodic State report of India, note 39, paras.138-173.

51. See BR Singh v. Union of India (1989) [AIR 1990 SC 1]. The full proceeding of this case is available at (accessed on Nov.5, 2016 at the link below): (http://judis.nic.in/supremecourt/imgs1.aspx?filename=7802).

52. See All India Bank Employee’s Association v. National Industrial Tribunal (1962) [AIR 1962 SC 171]. The full proceeding of this case is available at (accessed on Nov.5, 2016 at the link below): (http://judis.nic.in/supremecourt/imgs1.aspx?filename=4138).

53. See The Combined Second, Third, Fourth and Fifth periodic State report of India, note 39, paras.174-205.

54. See The Combined Second, Third, Fourth and Fifth periodic State report of India, note 39, paras.206-399.

55. See CB Muthamma v. Union of India (1979) [AIR 1979 SC 1868]. The full proceeding of this case is available at (accessed on Nov.5, 2016 at the link below): (http://judis.nic.in/supremecourt/imgs1.aspx?filename=4724).

56. See Section 494, Indian Penal Code, 1860.

57. Quoted in the Report of the Second National Labour Commission, India (2002): 1007. It is believed that many children working in the family-based occupations within a stable and nurturing environment with their parents or under protection of a guardian, develop skills in certain traditional crafts and are benefited in terms of socialization and from informal education and training, thus augmenting the human capital formation of India’s developing economy.

58. See MC Mehta v. State of Tamil Nadu (1997) [AIR 1997 SC 699]. The full proceeding of this case is available at (accessed on Nov.6, 2016 at the link below): (http://judis.nic.in/supremecourt/imgs1.aspx?filename=14634).

59. See for example Vishal Jeet v. Union of India (1990) [AIR 1990 SC 1412] and Gaurav Jain v. Union of India (1997) [AIR 1997 SC 3021].

60. See The Combined Second, Third, Fourth and Fifth periodic State report of India, note 39, paras.400-472.

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61. See for example Chameli Singh v. State of Uttar Pradesh (1996) [AIR 1996 SC 1051]. The Supreme Court of India, in this case, has expounded the concept of shelter referring to the UN General Assembly resolution 35/76 (Dec.5, 1980) on the problem of homeless people in developing countries.

62. See The Combined Second, Third, Fourth and Fifth periodic State report of India, note 39, paras.473-571.

63. See for example State of Punjab v. Mahinder Singh Chawla (1997) [AIR 1997 SC 1225]; Paschim Bangal Khet Mazdoor Society v. State of West Bengal (1996) [AIR 1996 SC 2426], etc.

64. See MC Mehta v. Kamal Nath(1997) [(1997) 1 SCC 388]. The full proceeding of this case is available at (accessed on Nov.6, 2016 at the link below): (http://judis.nic.in/supremecourt/imgs1.aspx?filename=14611).

65. See Indian Council for Enviro-Legal Action v. Union of India (1996) [AIR 1996 SC 1446].

66. See The Combined Second, Third, Fourth and Fifth periodic State report of India, note 39, paras.572- 674.

67. See Preeti Srivastva v. State of MP (1999) [AIR 1999 SC 2894]. The detail of decision in this case is available at (accessed on Nov.8, 2016 at the link below): (http://judis.nic.in/supremecourt/imgs1.aspx?filename=16761).

th 68. See the Parliament of India, Constitutional 86 Amendment Act (Dec.13, 2002). It follows that free and compulsory education to all the children between the age of 6-14 years is shifted from directive principle of State policy (which is not enforceable) to fundamental right’s category in the Constitution of India by placing it as Article 21A.

It specifically follows that “the State shall provide free and compulsory education to all children of the age of 6-14 years in such manner as the State may, by law, determine.”

69. See The Combined Second, Third, Fourth and Fifth periodic State report of India, note 39, paras.675-781.

70. See the List of Issues adopted by the Pre-Sessional Working Group of the CESCR on the Combined Second to Fifth periodic State report of ICESCR India, UN Doc. E/C.12/IND/Q/5 (Sep.14, 2007).

71. See the Replies to the List of Issues raised by the Pre-Sessional Working Group on the Combined Second to Fifth periodic State report of ICESCR by the government of India to the Committee, UN Doc. E/C.12/IND/Q/5/Add.1 (Mar.18, 2008).

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72. See the Additional Replies to the List of Issues raised by the Pre-Sessional Working Group on the Combined Second to Fifth periodic State report of ICESCR by the government of India to the Committee, UN Doc. E/C.12/IND/Q/5/Add.2 (Apr.23, 2008).

73. King, An Activist’s Manual, note 31, 15.

74. See the Shadow Report submitted by ActionAid India on the Combined Second to Fifth periodic State report of ICESCR India, (accessed on Nov.5, 2016 at the link below): (http://www2.ohchr.org/english/bodies/cescr/docs/cescr40/ActionAid_India.pdf).

75. See the Alternate Report submitted by Ambedkar Center for Justice and Piece India on the Combined Second to Fifth periodic State report of ICESCR India, (accessed on Nov.5, 2016 at the link below): (www2.ohchr.org/english/bodies/cescr/docs/info-ngos/ACJP_CESCR40_India.doc).

76. See the Alternate Report submitted by National Campaign on Dalit Human Rights India on the Combined Second to Fifth periodic State report of ICESCR India, (accessed on Nov.5, 2016 at the link below): (http://www2.ohchr.org/english/bodies/cescr/docs/info- ngos/NCDHR-IDSNIndia40.pdf).

77. See the Alternate Report submitted by People’s Collective for Economic, Social, and Cultural Rights entitled ‘Divided Destines Unequal Lives’ on the Combined Second to Fifth periodic State report of ICESCR India, (accessed on Nov.7, 2016 at the link below): (http://www.pwescr.org/Divided%20Destinies%20Unequal%20Lives.pdf).

78. See the Shadow Report submitted by Forum for Fact-finding Documentation and Advocacy India on the Combined Second to Fifth periodic State report of ICESCR India, (accessed on Nov.8, 2016 at the link below): (http://www2.ohchr.org/english/bodies/cescr/docs/info-ngos/FFDAIndia40.pdf).

79. See the Alternate Report submitted by Center for Reproductive Rights New York on the Combined Second to Fifth periodic State report of ICESCR India, (accessed on Nov.8, 2016 at the link below): (http://www2.ohchr.org/english/bodies/cescr/docs/info-ngos/CFRRIndia40.pdf).

80. See the Parallel Report submitted by FoodFirst Information and Action Network India on the Combined Second to Fifth periodic State report of ICESCR India, (accessed on Nov.10, 2016 at the link below): (http://www.indianet.nl/pdf/righttoadequatefood.pdf).

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81. See the Alternate Report submitted by Housing and Land Rights Network, Habitat International Coalition on the Combined Second to Fifth periodic State report of ICESCR India, (accessed on Nov.10, 2016 at the link below): (http://www2.ohchr.org/english/bodies/cescr/docs/info- ngos/HousingLandRightsNetwork_India40.pdf).

82. See the Alternate Report submitted by Programme on Women’s Economic, Social, and Cultural Rights India on the Combined Second to Fifth periodic State report of ICESCR India, (accessed on Nov.10, 2016 at the link below): (http://www2.ohchr.org/english/bodies/cescr/docs/info-ngos/Gujarat_India40.pdf).

83. See the Alternate Report submitted by Asian Indigenous and Tribal Peoples Network India on the Combined Second to Fifth periodic State report of ICESCR India, (accessed on Nov.10, 2016 at the link below): (www2.ohchr.org/english/bodies/cescr/docs/.../India- Thetribaldimention-NCHRTM.do...).

th 84. See UN CESCR, session 40, 14 mtg. (May 7, 2008), summary record India, Doc. E/C.12/2008/SR.14 (May 13, 2008).

th 85. See UN CESCR, session 40, 15 mtg. (May 8, 2008), summary record India, Doc. E/C.12/2008/SR.15 (May 16, 2008).

th 86. See UN CESCR, session 40, 16 mtg. (May 8, 2008), summary record India, Doc. E/C.12/2008/SR.16 (May 15, 2008).

87. See the Concluding Observations on the Combined Second to Fifth periodic State th report on ICESCR India adopted by the UN CESCR, session 40, 25 mtg. (May 16, 2008), Doc. E/C.12/IND/CO/5 (Aug.8, 2008).

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Chapter Four

IMPLEMENTING ECONOMIC, SOCIAL, AND

CULTURAL RIGHTS IN NEPAL

Image Courtesy: National Flag of Nepal by “Google Images” Nepal

The age old dynasty regime of Nepal is highly under the influence of caste based discriminations aligned with Hindu hierarchy. Hinduism serves to be the declared State religion until a few years ago. The secular identity of the nation is recognized after the Jan Andolan II (Democratic Movement 2006); Nepal declares itself a Federal Democratic Republic on May 28, 2008. The protection of socio-economic rights is secured for a small proportion of elites belonging to higher caste Hindus (including Brahmin and Kshatriya). The elite culture consistently controls the reign of popular movements supported by larger masses from marginalized communities. This chapter attempts to discuss the destiny of ESC rights in Nepal that is neglected during all the regimes.

This chapter is divided into six sections. Section one explains the general political background of the nation. Section two highlights the Constitutional protection of the ESC rights viz., the Muluki Ain (National Code 1854 and Revised 1963), Constitution of Nepal (1990), Interim Constitution of Nepal (2007), and the Constitution of 2015 (it is outside the purview of the present research in view of the submission of the Fourth periodic State report on ICESCR in 2019). The subsections of section two explore the role of judiciary that is restricted to formal orders in absence of practical implementations. The section three in various subsections discusses in detail the Initial periodic State report on the ICESCR (1999), Second (2006), Third (2011) and their respective List of Issues, Replies to the List of Issues, and Concluding Observations adopted by the Committee. The section four investigates the Review Report on the status of the ICESCR in Nepal submitted by Rural Reconstruction in Nepal, a NGO. The section five examines the civil society’s Parallel Report on ESC rights submitted by the Human Rights Treaty Monitoring Coordination Centre, Nepal. The section six concludes the chapter.

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4.1 Historical Perspective on Political Background

The political crisis at the end of the twentieth century transformed the state-of-affair of the Himalayan region, Nepal. The age old dynasty regime was shook by the Nepali Congress (NC) in the general election of 1959. This was in some way an impact of the * decolonization and formation of democratic government in India. The higher caste Hindu dominance was the destiny of all the political affairs of the State since 1 Hinduism was declared as the State religion. The Muluki Ain 1854 expressly 2 recognized the unification of diverse groups according to the Hindu religious laws. The participation of Dalits, Janajatis, Madhesis†, and others (including Muslims) 3 despite a sizable population were very low at every sphere of life. The socio- economic life of the country was totally turmoiled. The indices of education, employment, health, food, poverty, housing, etc., by various development reports were deplorable. The equality before the law and principles of non-discrimination were ensured for a small proportion of the society – generally Bahuns (Brahmin) and Chetris (Kshatriya) – that form higher castes in Hindu hierarchy.

The rise of the Jan Andolan I (People’s Movement) in 1990 uproots the thirty years ‡ Partyless Panchayat Democracy. The fundamental reason behind the uncontested voice is the popular demand of recognition of the identity beyond the Brahminism in public life. The unified efforts of the various Communist factions and the Nepalese

* Nepali people use to move for higher education and other income factors to India. The Rana’s ruler attempted to isolate their subject particularly during the years that follow after independence of India. This is a tacit move to detach people to imbibe anti-colonial and democratic ideals. The influence, however, exhilarates the rise of sporadic protests against the King Tribhuvan who finally dies in 1955. In general election of 1959, his successor son King Mahendra has to accept the win of Nepali Congress led by BP Koirala.

† Madhesi is a term traditionally given to the people of Indian ancestry migrating from nearby

Bihar, Uttar Pradesh, West Bangal, etc, for the business purpose and gradually settled in the Terai region of Nepal. It comprises various cultural groups including Hindu caste groups, Muslims, Merchants, and Indigenous People of the Terai. In recent times, politicians and journalists use the term to denote the entire population residing in Terai region.

‡ The democratic government of 1959 led by BP Koirala lasts for a very short period of eighteen months only. He is clapped and sent to jail by King Mahendra. The King then introduces ‘Partyless Panchayat System’ in view of strengthening the democracy. It is, however, regain of the autocratic monarchy system of governance.

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4 Congress – for the first time formed the United Left Front (ULF) in 1990 – for the restoration of the Parliamentary democracy and the King to come under the purview of the Constitutional monarch, established the multiparty based system of governance (that was banned during Panchayat system). The interim government formed on April 16, 1990 had the support of NC, ULF, and the independents headed by Krishna Prasad Bhattarai. The new Constitution promulgated on November 9, 1990 was, however, denounced by one of the factions of the Maoists named ‘Mashal’ that 5 disagreed with the design and decision of the interim government. The new Constitution of Nepal is supposed to begin the era of participatory voices and the amalgamation of diverse cultures. It is, however, blamed to be restricted to the recognition of Hindu conscience alone as the State is still declared to be a Hindu Kingdom.

The aspirations of many political parties and the marginalized communities including Janajatis, Dalits, and Madhesis to a wide-ranging acceptance of cultural diversity, are disparately ruined with the retention of the term Hindu in the new Constitution of 6 1990. The search for the roots of traditional and authentic self-identity, instead of imposed during the last two centuries by Hindu regimes in Nepal, is accelerated * within various ethnic groups after Jan Andolan 1990. The period during 1990-95 is symbolic to the identity mobilization called primarily the Janajati Movement that has 7 lasting impact on the second transitional phase of Nepali politics. The new Constitution and the new government are unable to fertilize the inclusive development and the good governance in the region. The increasing patronage to the party members of the NC-led government results in accumulation of illegitimate wealth and corruption. This has weaken the faith of common man in rule of law and the NC-led 8 government has to face defeat in the mid-term election of 1994.

The constant in-fighting and factionalism between and within the political parties during the transitional phase of 1990s generate various unstable and weak

* The new Constitution (1990) of the second phase of democracy in Nepal (despite its criticism and failure to be exclusionary in approach) empowers the marginalized groups to demand their rights in an organized way. The age old dynasty regimes, to maintain the Hindu hierarchy, attempt continuously to colour the entire ethnic groups in Hindu flavour. The beginning of mass politics at the end of twentieth century strengthens the ethnic consciousness that brings several popular movements of the later stages. See for the detailed analysis, T Basant Subba, Politics of Culture (Hyderabad: Orient Longman, 1999): 104-23.

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governments. The formation of eight governments during five years from November 1994 to May 1999 shows the naked game of power lust and political crisis in the 9 nation. The decade long rebellion (1996-2006) of Communist Party of Nepal (Maoist) (CPN (M)) over the legacy of Janajati Movement turns to be the vicious 10 ‘People’s War’ causing more than 13,000 casualties. The CPN (M) begins to loot police stations and in November 2001, attacks the army base of Ghorahi, Dang District. The army till then was kept apart of these conflicts and stood silent spectator.

The Ghorahi incident turns the conflict into civil war. The intra-party and inter-party leadership crisis, on the other hand, results in the recurring short term governments. The entire nation faces a series of state of emergency and the continuous collapse of Parliamentary system. The then King Gyanendra, tactfully urges the military support 11 to end the crisis. He attempts to reinstate the autocratic monarchy through various encounters where thousands of fighters and civilians lost their life in vain. The Jan Andolan II or the Democratic Movement 2006 rejects the direct rule by King Gyanendra on the one hand and on the other hand obliges the conflict free democracy to be instituted for the social and economic progress. Ultimately, the decade-long People’s War in Nepal is called off.

The Jan Andolan II has a unique manifestation of people’s power where twelve to fifteen millions unarmed masses roamed the streets for over nineteen days to 12 denounce monarchy and to establish inclusive democracy. The revived democracy led by GP Koirala after April 2006 (interim government) attempts to reinstate the multiparty based political system. The peace process between the mainstream parties (Seven Party Alliance – SPA) and the Maoists, empower the marginalized communities to raise the voice against the violation of rights, exclusion in political affairs, and under representation in public institutions. The Constituent Assembly to draft the new Constitution at its first meeting on May 28, 2008 abolishes the monarchy and declares Nepal a Federal Democratic Republic. The Maoist emerges as the largest winning party in the general election that follows. The lack of stable leadership hampers the path of the peace process as well as Constitutional development. The political agreement of November 2011 settles the interest of former Maoist combatants and by the end of October 2012 all the cantonment was emptied.

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Thus the idealistic loggerhead was settled that paved smooth waves for the resolution of various Constitutional issues.

The most pressing issue among others is the institution of federalism (especially on the basis of self-identities). The infighting between the political parties caters a nine month deadlock (from mid 2012 through early 2013) to finally reach to appoint Interim Election Council (IEC). The IEC successfully conducts the second Constituent Assembly election in November 2013. The result shows the resurge of traditional parties while the Maoist and other identity-based parties perform poorly. The assembly begins its first meeting in January 2014 and adopts the new Constitution by 2015.

The most important issue during the political transitions of Nepal is that the socio- economic concerns of the people are neglected every time. The political parties whether king-led, liberal, leftist, or multicultural (four models of governance in Nepal) talk primarily to increase the organizational structure of the party status. There is persistent ignorance on the protection of people’s rights particularly marginalized and disadvantaged groups. Besides the monarchy, democratic parties are largely occupied by the higher caste Hindus. The expectations of inclusive growth by the rise of Maoists seem somehow better. It is, however, abysmally uncertain as one of the estimates shows that out of twenty-eight appointments of the secretary level after 13 April 2006, only two are women, one Madhesi, and twenty-two are Brahmins. The supporters may be from marginalized sections while key posts are preoccupied by Bahuns and Chetris in this regime too. The ensuing pages attempt to analyse the promotion of the ESC rights throughout the transitional phases of Nepal.

4.2 History of the ESC Rights in Nepal: The Domestic Implementation

The State is formally committed to provide better services to the full personality development of its citizens. The monarchical lineage of Nepali governance has been highly discriminatory in defining the rule of law. The Hindu hierarchy outlaws the presence of lower castes as untouchables. The royal family promotes the State patronage to its near and dear that probably are from higher caste Hindus. The history of the protection of ESC rights of the marginalized and disadvantaged communities in Nepal is rarely productive. The Muluki Ain of 1854 (first among the written available

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laws of Nepal) recognizes and legalizes the caste based discriminations such as * untouchablity and social hierarchy. The situation doesn’t improve and the Muluki Ain of 1963 (revised version) amplifies legal confusions among the people even after 14 various amendments of the existing provisions.

The political transitions expand the ambit of rights protection in Nepal. It has ratified 15 the ICESCR on May 14, 1991 with no declarations/reservations. The Constitutional provisions manifest the visible integrity of the nation’s approach to enhance the protection of ESC rights. Various Constitutions of Nepal viz., 1992, 2007 (Interim Constitution – IC), and 2015 (it is outside the study-limit of the present research because the study is based on the periodic State reports submitted so far by the Country) is analyzed in the ensuing pages. Nepal has submitted three periodic State reports so far to the Committee on ESC rights – Initial (1999), Second (2006), and 16 Third (2011).

4.2.1 The Constitutional Protection of ESC Rights in Nepal

The Constitution of Nepal (November 9, 1990) is an attempt to fire without a gun. The dare to fire in itself is highly salutable instinct in a mass unable to handle the gun. The people of Nepal after a long period of sufferings, dare to march over the streets 17 against the royal denomination in favour of institutional establishment. The Jan Andolan I (1990) becomes one of the huge successes of South Asia to celebrate the departure of autocratic monarchy. The main issues to be included in the new 18 Constitution range the following :

 Fully democratic Constitution;     * The practice of untouchablity is very old in the Nepali society based on castes even before the Muluki Ain of 1854. It legalizes untouchablity and social hierarchy based on castes. The national code is blamed to divide people into five major groups, of which Brahmins are at the top and untouchables/impure (generally Dalits) are at the bottom. One has to purify himself upon touching an untouchable people. The national code also encourages different amount of fines to different people based on castes for the crime of equal status. See the detailed analysis of the subject matter, Sujit Mainali, How Discriminatory was the First Muluki Ain against Dalits? South Asia Check

(August 21, 2015). The article is available at (accessed on Nov.20, 2016 at the link below): (http://southasiacheck.org/fact-check/how-discriminatory-was-the- first-muluki-ain-against-dalits/).

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 King must be a Constitutional monarch acting only after the advice of the Cabinet;  Institutions and laws that aren’t conducive to democracy must be repealed;   Organization of free elections and to that end, formation of the independent election commission;   Freedom of press; and,   Equal rights of women.

The Preamble of the 1990 Constitution underlines the four interconnected principles employed during the drafting process – multiparty democracy, parliamentary system 19 of government, constitutional monarchy, and national unity. The historical change occurs for the first time in Nepal that the sovereignty moves toward the people against the autocratic dynasties. The impact of the Constitutions of the neighboring countries particularly India have positively shaped the ‘fundamental rights’ and ‘directive * principles and policies of the State’ (the directives hereafter) in the new Constitution. The ideological differences exist to the de facto implementation, e.g., the social and economic concerns of the people are made highly inclusive, at the same time right to 20 property is overtly maintained. The directives (Article 24-26 of part 4) specifically promote affirmative action to protect the rights of marginalized groups including women, children, disabled persons, and those belonging to socially, economically, and educationally backward sections.

21 The Constitution, however, is itself discriminatory towards different groups. The State remains the Hindu kingdom that protects the norms and values of Hindu religion. The Constitution doesn’t mention about Dalits, Janajatis, Madhesis, etc., as the historically marginalized groups. The Hindu code of conduct maintains its identity for centuries in Nepal. It fosters unjust foundations of inequalities in the society. It doesn’t support the decentralization of power in such a way that can promote the wide 22 ranging participations. The Preamble constitutes that the economic, social, and cultural rights are the elements of social justice. It treats, however, the directives

* It is argued by the scholars that the framers of the Indian Constitution are naïve (not having

strong position in colonial administration). The Nepalese, however, have to change the internal regimes as well as previous Constitutional norms to make it more democratic and participatory. The chapter on ‘fundamental rights’ and the ‘directive principles and policies of the State’ (1990 Constitution of Nepal) bear visible resemblance to the corresponding provisions of the Indian Constitution.

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outside the fundamental rights that is unenforceable by the Courts. The benefits of the State policies are inaccessible in absence of the firm laws behind the implementation. Yash Ghai and Jill Cottrell argue that it is very hard to make real use of the right if no 23 law is passed. The affirmative action to promote socio-economic rights of the * marginalized groups in Nepal, is challenged in absence of the corresponding laws. The failure to enforce directives in the last fifteen years significantly contributes to the foundation of Maoists insurgency in Nepal.

The Jan Andolan II, 2006 re-insists the establishment of democracy with conflict-free participation after the failure of 1990 Constitution. The underlying principles of the Interim Constitution of Nepal (January 15, 2007) are the inclusive, democratic, and progressive restructuring of the State. The new Constitution must be based on the 24 wishes of the people of Nepal and must respect the following goals :

 Sovereignty of the people;   Constitution as the Supreme Law;   Inclusive democracy;   National independence, sovereignty, geographical integrity of the country, and national unity;   Accountability and integrity of the State institutions;   Non-discrimination on grounds of class, caste, ethnicity, gender, region, or religion;  * There is absence of any specific reference in the 1990 Constitution that Dalits, Janajatis, and Madhesis are historically marginalized groups. Alternately, it doesn’t mention that they are targeted beneficiaries of the State policies. A case was lodged in the Supreme Court of Nepal against the affirmative action policy of the government relating to a scholarship grant for higher education. The Constitution only mentions a vague provision of special measures for those who are economically and socially backward. Since no laws have been enacted pursuant to this provision, the policy was challenged. The Court issues a directive order only in 2004, for the enactment of a law to implement the provisions on affirmative action. See for details, the footnote of Sambriddhi Kharel, Deepak Thapa, and Bandita Sijapati, “Nepal: A Country of Minorities,” in South Asia State of Minorities Report 2016, Mapping the Terrain, The

South Asia Collective (Bangalore: Books for Change, 2016): 232. The e-book is available online at (accessed on Nov.17, 2016 at the link below): (http://www.misaal.ngo/wp- content/uploads/2016/11/e-Book_South-Asia-State-of-Minorities-Report-2016.pdf).

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 Independence of the judiciary;   Rule of law;   Basic needs and human rights;   Recognition of diversity of languages and cultures;   Federalism and decentralization of power; and,   Righting past wrongs.

The changes that are introduced besides 1990 Constitution, views most of the scholars, reflect the concerns of marginalized communities in some new directives. The wider representation is also called for the new Constituent Assembly. Some of the ESC rights are included in fundamental rights that are placed formerly in the directive principles chapter. The State is declared to be secular abolishing the notion of Hindu kingdom. The monarchical functions of the king are given to the Speaker or 25 to the Prime Minister. The demands to promote socio-economic rights of Dalits, Janajatis, Madhesis, etc., comprises the recognition, reservation, elimination of caste- based discrimination, participation, citizenship, language, protection of minority and cultural rights, etc., within the Constitutional mandates.

The interim Constitution is commendable to advance the justiciability of many of the directives beyond the 1990 Constitution. Most of the provisions, nonetheless, are 26 vaguely termed by the caveat, ‘as provided by law’, that has yet to be adopted. It is important to note that the intention imposed seems to create complications that denies the rights in question. The following table elaborates the enforceable as well as unenforceable ESC rights of the interim Constitution 2007:

Table 4.1: List of the Enforceable and Unenforceable ESC Rights of the Interim

Constitution of Nepal

Enforceable ESC Rights (under Unenforceable ESC Rights (under non- justiciable fundamental rights – part 3) justiciable directives – part 4)

Article 14: Rights against untouchablity Article 33: Responsibilities of the State to

and racial discriminations. pursue policies regarding scientific land

reform programmes, education, health, Article 16: Rights regarding environment

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and health. housing, employment, food sovereignty, socio-economic security, providing land Article 17: Education and cultural rights. to the economically backward classes, etc.

Article 18: Rights regarding employment Article 34: Directive principles of State – and social security. independent national economy,

preventing concentration of the resources, Article 30: Rights regarding labour. equitable economic distribution based on

social justice and non-discrimination, etc. Article 29: Right against exploitation.

Article 19: Right to property. Article 35: State policies – participation of women, welfare of economically and socially backward classes, provisions of positive discrimination, etc.

Source: Interim Constitution of Nepal (2007). It is available at (accessed on Nov.23, 2016 at the link below): (http://www.oit.org/wcmsp5/groups/public/---ed_protect/---protrav/-- - ilo_aids/documents/legaldocument/wcms_126113.pdf).

4.2.2 The Judicial Protection of ESC Rights

The Constitutional inclusion of the ESC rights is debated in the recent years for their proper protection. The role of judiciary is challenged at various corners to different degrees. It is alleged to be weak institution without enforcing power behind its decisions. The trend of different judiciaries around the world to legalize ESC rights 27 has, howsoever, averted thousands of death and enriched the lives of millions. The ensuing pages attempt to discuss whether the Constitutional design of Nepal supports or frustrates the transformational litigations.

The 1990 Constitution does formally provide equality and no-discriminatory rights to different sections including marginalized and disadvantaged. The true features of ESC rights inclusion begins with the interim Constitution 2007. It recognizes various justiciable ESC rights while the enforcement of others is limited as prescribed by laws. The unenforceable directive principles on the pattern of Indian Constitution are placed in both the Constitutions viz. 1990 and 2007. The directives in Nepal are

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considered to assist the expansion of fundamental rights and the implementation of international human rights obligations assumed by the State (similar is the stand of most of the South Asian nations). The State if fails to comply with the directives; the 28 Court can point out the disjuncture (Yogi Naraharinath v. Prime Minister 1997).

The waves of the judicial activism in Nepal follow the Indian path of robust Public Interest Litigation, as the stand of other South Asian nations including Pakistan, Bangladesh, and Sri Lanka. The 1990 Constitution, unlike India, expressly vests the * jurisdiction of Public Interest Litigation not beyond the Supreme Court of Nepal. The Court in Radheshyam Adhikari v. Cabinet Secretariat (1992) restricts the abuse of litigations that the claimant must have meaningful relation to the issue and must not be 29 used for publicity or vested interest. The Court has identified in several cases, e.g., Prem Bahadur Khadka (2009), the linkage of various rights and declared that the † enjoyment of one is dependent on others. The Court has also fixed the parameters in several cases to design the remedies by the executives in the form of legal policies and laws that protect particular rights. In Pundevi Maharajan v. Government of Nepal (2008), for example, a directive was issued that ordered the government to establish a Committee to study, how the rights, interests, and social security of ‘Kumaris’ (Living Goddess) can 30 be promoted. The Supreme Court in Mira Dhungana v. Ministry of Law declines to declare the unconstitutionality of a law that grants the share of a son in his father’s property since birth but not to a daughter (at least until she becomes 35 years old and remains unmarried). The Court instead requires the State within one

* Article 88(1) provides that “any Nepali citizen may file a petition in the Supreme Court to have any law or any part thereof declared void on the ground of inconsistency with this Constitution because it imposes an unreasonable restriction on the enjoyment of the fundamental rights conferred by this Constitution or on any other ground, and extraordinary power shall rest with the Supreme Court to declare that law as void either ab initio or from the date of its decision if it appears that the law in question is inconsistent with the Constitution.”

† In this case the Court interprets the right to employment guaranteed by Article 18 of the

Interim Constitution as part of the right to live with human dignity and linked it with the right to equality, the right against untouchablity and racial discrimination, the right to environment and health, the right to education and culture, women’s rights, the right to social justice, and the rights of the child. See the judgement of Prem Bahadur Khadka & Ors. V. Government of Nepal & Ors. SCN (January 2009) no.066-WO-07193.

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year to review the legislation after the consultation with interested parties including 31 women’s organisations.

Malcolm Langford argues that the human rights litigation in Nepal in the last two decades 32 has gained formal maturity. He believes that the Nepali judiciary despite the criticisms attains the status to play robust role following the Indian Supreme Court. The important criticisms hampering the growth of the Nepali judiciary are twofold –

(a) declining to substitute its own opinion rather orders are made to the government to adopt laws or solutions in case of violations, and (b) non-enforcement of the judgements by the executives.

4.3 Periodic State Reports of Nepal: Consideration by the Committee

The submission of Initial periodic State report by Nepal to the Committee is considerably delayed – submitted on October 25, 1999 while the due date was June 33 30, 1993. The Second State report is submitted on the fixed due date on June 30, 2006. The Third State report is submitted almost timely on July 12, 2011 (due date June 30, 2011). The reporting cycle signifies the regular pace of submission by Nepal. The following pages attempt to discuss critically the different State reports submitted so far and its consideration by the Committee.

4.3.1 Initial Periodic State Report (1999)

It is very difficult to a nation having long history of authoritarian rules to ensure the immediate protection of ESC rights of the people. It is highly appreciable that after Jan Andolan I (1990), Nepal moves toward the establishment of Constitutional monarchy. It brings parallel efforts to adopt the international monitoring instrument to promote the domestic protection of ESC rights of the people – Nepal ratifies ICESCR on May 14, 1991. The analytical study of the Initial State report highlights the factual socio-economic circumstances of the nation under recurring political and Constitutional transitions.

Article 1(Self Determination): The Preamble of the Constitution (1990) stipulates that the sovereignty of Nepal is vested in the people. The basic human rights of the citizens are guaranteed as the unamendable feature of the political system of Nepal.

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The sovereignty of the nation is respected while resolving external and internal State of affairs.

Article 2(Equality): The Article 11 ensures to all the citizens equality before the law and equal protection of the law without discrimination as to race, sex, religion, caste, tribe, ideological conviction, or any of these. The Constitution also provides remedial measures under Article 88 in case of violation.

Article 3 (Non-discrimination): The equality of men and women in all economic, social, and cultural spheres are ensured by various provisions including Articles 11, 26, and 114. Nepal is Party to the Convention on the Elimination of All Forms of Discrimination against Women – CEDAW was ratified in 1991.

Article 6 (Right to Work): There is Constitutional guarantee to the freedom of choice of work and remedial safeguard is available to its realization. The child labour in any forms is strictly prohibited. The report claims that because of illiteracy, poverty, and lack of awareness, forty-five percent of Nepali population live below absolute poverty 34 line. The development programmes and strategic polices to alleviate the poverty are encouraged at rural as well as urban areas to reduce the exigency in near future.

Article 7 (Favourable Conditions of Work): The Article 20 prohibits trafficking in persons, slavery, serfdom, and forced labour in any forms. The Labour Act 1991 preserves the rights, interests, facilities, and securities of the workers including at workplace. Nepal is Party to several ILO Conventions no.100 (equal remuneration), no.131 (minimum wage fixation), and no.14 (weekly rest (industry)).

Article 8 (Trade Unions): Article 12.2(c) ensures the freedom of all the citizens to form unions and associations of their choice. The freedom to form and operate political organizations and parties are ensured under Article 115 of the Constitution. The Trade Union Act 1992 is enacted to promote the vocational and professional rights and benefits of the workers.

Article 9 (Social Security): Article 26 talks of the welfare of orphans, helpless women, the aged and the disabled people. The Village Development Committee Act 1992 encourages to carryout welfare programmes. More than half of the population of women and children suffer from protein and micronutrient deficiencies and to that end

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the National Nutrition Action Plan 1996 has been implemented under the obligations 35 of International Convention on Nutrition. The welfare programmes and policies are the priority area under the Eighth Plan (1992-1997).

Article 10 (Protection of the Family): Article 26 talks of protection of the family and children. The maternity leaf of sixty days with full pays is legally sanctioned to expectant mother. The Labour Act 1992 and he Children Act 1992 prohibit the employment of children in hazardous and dangerous workplace. It is the responsibility of the government to provide proper healthcare services to the mother and children. The Marriage Registration Act 1971defines the intricacies regarding marriage. Despite the prohibition on child labour, it is the wide-spread phenomenon 36 owing to severe poverty and lack of awareness.

Article 11 (Adequate Standard of Living including right to food): The government has Constitutional mandates to develop the infrastructure to raise the standard of living of its citizens. Nepal seeks cooperation from the South Asian Association for Regional Cooperation (SAARC) Food Security Reserves 1987 which is created for the countries of the region to provide food grains in difficult situations on account of balance of payment constraint. It is estimated that despite the domestic production of 3.896 million metric tons (required 4.124 in 1997/1998), 47 Districts out of the total 37 75 suffer from the food grain shortage. The government housing project has limited scope to public servants only.

Article 12 (Right to Health): The government is obliged to pursue policies regarding highest attainable standard of physical and mental health of the people. The National Health Policy was implemented in 1991 with the priority areas set-out for the Eighth Plan at different levels. The specific programmes are launched to eradicate Epilepsy, Tuberculosis, Malaria, Yellow Fever, Encephalitis, etc., including with the focussed 38 project to eradicate Polio by the year 2000. The family planning programmes are strategically implemented to curb the menace of rapid population growth. The statistics of several health indicators during the Eighth Plan indicate the pathetic situations. The government frames targeted projects to minimize by the Ninth Plan (1997-2002). The sustainable use of the natural resources to minimize the ill health effects over the population has been promoted by the government in recent years.

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Article 13 and 14 (Right to Education): The government of Nepal, by noting the importance of education, has made the school education (primary level) free for all. The initiatives of government after the restoration of multiparty based political system have moved satisfactorily to increase the enrolment at different levels. The growth of qualitative infrastructure in the field of education is still a serious challenge to the 39 government and to the society at large. The consistent efforts are made to improve the higher secondary, higher education, and informal education for the benefit of entire population. The teacher trainings are imparted by various institutions and universities across the country. The goals are fixed in Ninth Plan to make the primary education compulsory for all.

Article 15 (Cultural and Scientific Rights): The Constitution protects the ethnic and racial identities. It guarantees every citizen to enjoy their own culture without interference. The Ministry of Youth, Sports, and Culture (established in 1995) protects the aspirations of different cultures. The government has established the Royal Nepal Academy of Science and Technology (RONAST) in 1982 to harvest the technological advancement. The Ministry of Science and Technology is established in 1996 to look after the growth and development in this field.

4.3.1.1 List of Issues to the Initial Periodic State Report

The Pre-Sessional Working Group communicates the List of Issues on December 13, 2000 before the consideration of the Initial periodic State report of Nepal by the 40 Committee. The major queries raised include the following:

Queries Regarding General Legal Framework – It includes informations on the list of effectively justiciable rights of the Covenant, name of the existing State bodies that protect human rights, name of the national plan of actions for the protection of human rights, reasons for the non-ratification of the refugee and Stateless person’s Conventions, etc., and the State initiatives to disseminate the Covenant’s provisions for general awareness.

Queries Regarding General Provisions – It includes information on the obligation under international cooperation, abolition of persistent caste system, and measures to prevent discriminations against women and girls, etc.

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Queries Regarding Specific Provisions

 More statistical information and disaggregated data on unemployment, underemployment, child labour, and occupational accidents and illness;   Information on minimum wages, purchasing power of the workers, employment opportunities, equal pay for equal works, and promotion to higher post;   Information on the existing trade unions and the reality of the right to strike;   Information on the budgetary allocation to promote the social security in general, and workers social security in public and private sectors;   Information on the trafficking and violence against women and children, and plight of street children;   Measures taken to reduce the level of poverty, food shortage, and housing needs;   Measures on the access of safe drinking water, health services, and sanitation facilities;   Statistical information on the budgetary allocation for healthcare, current health status of the population, measures implemented to the healthcare sectors, and measures to eradicate communicable diseases and drug addictions;   Statistical information on the budgetary allocation for education, current number of students and drop-outs at various levels, information on human rights education and non-formal education, and additional information on the use of one’s own language; and,  Measures taken to promote the full participation of the people in cultural life.

4.3.1.2 Concluding Observations to the Initial Report (1999)

The Committee at its twenty-sixth session (August 13-31, 2001) adopts the 41 Concluding Observations on the Initial report of Nepal. It appreciates the report in- conformity with the general submission guidelines but regrets the nine years delay. It highlights the following positive points of the report:

 The justiciable nature of the Covenant’s provisions;

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 The power of the Supreme Court to issue orders for the enforcement of the provisions;   The technical cooperation projects with the UN OHCHR;   The establishment of independent NHRC;   The establishment of the Ministry of Women, Children, and Social Welfare (MOWCSW);   The adoption of Anti-trafficking Act;   The release of 2000 Kamaiya (agricultural bonded labour); and,   The measures to curb polygamy, dowry, prostitution, etc.

The Committee takes note of the difficulties faced to implement the Covenant’s provisions including the high rate of population growth, the slow-down in economic growth, foreign debt, and most importantly the insurgence of Maoists effecting negatively the enjoyment of ESC rights especially by marginalized and disadvantaged groups.

The Committee highlights the following principle subjects of concern with regard to the enforcement of the ECS rights:

 The vague status of the Covenant in domestic legal order and the lack of case laws over ESC rights;   The excessive plans on human rights issues without proper benchmarks to illustrate the achievements;  The poverty alleviation programmes don’t meet the targets;   The legal, societal, and wage inequalities persist between men and women despite legislative guarantees;   Large number of women and girls are trafficked for prostitution and face continuous domestic violence;   The incidence of high rate of unemployment and underemployment;   Lack of land and agrarian reforms, pathetic condition of Kamaiyas, minimum wage is not sufficient to decent living particularly in the agriculture sectors;   High incidence of child labour;   The severe lack of safe drinking water, health services, and sanitation facilities;   The forced eviction without relocation is rampant;

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 The refugee and stateless person’s security are at stake specially of Bhutanese people;  The high incidence of infant, child, and maternal mortality;   The national health plans are insufficient, HIV/AIDS are spreading at alarming rates; and,   The education policies are needed to be improved immediately.

The Committee finally draft the suggestions and recommendations to improve the performance of the government in the field of the ESC rights. It urges the State Party to include the following:

 The full recognition of the Covenant in all the policies and programmes on the ESC rights as well as de facto justiciability of the provisions;   The international financial cooperation from IMF, WB, and WTO must be ensured to protect the interests of vulnerable groups;   The national plan of action for human rights must confirm the 1993 Vienna Declaration and Programme of Action;   The NHRC must equally focus ESC rights in line with CPRs;   The poverty alleviation programmes must accord the Covenant provisions;   The legislation on gender equality must be strictly followed at all spheres;   The legislation should be enforced on the prohibition of customary practices, prostitution, trafficking, domestic violence against women and children, and to end discrimination against Dalits;   The effective action should be taken to reduce unemployment, agrarian reforms, to fix minimum wages at par adequate standard of living and the State Party must ratify ILO Conventions No.29(forced labour), 81(labour inspection), and 87(Freedom of Association and Protection of the Right to Organise Convention) with immediate effect;   The effective laws to curb child labour in any form should be enforced with immediate effect;   The State must provide alternate relocation to those forcibly evicted and all the refugees should be recognized on equal footing;

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 The measures must be taken to reduce maternal and child mortality and the healthcare services must be accessible to mentally disabled and marginalized people; and,   The primary and basic education must be provided free and compulsory to all and proper benchmarks should be incorporated to monitor the level of achievements in this regard.

The Committee finally recommends to seek technical supports from the UN OHCHR and other Specialized Agencies to draft Second periodic State report and to submit it on time. It also requests Nepal to disseminate the concluding observations among all levels of the society.

4.3.2 The Second Periodic State Report of Nepal (2006)

The report discusses the additional information on principle subjects of concern and suggestion and recommendation to the Initial report of Nepal (1999) in a detailed 42 manner. It highlights the initiatives and achievements in different fields of the ESC rights during the reporting years. The developments are discussed in brief in the following pages:

Article 1 (Self Determination): The report relies on the existing Constitutional provisions and acts already mentioned in the Initial report. The additional instruments include the National Foundation for the Development of Indigenous Nationalities Act, 2002 and the Political Parties Act, 2002 that seem to improve the participation of the people in the mainstream public identity.

Article 2 (Equality): The most pressing issue to preserve the principle of equality in the State is the poverty alleviation. The earlier efforts are strengthened by the alliance of seven political parties with the Maoists to reach the 12-point understandings in November 2005. The multiparty based democracy is restored and an interim government is formed in 2006. The State of Nepal is declared to be secular – Royal Nepal Army is renamed as Nepal Army and His Majesty’s Government is changed to Government of Nepal. With these landmark transformations, the government is committed to enhance the civil liberties, fundamental rights, human rights, freedom of press, and democratic norms and values including the concept of rule of law. The

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Tenth Plan (2002-2007) specifically promotes targeted programmes for the upliftment of Dalits, neglected communities, indigenous people, and ethnic groups.

Article 3 (Non-discrimination): The chapter on women’s rights are recommended to make more equitable discarding all the discriminatory laws by the newly instituted House of Representatives (HORs). The gender responsive programmes are operational in collaboration with the UNDP in various fields. The provisions are made progressive to improve the participation of women in the public services, workforce, and a resolution is passed by the newly HORs to increase the reservation of women upto 33 percent in all the State institutions.

Article 6 (Right to work): The Tenth Plan, besides the existing safeguards, provides the improved protection of the rights, interests, and social security of the labourers. It projects a Master Plan against child labour (2004-2014) to end worst forms by 2009 42 and all the forms of child labour by 2014. The minimum wage of agricultural workers has been fixed at rupees seventy a day at present (2005). The government has established ten vocational training institutes across the country with the target to train 20,000 people during Tenth Plan and achieved the number of 15,000 trained people till the preparation of report.

Article 7 (Favourable Conditions of Work): The government ensures the better employment opportunities for its citizens in the foreign labour market. The Labour and Employment Policies (2005) are drafted for the approval by the Cabinet parallel to the ILO labour standards. The employment loans are provided to the marginalized communities and the victims of the conflict to bear the cost of acquiring foreign employment. The government has established ten labour offices and appointed seventeen labour inspectors across the country to monitor the conditions of work at the industries. The serious challenge in-front of the government is the constraint of budget to implement the devised programmes.

Article 8 (Trade Unions): Under the existing norms, more than two thousand trade unions function for the welfare of the workers in various fields. The HORs recently has passed the resolution to grant the trade union rights to the civil servant except the employees who work at policy-making levels. The challenges ahead are the political

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convictions of the individual trade union that might accrue hurdles to the smooth governance.

Article 9 (Social Security): The government attempts to provide the social security benefits, under the existing norms, in such circumstances where people are in need. The Tenth Plan especially focuses to protect with strategic plans and policies, the social security rights of women, children, disabled people, and senior citizens. The special strives for People with Disabilities (PWDs) include scholarships, para Olympic participation, employment opportunity, etc. The government has formulated and enforced a National Plan of Action on Disability in 2003. The civil servants are entitled to sickness leaves, treatment cost in case of illness, compensation to family if dies during service, and stipend for the education of the children. The Tenth Plan creates an environment conducive to respect, protection, and convenience for old people. The government has adopted the Senior Citizens Policy and Working Policy 2002 and the Guidelines for the Implementation of the Health Service Programme for Senior Citizens 2004.

Article 10 (Protection of the Family): The government to address the trafficking and gender disparity, has introduced many administrative measures at different levels including Coordination Committees, Task Force, and Women and Children Service Center. The rehabilitation center and the national plan of action against trafficking played vital role to eradicate the menace. The technical and financial support from various international agencies including UN organs mobilized and campaigned against girls trafficking, domestic violence, child marriage, polygamy, alcoholism, gambling, dowry, corruption, and superstition. The judiciary too supports the victims of trafficking, e.g., Durga Dhimal v. HMG; the Court rules that “the statement of the woman who lodges the FIR is reliable and must be taken as evidence in this case” and 44 puts the burden of proof on the offender. The government has established the National Women’s Commission (NWC) in 2002. The NHRC has established eleven membered Women Human Rights Protection and Promotion Committee. The government is also committed to eradicate all the traditional malpractices of the society that harm young girls and women.

The government is committed to the protection of the children and ratified in 2002, the SAARC Convention on the Regional Arrangements for the Promotion of Child

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Welfare in South Asia. It has adopted the Child Labour Master Plan (2001-2010) and approved the National Plan of Action for Children (2004/05-2014/15). The ‘time bound programme’ to eliminate the worst forms of child labour by 2007 in collaboration with ILO is implemented by the government of Nepal. The major problem is the poverty that compels the children to work in exploitative and hazardous circumstances. The rehabilitation programmes confront the severe lack of resources and technical supports.

Article 11 (Adequate Standard of Living including right to food): The poverty alleviation and reduction programmes are endorsed during Ninth and Tenth Plan parallel with the Millennium Development Goals. The food production in Nepal isn’t constant, as the cultivation is largely dependent on rainfalls that vary season to season. Despite surplus food grains, availability is scarce especially at hills and mountain regions. The ‘food-for-work’ programme under the World Food Programme (WFP) effectively helps to cope with the food insecurity in Nepal.

The periodic report claims that homeless in Nepal is negligible around 3,00,000 out of 45 23.5 million population (roughly 91.6 percent have their own houses). It is the individual responsibility to acquire a house in Nepal while the government facilitates the housing process. The government is unable to allocate more than one percent of the budget for the housing sectors. The challenges before the government are to improve the housing infrastructures viz., electricity, communication, water supply, sanitation, etc.

Article 12 (Health): The government significantly implements several measures including policies, strategies, plans, and programmes to protect the right to enjoy the highest attainable standard of physical and mental health of the people. The short, long, and medium term plans are underway. The Tenth Plan specifically prioritizes healthcare services into three categories; (a) control and eradications of all types of diseases, (b) capacity building through improved facilities and personnel, and (c) availability of resources. The government recently has appointed Medical Practioners in twenty-five remote Districts with lowest health indicators. The decentralization of health sectors is being promoted and the institution of private hospitals is the sign of improvements. The essential healthcare services during Fiscal Year (2003/2004) are provided by 84 hospitals, 188 Primary Health Care Centres (PHCCs)/Health Centres

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45 (HCs), 699 Health Posts, and 3,179 Sub-Health Posts. The budgetary allocation is the highest for the health sector (in 2005-06, around 6.05 percent of the total budget).

The report claims that due to the improvement in healthcare services over the last forty years small-pox has been eradicated completely. Tuberculosis, Leprosy, Goitre, Malaria, and Diarrhoea have been sufficiently reduced, life expectancy has increased to 62 years, infant and child mortality rate has decreased to 64 and 91 per thousand live births respectively, and marginal improvement have also noticed in various other sectors in recent years. The country faces insufficient healthcare services despite various policies and programmes (seventy percent of the total population have the access to the basic healthcare services).

Article 13 and 14 (Right to Education): The right to education is constitutionally guaranteed in Nepal. The primary education (grade 1-5) and girl’s education (upto grade 10) in public schools is provided free of cost. The government is committed to mainstream the out-of-school population through the alternative education system. The chunk of population (about sixteen percent) in the school age particularly from disadvantaged communities, are still devoid of basic education. The girl’s education and gender equality is the priority area of the government in the recent years. The provision of bilingual education system is being introduced by translating school syllabus in different languages. The human rights education is introduced at different levels in recent years. The assurance to provide quality teachers, have been introduced by the government since 2004 through the ‘Teacher Licensing’ system. The financial and technical assistance in education sector is provided by various development partners including ADB, DANIDA, European Commission, FINIDA, JICA, NORAD, UNICEF, WFP, etc. The most important challenge hampering the initiatives to improve the educational standard is the decade-long insurgency of the Maoists.

Article 15 (Cultural and Scientific Rights): Nepal is a country rich of culture and cultural heritages. It is the responsibility of various institutions of the government to preserve and promote the cultural life of the people. The focal institution is the Ministry of Tourism, Culture, and Civil Aviation (2001). The government has established a Nepal National Ethnographic Museum in 2005 in Kathmandu to preserve different cultures of nationalities. The Tenth Plan stipulates several objectives to protect and promote the cultural life of the ethnic groups and minorities.

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The government is committed to uplift the marginalized communities particularly Indigenous Nationalities (INs) to preserve the cultural life and socio-economic empowerment. Besides several legal and institutional measures, a big number of INs comes under the marginalized groups in the societal level in Nepal.

4.3.2.1 List of Issues to the Second State Report of Nepal

The Pre-Sessional Working Group adopts the List of Issues to the Second State report 46 of Nepal during its meetings on November 27 – December 1, 2006. The List raises the following questions to be answered by the government:

General Framework

 The extent to which ESC rights will be reflected in the new Constitution;   The concrete steps to implement the National Human Rights Action Plan (NHRAP) and its achievements;   The promotion of ESC rights during Comprehensive Peace Agreement;   The example of case laws in which the Covenant is directly invoked; and,   The new code of conduct to the national and international NGOs.

General Provision

 The measures taken to effectively combat discrimination based on caste;   The measures take to combat social exclusion of Dalits;   The measure on asylum seekers to enjoy ESC rights and their achievements;   The conditions of internally displaced persons; and,   The de facto and de jure status of women.

Specific Provisions

Articles 6-8 – Specify why the State party hasn’t ratified the ILO Conventions no.87 (Freedom of Association and Protection of the Right to Organise Convention 1948), no.105 (Abolition of Forced Labour Convention 1959), and no.169 (Indigenous and Tribal Peoples Convention 1989); the measures to enhance the employment opportunities based on non-discrimination; the information on assurance of the ESC rights of the Nepali migrants working abroad particularly in India; and the

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information on situation, level, and trends of employment, unemployment, and underemployment.

Article 9 – The information on the implementation of the non-contributory, universal social security programmes introduced in 1995.

Article 10 – The measures taken to rehabilitate the children recruited in Communist Party of Nepal and in military services and its achievements; the information on child marriage; the trafficking of women and children; and the concrete measures to combat child labour and its achievement.

Article 11 – The data on poverty disaggregated by gender, caste, ethnicity and region and measures on its eradication; the detailed information on the heavy migration and its impact on agriculture and food production; and the strategies to cope the difficulties faced by agricultural sectors and food access by the marginalized communities of the remote areas.

Article 12 – The information on Tuberculosis and Diarrhoea, reproductive and sexual health programmes, rehabilitation of mentally disabled persons, and to combat the spread of HIV/AIDS.

Article 13 – The information on the Constitutional progress of the right to education and its implementation to combat gender disparities, rural-urban gap, access by marginalized communities; and the promotion of education among Dalits, girls, and those living in extreme poverty.

Article 15 – The information on the continuous harassment of the indigenous people and the protection of minority people to practice their custom, tradition, and rituals.

4.3.2.2 Replies to the List of Issues by the Government of Nepal (February 2007)

The government submits the detailed Replies to the List of Issues raised by the Working Group that is considered by the Committee at its thirty-eighth session (April 47 30 – May 8, 2007). The replies begin with the inclusion of provisions on ESC rights in the Interim Constitution 2007 (it will be discussed in the next section on the consideration of the Third periodic report of Nepal). The information on the National Human Rights Action Plan almost repeats the informations already produced in the

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Second State report, however, some of the additions during this period include the introduction of the gender budgeting, environmental awareness programmes, senior citizens act 2006, juvenile justice procedure rules 2006, judiciary initiative to the Strategic Plan for making justice accessible to all, and concept of an Open Prison and Community Prison System.

The Comprehensive Peace Accord and promotion of the ESC rights include the information already mentioned in the Second State report. The issues of internally displaced persons are dealt through the measures including the National Policy on Internally Displaced Persons 2005; the unit for the management of relief assistance at the Ministry of Home Affairs; the Peace Secretariat 2002; the Relief Assistance Programmes for the Conflict Induced Displaced Persons 2004 and Beyond that help displaced persons to go back to their places of origin; Providing vocational training; Providing soft loans; Scholarships; Widows allowance; Provision of the Fund; Reconstruction of the damaged infrastructure during conflict; and management, monitoring and evaluation of information regarding IDPs.

The remaining of the replies for most of the question repeat the information already mentioned in the Second State report. The statistical information and other progress provided in the replies on various provisions of the Covenant will be discussed in the Third State report in the following sections.

4.3.2.3 Concluding Observations of the Committee on the Second Report of

Nepal

The Committee adopts the Concluding Observations to the Second periodic report of Nepal on the twenty-sixth meeting held on May 16, 2007 at the thirty-eighth 48 session. The Committee appreciates the submission on time and in-conformity with the general guidelines. It appreciates the constructive dialogue, written Replies to the List of Issues, and the responses to the questions asked in the Concluding Observations of the Initial report. It regrets in some cases that the implementation of ESC rights isn’t satisfactory. It highlights the following positive points of the report:

 The reinstatement of the House of Representatives in April 2006 is historical;   The CPA between the government and CPN (M) in November 2006 is another milestone;

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 Foundation of the secular nature of State and adoption of the Interim Constitution 2007 incorporating many of the ESC rights;   The elevation of NHRC as Constitutional body, the renewal of NHRAP for further three years, and the establishment of Covenant’s monitoring bodies and the NWC;   The Constitutional prohibition on the untouchablity and other forms of discriminations, the enactment of the Bonded Labour (Prohibition) Act 2002, and the promotion of equality between men and women through legislations or otherwise; and   The ratification of ILO Conventions no.29 (on forced labour) and 182 (on worst form of child labour).

The main hurdle to abide by the Covenant’s provisions is the persistent conflicts that make the mobility of relief funds difficult to reach the large number of victims, displaced persons, and other vulnerable groups. The principle subjects of concern highlighted by the Committee are as follows:

 Most of the recommendations of the Initial report (2001) have not been implemented effectively related to poverty, inequalities between men and women, trafficking and prostitution of women and girl, domestic violence, unemployment and underemployment, bonded labour, child labour, etc.   The non-appointment of the Commissioner of NHRC and restrictions on its financial autonomy;   The rampant caste-based discriminations to access justice, the safety of IDPs aren’t assured despite CPA 2006, the traditional practices such as deuki, bari, chaupadi, child bride, witchcraft, etc., are operational although prohibited by laws, and the vulnerable status of women especially in rural areas;   The official minimum wage are too low to enable adequate standard of living of workers and it is applicable only in formal sectors not in agriculture sectors;   The severe food insecurity particularly to the vulnerable groups, the right to shelter isn’t guaranteed, the lack of access to healthcare services, and the high rate of maternal and infant mortality; and,   The primary education is not completely free in practice and no policy is enforced on compulsory education.

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The suggestions and recommendations by the Committee to improve the existing conditions on the ESC rights in Nepal are as follows:

 The State Party is encouraged to strengthen the cooperation with the OHCHR;   The representation of all the sections of the society including women at the decision-making level must be ensured including in the Constituent Assembly to draft the new Constitution;   The transparent appointment process of the Commissioner to the NHRC must be ensured;   The national laws must be reviewed to identify caste-based discriminations including with women and the prohibitory measures must be disseminated widely;   The safe and sustainable returns to all the IDPs must be ensured; the laws must be strictly enforced to prohibit harmful practices and domestic violence against women without delay and concerned personnel must be trained accordingly;   The State Party must ameliorate the condition of marginalized groups and women particularly of rural areas and must protect all children from the worst form of child labour;   The minimum wage must be fixed to enjoy adequate standard of living and the State must fulfil its obligation to use maximum of its available resources to enforce ESC rights;   The urgent steps must be ensure to food security and access to safe drinking water for all, the national housing policy must ensure the low-cost housing units for urban poor, and the high priority should be accorded to reduce maternal and infant mortality rate; and   The State party should introduce not only free but also compulsory education.

The Committee urges the State Party to include detailed information on measures taken to eliminate discriminations, and enhanced respect and protection of the ESC rights, etc. It recommends to give the detail information of the procedure on the recognition of the INs. It further recommends to disseminate widely the Concluding observations among all the sections of the society particularly law enforcement officials, police officials, advocates, NGOs, social workers, etc.

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4.3.3 The Third State Report of Nepal, 2011

49 Third State report is submitted to the Committee by Nepal on July 12, 2011. It underlines the institution of 601-membered Constituent Assembly (CA) representing major political parties in 2008 that serves as the Legislature-Parliament. The CA ends the 239-year old monarchy and declares Nepal as a ‘Federal Democratic Republic’ on 28 May 2008. The Interim Constitution 2007 provides for twenty-one different rights * as fundamental rights that serve as a shield against any infringement of ESC rights. It emphasizes to protect the ESC rights of vulnerable and marginalized groups through positive discriminations, reservations, and other forms of special supports included in the directive principles (part 4; Articles 35-36). The report highlights in addition to the existing legislations, some of the new laws including the Human Trafficking and Transportation (Control) Act, 2007 and the Domestic Violence (Crime and Punishment) Act, 2009. The interim Constitution recognizes the independence of the judiciary and acceptability of the international human rights norms. The government has implemented various policies to develop and grow the ESC rights regime in the country.

The report highlights that various institutions work to protect and promote the human rights agenda of the government. The part V of the report discusses regarding the development made on the Concluding Observations on the Second State report of Nepal (It is discussed in the ensuing pages on the implementation of the specific provisions of the Covenant).

Article 1 (Self Determination): The Constitution, besides the Preamble, includes Articles 2, 3, 63, 138, 139, and 140 that collectively embody the spirit of the self- determination of the people. The above mentioned provisions talk about the

* The Interim Constitution of Nepal (2007) in its part 3 (Articles 12-32) includes the following fundamental rights that largely protect the ESC rights:

Right to freedom; right to equality; right against untouchablity and racial discrimination; right relating to publication, broadcasting and press; right to environment and health; right to education and culture; right to employment and social security; right to property; rights of women; right to social justice; rights of the child; right to religion; right to justice; right against preventive detention; right against torture; right to information; right to privacy; right against exploitation; right relating to labour; right against exile; and, right to constitutional remedies.

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sovereignty of the people and the decentralization of the power to provide the enhanced dignified life. In the current political scenario of Nepal, the right to self- determination of the people is practically monitored by the highest political body, the Constituent Assembly.

Article 2 (Non-discrimination): The government promotes the equal protection of the ESC rights among the people largely through the international cooperation. The foreign aid is estimated to share three to four percent of the GDP and increasing every year. The government continuously urges for the better aid effectiveness with the donors. It commits under Article 13 to prohibit any kind of discriminations on ground of religion, colour, sex, caste, tribe, origin, language or ideological conviction or otherwise. The Article 14 further prohibits untouchablity and racial discriminations, as a fundamental right. The Constitutional remedy against untouchablity or racial discrimination is non-derogable even during state of emergency. The government respects and recognizes the rights of all sexual and gender minorities and abolish all the discriminatory laws against them. The equality of ESC rights despite continuing efforts isn’t effectively ensured specially for marginalized and the vulnerable groups.

Article 3 (Equality): The Constitution under Article 13 recognizes the right to equality as a fundamental right. It is non-derogable under clause 7 of the Article 143 even during the state of emergency. The government adopts the Gender Equality and Social Inclusion (GESI) Policy in 2010 and thereby enhancing the participation of women and other disadvantaged groups at social, political, economic, and other spheres of life. There remain various challenges to overcome the gender parity in ESC rights. The participation of women at formal labour sector, civil services, judiciary, etc., is very low.

Article 6 (Right to Work): The Constitution recognizes the right to work as fundamental right of every citizen. The freedom of choice of work prohibits slavery, forced labor, and human trafficking in any form and in this regard the Human Trafficking (Control and Punishment) Act 2007 is an important enactment. The Article 35 instructs to enforce a range of policies significant to enjoy the right to work. The government encourages the vocational and technical trainings to realize the work for all, particularly the marginalized communities. Recognizing the role of youth in the development of the ESCRs, the government has implemented Youth

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Policies 2010. The current status shows the increase in total number of the employed 50 persons in 2008 that brings a growth rate of 1.75 percent in the GDP in 2009. The decrease in child labour is marginal, growth of private sectors of labour is low as expected, participation of larger workforce to the agricultural sectors without fixed minimum wage and social security, and other such factors hamper the full realization of right to work in Nepal.

Article 7 (Favourable Conditions of Work): The government ensures the minimum wage for workers and employees including agro labourers. It specifies the rest, leisure, hours of work per day/week, and leaves for the workers according to the labour regulations. The Occupational Safety and Health (OSH) of the industries are ensured for the better working conditions. The NWC is responsible to monitor the sexual harassment at workplaces. The general monitoring of the workplace is carried out by the Ministry concerned for better working conditions. Despite various measures in places, the government faces serious challenges to the full realization of the rights to just and favourable conditions of work as for example policies on OSH is still to be adopted.

Article 8 (Trade Union): The IC of Nepal stipulates under Article 12(3)c, 30(2), and 140 the right to join and form trade unions of choice to promote the collective bargaining and other interests of the workers. The existing Labour Act 1992 and the Essential Service Act 1995 protect and regulate the concern of the workers.

Article 9 (Social Security): The Constitution under Article 18 provides the right to social security as a fundamental right. The government promotes the respect for senior citizens and provides with various policies to protect their social security including monthly allowance and free medical treatment for severe diseases. The positive discriminations are adopted for Persons with Disabilities in the field of education, health, skill based training, and transportation services. The government faces various challenges to defend the securities of entire population particularly aged and PWDs.

Article 10 (Protection of the Family): The Nepalese society considers family as a fundamental group unit of the society. The free consent and registration of marriage is given due importance in the domestic legislation. The Constitution under Article 22

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incorporates many of the provisions for the protection of children, as fundamental rights. The MOWCSW monitors the effectiveness of the policies and programmes on the protection of the children. The right to reproductive health and reproduction is a fundamental right under the Article 20(2) of the interim Constitution. The trafficking in persons is criminalized under Article 29(3) of the Constitution. The government has adopted various plans of action, guidelines, resolutions, and preventive measures to curb all types of trafficking. The government so far has established rehabilitation 51 homes for the victims of trafficking in the eight Districts of Nepal. The government following the directive orders from the Supreme Court, has established safe homes to * assist victims of trafficking on the foreign land. The Supreme Court has noted the incidence of Gender Based Violence (GBV) at workplaces and directed the government to implement legislations in this regard; as a result, the code of conduct against GBV at workplace is adopted in 2010. The government is still concerned with a range of challenges to the full realization of this right.

Article 11 (Adequate Standard of Living including right to food): The percentage of population below the national poverty line is 31 in 2005, currently it is reduced to 25.4 percent and the government is further committed to reduce it to 21 percent by 52 July 2013 through the Three-Year Plan. The government has introduced various income generation programmes for the poor and marginalized groups particularly in the agriculture sectors. The one-third of the GDP comes from the agriculture sectors and more than 74 percent of the population is dependent on farming for their subsistence. The government thus implements several policies to improve the agriculture at par scientific lines which might play greater roles to reduce poverty and food insecurity. The performance at food production is, however, declining every year † especially due to bad weather. The food deficiency is harshly affecting the

* The government establishes safe homes in four countries (Saudi Arabia, Qatar, Kuwait, and United Arab Emirates) and is planning to establish such homes in Japan, Hong Kong, Korea, Oman, and South Korea. The safe homes are established following the directive order from the Supreme Court of Nepal to implement the Foreign Employment Act 2007. The safe homes provide space to those trafficked or to smuggled women who are suffering from slavery-like situations.

† The annual growth rate of agriculture is 2.7 percent in the 1990s, whereas it raises upto 2.5 percent per annum from 2001 to 2006. The growth rate is recorded as high as 4.7 percent in

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malnourishment and undernourishment to the larger population particularly children. The government to end the problems of safe drinking water supply and sanitation by 2017, has introduced the Twenty-Year Vision (1997-2017). The recent data shows an increase in the supply of safe drinking water to urban as well as rural households while sanitation is still a major problem – more than half of the population (around 57 percent) is compelled to defecate in open. A series of programme is adopted by the government to achieve the uniform policy of housing for all.

Article 12 (Health): The government is committed to provide quality health services to its citizens. To ensure accessible and better services, it authorized the Local Bodies to monitor the health institutions (sub-health posts, health posts, and primary health care centers). A number of activities have been started to ensure the right to health including free surgery of uterine prolapse, safe abortion services, Zinc supplementation in children, Community Based Integrated Management of Childhood Illness, etc. The National Malaria Control Strategy (2007/08-2011/12) has significantly decreased the prevalence rate of Malaria. The infant mortality, under- five mortality, and maternal mortality still are a serious problem to realize the right to health.

Article 13 and 14 (Education): The government provides free basic education to all with an arrangement of mother tongue facilities to early grades. It is committed to offer quality education at all levels and to promote vocational and technical education. The enrollment rate at all levels has increased due to the impact of various policies and programmes. The participation of the highly endangered nationalities at primary level is 2 percent of the total enrollment in 2009. The report signifies the enrollment by different sections at different levels in a very detailed manner. The effort is to raise the awareness among the key stakeholders to promote free and compulsory education.

2006/07. However, it stands merely 2.1 percent in 2008/09 and crop production experiences the sharp decline in the subsequent year mainly because of bad weather. The recent projection for July 2008 to June 2009 suggests that 40 of 75 Districts will be food deficient. The Terai region will be in surplus, producing 11 percent more than required. However, the Hills region will face a net deficit of 14 percent and the Mountains region will produce 19 percent less than required. The production balance will be 2.5 percent lower than the required for the whole country. About 35 percent of the population feels the shortage of food.

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Article 15 (Culture and Scientific Progress): The Constitution recognizes the diversity of various groups viz. ethnic, lingual, religious, and cultural to collectively constitute Nepal as a nation. All the languages spoken as mother tongue are recognized as national language. The Article 17(3) of the Constitution entitles each community to preserve and promote its language, script, culture, cultural civilizations, and heritages. Each person has the right to profess, practice, and preserve his/her own religion under Article 23. The Tenth Plan stipulates several objectives with regard to the protection and promotion of the cultural life of ethnic groups and minorities. The Copyright Act 2002 protects the rights and interests of the authors and their scientific, literary, and artistic productions by protecting the benefits resulting from the use of such creations.

4.3.3.1 The List of Issues to the Third Report of Nepal (2011)

The Pre-Sessional Working Group adopts the List of Issues to the Third periodic 53 report of Nepal at its fifty-second session on December 2-6, 2013. The queries on general informations include the information on the compliance of the NHRC (2000) with the Paris Principles, the corruption and its impact on the enjoyment of the ESC rights, and the details of the prosecution of high-officials (if any) involved in such cases. The issues relating to the general provisions (Articles 1-5) of the Covenant seek to highlight the information on the de facto measures to protect the non- discrimination in accessing ESC rights by the former Haliyas, Kamaiyas, PWDs, and Dalits. It requests to provide information on the participation of women particularly Dalit and Indigenous to the decision-making positions, public service, the judiciary, and the foreign services.

Issues of the Specific Provisions of the Covenant (Articles 6-15)

Article 6 – Information on the adoption of the National Employment Policy, measures to reduce informal sectors of economy, and measures to promote ESC rights of the workers in the informal sectors.

Article 7 – Information on the de facto implementation of the legally guaranteed minimum wages and its coverage, and measures to improve working conditions of the factory workers particularly in the brick factories.

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Article 8 – Information on the protection of interests of the employees not to be crushed by the employer to join trade unions, measures to improve collective bargaining, and whether school teachers allowed to form unions.

Article 9 – Information on the protection of social security of the old age, disabled, and other groups as well as on the implementation of the national social security system for universal coverage.

Article 10 – Information on the prevention of child sexual abuses, ill social practices, and trafficking in women and girls; measures to eradicate the plight of child labour, and street children; measures against the domestic violence; and information on the implementation of national policies to prevent child labour.

Article 11 – Disaggregated information on the poverty level and the impact of measures to reduce it; measures to reduce inaccessibility of safe drinking water, sanitation, and food security particularly in rural areas; and measures to curb forced eviction and the rehabilitation of displaced person.

Article 12 – Information on the non-discriminatory accessibility of healthcare services particularly in rural areas; information on the measures and its impact to reduce high rate of infant, child, and maternal mortality; information on the accessibility of the universal sexual and reproductive health services; and information on the shortage of the mental health facilities and psychiatrists in the State Party.

Article 13 and 14 – Information on the compulsory primary education and free secondary education; information on the indirect costs of schooling; information on the enrolment of children of Dalits, Indigenous groups, and minorities at primary schools; information on the accessibility of education particularly by girls and disabled people; and information on the infrastructure of the schools particularly sanitation facilities.

Article 15 – Information on the rights of land and the natural resources of the indigenous communities attached to their livelihood; information on the preservation of the identity, culture, and the traditional languages of the indigenous people; and measures to improve affordable access to internet and other scientific progress particularly by marginalized, disadvantaged, and the rural population.

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4.3.3.2 Replies to the List of Issues by the Government of Nepal 2014

The government submits the Replies to the List of Issues raised by the Pre-Sessional 54 Working Group to the Third periodic report on September 17, 2014 to the Committee. The status of the NHRC is claimed to be in line with the Paris Principles and the government is bound to implement the recommendations. To combat corruption, it enforces Constitutional, legal, policy, and institutional mechanisms in the area and promote the realization of the ESC rights. The replies contain the following explanation with regard to the general provisions of the Covenant:

Non-discrimination: The rehabilitation of the released bonded labour (ex-Kamaiya and Haliya) is regulated, besides the existing provision, by the Bonded Labour (Prohibition) Rules 2010. The Freed Kamaiya Rehabilitation Implementation Committee has provided under the Procedure 2012 the rehabilitation assistance to 24,330 freed Kamaiya families (out of 27,579) as of April 2014. The government is committed to end the menace by 2015. For the freed Haliyas, the taskforce and other committees are under operation to provide better rehabilitation. The government is consistently working to improve the facilities for marginalized groups, minorities, and PWDs at all levels including central to local. The efforts of the Ministry of Education are constantly enhancing the infrastructure for the PWDs children and consequently the enrolment is increasing at all levels. The Caste based Discrimination and Untouchablity (Offence and Punishment) Act 2011 is operationalized to curb the discrimination against Dalits at all levels. The government faces greater challenges due to lack of adequate capacity of the law enforcement agencies and proper awareness.

Equality: The government to increase the participation of women at all levels particularly dalits and indigenous, focuses to empower them through vocational and skill trainings. The provision of scholarships, quota in admission, teacher recruitment, etc., are provided to the women particularly of the marginalized community to minimize the gender disparity. The efforts are consistently made to enhance the representation of women at the CA as well as in civil, political, and public sectors. The government encourages the thirty-three percent representation of women in all State organs.

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Right to Work: The institution of the National Employment Policy is under way with the target to protect the social security of the labourers, both in formal an informal sectors. The NHRAP (2014-2019) aims to enhance the social security of the workers particularly in informal sectors.

Right to Just Conditions of Work: The government has determined to revise minimum monthly salary of rupees 6,200 and daily wage of rupees 231 with effect from March 15, 2011. The enforcement monitoring is handed-over to the local level viz., District Development Committees, Municipalities, and Village Development Committees. The government attempts to fix policies to improve the working conditions and the occupational safety and health of the industries.

Rights of Trade Unions: The right to form and join trade union is a fundamental right in Nepal. The employer can’t retaliate the employees to join the activities of the trade unions. The school teacher union is separately regulated by the Education Act 1971 to promote their professional interest. The NHRC also supports as an independent partner to the initiatives of the government related to labour improvement.

Right to Social Security: The interim Constitution (Article 35) provides for the institution of policies to protect the social security of the people particularly marginalized and vulnerable groups. The government has arranged to provide monthly allowance for senior citizens, single women, and disabled persons. The annual medical allowance is provided for senior citizen above seventy years and free medical treatment for above seventy-five years. Many healthcare services including free treatment are planned under fiscal year 2013-14. The programmes on poverty alleviation including housing for poor are the priority areas for the fiscal year 2014-

15. The assessment of the National Planning Commission 2012 reveals the growth of 0.75 percent on the social security expenditure annually. For the allocation of a large share of annual budget as compared to other developing countries for social security, 55 the expected result is yet to be achieved by Nepal.

Rights of the Family: The government has established Child Help Line in various Districts to curb the menace of sexual abuses against children. The Women Service Centres well protect the violence against women in several Districts. The government is planning to extend these services to all seventy-five Districts. The government is

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consistently committed to eradicate the ill practices from the society particularly targeted to women through various bills and legislations. The initiatives to curb trafficking include the National Children Policy 2012, the Human Trafficking Control Act 2007, the National Plan of Action against Human Trafficking 2011-2016, etc. The Domestic Violence (Crime and Punishment) Act 2009 and its Regulation 2010 are supposed to aware and empower the victims to speak of their tragedy. The number of complaints registered, according to Nepal police, of domestic violence and rape has increased to 5961 (in 2013/14) from 2250 (in 2011/12) and 1170 (in 2013/14) from 711 (in 2011/12) respectively. The gender equality and empowerment is one of the priority areas of budgetary allocation in the fiscal year 2014/15. The separate women cell is established to all the seventy-five District Police Offices (DPO) and other gender-sensitive facilities are under construction. The government is consistently working to eliminate all forms of the child labour by 2020.

Right to Adequate Standard of Living: The poverty reduction is significantly working including in the remote areas. The National Human Poverty Index (NHPI) is fell by 8.5 points or 21.4 percent in the decade between 2001 and 2011. The Human Development Index (HDI) in the same decade has marked significant improvement in values across all ecological and development regions. The Poverty Alleviation Fund (PAF) is under operation in more than forty Districts to address the gap between urban and rural poverty level. Various targeted programmes are implemented to eradicate the poverty and enhance the employment among different marginalized and disadvantaged groups. The different projects of the government have provided better sanitation facilities and safe drinking water supply. The ‘Food Security and Environment Division’ of the Ministry of Agricultural Development is committed to formulate laws, policies, and guidelines related to food safety and nutrition and to improve the food production. The government provides with the humanitarian alternate to those evacuated for the purpose of developmental projects. The Ministry of Peace and Reconstruction (MOPR) consistently work to the relief and rehabilitation support of the conflict ridden victims. In the fiscal year 2006/07 to 2012/13 among the 79571 IDPs, 25000 have received a total sum of rupees 56 240,144,000.

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Right to Physical and Mental Health: The government attempts to ensure the quality healthcare services through the active participation of the service providers, service recipients and stakeholders. It further ensures the non-discrimination based on any ground including ethnicity and status of the caste in accessing healthcare facilities. The constant improvement of the existing services at all levels including sub-health posts is under way in Nepal. The rehabilitation programmes to the victims of the conflicts including families, widows, and children of the deceased, is the priority area of the fiscal year 2012/13. The NHRC is responsible to identify and monitor the relief/reparation support to the victims.

The government under the National Immunization Rule 2013 is committed to provide 100 percent child immunization reducing the infant and the under five mortality. The other measures including 1555 birthing centres across the country help reduce maternal mortality. The family planning programmes through contraceptives, permanent sterilization, safe abortion, etc., is accessible to larger population. The Silicon Ring Peccary has been provided to reduce the uterine prolapse free of cost implementing the Supreme Court ruling.

Right to Education: The continuous effort of government is to provide free and compulsory education to all without discriminations on any grounds. The percentage of the net enrolment and trained teachers at all levels viz., primary and secondary has increased in the year 2013/14. The literacy rate has risen to 65.5 percent in the age group six to fifteen in the year 2013. There is no indirect cost of schooling in the government/community schools upto secondary level. The participation of the below poverty line community according to the Economic Survey 2013/14 to the primary, secondary, and the higher education is 24.4, 20.8, and 17.9 percent respectively. The government provides different scholarships to the marginalized and vulnerable groups to increase the inclusiveness and access to education.

Right to Culture: The government has established National Foundation for Development of Indigenous Nationalities (NFDIN) to safeguard the special rights of the indigenous community including land rights traditionally occupied by them and their languages. The government to protect and promote culture of different communities implements National Culture Policy 2010. The National Human Rights

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Action Plan 2014-2019 has been targeted to preserve the cultural and religious heritages, traditional languages, and scripts of the endangered communities.

4.3.3.3 Concluding Observations on the Third Periodic Report of Nepal, 2014

The Committee at its seventieth meeting held on November 28, 2014 adopts the 57 Concluding Observations on the third periodic report of Nepal. It appreciates the submission of the report and the written Replies to the List of Issues. It welcomes the adoption of various conventions, acts, and plans as a positive aspect of the government including the following:

Convention on the Rights of Persons with Disabilities and its Optional Protocol in 2010; Prevention of Organized Crime Act in 2014; Caste-Based Discrimination and Untouchablity (Offence and Punishment) Act in 2011; Domestic Violence Act in 2009; Human Rights Action Plan 2014–2019; Multi-Sector Nutrition Plan in 2013; National Strategy and Action Plan on Gender Empowerment and the Elimination of Gender-Based Violence 2012–2017; National Plan of Action against Human Trafficking in 2011; and, National Master Plan on the Elimination of Child Labour in 2011.

The principal subjects of concern highlighted by the Committee to the Third periodic report of Nepal are as follows:

 Non completion of the interim constitution (2007), insufficient data over the implementation of the rights provided in Article 2 of the Covenant, and Corruption as a hurdle to the enjoyment of ESC rights;   NHRC still not independent, rights of indigenous peoples and refugees are suppressed, and caste-based discrimination particularly against dalits continuously persist;   Persistent inequality between men and women particularly at inheritance, land ownership, decision making positions and fare wages, and harmful traditional practices particularly against dalit women and girls are continually operational;   Vulnerable conditions of work in the informal sectors, non-implementation of the minimum wage legislation, lack of proper rehabilitation of former bonded

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labourers, and vulnerable conditions of women migrant workers at the host countries;

 Insufficient measures to curb the gender-based violence including domestic and sexual violences, widespread child labour, trafficking in persons including children, poverty, and forced eviction; and,   Ineffective strategy to combat hunger and food insecurity, high maternal mortality and lack of reproductive healthcare, unaffordable healthcare to the older persons, lack of legislation to the educational policies, and lack of guarantees to the cultural rights.

The recommendations and the suggestions to the government of Nepal on the Third periodic report by the Committee are as follows:

 Completion and adoption of the new Constitution should be within established timeframe;   Protection of all the ESC rights must be ensured to women, disadvantaged, and marginalized communities;   Assessment must be done on the levels of enjoyment of the ESC rights against a set of Human Rights Indicators developed by OHCHR;   Laws against corruption must be practiced transparently, and independence, mandate, and power of the NHRC must be enhanced;   Rights of indigenous people must be ensured at all levels, protection of the refugees must be ensured, and stringent laws must be implemented against the caste-based discriminations ensuring protection of the rights of the dalits;   Ensuring non-discrimination laws to protect the rights of women to inherit and to own lands, and laws must be enforced to prevent harmful traditional practices including child marriage;   Measures must be adopted to ensure just and favourable conditions of work and the social security of workers from the informal sectors, measures to implement minimum wages in all sectors, and full rehabilitation must be ensured of freed bonded labourers;   Enforce the legislation on gender-based violence including domestic and sexual violence, and concrete measures must be enforced to prohibit child labour and trafficking in persons specially women and children;

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 Measures to eradicate poverty, forced eviction, and housing problems, and comprehensive human rights based strategy must be adopted to combat hunger and food insecurity;   Ensure access to sexual and reproductive health services and universal healthcare to older persons, and legislation to ensure primary school compulsory, free secondary education, prevent high rate of school drop-outs, and arrangement of multi-lingual education facilities; and,   Ensure the enjoyment of cultural rights by all the indigenous people.

4.4 Status of the ICESCR in Nepal: Review Report of the ‘Rural Reconstruction Nepal’ 2007

The Rural Reconstruction Nepal (RRN) has prepared a review report against the Second periodic report on ICESCR in coordination with the Sub-Committee for International Covenant on Economic, Social and Cultural Rights, Kathmandu, 58 Nepal. The report primarily highlights the Constitutional protection (Interim Constitution, 2007), acts/regulations, judicial pronouncement, plan/policies, and their ground realities. It analyses each substantive provision of the Covenant in relation to its real implementation in Nepal. The report highlights that the IC is the fundamental legal instrument protecting the rights of the Nepali peoples in every aspects. However, the ground reality is quite different; there are various discriminatory laws which still exist.

The review report highlights that poor implementation of the provisions doesn’t address the genuine concerns and issues related to the self-determination. The laws and policies of the government must prioritise the rights related to natural resources to benefit the marginalised communities for the dignified life. The caste-based discrimination is prohibited in the Nepalese laws; however, it is prevalent in the whole country. There are various discriminatory laws being supported by the State machineries. The government organizations aren’t free from caste-based discrimination in practice. The protection of women is not uniform due to weak implementation of the laws. Most of the ESC rights mentioned in the IC aren’t free from conditional tags weakening its enforcement.

The report underlines that equal opportunities and wages for the employment are still a distant dream. The existing labour law is very weak to address the comprehensive

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social security of the workers and that is applicable only to the organised sectors. The vast majority of workers from the informal sectors are still deprived of the trade union’s rights. The 2004 report of the UNDP analyses that the benefits of the social security schemes in Nepal will only be realized until the paradigm shift of the charity- 59 based approach to the right-based approach. The government is recommended to provide widest possible protection and due care to the establishment of the family and education of the dependent children. The right to food and housing rights need to be urgently reformed. The most disadvantaged dalits and indigenous peoples associated to the vast cultivator community must be given access to the means of production for agricultural purposes.

The report recognizes that the lack of decentralisation in the health sector is the root cause of the poor services at the local level. The services provided by the private sectors are mostly unregulated. The government neglects due attention to the mental health of the people. The agenda of ‘universal primary education’ and the ‘education for all’ needs to be implemented more strategically. The gender issues and the extreme poverty especially in rural areas must be dealt to increase the level of education. The persistent socio-cultural malpractices hamper the enjoyment of the cultural life of the people. The discriminatory laws against certain sections of the society should be eliminated with immediate attention.

4.5 Economic, Social, and Cultural Rights in Nepal: A Civil Society Parallel Report (2007-2013)

The Human Rights Treaty Monitoring Coordination Centre (HRTMCC) of Nepal has 60 prepared the Parallel Report on the Third periodic report submitted to the CESCR. The report highlights the situation and issues related to the ICESCR in Nepal during April 2007 to July 2013. It summarises that the implementation of the ICESCR is very weak despite the legal and policy provisions made by the government. The key reasons impeding the realization of the ESC rights range from lack of political will, weak capacity, and limited resources. The discriminatory laws against women, dalits, persons with disabilities, gender and sexual minorities, and people living with HIV/AIDS still exist in practice.

The report underlines that despite some progress in the dignity and self determination, people demands for the better representation and inclusion of the marginalized

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communities in various State mechanisms and public services. The deep rooted discriminations against various groups aren’t based on caste alone but religion, ethnicity, gender, and geographical region highly influence the society. The women comprise 51.5 percent of the Nepal’s population, however, continually being * discriminated against every aspect of the society. The persistent unemployment is due to weak implementation of the existing labour laws and lack of proper investment to generate employment. The child labour, discrimination with women at work, management of informal sectors, etc., are needed to be addressed immediately. The situation of hazardous workplace, e.g., brick kiln is vulnerable especially to women and children. The sexual and other forms of harassment at workplaces are unregulated. The high politicization and fragmentation among trade unions are unable to address the issues of low salary, lack of insurance and social security, inadequate health and safety standards, and exploitation and abuses.

The report highlights that provisions on social security enshrined in the Interim Constitution lack the governmental will of implementation having the conditional clause, “provided for in the law”. The new draft Constitution ineffectively addresses the issues on social security limited only to certain groups rather than the people in need. The critical area of concern to be included under the social security schemes are private sectors, single women, persons with disabilities, elderly peoples, etc. The data shows that half of the adults of Nepal are married when they are children. The dire poverty particularly compels girls to marry very young and thus they lose the opportunity of education. It makes them vulnerable to various discrimination, domestic violence, and abuses. The incidence of child labour is relatively high in Nepal compared to other countries of the South Asia region.

The report explains that right to an adequate standard of living requires the right to adequate food which is being for the first time included in the IC 2007. The Supreme Court of Nepal in its various decisions has clarified that it is necessary for the life to be dignified. The right to food is yet a serious problem in Nepal due to weak implementation mechanisms. The landlessness is another major problem that affects the access to food, housing, water, tenancy security, and political participation. The

* The sex ratio (number of males per 100 females) at the national level has decreased from 99.8 in 2001 to 94.2 in 2011. In abstract number, there are 7,96,422 more females than males in the country.

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government is failed to resolve the problems of forcibly evicted persons particularly women in absence of any concrete policy. The urban poor find it very difficult to afford housing due to rapid price rise of lands and high rate of rural-urban migration. The basic healthcare facilities are inaccessible due to poverty, illiteracy, weak infrastructure, and broadly adverse socio-political environment. The services available are of poor quality because of lack of sufficient funding from the government. The high mortality rates and low life expectancy require urgent need to improve healthcare systems in Nepal.

The report agrees that wide range of national and international efforts to make the education accessible to all is hampered by the poor implementation of the provisions in Nepal. Despite the significant progress in literacy and primary education, the country is far behind the target adult literacy rate of seventy-five percent by 2015. The government’s effort to minimize the gap between girls and boys enrolment and lower and higher caste enrolment at all levels need immediate attention. The discriminatory laws against women, dalits, and other marginalized communities from the cultural perspective are shielded often in view of religious and customary laws. The recognition of all the indigenous groups and communities and the protection of their cultural rights remain a challenge in the country.

4.6 Conclusions

Nepal was largely occupied by the authoritarian rule with the supremacy of Hindu hierarchy. The protection of socio-economic wellbeing was largely mashed with the sense of elite culture that forces the disadvantaged groups to survive at the periphery. The codification of municipal laws was missing since time immemorial diminishing the judicious voices of the marginalized community. The Muluki Ain (1854) expressly denounced the religious freedom – unifying diverse groups according to the Hindu religious laws. The State lawfully preserved the Hindu identity – Hinduism was the declared State religion – with the supremacy of higher castes particularly Brahmin and Kshatriya. The linear Brahminical culture fueled the Jan Andolan I (1990) to institute democratic governance participated by general masses. The new

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Constitution (1990), however, disappointed the popular aspirations by retaining Hinduism as the State religion.

The Jan Andolan II (Democratic Movement 2006) strongly renounced the king-led rule to institute inclusive governance declaring Nepal a Federal Democratic Republic. The general political interests of the combatant group (Maoists) are settled by the end of 2012 emptying all the cantonments. The new government led by traditional parties adopts the new Constitution by 2015. The important revolution to the socio-economic rights during all the Constitutional changes that it is neglected every-time. The ruling parties focus primarily to strengthen the organizational structure of the party system. The Maoists political uprising too enhances the Brahminical leniency as the key posts are occupied by higher caste Hindus. The socio-economic condition of marginalized and disadvantaged group is becoming more and more deplorable.

The Concluding Observations to the Initial report underlines the growth of theoretical framework on the Covenant’s provision in the domestic legislation. The ESC rights are made justiciable; however, consistent enforcement is highly absent. The limited role of judiciary doesn’t combat the genuine violation on part of the executive and other State actors. The excessive plans of action on the promotion of human rights don’t meet the intended goals in absence of standard benchmarks. The State Party is recommended to abide the international standard to alleviate poverty and other development indices.

The enhanced Constitutional protection of the ESC rights is appreciated in the Concluding Observations of the Second periodic report. The spontaneous hurdle created by the continuous conflicts, however, slows-down the social progress. The indices on poverty, inequality, prostitution, domestic violence, unemployment, child labour, etc., are unchanged. The traditional practices persist particularly to force women to live in a vulnerable situation. The free primary education isn’t ensured in practice. The State Party is recommended to ensure the strict enforcement of the legal provisions contained in the national legislation.

The progress made to the adoption of many international Conventions, national plan of action, acts, etc., are appreciated in the Concluding Observations of the Third periodic report. The non-completion of the interim Constitution (2007), corruption,

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limited scope of NHRC, caste-based discrimination, etc., are major hurdle to enjoy the

ESC rights. The State Party is recommended to enhance the practical implementation

of the general as well as substantive provisions of the Covenant uniformly throughout

the country and among all the sections. In view of most of the scholars, the root

causes to the socio-economic insecurities in Nepal are interdependent. These are as

follows, including others:

 Unsettled Constitutional and political circumstances;   Lowest per-capita income in the South Asia region;   Systematic social exclusion; and,   Environmental degradation and recurrent natural disasters.

Endnotes

1. Ali Riaz and Subho Basu, Paradise Lost?: State Failure in Nepal (Lanham, MD: Lexington Books, Rowman and Littlefield Publishers Inc., 2007): 71. The e-book is available to read online at (accessed on Nov.10, 2016 at the link below): (https://books.google.com/).

2. Sambriddhi Kharel, Deepak Thapa, and Bandita Sijapati, “Nepal: A Country of Minorities,” in South Asia State of Minorities Report 2016 Mapping the Terrain, the South Asia Collective (Bangalore: Books for Change, 2016): 231-232. The e-book is available online at (accessed on Nov.17, 2016 at the link below): (http://www.misaal.ngo/wp-content/uploads/2016/11/e-Book_South-Asia-State- of-Minorities-Report-2016.pdf).

3. Mahendra Lawoti, Towards a Democratic Nepal: Inclusive political Institutions for a Multicultural Society (New Delhi: SAGE Publications India, 2005): 103-4.

4. Piers Blaikie, John Cameroon, and David Seddon, Nepal in Crisis: Growth and Stagnation at the Periphery (New Delhi: Oxford University Press, 1980): 365.

5. R Andrew Nickson, “Democratisation and the Growth of Communism in Nepal: A Peruvian Scenario in the Making,” Journal of Commonwealth and Comparative Politics 30, no.3 (1992): 358-86.

6. Anindita Dasgupta, “Old Conflicts, New Futures: Understanding Nepal’s Political Transformation,” in South Asia: Societies in Political and Economic Transition, ed. Tan Tai Yong (New Delhi: Manohar Publishers and Distributors, 2010): 224-25.

7. Dasgupta, “Old Conflicts, New Futures,” Ibid, 226.

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8. See Dhruba Kumar, ed., State, Leadership and Politics in Nepal (Kathmandu: Centre for Nepal and Asian Studies, 1995).

9. Krishna Hachhethu, “Nepali Politics: Political Parties, Political Crisis and Problems of Governance,” in Domestic Conflict and Crisis of Governability in Nepal, ed. Dhruba Kumar (Kathmandu: Centre for Nepal and Asian Studies, 2000): 1.

10. See the final report, Political Transition Monitoring in Nepal, 2009-2014 The Carter Centre p.4 (accessed on Nov.10, 2016 at the link below): (https://www.cartercenter.org/resources/pdfs/news/peace_publications/election_report s/nepal-2014-final.pdf).

11. David N Gellner, “Democracy in Nepal: Four Models,” New Delhi: Seminar 576 (2007): 50.

12. SD Muni, “Building a New Nepal: Travails of Transition,” in South Asia: Societies in Political and Economic Transition, ed. Tan Tai Yong (New Delhi: Manohar Publishers and Distributors, 2010): 188-90.

13. See the Crisis Group Asia Briefing No.7 Nepal Peace Postponed (Kathmandu/Brussels, Dec.18, 2007): 11.

14. See the exclusive interview of a senior judge of the Supreme Court of Nepal Khil Raj Regmi, “A Step toward Reformation of Legal System” Quarterly Newsletter of JICA 57 (April-June 2010): 1-2. The electronic copy is available at (accessed on Nov.20, 2016 at the link below): (https://www.jica.go.jp/nepal/english/office/others/pdf/newsletter_57.pdf).

15. See the ratification status of ICESCR by Nepal in the official website of the OHCHR at (accessed on Nov.21, 2016 at the link below): (http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?Treaty=CESCR &Lang=en).

16. See the reporting status of the periodic State report of ICESCR by Nepal in the official website of the OHCHR at (accessed on Nov.21, 2016 at the link below): (http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx).

17. Ter Ellingson, “The Nepal Constitution of 1990: Preliminary Considerations,” Himalaya, the Journal of the Association for Nepal and Himalayan Studies 11, no.1 (1991): 5.

18. Tri Ratna Manandhar, “The 1990 Constitution Making in Nepal and its Implementation (Part1),” Telegraphnepal.com (Sep.30, 2014). The electronic copy is available at (accessed on Nov.22, 2016 at the link below): (http://www.telegraphnepal.com/national/2014-09-30/the-1990-constitution-making- in-nepal-and-its-implementation.html).

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19. See the Preamble of the 1990 Constitution of Nepal. The full text of the 1990 Constitution of Nepal is available at (accessed on Nov.22, 2016 at the link below): (http://www.nepaldemocracy.org/documents/national_laws/constitution1990.htm#pre amble).

20. See Ellingson, “The Nepal Constitution of 1990,” note 17, 5.

21. Elisabeth Wickeri, “No Justice, No Peace: Conflict, Socio-Economic Rights, and the New Constitution in Nepal” Drexel Law Review 2, no.2 (2010): 440-41.

22. Dev Raj Dahal, “Political Perspective on Social Development in Nepal,” Contributions to Nepalese Studies 22, no.1 (1995): 57-71.

23. Yash Ghai and Jill Cottrell, The Millennium Declaration, Rights, and Constitutions (New Delhi: Oxford University Press, 2011): 103.

24. Yash Ghai and Jill Cottrell, eds., Creating the New Constitution: A Guide for Nepali Citizens (Sweden: International IDEA, 2008): 67-68.

25. Jill Cottrell, et al., The Interim Constitution of Nepal, 2063 (2007): As Amended by the First to Sixth Amendments (Nepal: UNDP, UN House Pulchowk, Jan.2009): 8. The document is available at (accessed on Nov.19, 2016 at the link below): (http://himalaya.socanth.cam.ac.uk/collections/rarebooks/downloads/Nepal_Interim_ Constitution_2007_first_to_sixth_amendements.pdf).

26. See the report of the Center for Human Rights and Global Justice, Recasting Justice: Securing Dalit Rights in Nepal’s New Constitution (New York: NYU School of Law, 2008): 30. See also the Thematic Report of the International Commission of Jurist, Economic, Social and Cultural Rights and the New Constitution of Nepal (Aug.2009): 4-5.

27. See V Gauri and D Brinks, eds., Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (New York: Cambridge University Press, 2008).

28. See Yogi Naraharinath v. Prime Minister (1997) [Supreme Court of Nepal (SCN) Mar.1997 (N.K.P. 2053)], no.1, 33.

29. See Radheshyam Adhikari v. Cabinet Secretariat (1992) [SCN Apr.1992 (N.K.P. 2048)], vol.12, 810.

30. See Pundevi Maharjan v. Government of Nepal & Ors.(2008) [SCN Aug.2008 (N.K.P. 2062)], no.3581.

31. Malcolm Langford, “Domestic Adjudication and Economic, Social and Cultural Rights: A Socio-legal Review,” Sur. Revista Internacional de Direitos Humanos 6,

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no.11 (2009): 98-133. The electronic copy is available at (accessed on Nov.21, 2016

at the link below): (http://www.scielo.br/scielo.php?pid=S1806- 64452009000200006&script=sci_arttext&tlng=en).

32. Malcolm Langford and Ananda Mohan Bhattarai, “Constitutional Rights and Social Exclusion in Nepal,” International Journal on Minority and Group Rights 18 (2011): 406-07.

33. See the official website of the UN OHCHR for the reporting status of the periodic State reports submitted to the CESCR by Nepal at (accessed on Nov.25, 2016) (http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx).

34. See the Initial periodic State report of Nepal on the ICESCR (1999), UN CESCR, Doc. E/1990/5/Add.45 (Sept.25, 2000), paras.91-98.

35. The Initial periodic State report of Nepal, Ibid paras.105-112.

36. The Initial periodic State report of Nepal, Ibid paras.113-130.

37. The Initial periodic State report of Nepal, Ibid paras.131-145.

38. The Initial periodic State report of Nepal, Ibid paras.146-157.

39. The Initial periodic State report of Nepal, Ibid paras.158-180.

40. See the List of Issues to the Initial periodic State report of Nepal on the ICESCR (1999), UN Doc. E/C.12/Q/NEP/1 (Dec.13, 2000).

41. See the Concluding Observations on the Initial periodic State report of Nepal on the ICESCR (1999) adopted by the Committee, UN Doc. E/C.12/1/Add.66 (Sept.24, 2001).

42. See the Second periodic State report of Nepal on the ICESCR to the Committee, UN Doc. E/C.12/NPL/2 (Aug.7, 2006), paras.1-95.

43. The Second periodic State report of Nepal, Ibid paras.124-131.

44. The Second periodic State report of Nepal, Ibid paras.176-199.

45. The Second periodic State report of Nepal, Ibid paras.224-242.

46. See the List of Issues adopted by the Pre-Sessional Working Group of the Committee on the Second periodic State report of Nepal on the ICESCR, UN Doc. E/C.12/NPL/Q/2 (Dec.21, 2006).

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47. See the Replies to the List of Issues raised by the Pre-Sessional Working Group on Second periodic State report of the ICESCR by the government of Nepal to the Committee, UN Doc. E/C.12/NPL/Q/2/Add.1 (Apr.20, 2007).

48. See the Concluding Observations adopted by the Committee at its thirty-eighth session (Apr.30 – May 18, 2007) on the Second periodic State report of Nepal on the ICESCR, UN Doc. E/C.12/NPL/CO/2 (Jan.16, 2008).

49. See the Third periodic State report of Nepal on the ICESCR submitted to the Committee on July 12, 2011, UN Doc. E/C.12/NPL/3 (Oct.19, 2012).

50. The Third periodic State report of Nepal, Ibid paras.178-200.

51. The Third periodic State report of Nepal, Ibid paras.246-51.

52. The Third periodic State report of Nepal, Ibid paras.258-78.

53. See the List of Issues adopted by the Pre-Sessional Working Group at its fifty- second session (Dec.2-6, 2013) on the Third periodic State report of Nepal on the ICESCR, UN Doc. E/C.12/NPL/Q/3 (Dec 18, 2013).

54. See the Replies to the List of Issues raised by the Pre-Sessional Working Group on the Third periodic State report of the ICESCR by the government of Nepal to the Committee, UN Doc. E/C.12/NPL/Q/Add.1 (Sep.24, 2014).

55. The Replies to the List of Issues, Ibid para.55.

56. The Replies to the List of Issues, Ibid paras.84-85.

57. See the Concluding Observations adopted by the Committee at its seventieth session (Nov.28, 2014) on the Third periodic State report of Nepal on the ICESCR, UN Doc. E/C.12/NPL/CO/3 (Dec.12, 2014).

58. See the Review Report, ‘Status of the ICESCR in Nepal: A Review (2007)’ prepared by the Rural Reconstruction Nepal (RRN) in coordination with the Sub- Committee for International Covenant on Economic, Social and Cultural Rights, Kathmandu, Nepal. The report is available at (accessed on Jan.10, 2017 at the link below): (https://www.rrn.org.np/phocadownloadpap/Research_Reports/icescr_research_report _2007.pdf).

59. See UNDP Nepal Human Development Report 2004 (Kathmandu: United Nations Development Programme, 2004): 45.

60. See the Parallel Report, “A Civil Society Report on ESCR, 2013, Nepal” on the Third periodic State report of ICESCR Nepal prepared by the Civil Society Groups on

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behalf of the Human Rights Treaty Monitoring Coordination Centre (HRTMCC) available at (accessed on Jan.12, 2017 at the link below): (http://tbinternet.ohchr.org/Treaties/CESCR/Shared%20Documents/NPL/INT_CESC R_NGO_NPL_15369_E.pdf).

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Chapter Five

PROTECTING ECONOMIC, SOCIAL, AND

CULTURAL RIGHTS IN SRI LANKA

Image Courtesy: National Flag of Sri Lanka by “Google Images” Sri Lanka

The peaceful transfer of power in Sri Lanka from the colonial masters ends rising separatist movements, civil wars, and political conflicts. The protection of socio- * economic rights in one-time model democracy could not defeat the regional disparities, ethnic discriminations, gender inequalities, etc. The majority Sinhala Buddhist nationalism invites separatist politics of minority Tamil Hindus that is principally led by a rebel group, Liberation Tigers of Tamil Eelam (LTTE). This chapter attempts to explain how the socio-economic plight of the people is superseded by the identity interest of the majority and minority communities.

This chapter is divided into eight sections. Section one explains the general nature of the political situation after independence. Section two highlights the Constitution making and protection of ESC rights by different Constitutions viz., Donoughmore 1931, Soulbury 1948, first Republican 1972, and finally the current that is adopted in 1978. The third section explores the limited role of the judiciary in view of the supremacy of the executive. The fourth section discusses in detail the Initial periodic State report on ICESCR 1996 and the Concluding Observations adopted by the Committee on ESCR (List of Issues and Replies to the List of Issues on Initial report aren’t discussed here in absence of availability). The fifth section discusses the Combined Second, Third, and Fourth periodic State report 2008, List of Issues, Replies to the List of Issues, and finally Concluding Observations adopted by the Committee. The sixth section examines the Joint Alternative Report on the Combined Second to Fourth report submitted by Collective for Economic, Social, and Cultural Rights in Sri Lanka in collaboration with various NGOs. The seventh section observes the submission of Fifth periodic State report (2015) and the List of Issues – the detailed discussion is outside the purview of the present research in line with the expected consideration of the report at the sixty-first session (May 27 to June 23, 2017) of the Committee. The eighth section concludes the chapter.

* The peaceful transfer of power in Sri Lanka preserves the administrative experiences of the colonial regime viz. universal franchise, protection of the interests of minority communities, rule of law, etc., for the successive quarter century representing model democratic governance in the region. The rise of separatist movement and identity politics afterward, compressed all the democratic values pushing the nation into continuous civil wars. The quarter century of governance after independence, thus, is termed as one-time model democracy in the existing literature.

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5.1 Historical Perspective

* Sri Lanka (then Ceylon) is one of the South Asian countries that acquire independence peacefully through the transfer of power from the British ruler. The colonial economic inheritance and high human development index renders quality infrastructure, well-functioned judiciary, and model democratic political system in the region. The transmissible prosperity sets apart the country in various fields viz., income per-head, health, education, etc., among the neighboring South Asian countries. One of the economic advisors of the government of Sri Lanka in 1950s, Sir John Hicks, presupposes that the growing population hampers the pace of development not the poverty and malnutrition as the case of other neighbouring 1 countries. The rise of discourses based on religion, language, and culture eventually surpassed the socio-political commitment of the nation. The flourishing capacity soon turned into civil war and political conflicts countrywide. The trends of nationalism – particularly between majority Sinhala Buddhists and largest minority Tamil Hindus – ragged violently the colonial legacy of peace and development.

The cooperation among elites that existed earlier during the struggle for independence– predominantly Sinhala population, regionally concentrated minority Tamil population, and yet another minority group of Tamils of relatively recent South 2 Indian origin – collapsed very soon. The quarter century of model democratic governance shatters as the power is misuses by the ruling parties. The fixed term of the ruling government is enhanced through the electoral mischief including voting † irregularities and other malpractices. The torture of innocent Tamils is justified to suppress the rise of ethnic separatism. The frequent human rights violations are justified to defeat the Tamil rebellion led by the Liberation Tigers of Tamil Eelam.

* The island was known by different names, e.g., Sinhala, Thambaparni, Taprobane (used by the Greeks), and Eelam (used by the native Tamils) before becoming colony to the British Empire. The Empire changed the name and called it Ceylon. After independence, when it became Republic in 1972, gave itself the name of Sri Lanka.

† The Constitution changes in Sri Lanka transfer the power of governance from the Parliament to the President. The ruling party continually violates the norms of governance; in 1975 the ruling government refused to hold the scheduled election, thereby, extending its term by additional two years. Again in the general election of 1982, it brings outright rigging of national referendum and the government extends its rule for another term.

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The killing and disappearance of thousands of people besides nepotism, favouritism, corruption, and gangsterism become the motto of the governance in the independent Sri Lanka.

The seed of the revolt is incorporated in the domestic legislation soon after independence in the form of discriminatory laws. The Ceylon Citizenship Act no.18 of 1948 treats the descent or registration as the means to get the citizenship. It is very difficult for the larger masses of illiterate Indian Tamil workers to provide the documentary proof for the same. Other such Acts, including Indian and Pakistani Residents Act no.3 of 1948, and the Ceylon Parliamentary Elections Amendment Act no.48 of 1949, clearly demarcate those considered as sons of the soil and those 3 considered aliens. The pluralism in governance is destroyed by representing only few English speaking elites – though the representation of various ethnic communities is maintained within the political system. The largest Sinhala community particularly residing in Southern villages declares that the essence of decolonization is incomplete until the reins of the State come in the hands of Buddhists. The rise of Sinhala youth militant organization largely known as the Janatha Vimukthi Peramuna (JVP) – which means People’s Liberation Front – aims to capture the State power several times, although, they are politically active.

The failed attempts of JVP, however, strengthen the Buddhist convictions of the governance by embarking upon the passage of ‘Sinhala Only’ Official Language Act (1956). The 1972, Constitution again emphasizes that the due attention must be given to protect and foster Buddhism; in fact, this is the foremost duty of the State. These steps harshly influence the largest minority population of Tamils, mainly Hindus, residing in Northern and Eastern part of the country. The opportunity of education and employment is further limited by various policies that followed subsequently. The excessive Sinhala interference in State affairs after independence provoked Tamil Hindus to counter illegitimate promotion of majority community’s identity. The minority communities initiated Tamil militant movements consisting of LTTE and some other rebel groups in 1970s. The armed struggle gradually turns into guerrilla wars demanding separate Tamil State in Sri Lanka. The decade of 1980s is totally ravaged by the two armed conflicts that force the whole nation into civil wars and 4 political conflicts.

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The identity crisis sets the motion of mutual contempt recognizing one-another to be 5 alien within the native land. The phenomenon of decolonization in Sri Lanka perceives beyond the nationalist project – as against the case of most of the ex- 6 colonial States – an element of displacement of enmity. The majority Sinhala Buddhist nationalist presupposes that the sole beneficiary of British colonial rule is the minority Tamils and Christian (including both Tamils and Sinhalese). The Tamils, on the other hand, ought to preserve the sovereignty of the North-East region that could empower them in the post-colonial set-up. The assumption of exclusive Sinhala State further antagonises them with the incidence of 1983 when Tamil representatives are forced to leave the National Assembly, the principal legislative organ of the State. The two separatist groups persistently fight with each-other as well as with the government for the recognition of self-identity.

The recurrent conflicts and encounters with the militant groups continuously hamper the growth of the State. The twenty-six years civil war in the region turmoil the notion 7 of modern statehood parallel with the colonial predecessor. The adoption of universal franchise preceding Sri Lankan independence in 1931 and the high rank of various socio-economic indices in comparison to other Asian and African countries that were simultaneously decolonized, steeply descended to ethnocentrism, illiberal 8 governance, and gruesome civil wars in the region. The economic, social and cultural rights are at stake throughout the political conflicts. The admirable Constitutional protection of the ESC rights following independence has been gradually degraded by the majoritarian political interests. The ensuing pages attempt to explore the myth and reality of the protection and promotion of socio-economic rights that are turbulent within the continuous separatist movement in Sri Lanka. The offensive trajectory of majority government toward minority communities incurs spontaneous political conflicts that hamper the rule of law.

5.2 The Constitution and the Protection of ESC Rights

The Constitutional experience of rule of law in Sri Lanka is totally different from other colonies of British Empire. The British government for the first time in 1931, over the recommendation of Donoughmore Commission, implements the Donoughmore Constitution that enable adult suffrage a reality outside the white

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* dominion. The ‘one-person, one-vote’ formula enables the general election of local representatives to regulate the municipal affairs. The addition of native people outside the Empire delegation to govern the country was a unique experiment in the wake to grant the dominion status to the nation. The Donoughmore Constitution lasted for 17 years that was replaced by Soulbury Constitution in 1948 when Ceylon was decolonized as a Commonwealth State. One of the striking features of the Donoughmore Constitution is that it assigns the equitable representation of the multi- ethnic community in all the departments of the government.

The persistent demand for the complete autonomy of the governance leads the Soulbury Commission to draft the new Constitution. The Soulbury Constitution of 1948 earmarks the independence of Sri Lanka with the predecessor imprints of democratic governance. The provisions, however, don’t confer restricted policies and 9 programmes with regard to the economic and social rights. The drafters follow to establish essential frameworks for the democratic governance. The governance is made participatory by allowing any political faction to be elected through general election to occupy the office. The elected government is empowered to implement welfare policies in the larger interests of the people. The British experiences of free market and regulated economies incur admirable prosperity in the region in comparison to neighboring countries. The removal of the unpopular government is made flexible either by the Parliamentary vote of no confidence or by the defeat in 10 next general election. The separation of powers permits the judicial review of the actions of legislature and executive. This Constitution serves for the quarter century that promotes respect of the individual rights and freedoms with the administration of stable governments.

The nation becomes the republic in true sense in 1972 when the new Constitution declares the removal of Commonwealth status. The United Front coalition government (1970) – including Sri Lanka Freedom Party (SLFP), Trotskyist Lanka

* Countries considered under white dominion of the British Empire included Australia, South Africa, and Canada where universal adult suffrage were under practice. Among the other colonies, Sri Lanka for the first time in 1931 was granted the universal franchise to elect the local representatives for the municipal affairs.

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* Sama Samaja Party (LSSP) and the Communist Party (CP) – over-turns the Soulbury Constitution. The new Constitution advocates the centralized government with the power vested in the political executives. The power of the Courts is restricted only to interpret the laws formulated by the National State Assembly – a unicameral 11 legislature; executives and judiciaries are drawn from it. The unique feature of the

1972 Constitution includes the following:

 The entire administrative structure of the country comes under the mandate of the Cabinet of Ministers.   The bureaucracy assisted by independent public service based on British concepts has been replaced by the American spoils system.   The head of the State under the Constitutional Republic is the President which is nominated directly by the Prime Minister.   The incorporation of a chapter on the fundamental rights and freedoms of an individual.   Chapter 5 of the Constitution outlines certain Principles of State Policy that promulgate the socialist democratic commitment of the government. These Principles are not justiciable by the Courts and are progressive in nature. It is the duty of the State to incorporate these Principles in the making of laws and 12 governance of the country. It includes the following provisions :  o Protection of the rights and freedoms of the people including group rights;  o Employment for all;  o Rapid development of the country;  o Equitable distribution of social products;  o Development of the collective forms of property such as State property or cooperative property;  o Promotion of the moral and cultural standard; and,     * The Left parties including LSSP and CP from the very beginning demanded the withdrawal of the Soulbury Constitution and the complete independence of the nation. The origin of SLFP in 1951 that is largely oriented toward the Sinhala-Buddhists, sets forth the revision of the Constitution in the beginning but in the 1960 and 1965 general elections (in coalition to the LSSP and CP) completely urges a new Constitution for the nation. The United Front

coalition overwhelmingly wins the 1970 election with 113 out of 151 elected seats.

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o Providing opportunity for the full development of personality, individually as well as collectively, in pursuit of dignified life.

Besides the socio-economic objectives stated above, it is the responsibility of the government to organize mutual cooperation and confidence among all the sections of the society including racial, religious, and other groups. The State must endeavour to eliminate unlawful socio-economic privileges, disparities, and exploitation to establish equal opportunity for all. It must ensure the social security of the people and the development of the cultures and languages.

The ambiguous provisions of the 1972 Constitution that make the opposition party to campaign towards the replacement of more citizen-oriented and equitable 13 Constitution include the following :

 Centrally controlled governance ignoring the interest of minority communities and overemphasizing Buddhism;   Making Sinhala the official language and Tamil to the subordinate position;   Eroding the role of judiciary; and,   President as the nominal head only.

The most striking feature of the new Constitution 1978 of the second Republic of Sri Lanka is the Presidential form of government and the proportional representation in the Parliament. The President isn’t the nominal head, rather directly elected by the people from time to time. The Supreme Court now holds the sole power of Constitutional review. Its jurisdiction extends to matters concerning fundamental 14 rights, final appeals, and election issues. It can also review the actions of members of Parliament and may advise the house in legislative processes. The socio-economic rights contained in the 1972 Constitution are reiterated in 1978 with certain additional 15 features as follows :

 It is re-termed as ‘Directive Principles of the State Policies and Fundamental Duties’ (DPSPFD) which is contained in chapter six of the Constitution.   These are meant to guide the Parliament, the President, and the Cabinet of Ministers to enact laws and govern the country.   The additional objectives beyond the 1972 Constitution of the State to establish socialist democratic society are the following:

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o Promotion of welfare of the people by securing just social order in every institution;

o Ensuring adequate standard of living for individual and their families including adequate food, clothing, housing, improved material

conditions, and enjoyment of social and cultural opportunities; and,

o Assuring right to universal and equal access of education and thus eradicating complete illiteracy from the society.

The State is obliged to achieve these objectives through their progressive realization. The infringement of ESC rights can’t be made justiciable by any Courts. The State is committed to the decentralization of powers to enhance the participation of the people at all levels. It is the responsibility of the State to ensure the social security and welfare of the people; protection of the family; protection of the children and youth; and preservation of the environment. The 1978 Constitution in addition to the DPSP clearly defines the fundamental duties of the people toward the State and the fellow * citizens. This Constitution with nineteenth amendments as upto May 2015 is the 16 current functioning Constitution of the nation. The chapter on the DPSPFD is still to be amended for enhanced protection.

5.3 The Judicial Protection of the ESC Rights

The decline of socio-economic conditions is largely improved by the protection embedded in the rule of law of the society. It is the responsibility of the State to strengthen the judicial process for the wider accessibility. The Soulbury Constitution of the independent Sri Lanka although doesn’t contain a comprehensive bill of rights, it represents a fine coordination among the executive, legislature, and the judiciary of the nation. The colonial legacy of strong judicial mechanisms – judiciary was empowered to review the legislation passed by the executive and to declare it null and void to uphold the rule of law – is one of the significant features of the Sri Lankan

* Fundamental duties are inseparable from the enjoyment of rights and freedoms. The 1978 Constitution identifies certain duties toward the State and the fellow citizens including, to defend the Constitution and the law; further the national interest and national unity; commitment to the chosen occupation; preservation and protection of the public property; respect the rights and freedom of others; and conservation of nature and its riches.

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* Constitution of 1947. The Bracegirdle Case is in argument where the bench comprising Chief Justice Sir Sidney Abraham on May 18, 1948 rules against the 17 Governor’s order and set the victim free. This ascertains the independence of judiciary beyond the control of the executive power in colonial Sri Lanka.

The other significant feature of the Soulbury Constitution is the protection of the rights of the minority communities. Under section 29(2), exclusive sovereignty of the legislature is restricted to exercise the power to make a law derogating religious freedoms. The Parliament is vested to make laws for the peace, order and good governance of the Island. The imposed restriction under section 29(2) further abrogates to confer religious privileges or restraints to a person against the religious conscience of others. The Constitution of any religion can’t be altered by the legislative move even in majority. It is considered void if a law is formulated against the provision of the section 29(2). The inherent philosophy of section 29(2), as K M 18 De Silva notes, is the promotion of multi-ethnic society in Sri Lanka. He further argues that it is because of this mechanism, Soulbury Constitution continues to serve the nation for the quarter century uninterrupted.

The 1972 Constitution, the first Republican Constitution of Sri Lanka, mentions a chapter on fundamental rights and freedoms as well as on principles of state policy. The role of judiciary is, however, curtailed in comparison to its predecessor and the fully sovereign executive is instituted. The power of the judiciary is limited only to interpret the laws made by the legislature. The scope of enforcement of the fundamental rights isn’t strong in the new Constitution. No specific mechanism is defined to the judicial interpretation of the rights against the State. The realization of fundamental rights is further restricted by the caveats ‘in accordance with the law’

* Mark Bracegirdle was an Englishman residing in Ceylon having a plantation business. He was an undercover supporter against the exploitation of the poor planters by the British planters. He addressed Socialist movement at Nawalapitiya on April 3, 1937 which angered the British planters. Subsequently, a deportation order against him was issued by the then

British Colonial Governor Sir Reginald Stubbs. He then went hiding and later taken into custody after addressing a rally of Workers movement on May Day 1948. The Socialist leaders challenged the Governor’s order in the Supreme Court. The Bracegirdle’s matter was taken up on May 18, 1948 and the bench comprising the Chief Justice found that the Governor’s power to deport the culprit was limited to the emergency period only. The independent judicial decision beyond the executive control declared that the deportation was void and set him free.

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and ‘as the law prescribes’. The Constitution makes the ESC rights non justiciable to and by any Courts. The centralized exercise of power doesn’t support to flourish the judicial activism in Sri Lanka. The case is even worse; during the period of 1972 Constitution only one Case is filed against the infringement of the fundamental rights 19 in the District Court in 1973. The Appeal of that case comes to the Supreme Court in 1986 after the repeal of the 1972 Constitution.

The second Republican Constitution of Sri Lanka 1978, however, contains detailed provisions on the fundamental rights. It is nowhere free from the caveat ‘subject to such restrictions as may be prescribed by law’ in most of the cases. The remedy provided in case of the infringement or imminent infringement of the fundamental rights by the action of executive, is vested only to the Supreme Court. The Chief Justice Shirani A Bandaranayake (the first and only woman judge of the Supreme Court of Sri Lanka then) agrees that the Constitutional remedy is provided only * against the executive and administrative actions of the State and its organs. She further notes that which action would be linked to be executive or administrative isn’t defined. The role of judiciary is restricted to the enforcement of ESC rights as they are non-justiciable by the Courts. The frequent changes and amendments of the Constitutional norms with the persistent conflicts of political interests weaken the strength and growth of the judicial system in Sri Lanka. The recent impeachment of the Chief Justice Bandaranayake in January 2013 by the President Mahinda Rajapaksa 20 is an erosion of the democratic institution in Sri Lanka. In such a precarious circumstances, not only the protection of ESC rights are in peril but all the human rights are violated.

5.4 Consideration of the Initial State Report of Sri Lanka by the Committee

The international community perceives enhanced protection of the rights and freedoms of the individual when the State ratifies the international treaties on various rights. The ICESCR is ratified by Sri Lanka on June 11, 1980 with no declaration or

* It is observed by the Supreme Court in Perera v. University Grants Commission (S.C. (FR) Application No.29/2012) that the “Constitutional guarantee of fundamental rights is directed

against the State and its organs. Only infringement or imminent infringement by executive or administrative action of any fundamental rights can form the subject matter of a complaint under Article 126 of the Constitution”.

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21 reservation. The Initial State report is submitted on March 5, 1996 after sixteen 22 years of ratification; it was due on June 30, 1990. The Committee at its substantive session of 1997 considers the Initial report of Sri Lanka and publishes it on January 13, 1997.

5.4.1 Brief Summary of the Initial State Report of Sri Lanka

The socio-economic insurance in a country with rich colonial administrative experience seems to be people-friendly – what is being claimed in the introductory 23 note of the Initial periodic report, 1996. The report entails the institution of equal distribution of the State product primarily in the form of subsidised rice – one of the main commodities among the people. It is expected to reduce the growth of zero- income group as well as poverty and starvation with other subsidised and free products available at the controlled ration shops managed by State authorities. The valued expenditure on education is conducive to survive the free education system of * the State Party that maintain high literacy rate in the nation. The vision of free healthcare services for the entire population has distinctly decreased the infant and maternal mortality rate and increased the average life expectancy very high in † comparison to other developing countries. The government is also committed to provide subsidised transportation and housing projects. The welfare policies are implemented not with the human-face projection but with the productivity orientation, e.g., the samurdhi policies. The family unit, as a whole, is taken as the beneficiary State policies instead of individual, at all levels. Various other policies are implemented to promote the equal distribution of income, thereby, raising the living standard of the poorer sections of the society.

Since the successive governments after independence followed the path of conscientious welfare policies for a long period of almost fifty years, Sri Lanka occupies a comparatively advanced position in terms of the quality of life of the people as indicated in the table below.

* The Initial report at para.9 claims that, “As a result of high expenditures and high enrolment rates at all levels of education, adult literacy rose from 58 percent in 1946 to 78 percent in 1971, to 86 percent in 1984 and to 89.3 percent in 1992.”

† According to the UNDP Human Development Report (1995), the developing country average life expectancy was 61.5 years in 1992 while for Sri Lanka it was 71.9 years for males and 74.2 for females.

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Table 5.1: Quality of Life Indicators

Indicators Developing Country Sri Lanka (average)

Life expectancy at birth (in years), 1992 61.5 71.9

Adult literacy rate percentage, 1992 68.3 89.3

Adult female literacy rate percentage, 59.3 85.8 1992

Human Development Index, 1992 0.570 0.704

Real GDP per capita, 1992 (PPP$) 2591 2850

Maternal Mortality rate per 1,00,000 live 352 80 births, 1980-1992

Source: UNDP, Human Development Report 1995; the complete document is available at (accessed on Apr 5, 2017 at the link below): (http://hdr.undp.org/sites/default/files/reports/256/hdr_1995_en_complete_nostats.pdf).

Article 1(Self Determination): The universal adult franchise is widely recognized even before the independence of the country. The Constitution thereafter establishes well organized election system of public representatives at all levels that enhances the participation of the people in the mainstream political life of the nation. The 1978 Constitution protects the adequate representation of the ethnic minorities through a th system of proportional representation in the Parliament. The 13 Amendment Act moves a step further to decentralise the power upto provincial council. The government in its proposed legal text before the Parliament and the people, maps the devolution of powers upto regional council for better representation opportunities.

Article 6 (Right to Work): The labour force since independence has significantly increased to 6.48 million in 1990, of which 5.76 million is in some form of employment. The rapid technological advancement shows the increasing trend in the share of employment in manufacturing, construction, wholesale, and retail trades, etc., however, a steep decline is faced in the agriculture sectors. The Export Processing

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Zones (EPZs) have been established to promote export oriented foreign investment. The liberal economic policies have decelerated the unemployment rate to 11.8 percent in 1982 which has been slightly increased to 15.5 percent during 1986/87, due to continuous conflicts. The momentum in employment generation is regained since 1988 with a better security provisions to the tourism industry.

The vocational and technical trainings to acquire skills and knowledge in pursuit of employment are rendered by a number of government, semi-government, private, and NGO sector institutes.

Article 7(Favourable Conditions of Work): The well organized mechanisms are operational in government as well non-government sectors to fix the living wages from time to time. The minimum wage fixing system in Sri Lanka is a statutory process invoking the State authority to enforce the lower wage limit uniformly. At present, thirty-nine wage boards function under the Wages Boards Ordinance of 1941 to regulate the fixation of minimum rates of wages, the introduction of legally defined working days, the minimum age of employment, and the concept of tripartism largely in non-government sectors. The occupational health and safety is ensured time and again through the monitoring process laid down by Factories Ordinance.

Article 8 (Trade Union): The trade unions in Sri Lanka played a vital role to the independence movement. The enactment of labour laws under the Trade Union Ordinance of 1935 followed by various other labour ordinances strengthened the capacity and need of the unions. In the current scenario, the right to association and to form and join trade unions are fundamental rights of every citizen under Articles 18(1) and 141(a) respectively of the Constitution. The President of Sri Lanka promulgates the National Worker’s Charter on September 2, 1995 parallel with the Philadelphia Declaration and the provisions of the ILO Conventions and Recommendations to protect the interest of the trade unions and, thus, of workers. The rights of trade unions to federate, function freely, collective bargaining, establishment in free trade zones, etc., are well ensured. The right to strike is not a fundamental right while it is legalised with due procedure.

Article 9 (Social Security): The benefits of social security in Sri Lanka cover a wide range of beneficiaries from both formal and informal sectors. It includes among others

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Medical care, Cash sickness benefits, Maternity benefits, Old age benefits, Invalidity benefits, Survivor’s benefits, and Employment injury benefits, etc.

Article 10 (Protection of the Family and Children): In Sri Lanka, Article 12 of the Constitution recognizes family as the basic unit of the society. The right to full and free consent of marriage to form a family is guaranteed by it for the male and female of eighteen years. The protection of women and children, in particular, is guaranteed legitimately as Sri Lanka is party to the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women. It has * submitted State reports in this regard recently to the respective Committees.

Article 11 (Adequate Standard of Living including right to food): The low rate of infant/maternal mortality and high rate of average life expectancy/literacy show considerable success of Sri Lanka on social development indicators in comparison to other countries of the South Asian region. The under-nutrition of infant and pre- school children is a big challenge for the government. The successive governments have implemented direct intervention programmes to improve the food security of vulnerable households. Various national nutrition programmes have been implemented by the National Steering Committee on Nutrition established by the National Health Council in 1993.

The statistical data shows that housing facilities, water supply, sanitation, electricity, and other household facilities are almost up-to-date as compared to other South Asian 24 countries. The right to housing is further strengthened by various national and international programmes. The government is committed to provide housing facilities to all according to their needs.

Article 12 (Mental and Physical Health): The wide network of healthcare services in terms of geographical and population coverage is provided through the provisions of free medical care, free hospital care, and free clinical facilities. The rate of mentally retarded people, however, is rising day by day; it is estimated that above five to ten percent of the population suffer from mental disorders and those suffering from severe mental disorders account for two percent of the population. The rate of suicide

* See the complete State report submitted by Sri Lanka to the Committee on CRC and

CEDAW (1996) UN doc. CRC/C/8/Add.13, and C/13/Add.18 respectively.

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commitment is second highest in the world; an estimated 8000 young people committed suicide in 1991 alone. A Presidential task force on national health policy was constituted in 1992 to enlarge the healthcare services throughout the country. The infant immunization programmes have been implemented even before independence, since 1931. The national health policy enforces various steps to curb health hazards due to the industrial expansions and other reasons in the recent years. The country strives to achieve the goal of ‘health for all by 2000’ through health awareness and education.

Article 13 and 14 (Right to Education): The complete eradication of illiteracy and the right to universal and equal access of education to all at all levels is guaranteed under the DPSPFD of the Constitution (Article 27(2)). The free education system provides textbooks, mid-day meals, school uniform, etc., from kindergarten to first degree level education – free of cost in all the government institutions of Sri Lanka. The primary education is compulsory in Sri Lanka, since 1995. The National Education Commission spells-out the urgent need to enlarge the scope of opportunity for the higher education to all the students. The government as well as non-governmental agencies are involved in providing informal education to non-school going students. The public schools throughout the country face lack of infrastructure facilities in the form of manpower and adequate resources. The enrolment ratio from primary to higher education declines steeply and only two percent of those enrolled at primary * level secures admissions in Universities.

Article 15 (Cultural and Scientific Rights): The rights of authors of original scientific, literary or artistic works are well protected in Sri Lanka. The Natural Resources, Energy and Science Authority (NARESA) is responsible to promote and develop national self-reliance in the application of science and technology for the benefit of the entire population. The protection of moral and material interests resulting from any scientific work is weak in Sri Lanka. To carry-out scientific research whatsoever, there is no legal restrictions over individuals, scientists, and institutions of competence.

* It is estimated that around eight percent of school age cohort don’t enter the school system and only around ninety percent of those enrolled in grade I complete primary education, around seventy percent reach grade IX, twenty percent enter grade XII, and only two percent enter in other tertiary education facilities in Sri Lanka.

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The government is committed to preserve the identity of different cultures and traditions as a medium of national integration, peace building, and nation building. Various departments under the Ministry of Religious and Cultural Affairs are responsible to implement government’s policies on the preservation of culture. The minority Tamils and Muslim communities in Sri Lanka have every right to practise and enjoy their culture. The government to enhance the living standard of indigenous people (the Veddas), has begun programmes on knowledge and understanding of the valuable aspects of their culture. The culture and arts are also being promoted by Universities and other institutions through education and research.

5.4.2 Concluding Observation on the Initial Report of Sri Lanka (1998)

th The Committee at its 25 meeting (eighteenth session) held on May 13, 1998 adopts the Concluding Observations based on the consideration of Initial report and the 25 written Replies to the List of Issues by the government of Sri Lanka. The Committee appreciates the report in conformity with the general guidelines of submission. It also admires the frank and constructive dialogue with additional informations by the representatives of the State Party with the Committee members. It outlines the following positive aspects of the report:

 The strong intention of the government to provide the ESC rights of its citizens despite continuous armed conflicts;   Humanitarian aids provided by numerous international agencies;   Free and compulsory education for all, free healthcare, food subsidies and supplements; and,   High UNDP Human Development Index in comparison to other countries of the South Asian region.

The prolonged violence and conflict in the country was main hurdle to the implementation of the ESC rights in the region. The Committee highlights the following principal subjects of concern of the report:

 Root causes of armed conflicts aren’t discussed at length, absence of statistical information on the current situation of North and East region of the country, and deliberate discriminations in ESC rights with the ethnic groups (the

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Committee presupposes it to be the central issue of armed conflicts in the region);

 Government peace plans by the devolution of authorities to the regional government through Constitutional reforms is still to be implemented;   Presence of 8,00,000 displaced persons of which large number are living in temporary shelter without proper sanitation, education, food, clothing, and healthcare services, Tamil families are largely among displaced people, women and children are highly undernourished around seventy percent in temporary shelters, and humanitarian food aids don’t reach the intended beneficiaries;   85,000 Tamils of Indian origin neither have Indian nor Sri Lankan citizenship, and they are devoid of education and other ESC rights;   Conflicts in Statutory laws and Customary laws and in many cases, latter prevail over the former including marriageable age of girls (only 12 years as against 18 years fixed in former), and discriminations in acquiring inheritance (in Customary laws married women aren’t supposed to inherit her family’s property) – these are distinct examples of discriminations against women;   Discrimination against children born out-of wedlock are supposed to inherit only from their mother’s property;   Discrimination in employment with women and minority groups, particularly for wages in private sectors;   Large number of child labour and child prostitutes exist and no serious efforts are employed by the government, and hundreds of thousands of women are working abroad as domestic help without proper security;   Not only second highest rate of suicide commitment among youth in the world but rising incidence of drug and alcohol dependence, adolescent crime, child abuse, sexual disorders and domestic violence against women;   UNDP reports examine that twenty-two percent of the population lives in poverty and many suffers malnutrition particularly women and children, and acute shortages of adequate housing and construction materials for homes in need of urgent repair; and,   Lack of awareness among women about their human rights, provisions on the right to strike and form trade union is vague, and distinction between citizen and other persons remain in the proposed Constitution.

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The Committee finally adopts following suggestions and recommendations for the government of Sri Lanka to achieve better results implementing ESC rights:

 Taking note on the high cost of armed conflicts suffered by the people, the government should negotiate with all the concerned to its proposed peace plan involving devolution of authority to regional governments as speedily as possible, and detailed information in this regard is sought in the next periodic State report;   Humanitarian aids must reach the intended recipient, housing must be ensured to those living in temporary shelters, and quality of food nutrition must be upgraded particularly for children and mothers;   Citizenship to 85,000 stateless Tamils should be ensured immediately, discriminatory customs and traditions affecting marriageable age, inheritance laws, and children born out-of wedlock must be repealed immediately, and discriminations in employment with women and minority groups must be avoided particularly in equality of wages for equal work;   Government must ensure with immediate effect, strong prohibition on child labour and must enforce the legal minimum age of work in all the industries, sexual exploitation of children must be handled with stringent laws as per the international standards, and rehabilitation of victimized children must be ensured;   Government must discourage employment of women as domestic help abroad and must assess its impact on the children due to prolonged absence of their mothers, and study must be conducted to better understand the impact of this situation on the entire society; and,   The Committee seeks detailed information in the next periodic State report about the Presidential task force investigating the problem of committing suicide among youth and the actions taken to fulfil its recommendations in this regard. It also seeks detailed information on the progress achieved by the government in addressing the problems of poverty, malnutrition, and lack of adequate housing.

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5.5 Combined Second, Third, and Fourth Periodic Report of Sri Lanka (2008)

The government of Sri Lanka submits the Combined Second, Third, and Fourth 26 periodic State report to the Committee on June 9, 2008. The report introduces the government’s stands on the promotion and protection of all the human rights including ESC rights by ratifying ICESCR. The high quality of life of the citizen is ensured with the availability of basic food items, healthcare services, educational facilities, housing, and other essential elements through various policies of the government. The common interests of the people are preserved by universal adult franchise and a multiparty base system of governance.

The report further explains that the main hurdle to the smooth realization of ESC rights is the continuous conflicts for nearly twenty-five years with the separatist terrorist organization LTTE. The government, in 2007, claims to eliminate this terrorist group entirely from the Eastern provinces. Accordingly various rehabilitation measures are enforced to improve the socio-economic life of the people residing in war-torn areas. The tsunami of 2004 in the Indian Ocean has also devastated heavily the long coastal life of the country. The government despite of these incidences is committed to fulfill the human rights obligations of the people irrespective of religion, ethnicity, or languages.

Responses of the Government on the Concluding Observations on the Initial Report

The government affirms that a Ceasefire Agreement (CfA) was signed with LTTE in February 2002. The negotiations begin in October 2002 and since then six rounds of talk are held. The government is still committed to resolve the situation while the rebel group walks away from talk in April 2003. The Mahinda Rajapaksa government in office since 2005, attempts further negotiations in Geneva and Oslo that don’t arrive any concrete political settlement on part of LTTE’s negative approaches. The government continues to pursue an honourable settlement despite persistent attacks and killings of Army Commanders as well as innocent civilians. The military operation against LTTE was employed when the latter blocked the water supply of the civilian population. The mission of the frequent violation of the ceasefire by the LTTE is to create unrest in the Southern region of the country.

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The government as a result, terminates the CfA on January 2, 2008 underlining the fact that it wasn’t entered into force with the proper consultation to the government of the day. Notwithstanding, the LTTE never supports the substantive discussions to achieve political settlement. It takes disloyal advantages of the CfA to continue smuggle in large hauls of lethal arms, explosives, and ammunition. The foreign minister in 2008 demonstrates that the termination of CfA isn’t destructive; it enlarges the scope of participation by all the political sections in the peace accord beyond the government and the LTTE (sole participants of CfA). The political settlement policy of the government is an inclusive process that includes all minority groups to achieve just and honourable peace. The supply of all the basic amenities viz. food, housing, education, healthcare, etc., and the simultaneous development of infrastructure for the people of North and East region, 27 promote the inclusive approach of the government.

The All Party Representative Committee (APRC) is empowered to make enquiries of the steps taken by the government to resolve the conflicts. It builds a status of mutual trust among all the communities to enhance the process of greater reforms. The government with the assistance of private sectors and Diaspora funds constantly improves the living circumstances for the people of North and East region. Despite the massive attacks by the LTTE, the supply of food, medicines, and other essential commodities to the Jaffna peninsula since 2006, has significantly improved. The international humanitarian cooperation including from United Nations, International Committee of the Red Cross (ICRC), Norwegian, Swedish, and Japanese organizations, etc., provide better opportunity to raise the living standards of the people in the war affected regions.

The government has established a Resettlement Authority by an Act no.9 of 2007 to observe the plight of Internally Displaced Peoples (IDPs) due to tsunami (2004) and armed conflicts. The hospitals and schools that have been destroyed, have been recovered and further operations are underway to restore livelihood in affected areas. The government with the assistance of UNOHCR and WFP, implements the ‘return back to home programmes’ parallel with the international standards for the IDPs. To restore livelihood of IDPs, government provides with the fishing gears to fishermen, agricultural equipments to farmers, bank loans through Bank of Ceylon and People’s Bank, and a sum of rupees 25,000 is provided to the resettled family within the scope

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of available fund. The UN agencies and INGOs further provide with the assistance funds. The resettlement process in any area begins only when it is declared mines-free by the UNDP and thus resettlement projects in Eastern provinces are underway. The government initiatives to end the shortage of essential items in Jaffna are satisfactory despite LTTE has sealed the land routes.

The Consultative Committee on Humanitarian Assistance (CCHA) has been established to seek the aids from the donors, UN agencies, INGOs, etc. It is assisted with the services of sub-Committees in the fields of Logistics and Essential Services, IDPs, Resettlement and Welfare, Livelihoods, Education, Health, and the sixth to draft the mode of operations for the stakeholders involved in humanitarian aid. These sub-Committees meet regularly to discuss and resolve the operational issues and report, thereof, to the CCHA.

The citizenship is granted to Tamils living or the descendent resident of Sri Lanka since October 30, 1964 under the Grant of Citizenship to Persons of Indian Origin (Amendment) Act No. 35 of 2003. As far as the laws are concerned, Sri Lanka has having rich sources of diverse legal system and therefore some disparities arise implementing different principles and values. The marriageable age to both the party has been fixed to eighteen years in 1997 with certain relax to personal laws of ethnic groups. The discrimination against women in inheritance is abolished save some of the ethnic groups.

The Article 12 of the Constitution embodies provisions on equality and non- discrimination and discourages discriminations of any kind on the basis of race, religion, language, caste, sex, political opinion, place of birth or any such grounds. The labour laws are equally applicable to protect the interests of men and women employee in private sectors. The NHRC is also concerned to the protection of women and minorities rights. The employment of children under the age of 14 years is completely prohibited after the amendments made to the existing laws. The judiciary is empowered to determine the fine and length of the punishment, in case of violation, on the merit of particular case. The government, through various legislations, has prohibited any act exploiting children; it attracts punishment of equal amount. A free child helpline is initiated throughout the country called ‘Child Helpline Sri Lanka’ in January 2008. The Ministry of Child Development and Women’s Empowerment has

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established a National Child Development Fund in 2007 to provide improved protection to the deserving children.

The National Child Protection Authority (NCPA), 1998 has been established to recommend, supervise, and make awareness to minimize the child abuses in different settings. The Department of Labour is responsible to implement national and international standards to prohibit all forms of child labour. The Department of Probation and Child Care Services is responsible for childcare and protections including rehabilitation of victims. The government of Sri Lanka has ratified the Convention on the Rights of the Child in 1991, and it’s Optional Protocol on the sale of children, child prostitution and child pornography in 2006, and the ILO Convention No. 182 (1999) on the Worst Forms of Child Labour in 2002.

The Ministry of Foreign Employment Promotion and Welfare cares about the mothers migrating abroad as a domestic help as well as to the future of their children. It provides consultation on the security of the family and ensures quality life for the children. The arrangements are made to provide scholarships for education and school materials for the children of migrant workers. The decision of the Cabinet of Ministers in 2006 to discourage those mothers with children below five years from proceeding abroad as migrant workers but that was met with strong opposition from human rights activists.

The government, through the Presidential Task Force, has issued a series of recommendations to address the problem of committing suicides by youth. The Police Narcotics Bureau (PNB) has initiated three steps strategy to combat the drug trafficking namely prevention, detection, and prosecution that brought laudable success in the year 2006. A large number of offenders have been prosecuted under the enhanced existing laws on drugs that disrupted the networks of drug traffickers. The LTTE is also involved in drug trafficking to raise funds for its criminal and terrorist activities.

The government of Sri Lanka is committed to reduce poverty through various strategic programmes that target economic growth, participation by the poor, investment, monitoring and evaluation at various stages. The Millennium Development Goals are well in place with focused target to achieve every goal in Sri

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Lanka. The first goal is on the poverty eradication which is considered to be the main hurdle to realize all other goals including education, gender equality, etc. The brief overview of each goal in Sri Lanka is discussed below:

 Under the first goal, i.e., poverty eradication; target one is to halve the proportion of people living below poverty line between 1990-2015 and * according to poverty headcount ratio , it has declined from 23 percent to 15 percent since 2002 save in four Districts having headcount ratio between 20 to 34 percent during the same period. The second target is to halve the proportion of people who suffer from hunger during the same period and the decline in underweight children under five that is the indicator of monitoring the progress in the reduction of hunger, is well on track (a decline of 37.7 in 1993 to 29.4 percent in 2000 is recorded).   Under the second goal, i.e., achieving universal primary education; Sri Lanka, on the basis of different monitoring indicators, is claimed to achieve the target well in advance before 2015.   Under the third goal, i.e., promoting gender equality and empowering women; on the indicators of access to education and literacy, the disparity between male and female is missing well before 2001-2002.   Under fourth and fifth goal, i.e., reducing child mortality and maternal mortality; the reduction rate is recorded upto the lowest level among the South Asian countries and as comparable to some of the developed countries.   Under the sixth goal, i.e., combating HIV/AIDS, Malaria and other diseases; the indicator of the contraceptive prevalence rate for women of 15-49 years of age in Sri Lanka has risen to 70 percent in 2000 from a level of 66 percent in 1993.   Under seventh goal, i.e., ensuring environmental sustainability; one of the indicators to reverse the loss of environmental resources, is the rate of use of solid fuels for which very high percentage of Sri Lankan population (eighty percent) uses solid fuels. The supply of safe drinking water is accessible to     * For international comparison, the poverty line is fixed at one US dollar a day. However, the national government also fixes official poverty lines. The proportion of population whose

income is less than the national poverty threshold is known as the poverty headcount ratio.

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eighty percent households and improved sanitation facility to sixty percent with significant gap between urban and rural areas.

 Under the final goal, i.e., developing a global partnership for development; seven goals are included here with seventeen indicators, for three of the indicators – unemployment rate has been brought down from 32 percent in 1996 to 28 percent in 2002 and has been declining further, personal computer is used by only 33.8 percent, and internet is used by only 2.8 percent of people.

The right to freedom of assembly is ensured under the Article 14(1)(b) of the Constitution of Sri Lanka and restrictions are imposed only when prescribed by law in the larger interests of racial and religious harmony [Art.15(3)], national security, public order [Art.15 (7)], etc. The enforcement of labour legislation in Sri Lanka has long history dated back to late nineteenth century to the independence upto the present developments. The government has ratified two fundamental Conventions of the ILO, namely the Convention on Right to Organise and Collective Bargaining No.98 (1949) and the Convention on Freedom of Association and Protection of Right to Organise No.87 (1948). The general nature of the freedom of association is applicable to the whole of island including Export Processing Zones where employees have choices to join trade unions inside or outside the zones. The minimum wages in Sri Lanka is determined by wages boards of different sectors; currently forty-three are functioning.

The Article 12(1) of the Constitution provides that all the persons are equal before the law and are entitled to equal protection under the law save the justice demands so. The demolition of illegal houses and settlements are only consistent after filing writ in a Court of law and by obtaining a Court order on that behalf. The compensation or alternative arrangement on humanitarian grounds is above the legislation in Sri Lankan society.

The above detailed information covers the progress achieved during the reporting year of the Combined State report of Sri Lank on the protection of ESC rights. The additional informations on the enforcement of general as well as substantive provisions of the ICESCR is collectively discussed in the “Core Document Forming Part of the Reports of 27 States Parties” submitted on April 23, 2008. The brief analysis

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of the Core Document is discussed in the ensuing sections under the particular provisions of the Covenant.

5.5.1 List of Issues on the Combined Report of Sri Lanka

The Pre-Sessional Working Group of the Committee communicates the List of Issues to be replied by the government on the Combined State report in its meeting on May 28 25-28, 2010. The major queries to be answered include the following:

Queries Regarding General Information

Updated information on the specific measures to implement the recommendations of the previous Concluding Observations; status of the Covenant in the domestic legal jurisdiction and their justiciability before the Supreme Court as highlighted in the Core Document; will of the national Courts to adjudicate ESC rights; judicial remedies available to the victims of the ESC rights; reasons to the down-gradation of the national human rights institutions and steps to improve their status; the mandate of the NHRC over the ESC rights; and information on the measures to protect the assault of the human rights activists.

Queries Regarding General Provision

Information on the extension of the mandate of the NHRC to investigate the allegation of bribery or corruption that expired on March 26, 2010 or the responsibility is reassigned to other body to deal with the thousands of cases pending; more specific information on the citizenship issues of Tamils of Indian origin and the protection of their ESC rights; implementation of the policies to combat all forms of discrimination against Persons With Disabilities; measures taken to repeal discriminatory personal laws particularly against women; measures taken to eliminate discrimination against women in employment and at workplace (in recent decade unemployment rate of women has been doubled); and, information on the equal participation of women in public life and decision making positions at all levels.

Queries Regarding Specific Provision

 Information on the security of right to work especially for disadvantaged and marginalized individuals and groups in particular youth and PWDs in urban as

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well as rural areas; whether the Presidential recourse to compulsory labour for endangered communities has been repealed; and available alternative choices of employment for women migrating abroad in compulsion.

 Information on the national labour laws that prevent sexual harassment at workplace including in tea plantation; measures taken to prohibit direct or indirect discrimination in employment parallel with the standards of ILO and implementing equal wages for the work of equal value; and information on the minimum wages fixed by wage boards adequate for the standard living of the workers – whether State is planning to envisage national minimum wage.   Information on the steps taken to reform the representational requirements of the collective bargaining parallel with the ILO recommendations; measures to broaden the definition of essential services under the 2006 amendment of the Emergency Regulations No.01 of 2005 that is applicable to all economic sectors; measures to ensure non-discrimination in trade unions; and detailed information on the effective functioning of the trade unions in the Export Processing Zones and the reasons not to join unions by female employees although they occupy eighty percent workforce in these zones.   Information on the current structure of the social security system and the disaggregated data on its coverage for both formal and informal sectors; information on the social security benefits of the aged tea workers and the migrant workers from the receiving countries; and list of the families of migrating women that get benefits from the State programmes.   Measures adopted to criminalize the domestic violence and information on the implementation of the Prevention of Domestic Violence Act 2005 with respect to protection orders issued and prosecution, conviction, and penalties applied; measures to combat worst form of child labour and prosecution of the culprit; measures to combat child sex tourism where girls above sixteen years and boys of any age aren’t excluded from the scope of legislation and information on rehabilitation programmes; and information on prosecution of convicts recruiting child soldiers.   Detailed information on the poverty reduction especially to overcome regional disparities between the Western provinces and rest of the State; updated information on the IDPs that remain stay in the camps and the attacks on their schools, hospitals, and other humanitarian assistances; detailed information on

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the land compensation occupied for military installation under high security zones and whether acquisition in North and East region is in conformity with the relevant international standards; updated information on the prison conditions as reported shocking by Special Rapporteur in 2007 and does the smooth visit available to ICRC and other humanitarian agencies to all the detention facilities and the rehabilitation centres for former child soldiers.

 Information on the non-discriminatory access to quality healthcare services, sexual and reproductive healthcare awareness, and comprehensive mental healthcare plans in all parts of the country.   Measures taken to improve quality education especially to disadvantaged and marginalized groups particularly IDPs children; shortage of trained teachers; inclusion of the religious and ethnic culture and history in the school curricula; and non-discrimination in education based on racial identities.   Information on the current situation and the protection of the land rights of the Veddas people of the country; and disaggregated date on the enjoyment of right to cultural life by everyone throughout the State.

5.5.2 Replies to the List of Issues on the Combined Report of Sri Lanka

The government of Sri Lanka submits written Replies to the List of Issues raised by 29 the Pre-Sessional Working Group on October 15, 2010. It attempts to respond every issue raised in different paragraph in the following manner:

Replies to the Queries Regarding General Information

 The ceasefire agreement signed between the government and the LTTE is failed due to the latter’s negative approaches. The government launches humanitarian military campaign to rescue the innocent people from the control of the LTTE. The mission completely erodes the terrorism perpetrated by the rebel group in May 2009. Consequently, the priority area of the government is to restore the democratic institutions by electoral process at different levels in the region. Various development projects are instituted to promote the ESC rights of the affected people.   The rights contained in the Covenant are justiciable before the Court of Sri Lanka. The Supreme Court is the highest appellate jurisdiction over all matters

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including the violation of ESC rights. The fundamental freedoms are guaranteed equally to all without any discriminations save in the interest of public order and security as prescribed by law. The case challenging infringement of ESC rights compatible with the national legislation hasn’t been lodged so far with the Supreme Court.

Replies to the Queries Regarding General Provisions

 The appointment of the new Commissioner of NHRC has been made so far after the term of the former Commissioner ended on March 28, 2010. The activities are taking place as usual except the new investigations. A project is operationalized against the corruption, with the help of UNDP since 2008, to monitor the management of public affairs making them accountable and transparent. The awareness programmes are campaigned for officials as well as for general public against corruption.   The right to citizenship is granted to all the Tamils of Indian origin after the Amendment Act of 2003 and the process of issuing identity document is under-way. The proposed legislation on disability rights is under draft to enhance the protection enshrined in the existing legislations. The government is intended to ratify Convention as well as Optional Protocol on disability as soon as the Parliament enacts the proposed legislation.   The discriminatory personal laws particularly under-age marriages of Muslim girls has been reformed at large through the awareness initiatives propagated by concerned ministry in collaboration with the civil society. Action is also being taken to remove the provisions that are discriminatory to women under the Land Development Ordinance (Amendment) Bill 2009. A comprehensive  Women’s Rights Bill is before the Parliament to be approved.   The basic ground to the high unemployment rate in women is connected to the lack of professional skills instead of stereotyped role of women in Sri Lankan society. The sexual harassment at workplaces includes any assaults that do not amount to rape under section 363. The equality of remuneration for the work of equal value is protected under section 12(4) of the Constitution.

Replies to the Queries Regarding Specific Provisions

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 The vocational and technical programmes targeted to provide employment opportunities are run by government in a wide range of fields. It covers youth of urban as well as rural areas including disadvantaged and vulnerable groups. The provision of three percent quota reserved for the persons with disabilities in employment is provided in public sectors. The targeted vocational training units are established in the Northern and Eastern provinces. A separate unit of career guidance and counselling centres are established in major educational institutions at District levels.   Under the emergency regulation, there is no operational compulsory service. The worker is required to work within the normal terms and conditions of employment without any additional burden. The Sri Lanka Bureau of Foreign Employment (SLBFE) is a premier government institution that provides all the necessary help to the migrating women and her children. It includes scholarships to children, housing loan, repatriation, insurance schemes, retirement benefits, medical treatment, etc., to the returning migrant workers. The SLBFE also provides a variety of social and insurance services to the family members of migrant workers. The offences of sexual harassment at workplaces are covered under the criminal laws of Sri Lanka.   The social security schemes are implemented by the Social Security Board and the ministry concerned in informal sectors. The current coverage is low with very low pay-out that is needed to be increased. The government has entered bilateral Memorandum of Understandings (MOUs)/agreements that protect the security and welfare of its migrant workers in various receiving countries.  The issue of domestic violence against women in Sri Lanka doesn’t form a crime under the existing laws, however, punishable under the penal code. The government has enacted the Prevention of Domestic Violence Act No.34 (2005) primarily to fulfill the obligations arising out of the Concluding Observations on the Third and fourth periodic State report on CEDAW. The victim under the Act can apply for the relief to the Magistrate’s Court requesting either an Interim Protection Order (IPO) or a Protection Order (PO). Such order prohibits the perpetrator to refrain committing any further act of domestic violence with immediate effect. The Act provides for a civil remedy and thus normal criminal justice procedure of investigation, prosecution and punishment is followed. Another milestone to protect rights of

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women is the Women’s Charter approved in 1993. It covers wide range of rights of women in all spheres of life. Besides, many State and non-State actors carry out awareness programmes on domestic violence through workshops and seminars.

 The government with the help of ILO takes measures to eradicate worst form of child labour by 2016 from the country. A penal code of 1883 related to the protection of children from all the forms of abuses is amended and entered into force in 1995. It covers almost all forms of offences identical to the offences specified in the United Nations Convention on the Rights of the Child. The Penal Code (Amendment) Act No.16 of 2006 further criminalizes all such offences targeted toward child abuses.   The Poverty Headcount Index (PHI) has been steeply declined in Sri Lanka from 22.7 percent in 2002 to 15.2 percent in 2007mainly due to upswing in the rural economy. The government has prioritized the development of infrastructure uplifting the standard of living in the rural areas. A disintegrated date over the resettlement/return progress and release movement of IDPs from various Districts has been produced by the task force on monitoring and 30 reporting upto October 13, 2010.    The sexual and reproductive health education has become a comprehensive component of the adolescent education programme. It has also been added to the school curricula and for that training is imparted to the teachers at all District levels.   Highlighting the benefit of cultural pluralism, the Ministry of Constitutional Affairs and National Integration has conducted various programmes to promote national integration through cultural activities since June 2008. The Ministry of National Languages and Social Integration has been established to promote official languages policy, social integration policy, and other project and programmes aimed to enhance the cultural diversity of the nation.

5.5.3 Concluding Observations of the Committee on the Combined Report of Sri Lanka

The Committee at its forty-fifth session (November 1-19, 2010) adopts the Concluding Observations on the Combed Second, Third, and Fourth periodic report of 31 Sri Lanka. It welcomes the open and constructive dialogue of the delegation of the

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State with the Committee members. However, it expresses the disappointment over the delay in submission (fifteen years), practical data on the implementation of the Covenant, and half of the responses aren’t provided on the List of Issues. It is recommended to abide by the submission guidelines in the next periodic State report in consultation with the civil societies. It highlights the following positive points of the report:

 The ratification of two of the Optional Protocols on the CRC, namely on the involvement of children in armed conflict (in 2000) and on the sale of children, child prostitution, and child pornography (in 2006) and the Optional Protocol on the CEDAW (in 2002). It also welcomes the ratification of ILO Conventions No.111 (1998) concerning Discrimination in Respect of Employment and Occupation, No.138 (2000) concerning Minimum Age for Admission to Employment, and No.182 (2001) concerning the Worst Forms of Child Labour.   The development achieved in domestic legislation on the implementation of the Covenant is appreciated including the Prevention of Domestic Violence Act No.34 (October 3, 2005); the Employment of Women, Young Persons and Children (Amendment) Act No.8 (2003) that increases the minimum age of employment from 12 to 14 years; and the National Policy on Disability (2003).

The targeted achievements of MDGs in the fields of health and education are appreciable and for most of the other indicators the State party is on the track. The recommendations in the light of principal subjects of concern highlighted by the Committee include the following:

 The full legal effect of the Covenant must be confirmed in the domestic legal order; knowledge and awareness programmes to implement the Covenant and other international human rights instruments must be organized among judiciary, law enforcement officials, and other responsible actors.   All the emergency regulations jeopardy to ESC rights must be repealed.   The independence and autonomy of NHRC must be ensured according to the Paris Principles.

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 The independence and integrity of the judiciary and oversight bodies including appointment procedure must be ensured. In this regard, eightieth amendment of the Constitution bestowing direct appointment power to the President must be reviewed.   The protection of human rights defenders must abide the agreed international standards and the attackers must be prosecuted and punished. The State must work in consultation with the civil society and human rights defenders to protect and promote ESC rights throughout the country. The adoption of the Right to Information Act must be speeded up.   The resettlement and land rights of the Veddas community must be ensured. The development projects affecting their ESC rights must be implemented with the proper consultation to the community. The State party is urged to consider the ratification of ILO Convention No.169 (1989) concerning Indigenous and Tribal Peoples in Independent Countries.   It is urged to impart necessary training to implement anti-corruption laws particularly by police, other law enforcement officials, judges, etc., to combat corruption in all its forms. The State Party must seek special expertise to combat corruption from the international organizations and must provide the details in the next periodic report.   The State Party is urged to provide necessary resources without discrimination to uplift the living conditions of the plantation workers as well as Tamils of Indian origin. It is also urged to repeal the Citizenship Act No.18 of 1948 and to speed up the process of issuing identity documents.   The State party is urged to implement National Policy on Disability 2003 to strengthen the inclusion of PWDs in labour market through, e.g., job quotas. The equal access of education to disabled children particularly girls must be ensured. It is encouraged to ratify the UN Convention on the rights of PWDs and its Optional Protocol.   It is urged to ensure the immediate and equal enforcement of the ESC rights for men and women of all the ethnic groups despite the communities own priorities. The statutory and personal laws discriminating women must be repealed to avoid early marriages and other malpractices. The State Party is urged to abide General Comment no.16 (2005) of the Committee on the equal rights of men and women.

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 The stable employment opportunity must be ensured particularly for women and youth within targeted time frame. The promotion of ESC rights for the women at risk of losing their job must be monitored very closely.   The legislation must reflect non-discriminatory opportunity of employment and equal remuneration for the work of equal value for both men and women. The number of women representatives must be increased in decision-making and public positions. The discrimination at workplaces must be avoided.   The minimum wage must ensure adequate standard of living of all the workers and be adjusted regularly. The plantation workers should be provided with a decent monthly salary.   The national labour laws must include provisions prohibiting and preventing sexual harassment. The alternative choices of employment must be provided within the country for migrating women. A comprehensive assessment of women labour migration should be conducted by the State Party. The protection of ESC rights of children and the family of migrating women must be ensured.   It is called upon not to impose compulsory labour against disciplinary offences or participation in peaceful strikes and thus legislation must be amended in this regard. The definition of essential services for the endangered population must abide ILO recommendations. The anti-union discrimination must be dealt with the stringent laws. The freedom to form and join trade unions must be ensured and interference in the management and operation of unions in the EPZs must be prevented.   The poverty alleviation and social assistance programmes must be implemented in an adequate and transparent manner. The social security coverage must continue in collaboration with the ILO.   It is recommended to enforce effectively the Prevention of Domestic Violence Act No.3 (2005) through public awareness, education campaigns, and recruitment of additional female police officers within the BPCW. The crisis centre and shelter of the victim of domestic violence should be accessible throughout the country. The marital rape in all the circumstances must be criminalized immediately. The effective measures should be adopted to combat child labour.

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 The legislation on child sexual exploitation must cover all the children. The perpetrator of child abuses must be brought to penalties. The national plan of action (2006) against Child Sex Tourism must be implemented. The rehabilitation centre must be established for victims of child abuses.   The government is urged to abide the provisions of the General Comment no.12 (1999) of the Committee on the right to adequate food and must ensure smooth passage of humanitarian food aid in internal conflicts.   The dispute of IDPs housing land that is occupied unlawfully under HSZs project must be resolved immediately and proper compensation should be provided. The detailed information is sought in the next periodic report.   The regional disparities in the protection of ESC rights must be avoided. More indicators and benchmarks should be incorporate to monitor achievements in poverty reduction.   The appropriate measures should be taken to address acute housing shortage especially for marginalized and disadvantaged communities including those living in slums. The adequate compensation must be provided to those forcibly evicted.   The urgent steps should be taken to combat prison overcrowding and child prisoners should be separated from adult detention facilities.   The abortion laws should be amended immediately to suit legitimate cases. The comprehensive sexual and reproductive health education programme should be implemented throughout the country.   The draft Mental Health Act (2007) must be implemented to address post- conflict mental disorders.   The State Party is urged to increase the funding of public education system and must effectively abolish all the school fees. In the conflict-affected areas, educational facilities should be restored through the rehabilitation process without any regional disparities in the enjoyment of right to education. The infrastructure and quality of education should be improved.

The Committee encourages the State Party to ratify the Optional Protocol of the Covenant. It requests to disseminate this Concluding Observations widely among all levels of society, in particular among State officials, the judiciary, and civil society organizations. It also requests to prepare the next periodic State report in consultation

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with the national human rights institutions, non-governmental organizations, and other members of civil society. The report must abide the new submission guidelines and be submitted on time, i.e., by June 30, 2013.

5.6 Joint Alternative Report on the Combined State Report of Sri Lanka, 2010

The Joint Alternative Report is submitted by the Collective for Economic, Social, and 32 Cultural Rights of Sri Lanka on the Combined State report on Sep.10, 2010. The Alternative Report begins to conclude that an estimated 85,000 people were killed during the twenty-six years war with LTTE that ends in May 2009. A large number of IDPs some 5,29,500 (as of January 2010) despite the resettlement programmes. The resettlement lacks durable solution viz. adequate shelter, food, water, and livelihood opportunities. Almost 2,50,000 among them (as of May 2010) continue to be dependent on humanitarian aids in Northern provinces alone. The end of war doesn’t accompany rapid improvement of human rights situations save arm secessionisms and Presidential and Parliamentary elections in the island.

The detention of Tamils (over 1900) is continued for more than one year after the end of war. Such practices are degrading the democratic values. The North and East region is highly militarised that intervene the normal public living. The power devolution norms that enhance the authority of provincial establishments, is continually frustrated by the central government particularly in Northern and Eastern provinces. The lack of independence of NHRC grossly hampers the resolution of thousands of cases on human rights violation. The abolition of term limit and the power of direct appointment vested with the President downgrade the effectiveness of the independent institutions. The torture and threat to the human rights activists harshly curb the right to freedom of expression and speech. The suspension of preferential trading access with the European Union in 2010 hardly struck the livelihood of 3,00,000 people mainly women garment workers. The discriminatory citizenship provisions targeted to Tamils of Indian origin proscribe the socio-political development of the community.

Article 1 (Rights of Indigenous People) – The existence of adivasi (known as Vedda) community is nearly on the verge of extinction. Their ESC rights are largely denied to them with the systematic detachment from the land they traditionally reside and use as

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the source of income. The persistent discrimination at all the indicators including education, employment, housing, health, etc., disallows the growth of the community as a whole.

Articles 2 and 3(Non-Discrimination and Equality) – The gender discrimination particularly in inheritance rights, personal laws, marriageable ages, etc., is highly obstructing the ESC rights security of women. The draft Women’s Rights Act (2004) is a mere reality in absence of satisfactory persuasion. The political representation of women at all the levels indicates the miserable condition of half of the population. The gender discrimination in employment restricts the number female workers stagnant for decades. The weak regulations to uplift the condition of PWDs do not work to realize the promotion of ESC rights for the community.

Article 6-9 (Right to Work, Rights at Work, and the Social Security) – The absence of domestic legislation on the equal pay for the work of equal value, largely hampers public and private sectors. The minimum wages fixed by wage boards are insufficient for the adequate standard of living of the workers and their families. Regional disparities persist particularly to North and East region. The legislation on sexual harassment doesn’t address sufficiently the misdeeds at workplaces. The trade union rights are suppressed by the activities of the authorities including at EPZs. The right to strike, which is a statutory law, is intervened by the Courts to make it void. The national labour laws do not abide by the ILO standards with respect to trade union rights and collective bargaining.

The ethnic minorities are under-represented in public employment including State administrative services even where they are dominant. The adequate social security system is lacking in all the sectors of the Sri Lankan society. The rights of transgender and homosexuals aren’t sufficiently guaranteed. The migrant workers rights aren’t sufficiently addressed. The social security benefits aren’t protected for the workers of informal sectors.

Article 10 (Rights in the Family) – The Prevention of Domestic Violence Act (PDVA), 2005 doesn’t specifically address the plight of women. The lack of gender sensitization resonates throughout the implementing authority including judiciary, law enforcement officials, medical officials, etc. The marital rape isn’t recognized as

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criminal act in all the circumstances. The disparity in maternity benefits persists in public and private sectors. The government is unable to eradicate child labour in all its forms.

Article 11 (Right to Adequate Food) – The availability of basic foods at affordable prices has been cut down to promote foreign investment and imports. The Poverty Headcount Index is highest in the estate region largely dominated by plantation workers (32 percent), rural sector (15.7 percent), and lowest in urban region (6.7 percent). The regional disparity highly influences the poverty alleviation programmes in various parts of the country. The child mortality rate in estate sector is very high in comparison to national average. The situation of malnutrition among IDPs highly hampers the growth especially of children.

Article 11 (Right to Adequate Housing) – The clear policy related to housing, land, property, and resettlement is yet to be drafted. The HSZs created under the emergency regulations bar thousands of families to return to their vacated homes without due process. The persistent threat of evictions to the informal settlements including slums for the development projects is the destiny of thousands of families. The housing schemes in plantation sector are in extremely worst condition without ownership right to these people.

Article 12 (Right to Adequate Health) – The right to health isn’t recognized in the Constitution of Sri Lanka. The poor implementation of the policies and privatization of healthcare services have led to steep decline in quality healthcare services. The sheer lack of trained medical practitioners and staffs increases the risk of epidemic and endemic diseases to persist in the population. The regional disparities and gender discrimination in accessing healthcare services, promote poor protection of health rights of a larger population including transgender, women, people from estate region, etc. The schools are severely lacking sanitation facilities, and safe drinking water supply that lead to unhygienic environment. The Occupational Safety and Health provisions are having weak implementation in Sri Lanka.

Articles 13 and 14 (Right to Education) – The budgetary allocation on education is fairly low in comparison to other middle income countries of the region. The rural- urban disparities in providing facilities to schools don’t attract admissions to grade

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one in the former. The government failure to provide facilities results in closing of a range of schools that increases competitiveness to secure admission baring many students out of school for a year or more. The percentage of eligible group for the admission in Universities is much higher from those who actually secure admission from that group. A large number of IDPs children particularly in Northern provinces are out of school. The resettlement programmes for the reopening of schools in war affected area is harshly smacked by destruction of school buildings, lack of resource supplies, and transportation difficulties for both students and teachers.

Article 15 (Cultural Rights) – Sri Lanka being multi-ethnic, multi-religious, and multi-cultural State, the recognition to many numerically inferior minority groups haven’t given proper linguistic and cultural identity. The religious intolerance is rising day by day in view the Sinhala nationalist movement. The freedom to speak in one’s own mother tongue for the State affairs is largely unmanageable – no bilingual facilities are provided outside Northern and Eastern provinces.

The rights of Northern Muslim IDPs particularly of resettlement and return to their original housing sites are very difficult in absence of proper assistance and willingness on part of the government authorities.

5.7 The Fifth Periodic Report of Sri Lanka (2015)

The government of Sri Lanka submits the Fifth periodic report on the ICESCR to the 33 Committee on October 7, 2015 (which was due on June 30, 2013). The report highlights the progress made in the implementation of ESC rights during the reporting period. It also attempts to answer the issues for which detailed clarification was sought in the Concluding Observations adopted on the Combined State report. The Pre-Sessional Working Group of the Committee at its fifty-ninth session (October 10- 34 14, 2016) adopts the List of Issues on the Fifth periodic report of Sri Lanka. The written Replies to the List of Issues by the government has been received by the Committee on May 26, 2017. The date of expected consideration of the Fifth periodic th report of Sri Lanka is scheduled to be at the 61 session of the Committee (May 27 – 35 June 23, 2017).

The oral conversation of the State delegation of Sri Lanka with the Committee members in the light of the List of Issues raised by the Pre-Sessional Working Group

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and written Replies by the government has determined the course of adoption of the Concluding Observations by the Committee on June 23, 2017 on the Fifth report. The Alternative Reports submitted by the civil society and non-governmental organizations has played an important role to assess the reliability of the State report submitted by the government. At the general day of discussion on the first day of the Committee’s session, the participating NGOs have presented their oral conclusions. In st this way, the Committee has adopted in a closed meeting at the end of the 61 session the Concluding Observation on the Fifth State report of Sri Lanka.

The scope of the Fifth periodic report of Sri Lanka is outside the purview of the present research because of the resource constraints. The larger part of the research analysis is based on the written Replies to the List of Issues by the government, the oral communication of the State delegates with the Committee members (the consideration of the report), the oral representation of the NGOs on the general day of discussion, and finally the adoption of the Concluding Observations. The researcher is expected to continue his research study regarding the Fifth periodic report as soon as the required research resources are available.

5.8 Conclusions

The reign of good governance and rights regime of the pre-independent colonial Sri Lanka is transmitted peacefully to the native elites. The lack of mass participation in the freedom movements fetches loose bond of national integration. The Soulbury Constitution of 1948 promoted equal respect for every ethnic and religious group and the judiciary was empowered to review the steps taken by the executive. The socio- economic prosperity in terms of education, employment, health, housing, etc., was well upto the mark in comparison to neighbouring South Asian countries. The model governance system of the region soon turned into the unending conflicts between majority Sinhala Buddhists and minority Tamil Hindus to preserve their respective nationalist identity.

The pace of social development is directly hindered by the continuous civil wars and separatist politics. The frequent violation of rights on part of the government authorities become the motto of the nation as a whole. The protection of ESC rights is largely denied in view of the regional disparities, ethnic discriminations, and gender

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inequalities. The government of Sri Lanka ratifies the ICESCR in 1980 and submits its Initial report after sixteen years in 1996. The Concluding Observations of the Committee aren’t taken enthusiastically by the government; they largely met with the disappointments on most of the social indicators save virtual claims with distinct ground realities. The Committee has recommended to enhance the justiciability of ESC rights for all, including marginalized, disadvantaged, and vulnerable groups parallel with the principles of the ICESCR.

The Combined periodic State report, however, is appreciated to achieve the MDGs in education and health and for most of the other indicators the State Party is on the track. The excessive executive superiority hampers the independence of judiciary and oversight bodies. The State institutions are highly under the influence of corruption and nepotism. The discrimination, inequality, and instability are still persistent in education, employment, healthcare services, housing, and other indicators of social development. The existence of indigenous people (Veddas) is at the extinction. The citizenship issues of Tamils of Indian origin and resettlement of IDPs demand urgent resolution. The problem of sexual exploitation of children and domestic violence against women demean the existence of social standards. The systematic regional disparities impart the protection of ESC rights of thousands of people under constant threat. The limited scope of social security provisions has left larger masses susceptible to destitution.

The government is encouraged to impart full justiciability and uniform implementation of the ESC rights in the domestic legislation. To improve the existing situation on ESC rights, the excessive interference of the executive to influence the jurisdiction of the Courts and other oversight bodies must be legitimately prohibited. The systematic exclusion of certain regions and certain communities of the country to get benefitted from the welfare policies must be avoided for the overall development. The political differences on the nationalist identity issues should be minimized to establish peace and prosperity in the country. The de facto protection of the rights of vulnerable and marginalized communities must strongly abide the principles of ICESCR at all levels. The constructive recommendations suggested in the Concluding Observations of the Committee in the light of NGOs reports might play vital role to improve the enforcement of ESC rights for the entire population.

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Endnotes

1. John R Hicks, “Reflections on the Economic Problems of Ceylon” Papers by Visiting Economists (Colombo: Planning Secretariat, 1959): 9-21.

2. Paul R Brass, ed., Routledge Handbook of South Asian Politics: India, Pakistan, Bangladesh, Sri Lanka, and Nepal (London/New York: Routledge, 2010): 2.

3. Nira Wickramasinghe, “Sri Lanka’s Independence: Shadows over a Colonial Graft” in Brass, Routledge Handbook of South Asian Politics, note 2, 48-49.

4. Sirimal Abeyratne, “Economic Roots of Political Conflict: The Case of Sri Lanka” The World Economy 27, no.8 (2004): 1295-1314.

5. Sanjay Chaturvedi, “The Hindu World-View and South Asia: Orders, Borders, and Others” in International Relations Theory and South Asia, ed. E. Sridharan (New Delhi: Oxford University Press, 2011), vol.2: 282-285.

6. See for the discussion on how the enmity with the British ruler has been transformed into the ethnic enmity between majority and minority groups in Sri Lanka, J. Uyangoda, “The Birth of a Tragedy” Frontline 15 (1998), (accessed on Mar.15, 217 at the link below): (http://www.frontlineonnet.com/fl1505/15050620.htm).

7. Sri Lanka was considered a model colony of Britain and after independence, believed many, would led to model statehood; see for example, W Howard Wriggins, “Impediments to Unity in New Nations: The Case of Ceylon,” American Political Science Review 55, no.2 (1961): 313-320.

8. Neil DeVotta, “Politics and Governance in Post-independence Sri Lanka,” in Brass,

Routledge Handbook of South Asian Politics, note 2, 118. See also Saman Kelegama, “Sri Lanka” in Handbook on the South Asian Economies, eds. Anis Chowdhury and Wahiduddin Mahmud (UK: Edward Elgar Publishing Limited, 2008): 125.

9. See “Constitutional Reforms over the Years,” Sunday Observer, Sri Lanka (Sunday, Sep.5, 2010).

10. See for the full text of the Soulbury Constitution Ceylon Constitution Order in Council 1946, (accessed on Mar.25, 2017 at the link below): (http://tamilnation.co/srilankalaws/46Constitution.htm).

11. KM De Silva, “A Tale of Three Constitutions 1946-8, 1972 and 1978,” The Ceylon Journal of Historical and Social Studies VII, no.2 (1977): 7.

12. The full text of the Constitution of First Republic of Sri Lanka 1972 is available at (accessed on Mar.20, 2017 at the link below): (http://tamilnation.co/srilankalaws/72Constitution.htm).

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13. V Suryanarayan, “Constitutional Imbroglio in Sri Lanka,” The Hindu (India: Online edition, Thursday, July 26, 2001), (accessed on Mar.22, 2017 at the link below): (http://www.thehindu.com/2001/07/26/stories/05262523.htm).

14. See the International Institute for Democracy and Electoral Assistance Constitutional History of Sri Lanka, (accessed on Mar.27, 2017 at the link below): (http://www.Constitutionnet.org/country/Constitutional-history-sri-lanka).

15. The full text of the Constitution of Second Republic of Sri Lanka 1978 is available at (accessed on Mar.20, 2017 at the link below): (http://www.priu.gov.lk/Cons/1978Constitution/1978ConstitutionWithoutAmendment s.pdf).

16. The full text of the Constitution of Sri Lanka with nineteenth amendments as of May 2015 is available at (accessed on Mar.27, 2017 at the link below): (https://www.Parliament.lk/files/pdf/Constitution.pdf).

17. See for the discussion on the judicial system under the colonial Sri Lanka, Nagananda Kodituwakku, “Judicial Decision Making in the Cases of Bracegirdle & Gunaratnam” Colombo Telegraph (Sri Lanka, Apr.3, 2016). This article is available at (accessed on Mar.28, 2016 at the link below): (https://www.colombotelegraph.com/index.php/judicial-decision-making-in-the- cases-of-bracegirdle-gunaratnam/).

18. See for example Kingsley M De Silva, A history of Sri Lanka (London/Berkeley: University of California Press, 1981): 511-512.

19. See Shirani A Bandaranayake, The Courts in Implementing Human Rights: The Sri Lankan Experience Seminar on Human Rights in Education before the Ethics Committee of the Sri Lanka Association for the Advancement of Science (Aug.8, 2003). The electronic copy is available at (accessed on Apr.2, 2017 at the link below): (http://www.island.lk/2003/08/22/featur02.html).

20. See Rohini Hensman, “Independent Judiciary and Rule of Law: Demolished in Sri Lanka,” Economic and Political Weekly 48, no.09 (Mar.2, 2013). The electronic copy is available at (accessed on Apr.3, 2017 at the link below): (http://www.epw.in/journal/2013/09/commentary/independent-judiciary-and-rule- law.html).

21. The ratification status of the ICESCR as well as declaration and reservation made by Sri Lanka are available at the official webpage of the UN OHCHR, (accessed on Apr.5, 2017 at the link below): (http://www.ohchr.org/EN/HRBodies/CESCR/Pages/CESCRIndex.aspx).

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22. See the official webpage of the UN OHCHR for the 1990 deadlines for the submission of documentation for Asia Pacific (Sri Lanka) to the CESCR, available at (accessed on Apr.5, 2017 at the link below): (http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/MasterCalendar.aspx).

23. See the Initial periodic State report of Sri Lanka on the ICESCR submitted to the Committee on ESCR on Mar.5, 1996, UN Doc. E/1990/5/Add.32 (Jan.13, 1997).

24. See the data on housing, sanitation, water supply, etc., provided by the Department of Census and Statistics Sri Lanka based on National Housing Census of 1981. The official webpage of the Department is available at (accessed on Apr.5, 2017 at the link below): (http://www.statistics.gov.lk/).

25. See the Concluding Observations adopted by the Committee on the Initial periodic State report of Sri Lanka on the ICESCR, UN Doc. E/C.12/1/Add.24 (June 16, 1998).

26. See the Combined Second, Third, and Fourth periodic State report of Sri Lanka on the ICESCR submitted to the Committee on June 9, 2008, UN Doc. E/C.12/LKA/2-4 (Jan.27, 2010).

27. See the Core Document Forming Part of the Reports of States Parties submitted by Sri Lanka on Apr.23, 2008, UN Doc. HRI/CORE/LKA/2008 (Sep.23, 2008).

28. See the List of Issues adopted by the Pre-Sessional Working Group of the Committee on the Combined Second to Fourth periodic State report of Sri Lanka on the ICESCR, UN Doc. E/C.12/LKA/Q/2-4 (June 14, 2010).

29. See the Replies to the List of Issues raised by the Pre-Sessional Working Group of the Committee on the Combined Second to Fourth periodic State report on the ICESCR by the government of Sri Lanka (Oct.15, 2010), UN Doc. E/C.12/LKA/Q/2- 4/Add.1 (Oct.21, 2010).

30. See the Replies to the List of Issues. Ibid para.122.

31. See the Concluding Observations on the Combined Second to Fourth periodic State report of Sri Lanka on the ICESCR adopted by the Committee at its fifty-fifth meeting (Nov.19, 2010), UN Doc. E/C.12/LKA/CO/2-4 (Dec.9, 2010).

32. See the Joint Alternative Report submitted by Collective for ESC Rights in Sri Lanka on the official webpage of the UN Treaty Bodies, available at (accessed on Apr.5, 2017 at the link below): (http://tbinternet.ohchr.org/Treaties/CESCR/Shared%20Documents/LKA/INT_CESC R_NGO_LKA_45_9509_E.pdf).

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33. See the Fifth periodic State Report of Sri Lanka on the ICESCR submitted to the Committee on Oct.7, 2015, UN Doc. E/C.12/LKA/5 (Feb.4, 2016).

34. See the List of Issues on the Fifth periodic State report of Sri Lanka on the ICESCR adopted by the Pre-Sessional Working Group of the Committee at its fifty- ninth session (Oct.10-14, 2016), UN Doc. E/C.12/LKA/Q/5 (Nov.8, 2016).

35. See the expected date of consideration of the treaty bodies for Sri Lanka on the official webpage of the UN available at (accessed on Apr.10, 2017 at the link below): (http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/MasterCalendar.aspx?Type= Session&Lang=En).

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Chapter Six

CONCLUSIONS, ASSESSMENTS, AND

RECOMMENDATIONS: A COMPARATIVE PERSPECTIVE

Image Courtesy: National Flags of India, Nepal, and Sri Lanka by “Google Images” (slightly modified) Comparative Study

The comparative method is a scientific technique that makes inquiries to widen the benefits of social life. It is sometime employed to elaborate the hidden facts or the facts reluctantly avoided but have immense impact on the society. The broad base line of comparison in social sciences extends upto cross-national studies that highlight the trends in unemployment, malnourishment, and other important socio-economic variables. The study of the implementation of economic, social, and cultural rights in India, Nepal, and Sri Lanka has considerable significance in the South Asian region. The improvement in development indices, in some way, of one region is contingent to affluence, peace, and security of other region.

The intricacies of poverty, food insecurity, malnourishment, illiteracy, unemployment, housing, etc., are prevalent in all the three countries. The governments with different welfare policies and programmes attempt to minimize the sufferings of the people. It is the ratification of the ICESCR that involves uniform guidelines to implement socio-economic provisions in the national legislations. The periodic reporting procedure on the progress achieved enforcing ESC rights unfolds positive as well as negative aspects of the respective countries’ obligations. The Concluding Observations adopted by the Committee explicate, along with other recommendations, institutional obligations to upgrade the existing infrastructures. The comparative study of the implementation of ESC rights in India, Nepal, and Sri Lanka might supplement the enforcement possibility of important social variants wherever least implementation is discerned.

This chapter is divided into four broad sections. Section one discusses the comparative analysis of different ESC right’s indicators in India, Nepal, and Sri Lanka to examine who among them is a better performer. Section two illustrates in detail the country specific recommendations to improve the ESC right’s situation as underlined by the UN Committee in the light of NGOs’ suggestions. Section three assesses the main findings and recommendations of the study as observed by the researcher. The scope of further research is discussed in the last section.

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6.1 A Comparative Study of the Implementation of the ESC Rights in India, Nepal, and Sri Lanka

This section attempts to make a comparative analysis of various issues affecting the growth of socio-economic life in India, Nepal, and Sri Lanka. The issues range from the establishment of the democracy in the region, public participation to the mainstream political life, Constitutional protection of the ESC rights, the role of the judiciary to promote these rights, role of the civil society, will of the political elites, awareness among the stakeholders, training of the law enforcement officers including police, and the promotion of human rights education. The section then highlights the comparative status of the implementation of the general as well as substantive provisions of the ICESCR in the respective countries.

The country specific remark on each benchmark is followed by a paragraph in italics that concludes relative performance of individual country in comparison to other. It attempts a comparative analysis to highlight better performer among the three countries for the specific benchmark effecting ESC rights enforcement in the region.

(i) Democratic Government

The Constitution of India declares India as Sovereign Socialist Secular Democratic Republic. The successive governments after independence focus on the inclusive growth of the entire population. Today, India is regarded as the largest functional democracy of the world. The continuous progress in development indices exclaims the success of democracy in the region.

The governance of Nepal is largely occupied by authoritarian rule for long period until a few years ago. The king was the absolute power to control all the socio- economic affairs of the State. The protection of ESC rights is highly discriminatory on the basis of caste, class, region, ethnicity, etc. It is only in 2008 that Nepal declares itself Federal Democratic Republic (before that, Hinduism was the Sate religion). The consistency of democratic values in the region still is evolving – the most recent Constitution of Nepal is adopted in 2015.

The ideal administrative experiences of the colonial Sri Lanka continue to preserve the high rate of literacy, health, food, etc., after independence in comparison to other South Asian countries. The subsequent quarter century is termed as one-time model

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democracy for its outstanding performances on the development indices; although Sri Lanka becomes true Republic only in 1972 (before that, it was a Commonwealth member of the Britain). The shift of Parliamentary form of government to the Presidential form couldn’t stabilize the democracy in the region. The continuous civil wars, ethnic conflicts, regional disparities put a question mark on the protection of ESC rights in Sri Lanka.

It is obvious from our study that the democratic values in India are getting stronger day by day. The graph of democratic values begins to constrict in Sri Lanka after it becomes a true republic in 1972. The establishment of democracy in Nepal is still in its preliminary phase.

(ii) Political Representation

The mass participation in the struggles for freedom sustain strong bond of national integration in India. The Constitution of India respects the significant contribution of each and every citizen toward the nation building. The public representatives are periodically elected through the ‘one person – one vote’ scheme from national to regional level under the multiparty based federal governance system. These representatives are obliged to fulfill the interests of the people otherwise they have to face defeat in the next election.

The larger period of the Nepali politics is governed by dynasty regimes. The general masses don’t have a say in the mainstream political life of the nation. The reinstatement of the multiparty based political system after Jan Andolan I, 1990 ends the thirty years Partyless Panchayat System. It is only after Jan Andolan II (the Democratic Movement 2006) that the true spirit of democratic rights to participate in the political affairs, has been granted to the people. The true representation is still under threat as the key posts of the major political parties are occupied by the higher caste Hindus.

The universal franchise, for the first time, beyond the white dominion of the British Empire was implemented in Sri Lanka in 1931 before its independence. The discriminatory Citizenship Acts after independence render thousands of Tamils of Indian origin, the representation to the national politics a distant dream. The Alternative Reports of NGOs (discussed in chapter five) dispel the government’s

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claim to the complete resolution of the citizenship issues to all the peoples of Sri Lanka.

The broad political representation is much better in India; every section of the society is well represented in the political affairs of the nation. The institutional discriminatory approaches highly prevent the scope of representation to all the citizen of Sri Lanka in the national political life. The strong political representation of each and every section of the society is yet to be realized in Nepal.

(iii) Constitutional Protection of the ESC Rights

The Constitution of India (1950) included various provisions of the ICESCR before it was adopted in 1966. The Constitution in that way was much ahead of its times. An extensive chapter IV on the DPSP, although non-justiciable in nature but are considered fundamental to the governance of the country, deals with all kinds of ESC rights. There are other ESC rights in the Indian Constitution that are justiciable under the extended ambit of fundamental rights, as adjudicated by the Supreme Court of India.

The recurring political transitions in Nepal, thereby substituted with the new Constitutions, don’t settle the permanent recognition of the individual’s rights. Different Constitutions of Nepal (1854, 1963, 1990, 2007, and 2015) under the influence of Hindu hierarchy sideline the social interests of the majority population every time. Most of the ESC rights are justiciable since the adoption of 2007 Interim Constitution but the status of the provisions are still unclear in the domestic legislation in absence of case laws.

The current Constitution (1978) of Sri Lanka comprises limited scope of the ESC rights under chapter VI on DPSPFD. These are not justiciable before the Courts of Sri Lanka rather will be achieved progressively. However, it is gratifying to note that the HDI of Sri Lanka as per UNDP data is relatively better for MDGs in the South Asian region. The regional disparities particularly between West (majority Sinhala population) and North and East (highly populated by Tamils) region need to be resolved immediately.

The Constitutional protection of ESC rights in India is far better and inclusive. However, on the matter of justiciability, it lags behind Nepal where most of the ESC

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rights are justiciable before the law. The Constitutional protection of ESC rights in Nepal is yet to be realized de facto. The scope of Constitutional protection of the ESC rights in Sri Lanka is very limited but is better in practice.

(iv) Judicial Activism

The judiciary of India has played a significant role after 1980s with the evolution of Public Interest Litigation. The judicial activism in India has increased the confidence of the people in the justice system. The contemporary stand of the Indian judiciary to the justiciable fundamental rights and the non-justiciable DPSP are complementary to each other. Various case laws (discussed in chapter three) have enhanced the enforcement of ESC rights under the expanded ambit of the fundamental rights especially the right to life (Article 21) of the Indian Constitution.

The judiciary of Nepal is restricted to issue formal orders to the government without genuine enforcement force behind those orders. The provision of Public Interest Litigation following Indian judiciary is operational but limited to the Supreme Court of Nepal only. The scope of case laws on ESC rights is limited to explain the procedural loopholes that are directed toward the government but lack strong opinion on enforcement. The enforcement on part of the executive is deliberately delayed or refused in most of the cases.

The strong judiciary of colonial Sri Lanka doesn’t preserve its mandate for long after independence. The judiciary of independent Sri Lanka can only review the legislative and executive policies but can’t rule it out. The independence of the judiciary is highly crushed under the aegis of the executive superiority. The judicial activism as prevalent in other South Asian countries is never seen here in Sri Lanka. The role of judiciary toward the promotion of non-justiciable ESC rights is negligible.

The role of Public Interest Litigation in the Indian judiciary is very strong. The independence of the Indian judiciary is highly preserved. The scope of Public Interest Litigation is limited only to the Supreme Court of Nepal. The independence of the Nepali judiciary isn’t strongly confirmed by the executive in the absence of non compliance of the orders. The role of Public Interest Litigation in Sri Lankan judiciary is negligible. The independence of the judiciary in Sri Lanka is highly crushed in view of the executive superiority.

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(v) General Awareness of ESC Rights

Thousands of NGOs in India in collaboration with many INGOs function toward the promotion of ESC rights and periodically submit alternative reports to the monitoring body. The establishment of welfare society is the mission of the successive governments in India after independence. The effectiveness on part of the law enforcement officials including police needs to be strengthened. The rights awareness among the marginalized and disadvantaged groups including tribal, women, children, disabled persons, etc., is low. The agenda of human rights education, somehow, occupies space at higher education but yet to be included at school curriculum.

A very few NGOs work for the promotion of ESC rights in Nepal; rather branches of INGOs are active and assess the situation better. The will of the executive is never enthusiastic to the promotion of ESC rights in Nepal (which is clearly visible in different Constitutions). The law enforcement officials have the same attitude as the executive. The general awareness and human rights education need to be widely and urgently exclaimed.

In contemporary Sri Lanka, the role of local NGOs is better than Nepal in their advocacy and the promotion of ESC rights. The quarter century after independence has a better record of development indices including ESC rights. The politics of regional disparities and separatist movements highly induce discriminatory ESC rights protection to the people of North and East region (majority Tamils). The HDI of Sri Lanka as per UNDP data performs better for most of the MDGs. The law enforcement officials including police are highly discriminatory toward the protection of rights of Tamils. The rights awareness particularly for illiterate Tamils of Indian origin is negligible.

The general awareness on the ESC rights among the larger masses and the State officials is, somehow, better in India followed by Sri Lanka and least in Nepal. The promotion of human rights education is better in India. The case of Sri Lanka is, somehow, better than Nepal as the adult literacy rate is high.

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General Provisions of the ICESCR (Articles 1-5)

(vi) Self-Determination of the People

The government of Republic of India has made a declaration to Article 1 of the ICESCR on self-determination of the people. It argues that sovereign independent nature of the State in India well preserves the individual rights that ultimately promote the self-determination of the people. It declares that the provision of right to self- determination applies only to the peoples under foreign domination. The declaration made by the government of India has been harshly objected by France, Germany, Netherlands, and Pakistan. They defend the importance of the UN Charter and the two Covenants promoting self-determination of all the peoples not only of the people under foreign domination. The rampant violations, however, of the rights of marginalized communities in India particularly SCs, STs, women, PWDs, etc., hamper their dignified life in the society.

The dynasty regime concerns with limited scope to protect the self-determination of the people. The authority of sovereign nature of the State has been politically empowered to the people of Nepal a few years ago (after the reinstatement of multiparty based political system in 1990). In the current political scenario, Hindu hierarchy controls the reign of important social institutions which still prevent the marginalized communities to have a dignified life.

The universal franchise instituted before the independence has been enlarged to expand the representation of the people in independent Sri Lanka. The devolution of powers is exercised to enhance the self-determination of the people upto regional levels. The regional disparities, however, highly deprive the self-determination of the people residing in North and East region. The condition of IDPs is no more dignified. The indigenous people (Veddas) are at the verge of extinction.

The discriminatory approaches to enjoy the self-determination of the people have been abolished in the Indian society to a greater extent. The government of India should immediately withdraw the declaration made to Article 1 of the ICESCR. The higher degree of systematic regional discriminations persists in the Sri Lankan society that prevents self-determination of thousands of people; Nepali people faces similar crisis with mild scale.

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(vii) State Obligations to fulfill ESC Rights of the People

The provisions of ESC rights in India are progressively realized according to the use of maximum available resources of the State. The formulation of policies in this regard is, however, considered fundamental to the governance of the country. The judiciary of India has made laudable achievements to enforce numerous ESC rights such as rights to food, safe drinking water, education, clean environment, etc., under the expanded ambit of the fundamental rights (particularly Article 21 of the Indian Constitution). The government of India, however, doesn’t actively incorporate judicial interpretations on the enforcement of ESC rights in the domestic legislation.

The Constitution of Nepal recognizes the justiciability of most of the ESC rights. The State obligations to fulfill the Covenant’s provisions are still vague in the domestic legislation in the absence of case laws. The Court orders (if any) are deliberately refused by the executives and law enforcement officials.

The ESC rights are non-justiciable before the Courts of Sri Lanka. Despite the high ratings of HDI in comparison to neighbouring South Asian countries, Sri Lanka still falls short of fully complying with the State obligations to minimize the regional disparities, as the State systematically prevents ESC rights realization of the people residing in Northern and Southern part of the country.

Most of the ESC rights are justiciable in Nepali jurisdiction (at least on paper). In India and Sri Lanka it is still to be progressively realized. However, the State is keener to fulfill its obligations to protect the rights of people in India. The State obligations aren’t free from regional disparities in Sri Lanka. The pathetic State obligations don’t protect the de facto justiciability of ESC rights in Nepal.

(viii) Principles of Equality and Non-discrimination

The Constitution of India guarantees the equality before the law and equal protection of the law for all its citizens. The discrimination in access to education, employment, food, housing, healthcare, and other basic facilities are constitutionally prohibited. The effective enforcement of ESC rights is hampered by rural-urban gap, gender inequalities, and discriminations with marginalized communities despite the existence of legal provisions proscribing it.

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The Constitution of Nepal augments the discrimination toward the vulnerable and disadvantaged groups preserving the sanctity of Hindu hierarchy. The customary and traditional practices denigrate the position, particularly of Dalits and women in the society. The high level of discrimination is exercised at all levels of access to the ESC rights particularly by marginalized communities.

The government of Sri Lanka systematically induces the principles of inequality and discrimination to access ESC rights uniformly throughout the country. The people of North and East region (majority Tamils) consistently face discriminations in education, employment, health, food, etc., including to receive the funds of emergency aids.

The principles of equality and non-discrimination have been implemented to a greater extent throughout the Indian society. The status of governments of Sri Lanka and Nepal is almost similar in this regard; State officials systematically induce the principles of inequality and discrimination for their vested interests. However, the extent of effected population by the principles of inequality and discrimination is larger in Nepal.

Substantive Provisions of the ICESCR (Articles 6-15)

(ix) Articles 6-8 (Work and Trade Unions)

The rate of employment generation in India couldn’t progress according to the rapid economic growth after independence. The high rate of unemployment and underemployment is the reality of rural India. The job security and gender ratio in different sectors, particularly of marginalized and disadvantaged groups, aren’t properly ensured. The legislation doesn’t deal stringently to the persistent child labour and other forms of worst labour. The standard minimum wage isn’t sufficient to fulfill the adequate standard of living for the workers and their dependents particularly in informal sectors. The larger pool of informal sectors is devoid of the benefits of organized labour inspectorate and trade unions.

The larger population of Nepal is employed in informal sectors (mostly agro-based). The working conditions of informal sectors are vulnerable completely devoid of inspectorate facilities. The legislations on minimum wage are yet to be implemented. The rehabilitation process of former bonded labourers isn’t up-to-date. The condition

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of migrant workers at the host countries is vulnerable especially of women. The infrastructure of trade unions is weak.

The government of Sri Lanka fails to generate stable employment opportunities to the migrating women for domestic help and youths to other countries. The inequality, discrimination, and sexual harassment at workplaces are frequent. The minimum wage particularly to the plantation workers doesn’t meet the adequate standard of living. The independence of trade unions are crushed by the State government; State employs are punished to join unions beyond due procedure.

The stable opportunity of employment is better in India followed by Sri Lanka and least in Nepal. The working conditions in most of the informal sectors aren’t better in India and Sri Lanka. The case of working conditions is worst in Nepal. The functioning of trade unions is far better in India. The situation of Nepal is, somehow, better than Sri Lanka to the operation of trade unions. In Sri Lanka, employees are restricted to form and join trade unions of their choice.

(x) Social Security Benefits (Article 9)

The benefits of social security system in India viz. contributory (insurance based) as well as non-contributory (universal schemes and targeted social assistance) cover only a small workforce of organized sectors. The larger workforce of more than ninety percent in informal sectors is devoid of the organized social security benefits.

The national legislation of Nepal is yet to widen the scope of social security benefits upto the universal coverage. The new draft Constitution ineffectively covers the social security benefits to certain groups only rather the people in need. The existing provisions are largely charity-based poorly covering small organized sectors only.

The State of Sri Lanka promotes social security benefits to both the formal and informal sectors for most of the social risks and contingencies. It specially includes services to the family of migrating women as well as to the returning migrant workers. The coverage needed in the informal sectors is currently low.

The scope of the coverage on social security benefits is wide in Sri Lanka in comparison to India. The legislation on universal coverage of social security benefits

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is yet to be visualized in Nepal. The coverage in informal sectors is low in Sri Lanka, however, relatively better than India.

(xi) Protection of the Family and Children (Article 10)

The marriageable age in India to form a family (eighteen years for both the genders) has been largely accepted by all the communities through the efforts of civil society campaigning, nonetheless, uniformity is still needed. The domestic violence against women and sexual exploitation of children at home are rampant. The sex selection and the abortion of the girl foetus despite legislations against its practice are frequent. The personal laws are not uniform.

The existing data shows that half of the adults of Nepal were married when they were children. The girl child specially married young in view of the dire poverty of the family. The concrete legislations are yet to be enforced to curb the domestic violence against women, sexual violence against children, and trafficking in persons. The child labour is relatively high in comparison to other South Asian countries.

The customary and traditional laws in Sri Lanka are still operative to regulate the family affairs (e.g., lower marriageable age) that interfere with the national legislations. The laws on the prevention of domestic violence against women are ineffective and inaccessible. The marital rape is not criminalized in all the circumstances. The legislation to curb child labour in all its forms is ineffective. The legislation to hold child sexual abuses doesn’t cover child sex tourism.

The practice of lower marriageable age to form a family is worst in Nepal followed by Sri Lanka. In India the situation is largely reformed through the awareness among the communities. The legislations on the domestic violence against women and sexual exploitation of children are stronger in India than Sri Lanka. Nepal is yet to have concrete legislation on the subject matter. The incidence of child labour is relatively worst in Nepal.

(xii) Right to Food and Adequate Standard of Living (Article 11)

The welfare policies and schemes in India to alleviate the poverty and food insecurity lack the effective implementation to minimize the prevalent situation. The discriminatory redistributive systems influenced by regular corruption prevent the

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government’s fund to reach the rural areas and the urban poor. The lack of concrete national housing policies invites large number of slums and informal settlements without basic facilities of electricity, water supply, sanitation, etc. The displacement and forced eviction are rampant without due rehabilitation and compensation process.

The acute poverty in Nepal is one of the main apprehensions of the contemporary age. The country administers, for the first time, to include the provision on right to adequate food in its Interim Constitution 2007. The ineffective implementation mechanisms make food security yet a serious problem in Nepal. The rehabilitation of forcibly evicted persons particularly women is very difficult in the absence of concrete policies. The rapid price rise of land and high rate of rural-urban migration as well as lack of housing policies make it difficult to afford a house.

The poverty alleviation programmes in Sri Lanka are highly discriminatory parting people of particular regions in vulnerable situations. The situation of food shortage, malnutrition, rate of child mortality, etc., is very high among IDPs and estate region dominated by plantation workers. The concrete policy on housing, land rights, and resettlement is yet to be drafted. The forced eviction is frequent to install development projects without due procedure. The housing facility in plantation sector is in extremely worst condition.

The poverty alleviation programmes are more inclusive in India than Sri Lanka. Nepal still faces acute poverty in current scenario. The food security for the entire population is largely ensured in India followed by Sri Lanka. It is yet a serious problem in Nepal. The housing facilities in informal settlements in India are, somehow, better than the plantation sector in Sri Lanka. The rehabilitation and compensation process of the evicted person is, somehow, better in India. It is weak in Sri Lanka. Nepal lacks concrete laws on the rehabilitation of evicted persons particularly women.

(xiii) Physical and Mental Health of the People (Article 12)

The budgetary allocation in India on the health sector is extremely low (one percent of the GDP) despite rapid economic growth. The lack of reproductive health and sex education causes high rate of maternal mortality and HIV/AIDS throughout the country. Inaccessible family planning services renders overcrowded population. The

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larger private healthcare sectors aren’t properly regulated by laws. The quality healthcare services are inaccessible to the poor and marginalized communities.

The lack of decentralization and insufficient funding in Nepal are the root cause of poor and inaccessible healthcare services in the region. The high rate of mortality and low rate of life expectancy are due to lack of universal healthcare services. The reproductive healthcare and sex education is completely absent. The government doesn’t focus due attention on the mental health of the people.

The indicator on healthcare in Sri Lanka has performed well for the MDGs in the region. The Constitution of Sri Lanka is yet to recognize the accessible healthcare services as the legitimate rights of the people. The regional disparities and gender discrimination make healthcare services inaccessible to larger population. There is lack of comprehensive sexual and reproductive health education. The Mental Health Act 2007 is yet to be enforced.

Sri Lanka has performed well on the indicator of healthcare services for the MDGs. However, availability and accessibility of healthcare services is much better in India. Nepal lacks universal coverage of healthcare for the entire population. The reproductive health and sex education is better in Sri Lanka followed by India. The comprehensive reproductive health and sex education is absent in Nepal. The government is much concerned to the mental health of the people in India. Sri Lanka is yet to enforce the legislation on mental health. Nepal is yet to adopt concrete laws to promote mental health of the people.

(xiv) Right to Education (Articles 13 and 14)

The ineffective provisions on the principles of equality and non-discrimination in India make accessibility of education difficult for marginalized communities particularly girls, Muslim children, SCs, and STs. The Constitutional provision on free and compulsory primary education is yet to be effectively implemented. The pace of enhanced budgetary allocation for education sector is slow in India. The adult illiteracy rate is continued to remain high. The drop-out rate at primary education is still high. The human rights education is absent at school curriculum. The mammoth private education sector is devoid of proper regulations.

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The discriminatory policies of education in Nepal enhance the gap of enrolment between girls and boys and higher and lower castes at all levels. The country is far behind the target of achieving adult literacy rate of seventy-five percent by 2015. The ineffective legislation doesn’t promote compulsory primary education and free secondary education. The State mechanisms are unable to check the high rate of school drop-out. The availability of multi-lingual educational facilities still is weak.

The State of Sri Lanka has performed well on the indicators of adult literacy rate for the MDGs. The funding of public education still is low and school fees are not absolutely free. A large number of children are out of school in the war affected areas. The regional disparities hamper the rehabilitation process of affected schools. The infrastructure and quality of education is still low. The lack of material facilities has shut down many government funded schools which increase competitiveness to secure admission. The opportunity to access higher education is extremely low.

The adult literacy rate is highest in Sri Lanka followed by India. The rate of adult literacy is extremely low in Nepal. The infrastructure and material facilities of schools are better in India. At larger scale, Sri Lanka grossly lacks these facilities. The condition of Nepal is worst. India is at better position to provide the opportunity of quality and higher education. Sri Lanka severely lacks these opportunities. The opportunity to avail higher education is extremely low in Nepal.

(xv) Cultural and Scientific Rights (Article 15)

Lack of protection in India on part of the State machineries has diminished various valuable cultural elements beneficial to the society. The development initiatives by the government are taken without due cultural consultation with the particular community. The participation to get benefitted from the scientific progress is low.

The persistent socio-cultural malpractices in Nepal hamper the enjoyment of cultural life by the entire nation. The discriminatory laws prevent certain sections of the society to participate in the cultural and scientific progress of the nation. The discriminatory cultural laws are often tolerated in the name of religion. The recognition of all the indigenous groups and protection of their cultural rights still are a great challenge in front of the country.

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The proper linguistic and cultural identity in Sri Lanka hasn’t been recognised for various numerically inferior minority groups of the State. The ineffective mechanisms are unable to curb the rising cultural and religious intolerances in view of the Sinhala Buddhist nationalism. The regional disparities largely affect to get benefitted from the cultural and scientific progress of the nation.

The recognition of cultural identity is well preserved in India for every section of the society. It is weak and offensive in Sri Lanka for various cultural minority groups. The recognition of cultural identity is worst for indigenous communities in Nepal.

Finally, the true spirit of human rights is observed when the scope of right to information is broad and accessible. One can ask the concerned authority in a due manner to the accountability they bear to fulfill the obligations.

In India, the Right to Information Act 2005 well acknowledges the defence of the victims including individual as well as groups. The human rights defenders gradually occupy the space of public protection in India. The security of human rights defenders is in its initial phase and doesn’t occupy much space in Nepal. In Sri Lanka, the safety of human rights defenders is always at risk; hundreds of them have been brutally killed. The government of Sri Lanka has yet to implement effective legislation on the protection of the human rights defenders.

6.2 Recommendations of the UN Committee on the ESC Rights in the Light of NGOs Reports and their Suggestions

This study makes a comparative analysis of the record of India, Nepal, and Sri Lanka to implement domestically the obligations to respect ESC rights. Their periodic mandatory State reports to the treaty body provide a framework for our analysis. The recommendations made by the Committee while reviewing their reports in the light of NGOs reports and their suggestions are discussed in the ensuing pages to improve the enforcement of the ESC rights in respective countries.

India

India plays wider socio-political role in the South Asian region. It is of immense value for the internal as well as external affairs to strengthen and make the public institutions more transparent. To enhance the domestic implementation of the ESC

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rights, the Committee formulates many recommendations to be adopted by the government of India. Let us recapitulate them here:

 The self-determination of all the marginalized communities including women, Dalits, SCs, STs, PWDs, etc., must be guaranteed in practice.  The State must ensure the progressive realization of the Covenant’s provisions within time frame.   The government must ensure the de facto utilization of all its available resources to enforce the ESC rights. The General Comment No.3 (1990) of the Committee on the nature of State Party’s obligations must be followed.   The ESC rights of all the marginalized communities must be protected on the basis of the principles of equality and non-discriminations.   The rural-urban gap and gender inequality to the implementation of  Covenant’s provisions must be abolished and dealt with stringent laws in case of violation.   The government must generate perpetual employment opportunities to fulfill the work need of the entire population particularly of rural areas. It is encouraged to ratify ILO Convention No.2 (1919) on Unemployment in this regard.   The vocational trainings and skill development programmes must be broadly provided to rural areas, women, PWDs, SCs, STs, and other disadvantaged groups.   The gender inequality and sexual harassment at workplaces must be dealt stringently.   The child labour and other forms of worst labour must be abolished immediately. The ILO Convention No.182 (1999) on the Worst Forms of Child Labour and No.138 (1973) on Minimum Age must be ratified immediately.   The vast majority of workers from the informal sectors must be provided with the standard minimum wage which must be revised regularly.   To improve the working conditions of the informal sectors, an organized labour inspectorate should be employed.   The benefits of the trade unions and collective bargaining must be provided to the informal sectors. It is recommended to ratify ILO Convention No.98 (1949) on the Right to Organize and Collective Bargaining.

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 The government must focus to enlarge the social security benefits to the vast majority of informal sectors with immediate effect. The ILO Convention No.102 (1952) on Social Security (Minimum Standards) must be ratified in this regard.   The government is encouraged to enforce the true spirit of CEDAW to stop domestic violence against women in all its forms. The State Party is also encouraged to ratify the Optional Protocol of CEDAW immediately.   The State Party must ensure the implementation of the true spirit of CRC to stop sexual exploitation of children at home. It is encouraged to ratify the Optional Protocol to the CRC on Communications Procedure.   The stringent laws must be enforced to stop the illegitimate sex selection and illegal abortions.   The government must reform and uniformalise the Personal Laws of different communities.   The government should establish specific mechanisms to monitor the implementation of poverty reduction strategies throughout the country.  The specific government’s fund must reach the rural areas and urban poor.  The government is encouraged to monitor the influence of corrupt actors to divert these funds for their vested interests.   The uniform and comprehensive national housing policies must be implemented to avoid informal settlements and slums here and there.   The displacement and forced evictions must be prohibited effectively. The due rehabilitation and compensation must be provided to those displaced and evicted forcibly.   The government is urged to allocate enhanced budget to the public healthcare sectors. The reproductive health and sex education must be widening through the community awareness programmes and other specific programmes at large scale.   The quality healthcare services must be made accessible to the marginalized and disadvantaged communities. The proper legislation should be imparted to regulate the vast private sectors of healthcare.   The State must ensure safe drinking water supply on equitable basis. The importance of sanitation and other hygienic conditions must be made widespread.

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 The State is urged to implement equitable and non-discriminatory provisions on education to be accessed by all the marginalized communities.   The effective implementation must be reckoned to visualize the free and compulsory primary education to the entire nation. The awareness initiatives should be taken to encourage the importance of literacy especially to those living below poverty line and women.   The government is encouraged to increase the budgetary allocation to the public education sectors. The scheme of human rights education should be introduced at all levels of education including school curricula.   The appropriate guidelines must be imparted to the vast private sectors of education. The quality education must be accessible to all without rural-urban gap and gender inequality.   The State Party is encouraged to consult with the local communities while taking any development initiatives to preserve the cultural heritages of that community.   The government must promote the participation of the people to the scientific progress of the nation.

Nepal

The country has totally different socio-political background in the South Asian region. The recurring political transitions compel unsettled social life every time. The research study has closely evaluated the ESC rights situations in the region. The Committee has recommended various measures to improve the domestic implementation of the Covenant’s provisions which have been recapitulated here:

 The self-determination of all the people beyond the limited higher caste Hindus should be immediately ensured with appropriate measures.   The State must adopt the clear policies behind its obligations to fulfill the  Covenant’s provisions in the domestic legislations.   All the legislative discriminations toward the disadvantaged groups must be abolished immediately.   The customary and traditional practices that impart inequalities among the society particularly toward Dalits and women, must be abolished immediately.   The State must ensure legitimate and stable right to work for the entire nation.

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 The vulnerable working conditions of informal sectors should be improved with the facilities of organized labour inspectorate.   A uniform legislation on minimum wages must be enforced immediately and revised regularly.   The rehabilitation of bonded labourer, child labourer, and other forms of worst labourer must be processed with due care.   The government must sign Memorandum of Understandings with the host countries to improve the situation of migrating workers.   The structure of trade unions must be strengthened and enlarged to the entire nation.   The Constitutional provisions on social security benefits should effectively cover all the peoples in need rather certain groups only.   The paradigm shift from charity based to rights based approach is immediately needed to be implemented for the universal coverage of the social security benefits.   The government must legalize the minimum age of marriage in all circumstances. It is recommended to ban all forms of child labour with immediate effect.   The State Party is encouraged to strictly enforce existing legislations on the domestic violence against women, sexual exploitation of children, and trafficking in persons.   The government is encouraged to adopt human rights based approach to eradicate poverty with immediate effect.   The food security must be ensured in a non-discriminatory manner. The government is encouraged to address structural causes of poverty, hunger, and malnutrition and to strengthen the capacity of public institutions.   The comprehensive housing policies must be adopted. The eviction as a last resort should be employed with due care.   The government is urged to decentralize the healthcare services upto regional levels. It is recommended to enhance the budgetary allocation to improve the healthcare services uniformly.   The appropriate measures should be taken to disseminate reproductive health and sex education throughout the country. The proper legislation must be adopted to deal mental health of the people.

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 The State is immediately urged to abolish discriminatory policies of education enhancing enrolment gap between girls and boys and lower and higher castes.   The government is encouraged to achieve targeted adult literacy rate through public awareness and improved capacity building of public institutions.   The effective legislation must be enforced to promote compulsory primary education and free secondary education. The effective monitoring to evaluate the root causes of school drop-outs must be imparted.   The multi-lingual facilities of education must be enhanced at all levels.   The government must ensure that all the socio-cultural malpractices are abolished with immediate effect.   The discriminatory cultural laws tolerated in the name of religion must be immediately abolished.   The government must ensure non-discriminatory participation to the cultural and scientific life of the nation.   The State must ensure the lawful recognition of all the indigenous groups and should legitimately protect their culture.

Sri Lanka

The Country has better administrative experiences of the colonial era which has been peacefully transferred to the local political elites. The separatist politics and the Sinhala Buddhist nationalism after independence, defeat the uniform realization of the ESC rights in the country. The following recommendations formulated by the Committee are recapitulated here to improve the enforcement of the Covenant’s provisions:

 The self-determination of the people residing in the North and East region mostly Tamils, IDPs, Indigenous people (Veddas), etc., must be ensured without discrimination.   The State must ensure its obligations to fulfill the Covenant’s provisions to all the regions on the basis of principles of equality and non-discrimination.   The systematic inclusion of discriminatory provisions to access ESC rights by the people of North and East region must be abolished immediately.   The stable employment opportunities must be generated particularly for the migrating women for domestic help and the youths to other countries.

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 The stringent laws should be enforced to curb the frequent inequalities, discriminations, and sexual harassment at workplaces.   The standard minimum wages particularly for plantation workers must be provided with immediate effect.   The free and easy functioning of the trade unions must be ensured throughout the country. The regulation of trade unions in EPZs must not be illegitimately obstructed by the State officials.   The State must enlarge the coverage of social security benefits for the social risks and contingencies to the informal sectors.   The customary laws on family affairs that interfere with the national legislations must be abolished immediately.   The legislation on domestic violence against women must be made stringent and enforced widely. The marital rape in all its circumstances must be criminalized.   The effective laws on child labour prohibiting all its forms must be enforced with immediate effect. The legislation on child sexual abuses must include child sex tourism under its mandate.   The government must ensure uniform poverty alleviation programmes without regional disparities. It is encouraged to ensure the smooth passage of humanitarian food aids and other emergency aids to conflict affected areas with immediate effect.   The concrete housing policies, land rights, and resettlement policies must be adopted immediately. The forced eviction to instill development projects must be prohibited. The housing conditions of plantation sector must be improved with immediate effect.   The State is strongly urged to incorporate healthcare rights of the people in the Constitution of the land with immediate effect.   The healthcare services must be made accessible and within reach without regional disparities and gender discrimination.   The comprehensive reproductive health and sex education must be imparted throughout the country. The Mental Health Act 2007 must be enforced immediately.   The funding allocation to the public education must be increased with immediate effect. All the fees to public schools should be abolished.

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 The rehabilitation process of the demolished schools in war affected areas should be immediately restored with material infrastructure.   The requisite infrastructure facilities must be continued to all the government funded schools to run them properly.   The availability and accessibility of quality education and wide opportunity to higher education must be enhanced with immediate effect.   The government must ensure the lawful recognition of all the linguistic and cultural minority groups throughout the country.   The State must ensure effective mechanisms to abolish the rising cultural and religious intolerances.

6.3 Assessments and Findings of the Study

This thesis attempts to highlight various dimensions related to the thrust area. It is the duty of the researcher to analyse them according to the synthesized research objectives. The comparative study examines detailed investigation on various aspects of the cases under study. The researcher finally attempts to describe the comparative perspectives of various benchmarks to highlight similarities and differences among the cases under study. In conclusions, an assessment is made on the basis of findings of the study and significant recommendations are suggested for the respective countries. The researcher underlines important recommendations in the ensuing pages that must be endorsed by respective countries with immediate effect to enhance the ESC rights protection.

India

 The government of India must expand its democratic obligations to promote and protect the ESC rights of vulnerable sections and marginalized communities. The vast majority of Indian population is ignorant and devoid of basic rights; it is the democratic responsibility of the government to minimize the sufferings of the people at least by providing minimum essential basic needs.   The true spirit of democracy with the decentralization of powers must be exercised at all levels of governance from federal to regional and local. The independence and collaboration of work should be integrated at all levels of authority on the basis of principles of equality and non-discrimination.

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 The government must encourage the practical representation of the marginalized communities including minorities, women, Dalits, SCs, STs, etc., particularly at decision making bodies. The affirmative action in the form of reservation and quota for marginalized communities in different sectors including education, employment, health, housing, etc., must be monitored effectively.   The economic, social, and cultural rights enshrined in the Constitution of India largely in the form of DPSP must be made justiciable before the Courts of India. The judicial interpretation on the enforcement of the ESC rights particularly by the Supreme Court of India must be incorporated in the national legislation with immediate effect. There are many case laws on the enforcement of ESC rights by the Supreme Court of India that are being cited within the judiciary worldwide.   The Indian judiciary must also entertain the international experiences of the judiciary worldwide while dealing with the case laws on ESC rights. The legislature must accord those verdicts into legitimate rights of the people. The executives then willfully must implement the provisions to fully realize the ESC rights throughout the country.   The government must work in collaboration with the civil society to the promotion of uniform ESC rights throughout the country. The role and area of civil society must be encouraged and enlarged in the field of ESC rights. There are enormous NGOs that work in the field of CPRs but a very few work for the promotion of ESC rights. The sufficient resources and safeguards must be provided to the local NGOs for smooth functioning in the area of ESC rights.   The public representatives, e.g., Members of Parliament and Members of Legislative Assembly must promote and defend the human rights of the people and ESC rights in particular. It is hardly seen in the Parliamentary affairs of India that the elected representatives discuss about the provisions of ICESCR. A special training and awareness programme must be imparted to the public representatives with regard to the promotion of human rights of the people.   The collaboration of NHRC and the State HRCs should be made viable. The mandate of State HRCs must be made effective and organized. The institution of District Courts of Human Rights should effectively deal with the cases on ESC rights. A proper training programme must be initiated to instruct the law

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enforcement officials including police to sensitize them about the enforcement of the ESC rights.

 The large scale mass awareness programmes toward the enjoyment of the ESC rights must be initiated in an organized way. The Constitution of India recognizes twenty-two regional languages. The provisions of ICESCR must be translated in all these languages and disseminated widely among all the communities. The targeted projects with the cooperation of local NGOs must be run to teach illiterate population about the policies on ESC rights.   The government of India must disseminate widely through the electronic media and other mediums, the evaluation of the State report and adoption of the Concluding Observations by the Committee on Economic, Social, and Cultural Rights. The public representatives should raise questions in the Parliament about the implementation of the Concluding Observations of the Committee. The government must translate the Concluding Observations of the Committee in all the twenty-two languages and disseminate throughout the country.  The government’s agenda on human rights education must include the comprehensive courses at school curricula with immediate effect. The trends in recent years to constrict the scope of human rights education in India must be enlarged on par with the international standards. Compulsory courses should be drafted to include at all levels of education as the case of other courses such as compulsory environmental studies.   The State Party is highly encouraged to submit the periodic reports to the Committee on due date. In this regard, it is recommended to submit the sixth periodic report (due on June 30, 2011) possibly combined with the seventh periodic report (as the next five years cycle is exceeding again) as immediately as possible.   The State Party is strongly encouraged to ratify the Optional Protocol of the ICESCR with immediate effect.   The government is strongly recommended to establish and strengthen the capacity of public institutions to monitor the proper and maximum utilization of its available resources to the realization of the Covenant’s provisions.   It is extremely recommended that the State institutions must be made more accountable and transparent. If the State actors or non-State actors attempt to

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divert the specific funds for vested interests; they must be dealt with stringent laws and the recovered funds must be redistributed legitimately.

 All the policies and plans of action must be time bound. It should be made widely known through different mediums and translated in all the regional languages. The availability and accessibility of all the welfare policies must be made people friendly. The achievements in target area must be assessed and made widely known.

Nepal

 The State Party is encouraged to expand the meaning of democracy for all its affairs – external as well as internal. The State institutions must function within the mandates of democratic values. The government should take inspiration from different countries of the world in this regard.   The government must negotiate, on regular basis, with all the stakeholders including militant groups to promote stable democracy in the region. The democratic rights should be protected for all the affected groups on the basis of the principles of equality and non-discrimination. The rehabilitation process of former militants must be parallel with the democratic values.   The ruling party must act toward the establishment of democratic values beyond strengthening the organizational structure of the party. The illegitimate allegiance toward the party members should not hamper the legitimate rights of the people.   The true representation of the marginalized communities including Dalits, Janajatis, Madhesis, etc., particularly in the decision making bodies must be enhanced. The government must ensure the proper representation of all the communities beyond the caste based Hindu hierarchy that promotes only few of the higher castes.   The government must ensure the de facto justiciability of all the ESC rights of the entire population of Nepal. The judiciary of Nepal should rise above the formal orders that it instructs to the government and entertain case laws on ESC rights with strong enforcement opinion. The decisions of different judiciary worldwide on the case laws on ESC rights must be taken into consideration.

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 The scope of judicial activism must be enlarged by relaxing the procedural complexities and creating organized awareness. The extent of Public Interest Litigation should be expanded beyond the Supreme Court of Nepal.   The scope and significance of NGOs in the field of ESC rights must be promoted throughout the country. The government must provide better opportunity to the smooth functioning of NGOs with proper funds and resources. The participation of civil society to the promotion and protection of the ESC rights must be encouraged.   The effective awareness programmes among the masses including disadvantaged groups on the importance of the ESC rights must be properly organized. The special training programmes on the enforcement of the ESC rights should be imparted to the public representatives, the law enforcement officials including police, and all the other stakeholders.   The government must immediately adopt inclusive policies to promote human rights education at all levels. The academic courses should be drafted in consultation with the experts in the field and introduced immediately at school curricula. An organized awareness programme should also be initiated for the majority illiterate population on the enjoyment of the ESC rights.   The State Party is strongly recommended to strengthen the stability of the Constitution. The basic features of the Constitution must be preserved despite the regime change. The frequent changes of the Constitution must be abolished with proper legislations.   The government must adhere to its State obligations to fulfill the ESC rights by exhausting maximum of its available resources. The government is encouraged to enhance the opportunities of resource generation within the country particularly by strengthening agro-based industries. The new tools and techniques of farming should be promoted among the farmers.   The structure of public institutions should be made more transparent and accountable. The capacity building and international cooperation to renovate the State institutions devoted to the enforcement of ESC rights must be carried with immediate effect.   The government must publicize the familiarity of welfare policies widely through different mediums. The consideration of the State report on ICESCR and Concluding Observations adopted by the Committee must be disseminated

274 Comparative Study

throughout the country among general masses, public representatives, law enforcement officers, and all the other stakeholders.

Sri Lanka

 The government must ensure the protection of democratic rights of the people on the basis of principles of equality and non-discrimination. The systematic restrictions imposed in Northern and Eastern part of the country hampering the exercise of democratic values must be abolished immediately. The norms of democracy should be implemented uniformly throughout the country.   The government is encouraged to negotiate with all the militant groups on regular basis to strengthen the stability of democracy in the country. The rehabilitation process of former militants, IDPs, and people residing in war affected areas must be speeded up within the mandate of democratic values and norms.   The true spirit of federal democracy with the proper decentralization of powers must be encouraged to protect the ESC rights throughout the country. The coordination between Central and State governments (particularly with the Northern and Eastern provinces) to the development initiatives should be progressive not retrogressive. All the discriminatory provisions to frustrate the inclusive growth of the Northern and Eastern region must be abolished immediately.   The government must ensure uniform representation of all the communities of Sri Lanka on the basis of principles of equality and non-discrimination. The non-Sinhala people particularly Tamils of Indian origin must be adequately represented including at decision making bodies.   The government is highly encouraged to incorporate all the provisions of ICESCR within the Constitutional mandates with immediate effect. The government must adopt legislations to recognize the justiciability of ESC rights before the Courts of Sri Lanka. The ratification of the Optional Protocol of the ICESCR is highly encouraged by the government of Sri Lanka.   The independence of judiciary must be expanded beyond the superiority of the executive. All the laws empowering the President to the direct appointment of the judges and officers of the oversight bodies must be repealed with immediate effect. The judiciary of Sri Lanka should entertain case laws on

275 Comparative Study

ESC rights in line with the experiences of different judiciaries worldwide. The scope of judicial activism must be encouraged and the exercise of Public Interest Litigation should be made familiar.

 The scope of smooth functioning of the NGOs in the field of ESC rights must be encouraged and enlarged. The government must provide sufficient safeguards to the human rights defenders working to promote rights of the people. The collaboration of government with the civil society must be enhanced to protect the rights of the people.   The targeted training programmes must be imparted to the public representatives and laws enforcement officials including police to abolish discriminatory approaches to enforce ESC rights. The organized mass awareness programmes on human rights should be initiated particularly for the illiterate Tamils of Indian origin. The government must adopt agenda to promote human rights education at all levels.   It is immediately recommended to abolish all the obstructions to the smooth passage of humanitarian food aids and the emergency aids to the war affected areas. The government is highly recommended to cooperate with any such legitimate missions to ameliorate the conditions of people suffering.   The government should employ effective monitoring bodies to enhance the structural organization of the public institutions. These should be made more accountable and transparent and must implement the ESC rights provisions on the basis of principles of equality and non-discrimination.   The State Party is specifically recommended to adopt effective mechanisms to reduce the religious intolerances between majority Sinhala (Buddhist) and minority Tamils (Hindus) with immediate effect. The government must organize multicultural programmes such as conferences, seminars, symposia, etc., to promote the tolerance and harmony among different communities.   The government must publicize all its welfare policies with appropriate mediums including in regional languages. The evaluation of the State reports on ICESCR and Concluding Observations adopted by the Committee must be disseminated widely throughout the country with different mediums.

276 Comparative Study

6.4 Further/Future Research

The present research, in a modest way, has attempted to examine the role of India, Nepal, and Sri Lanka in implementing ESC rights in the light of data available as of June 2017. Whenever these countries undertake new legislative and administrative steps and measures to improve their performance to realize ESC rights and submit their record for the international scrutiny and interrogation, new studies and updating of old ones can be undertaken. This is an ongoing process. It is a life-long struggle to improve the quality of life of majority of people in the developing countries of South Asia. Moreover, there is need to undertake similar comparative studies of other South Asian States, like Bangladesh, Pakistan, Bhutan, Maldives, and Afghanistan.

277

BIBLIOGRAPHY

Image Courtesy: UN Flag by “Google Images”

Image Courtesy: “Google Images” Bibliography

Primary Sources

The Addition Replies to the List of Issues. Combined Second to Fifth periodic State report on ICESCR India. UN Doc. E/C.12/IND/Q/5/Add.2 (Apr.23, 2008).

The Alternate Report. Combined Second to Fifth periodic State report of ICESCR India. Ambedkar Center for Justice and Piece India. (accessed on Nov.5, 2016 at the link below): (www2.ohchr.org/english/bodies/cescr/docs/info-ngos/ACJP_CESCR40_India.doc).

The Alternate Report. Combined Second to Fifth periodic State report of ICESCR India. Asian Indigenous and Tribal Peoples Network India (accessed on Nov.10, 2016 at the link below): (www2.ohchr.org/english/bodies/cescr/docs/.../India- Thetribaldimention-NCHRTM.do...).

The Alternate Report. Combined Second to Fifth periodic State report of ICESCR India. Center for Reproductive Rights New York. (accessed on Nov.8, 2016 at the link below): (http://www2.ohchr.org/english/bodies/cescr/docs/info-ngos/CFRRIndia40.pdf).

The Alternate Report. Combined Second to Fifth periodic State report of ICESCR India. Housing and Land Rights Network, Habitat International Coalition. (accessed on Nov.10, 2016 at the link below): (http://www2.ohchr.org/english/bodies/cescr/docs/info- ngos/HousingLandRightsNetwork_India40.pdf).

The Alternate Report. Combined Second to Fifth periodic State report of ICESCR India. National Campaign on Dalit Human Rights India. (accessed on Nov.5, 2016 at the link below): (http://www2.ohchr.org/english/bodies/cescr/docs/info- ngos/NCDHR-IDSNIndia40.pdf).

The Alternate Report. Combined Second to Fifth periodic State report of ICESCR India. People’s Collective for Economic, Social, and Cultural Rights entitled ‘Divided Destines Unequal Lives.’ (accessed on Nov.7, 2016 at the link below): (http://www.pwescr.org/Divided%20Destinies%20Unequal%20Lives.pdf).

The Alternate Report. Combined Second to Fifth periodic State report of ICESCR India. Programme on Women’s Economic, Social, and Cultural Rights India. (accessed on Nov.10, 2016 at the link below): (http://www2.ohchr.org/english/bodies/cescr/docs/info-ngos/Gujarat_India40.pdf).

278 Bibliography

The Annotations on the Text of the Draft International Covenants on Human Rights. UN Doc. A/2929 (July 1, 1955). (accessed on Jan.05, 2016 at the link below): (http://www2.ohchr.org/english/issues/opinion/articles1920_iccpr/docs/A-2929.pdf).

The Article 55 of Chapter IX of the UN Charter.

The Article 60 of Chapter IX of the UN Charter.

The Bangalore Declaration and Plan of Action (Oct.25, 1995). para.18(5)(4).

The CESCR Fact Sheet No.16 (Rev.1). Vienna Declaration and Programme of Action (June 25, 1993). Doc. A/CONF. 157/24 (part 1), chap.III.

CHR. session 7 (1951). UN Doc. E/CN.4/SR.248.

The Combined Second, Third, and Fourth periodic State report of Sri Lanka on the ICESCR. UN Doc. E/C.12/LKA/2-4 (Jan.27, 2010).

The Combined Second, Third, Fourth and Fifth periodic State report of India on the ICESCR (2006). UN Doc. E/C.12/IND/5 (Mar.1, 2007).

The Commission on the Status of Women 1946. (accessed on Dec.25, 2015 at the link below): (http://www.unwomen.org/en/csw).

The Concluding Observations. Combined Second to Fifth periodic State report on ICESCR India. UN Doc. E/C.12/IND/CO/5 (Aug.8, 2008).

The Concluding Observations. Combined Second to Fourth periodic State report of Sri Lanka on the ICESCR. UN Doc. E/C.12/LKA/CO/2-4 (Dec.9, 2010).

The Concluding Observations. Initial periodic State report of Nepal on the ICESCR (1999), UN Doc. E/C.12/1/Add.66 (Sept.24, 2001).

The Concluding Observations. Initial periodic State report of Sri Lanka on the ICESCR. UN Doc. E/C.12/1/Add.24 (June 16, 1998).

The Concluding Observations. Second periodic State report of Nepal on the ICESCR. UN Doc. E/C.12/NPL/CO/2 (Jan.16, 2008).

The Concluding Observations. Third periodic State report of Nepal on the ICESCR. UN Doc. E/C.12/NPL/CO/3 (Dec.12, 2014).

The Constituent Assembly Debates, India (vol.VII. Nov.4, 1948 – Jan.8, 1949). (accessed on Oct.29, 2016 at the link below): (http://164.100.47.132/LssNew/cadebatefiles/vol7.html).

279 Bibliography

The Constitution of First Republic of Sri Lanka 1972. (accessed on Mar.20, 2017 at the link below): (http://tamilnation.co/srilankalaws/72Constitution.htm).

The Constitution of Second Republic of Sri Lanka 1978. (accessed on Mar.20, 2017 at the link below): (http://www.priu.gov.lk/Cons/1978Constitution/1978ConstitutionWithoutAmendment s.pdf).

The Constitution of Sri Lanka with Nineteenth Amendment as of May 2015. (accessed on Mar.27, 2017 at the link below): (https://www.Parliament.lk/files/pdf/Constitution.pdf).

The Core Document Forming Part of the Reports of States Parties Sri Lanka. UN Doc. HRI/CORE/LKA/2008 (Sept.23, 2008).

The Department of Census and Statistics Sri Lanka. National Housing Census of 1981. (accessed on Apr.5, 2017 at the link below): (http://www.statistics.gov.lk/).

The Economic Survey of India 2003-04. (accessed on Oct.25, 2016 at the link below): (http://indiabudget.nic.in/es2003-04/chapt2004/chap104.pdf).

The ECOSOC Resolution. Doc. 1985/17 (May 28, 1985).

The expected date of consideration of the treaty bodies for Sri Lanka. (accessed on Apr.10, 2017 at the link below): (http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/MasterCalendar.aspx?Type= Session&Lang=En).

The FAO Corporate Document Repository produced by Agriculture and Consumer Protection. (accessed on July 15, 2016 at the link below): (http://www.fao.org/docrep/u8480e/U8480E03.htm).

The FAO Corporate Document Repository produced by Economic and Social Development Department. (accessed on July 15, 2016 at the link below): (http://www.fao.org/docrep/009/y7937e/Y7937E02.htm).

FAO. The State of Food Insecurity in the World 2005. Rome, 2005.

The Fifth periodic State Report of Sri Lanka on the ICESCR submitted to the Committee. UN Doc. E/C.12/LKA/5 (Feb.4, 2016).

rd The GAOR. session 5 (1950). 3 Cttee. Doc. A/C.3/SR.297. pp.172-74 (USA, Netherlands, UK).

280 Bibliography

rd The GAOR. session 5 (1950). 3 Cttee. Doc. A/C.3/SR.297. pp.174-76 (Poland and USSR).

rd The GAOR. session 5 (1950). 3 Cttee. Doc. A/C.3/SR.298. pp.80-82 (Venezuela and Dominican Republic).

rd The GAOR. session 5 (1950). 3 Cttee. Doc. A/C.3/SR.298. pp.178-83 (Mexico, Yugoslavia, Iran, and Iraq).

rd The GAOR. session 5 (1950). 3 Cttee. Doc. A/C.3/SR.299. pp.186 (India).

rd The GAOR. session 5 (1950). 3 Cttee. Doc. A/C.3/SR.299. pp.187-89.

rd The GAOR. session 6 (1951-1952). 3 Cttee. Doc. A/C.3/SR.365. p.110, para.31.

rd The GAOR. session 6 (1951-52). 3 Cttee. Doc. A/C.3/SR.366. pp.114-16 (Indonesia and Cuba).

rd The GAOR. session 6 (1951-1952). 3 Cttee. Doc. A/C.3/SR.371. p.142, para.16.

th The GAOR. 66 plen. mtg. Doc. A/63/PV. 66 (Dec.10, 2008 at 4.30pm).

The General Comment No.1: Reporting by States Parties. UN CESCR. session 3 (Jan.01, 1989). (accessed on Oct.25, 2016 at the link blow): (http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&Tr eatyID=9&DocTypeID=11).

The General Comment No.3: The Nature of State Parties Obligations (Art.2, Para.1 of the Covenant). UN CESCR. session 5 (Dec.14, 1990). Doc. E/1991/23.

The General Comment No.4: The Right to Adequate Housing. UN CESCR. session 6 (1991). Doc. E/1992/23.

The General Comment No.7: The Right to Adequate Housing (Forced Eviction). UN CESCR. session 16 (May 20, 1997). Doc. E/1998/22.

The General Comment No.9: The Domestic Application of the Covenant. UN CESCR. session 9 (Nov.16 – Dec.4, 1998). Doc. E/C.12/1998/24.

The General Comment No.10: The Role of National Human Rights Institutions in the Protection of Economic, Social and Cultural Rights. UN CESCR. session 9 (Nov.16 – Dec.4, 1998). Doc. E/C.12/1998/25.

The General Comment No.11: Plans of Action for Primary Education. UN CESCR. session 20 (Apr.26 – May 14, 1999). Doc. E/C.12/1999/4.

The General Comment No.12: The Right to Adequate Food. UN CESCR. session 20 (Apr.26 – May 14, 1999). Doc. E/C.12/1999/5.

281 Bibliography

The General Comment No.13: The Right to Education. UN CESCR. session 21 (Nov.15 – Dec.3, 1999). Doc. E/C.12/1999/10.

The General Comment No.14: The Right to Highest Attainable Standard of Health. UN CESCR. session 22 (Apr.25 – May 12, 2000). Doc. E/C.12/2000/4.

The General Comment No.15: The Right to Water. UN CESCR. session 29 (Nov.11- 29, 2002). Doc. E/C.12/2002/11.

The General Comment No.16: The Equal Right of Men and Women to the Enjoyment of all Economic, Social and Cultural Rights. UN CESCR. session 34 (Apr.25 – May 13, 2005). Doc. E/C.12/2005/4.

The General Comment No.17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from any Scientific, Literary or Artistic Production of which He or She is the Author. UN CESCR. session 35 (Nov.7-25, 2005). Doc. E/C.12/GC/17.

The General Comment No.18: The Right to Work. UN CESCR. session 35 (Nov.7-25, 2005). Doc. E/C.12/GC/18.

The General Comment No.19: The Right to Social Security. UN CESCR. session 39 (Nov.5-23, 2007). Doc. E/C.12/GC/19.

The General Comment No.21: Right of Everyone to Take part n Cultural Life. UN CESCR. session 43 (Nov.2-20, 2009). Doc. E/C.12/GC/21.

The General Comment No.22: The Right to Sexual and Reproductive Health. UN CESCR (Mar.7, 2016). Doc. E/C.12/GC/22.

The General Comment No.23: The Right to Just and Favourable Conditions of Work. UN CESCR (Mar.8, 2016). Doc. E/C.12/GC/23.

Golay, Christophe, and Michaela Büschi . The Right to Food and Global Strategic Frameworks: The Global Strategic Framework for Food Security and Nutrition (GSF) and the UN Comprehensive Framework for Action (CFA). Rome: UNFAO, 2012.

The ILO. (accessed on June 10, 2016 at the link below): (http://www.ilo.org/global/about-the-ilo/history/lang--en/index.htm).

ILO. The Requested Reports and Replies to CESCR Comments: India. (accessed on Nov.5, 2016 at the link below): (http://www.ilo.org/dyn/normlex/en/f?p=1000:14000:0::NO:14000:P14000_COUNT RY_ID:102691).

The IMF. About the IMF. Fast Facts. (accessed on June 10, 2016 at the link below):

282 Bibliography

(http://www.imf.org/external/about.htm).

The Initial periodic State report of India on the ICESCR (1983). UN Doc. E/1980/6/Add.34 (Nov.15, 1983).

The Initial periodic State report of Nepal on the ICESCR (1999). UN Doc. E/1990/5/Add.45 (Sept.25, 2000).

The Initial periodic State report of Sri Lanka on the ICESCR submitted to the Committee. UN Doc. E/1990/5/Add.32 (Jan.13, 1997).

The Joint Alternative Report. Combined Second to Fourth periodic State report of Sri Lanka on the ICESCR. Collective for ESC Rights in Sri Lanka. (accessed on Apr.5,

2017 at the link below): (http://tbinternet.ohchr.org/Treaties/CESCR/Shared%20Documents/LKA/INT_CESC R_NGO_LKA_45_9509_E.pdf).

The Limburg Principles on the Implementation of Economic, Social, and Cultural Rights (Principle no.18). (accessed on Aug.25, 2016 at the link below): (http://www.refworld.org/docid/48abd5790.html).

The List of Issues. Combined Second to Fifth periodic State report on ICESCR India. UN Doc. E/C.12/IND/Q/5 (Sep.14, 2007).

The List of Issues. Combined Second to Fourth periodic State report of Sri Lanka on the ICESCR. UN Doc. E/C.12/LKA/Q/2-4 (June 14, 2010).

The List of Issues. Fifth periodic State report of Sri Lanka on the ICESCR. UN Doc. E/C.12/LKA/Q/5 (Nov.8, 2016).

The List of Issues. Initial periodic State report of Nepal on the ICESCR (1999). UN Doc. E/C.12/Q/NEP/1 (Dec.13, 2000).

The List of Issues. Second periodic State report of Nepal on the ICESCR. UN Doc. E/C.12/NPL/Q/2 (Dec.21, 2006).

The List of Issues. Third periodic State report of Nepal on the ICESCR. UN Doc. E/C.12/NPL/Q/3 (Dec.18, 2013).

Maastricht Guidelines on Violations of Economic, Social and Cultural Right 1998 (Guideline 25). (accessed on 20 Sept.2016 at the link below): (http://hrlibrary.umn.edu/instree/Maastrichtguidelines_.html).

Mendelsohn, S., and A Mackenzie. Assessment of UNICEF’s Contribution to UN Reform and its Impact on UNICEF: UN Reform under the UN Development Group. New York: UNICEF, 2004.

283 Bibliography

“Millennium Development Goals.” (accessed on Dec.25, 2015 at the link below): (http://www.unmillenniumproject.org/goals/index.htm).

The OHCHR Professional Training Series No.9. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers. New York/Geneva: United Nations, 2003.

The Parallel Report. “A Civil Society Report on ESCR, 2013, Nepal” on the Third periodic State report of ICESCR Nepal. Civil Society Groups on behalf of the Human Rights Treaty Monitoring Coordination Centre (HRTMCC). (accessed on Jan.12, 2017 at the link below):

(http://tbinternet.ohchr.org/Treaties/CESCR/Shared%20Documents/NPL/INT_CESC R_NGO_NPL_15369_E.pdf).

The Parallel Report. Combined Second to Fifth periodic State report of ICESCR India. FoodFirst Information and Action Network India. (accessed on Nov.10, 2016 at the link below): (http://www.indianet.nl/pdf/righttoadequatefood.pdf).

th The Parliament of India. Constitutional 86 Amendment Act. (Dec.13, 2002).

The Preamble of the 1990 Constitution of Nepal. The full text of the 1990 Constitution of Nepal is available at (accessed on Nov.22, 2016 at the link below): (http://www.nepaldemocracy.org/documents/national_laws/constitution1990.htm#pre amble).

The ratification status of ICESCR by Nepal. (accessed on Nov.21, 2016 at the link below): (http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?Treaty=CESCR &Lang=en).

The ratification status of ICESCR by Sri Lanka. (accessed on Apr.5, 2017 at the link below): (http://www.ohchr.org/EN/HRBodies/CESCR/Pages/CESCRIndex.aspx).

The Replies to the List of Issues. Combined Second to Fifth periodic State report on ICESCR India. UN Doc. E/C.12/IND/Q/5/Add.1 (Mar.18, 2008).

The Replies to the List of Issues. Combined Second to Fourth periodic State report on the ICESCR by the government of Sri Lanka. UN Doc. E/C.12/LKA/Q/2-4/Add.1 (Oct.21, 2010).

The Replies to the List of Issues. Second periodic State report on the ICESCR Nepal. UN Doc. E/C.12/NPL/Q/2/Add.1 (Apr.20, 2007).

284 Bibliography

The Replies to the List of Issues. Third periodic State report of the ICESCR Nepal. UN Doc. E/C.12/NPL/Q/Add.1 (Sept.24, 2014).

The report of the Center for Human Rights and Global Justice. Recasting Justice: Securing Dalit Rights in Nepal’s New Constitution. New York: NYU School of Law, 2008.

The Report of the Second National Labour Commission, India. 2002.

The reporting status of the periodic State report of ICESCR by Nepal. (accessed on Nov.21, 2016 at the link below): (http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx).

The Review Report, “Status of the ICESCR in Nepal: A Review (2007).” Rural Reconstruction Nepal (RRN) and Sub-Committee for the International Covenant on Economic, Social and Cultural Rights, Kathmandu, Nepal. The report is available at

(accessed on Jan.10, 2017 at the link below): (https://www.rrn.org.np/phocadownloadpap/Research_Reports/icescr_research_report _2007.pdf).

The Second periodic State report of Nepal on the ICESCR to the Committee, UN Doc. E/C.12/NPL/2 (Aug.7, 2006).

Section 494. Indian Penal Code. 1860.

The Shadow Report. Combined Second to Fifth periodic State report of ICESCR India. ActionAid India. (accessed on Nov.5, 2016 at the link below): (http://www2.ohchr.org/english/bodies/cescr/docs/cescr40/ActionAid_India.pdf).

The Shadow Report. Combined Second to Fifth periodic State report of ICESCR India. Forum for Fact-finding Documentation and Advocacy India. (accessed on Nov.8, 2016 at the link below): (http://www2.ohchr.org/english/bodies/cescr/docs/info-ngos/FFDAIndia40.pdf).

The Soulbury Constitution. Ceylon Constitution Order in Council 1946. (accessed on Mar.25, 2017 at the link below): (http://tamilnation.co/srilankalaws/46Constitution.htm).

The Thematic Report of the International Commission of Jurist. Economic, Social and Cultural Rights and the New Constitution of Nepal. Aug.2009.

The Third periodic State report of Nepal on the ICESCR to the Committee. UN Doc. E/C.12/NPL/3 (Oct.19, 2012).

The UDHR 1948. (accessed on Jan.04, 2016 at the link below): (http://www.un.org/en/universal-declaration-human-rights/).

285 Bibliography

UIS. Policy Paper 27/ Fact Sheet 37. July 2016.

UN CESCR. session 40. 14th mtg. (May 7, 2008). summary record India. UN Doc.

UN CESCR. session 40. 15th mtg. (May 8, 2008). summary record India. UN Doc.

UN CESCR. session 40. 16th mtg. (May 8, 2008). summary record India. UN Doc.

The UN Doc. A/RES/543(VI) 1952, (accessed on Jan.06, 2016 at the link below): (http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/543(VI)).

UN Doc. E/1984/WG.1/SR.8. (Apr.25, 1984).

UN Doc. E/CN.4/Subb.2/1991/ l7. para.52.

UNDP Nepal Human Development Report 2004. Kathmandu: United Nations Development Programme, 2004.

The UN ECOSOC (Hot Topics). Peacebuilding and Post-Conflict Recovery. (accessed on Dec.25, 2015 at the link below): (http://www.un.org/en/ecosoc/about/peacebuilding.shtml).

The UNESCO. (accessed on June 8, 2016 at the link below): (http://en.unesco.org/about-us/introducing-unesco).

The UNESCO Report. UNESCO Convention against Discrimination in Education (1960) and Articles 13 and 14 (Right to Education) of the International Covenant on Economic, Social and Cultural Rights: A comparative analysis. France: UNESCO, 2006.

UN General Assembly Resolution 35/76 (Dec.5, 1980).

The UN General Assembly Resolution 61/16 UNGA (2006).

The UN General Assembly Resolution 421(V), section E. (accessed on Jan.06, 2016 at the link below): (http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/421(V)).

The UN General Assembly Resolution 543(VI). (Feb.05, 1951).

The UNICEF. (accessed on Aug.25, 2016 at the link below): (http://www.unicef.org/about/who/index_history.html).

The UN Statistics Division, (accessed on Dec.28, 2015 at the link below): (http://unstats.un.org/unsd/default.htm).

286 Bibliography

The ‘Working Methods’ of the Committee on ESCR. (accessed on Oct.5, 2016 at the link blow): (http://www.ohchr.org/EN/HRBodies/CESCR/Pages/WorkingMethods.aspx).

The 1990 deadlines for the submission of documentation for Asia Pacific (Sri Lanka) to the CESCR. (accessed on Apr.5, 2017 at the link below): (http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/MasterCalendar.aspx).

Secondary Sources

Books

Alston, Philip, and Ryan Goodman. International Human Rights. Oxford: Oxford University Press, 2012.

Antony, MJ. Social Action through Courts: Landmark Judgements in Public Interest Litigation. New Delhi: Indian Social Institute, 1997.

Austin, Graniville. The Indian Constitution: Cornerstone of a Nation. New Delhi: Oxford University Press, 2011.

Basu, Durga Das. Introduction to the Constitution of India. Haryana: LexisNexis, 2015.

Baxter, Craig, Yogendra K. Malik, Charles H. Kennedy, and Robert C. Oberst. Government and Politics in South Asia. Oxford: Westview Press, 1998.

Biglino, Irene, and Christophe Golay. The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. Geneva: Geneva Academy of International Humanitarian Law and Human Rights, 2013.

Blaikie, Piers, John Cameroon, and David Seddon. Nepal in Crisis: Growth and Stagnation at the Periphery. New Delhi: Oxford University Press, 1980.

Branco, Manuel Couret. Economics versus Human Rights. Oxon/New York: Routledge, Taylor and Francis Group, 2009.

Brass, Paul R. ed. Routledge Handbook of South Asian Politics: India, Pakistan, Bangladesh, Sri Lanka, and Nepal. London/New York: Routledge, Taylor and Francis Group, 2010.

Burns, James MacGregor. Government by the People. Prentice Hall College Div. 1997.

Chaturvedi, Sanjay. “The Hindu World-View and South Asia: Orders, Borders, and Others.” In International Relations Theory and South Asia, edited by E. Sridharan. New Delhi: Oxford University Press, 2011.

287 Bibliography

Collier, David. “The Comparative Method.” In Political Science: The State of the Discipline II, edited by Ada W Finifter. Washington, DC: American Political Science Association, 1993.

Courtis, Christian. Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Experiences of Justiciability. Geneva: International Commission of Jurists, 2008.

Cranston, Maurice William. What are Human Rights?. New York: Taplinger Publishing Corporation, 1973.

Craven, Matthew CR. The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development. Oxford: Clarendon Press, 1995.

Cruft, Rowan, S. Matthew Liao, and Massimo Renzo. eds. Philosophical Foundations of Human Rights. Oxford: Oxford University Press, 2015.

Darraj, Susan Muaddi. The Universal Declaration of Human Rights. New York: Infobase Publishing, 2010.

Dasgupta, Anindita. “Old Conflicts, New Futures: Understanding Nepal’s Political Transformation.” In South Asia: Societies in Political and Economic Transition, edited by Tan Tai Yong. New Delhi: Manohar Publishers and Distributors, 2010.

De Silva, Kingsley M. A history of Sri Lanka. London/Berkeley: University of California Press, 1981.

DeVotta, Neil. “Politics and Governance in Post-independence Sri Lanka.” In Routledge Handbook of South Asian Politics: India, Pakistan, Bangladesh, Sri Lanka, and Nepal. edited by Paul R Brass. London/New York: Routledge, Taylor and Francis Group, 2010.

Donnelly, Jack. Universal Human Rights in Theory and Practice. New York: Cornell University Press, 2013.

Eckstein, Harry. Regarding Politics: Essays on Political Theory, Stability, and Change. California/England: University of California Press, 1992.

Fagan, Andrew. “Philosophical Foundations of Human Rights.” In Handbook of Human Rights, edited by Thomas Cushman. Oxon/New York: Routledge, Taylor and Francis Group, 2014.

Fenwick, C. “Minimum Obligations with Respect to Article 8 of the International Covenant on Economic, Social and Cultural Rights.” In Core Obligations: Building a Framework for Economic, Social and Cultural Rights, AR Chapman and S Russell. et al. Antwerp: Intersentia, 2002.

288 Bibliography

Gauri, V, and D Brinks. eds. Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World. New York: Cambridge University Press, 2008.

George, Alexander L, and Andrew Bennett. Case Studies and Theory Development in the Social Sciences. Cambridge: MIT Press, 2005.

Ghai, Yash, and Jill Cottrell. eds. Creating the New Constitution: A Guide for Nepali Citizens. Sweden: International IDEA, 2008.

. The Millennium Declaration, Rights, and Constitutions. New Delhi: Oxford

University Press, 2011.

Haas, Michael. International Human Rights: A Comprehensive Introduction. Oxon/New York: Routledge, Taylor and Francis Group, 2014.

Hachhethu, Krishna. “Nepali Politics: Political Parties, Political Crisis and Problems of Governance.” In Domestic Conflict and Crisis of Governability in Nepal. edited by Dhruba Kumar. Kathmandu: Centre for Nepal and Asian Studies, 2000.

Johari, J C. Indian Polity: A Concise Study of the Indian Constitution, Government and Politics. New Delhi: Lotus Press, 2004.

Kelegama, Saman. “Sri Lanka” In Handbook on the South Asian Economies. edited by Anis Chowdhury and Wahiduddin Mahmud. UK: Edward Elgar Publishing Limited, 2008.

Kent, George. Freedom from Want: The Human Right to Adequate Food. Washington, DC: Georgetown University Press, 2005.

Kharel, Sambriddhi, Deepak Thapa, and Bandita Sijapati. “Nepal: A Country of Minorities.” In South Asia State of Minorities Report 2016 Mapping the Terrain. the South Asia Collective. Bangalore: Books for Change, 2016. The e-book is available online at (accessed on Nov.17, 2016 at the link below):

(http://www.misaal.ngo/wp-content/uploads/2016/11/e-Book_South-Asia-State- of-Minorities-Report-2016.pdf).

King, Jeff. An Activist’s Manual on the International Covenant on Economic, Social and Cultural Rights. Sri Lanka: Law and Society Trust, 2003.

Kumar, Dhruba, ed. State, Leadership and Politics in Nepal. Kathmandu: Centre for Nepal and Asian Studies, 1995.

Lawoti, Mahendra. Towards a Democratic Nepal: Inclusive political Institutions for a Multicultural Society. New Delhi: SAGE Publications India, 2005.

289 Bibliography

McKean, Warwick Alexander. Equality and Discrimination under International Law. New York: Oxford University Press, 1983.

Mihr, Anja, and Mark Gibney. eds. The SAGE Handbook of Human Rights: Two Volume Set. London: Sage Publications Ltd, 2014.

Morsink, Johannes. The Universal Declaration of Human Rights: Origins, Drafting, and Intent. Pennsylvania: University of Pennsylvania Press, 1999.

Muni, SD. “Building a New Nepal: Travails of Transition.” In South Asia: Societies in Political and Economic Transition. edited by Tan Tai Yong. New Delhi: Manohar Publishers and Distributors, 2010.

Ozgur, Ozlem Ayse. “Human Rights Duties are Collective Duties of Justice.” In Kantian Theory and Human Rights, edited by Andreas Follesdal and Reidar Maliks. New York/Oxon: Routledge, Taylor and Francis Group, 2014.

Paine, Thomas. Rights of Man. Edited by Claire Grogan. Canada: Broadview Press, 2011, no.718.

Ragin, Charles C. The Comparative Method: Moving Beyond Qualitative and Quantitative Strategies. California: University of California Press, 2014.

, and Claude Rubinson. “The Distinctiveness of the Comparative Research.” In The SAGE Handbook of Comparative Politics, edited by Todd Landman and Neil Robinson. London: Sage Publications Ltd, 2009.

Rawls, John. A Theory of Justice. Massachusetts: Harvard University Press 2009. Revised edition.

. Justice as Fairness: A Restatement. Edited by Erin Kelly. Massachusetts/England: Harvard University Press, 2001.

Ramcharan, Bertrand G. ed. Judicial Protection of Economic, Social and Cultural Rights: Cases and Materials. Boston: M. Nijhoff Publishers, 2005.

Riaz, Ali, and Subho Basu. Paradise Lost?: State Failure in Nepal. Lanham, MD: Lexington Books, Rowman and Littlefield Publishers, Inc., 2007. The book is available to read online at (accessed on Nov.10, 2016 at the link below): (https://books.google.com/).

Saul, Ben, David Kinley, and Jaqueline Mowbray. The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials. Oxford: Oxford University Press, 2014.

Sen, Amartya. Development as Freedom. Oxford: Oxford University Press, 2001.

290 Bibliography

. The Idea of Justice. Massachusetts: Harvard University Press, 2011.

Shankar, Shylashri. Scaling Justice: India’s Supreme Court, Anti-Terror Laws, and Social Rights. New Delhi: Oxford University Press, 2009.

Shue, Henry. Basic Rights: Subsistence, Affluence, and US Foreign Policy. New Jersey: Princeton University Press, 1996.

Sinha, Manoj Kumar. Enforcement of Economic, Social, and Cultural Rights: International and National Perspectives. New Delhi: Manak Publications, 2006.

Smith, Rhona KM. Textbook on International Human Rights. Oxford: Oxford University Press, 2016.

. Texts and Materials on International Human Rights. Oxon/New York: Routledge, Taylor and Francis Group, 2010.

Ssenyonjo, Manisuli. Economic, Social and Cultural Rights in International Law. USA: Bloomsbury Publishing, 2009.

Steiner, Henry J., Phillip Alston, and Ryan Goodman. International Human Rights in Context: Law, Politics, Morals. New York: Oxford University Press, 2008.

Subba, T Basant. Politics of Culture. Hyderabad: Orient Longman, 1999.

Traylor, J Cartwright. “FAO and the Right to Food” In Food as a Human Right. Asbjørn Eide, et al. Singapore: United Nations University, 1988.

Uitiz, R., and A. Sajo. “Welfare Rights in Hungarian Constitutional Jurisprudence.” In Justiciability of Economic and Social Rights – Experiences from Domestic Systems, edited by Coomans. Netherland: Intersentia, 2006.

Vijapur, Abdulrahim P. “Question of Domestic Jurisdiction and the Evolution of United Nations Law of Human Rights.” In The United Nations. edited by Sam Daws and Natalie Samarasinghe. UK: Sage Publications Ltd, 2014.

Wickramasinghe, Nira. “Sri Lanka’s Independence: Shadows over a Colonial Graft.”

In Routledge Handbook of South Asian Politics: India, Pakistan, Bangladesh, Sri Lanka, and Nepal. edited by Paul R Brass. London/New York: Routledge, Taylor and Francis Group, 2010.

Articles

Abeyratne, Rehan. “Socio-Economic Rights in the Indian Constitution: Toward a Broader Conception of Legitimacy.” Brooklyn Journal of International Law 39, no.1 (2014): 2-67. The electronic copy is available at (accessed on Oct.26, 2016 at the link below):

291 Bibliography

(http://ssrn.com/abstract=2189277).

Abeyratne, Sirimal. “Economic Roots of Political Conflict: The Case of Sri Lanka.” The World Economy 27, no.8 (2004).

Addo, Michael K. “The Justiciability of Economic, Social and Cultural Rights.” Commonwealth Law Bulletin 14, no. 4 (1988).

Alston, Phillip. “Out of the Abyss: The Challenges Confronting the New UN Committee on Economic, Social and Cultural Rights.” Human Rights Quarterly 9, no.3 (Aug.1987): 332–81.

, and Bruno Simma. “First Session of the UN Committee on Economic, Social and Cultural Rights.” The American Journal of International Law 81, no.3 (1987).

, and G. Quinn. “The Nature and Scope of States Parties Obligations under the International Covenant on Economic, Social and Cultural Rights.” Human Rights Quarterly 9, no.2 (May 1987): 156-229.

Ambedkar, BR. “the Constituent Assembly of India.” Concluding Speech, Nov.25, 1949. (accessed on Oct.11, 2016 at the link below): (http://parliamentofindia.nic.in/ls/debates/vol11p11.htm).

Bandaranayake, Shirani A. The Courts in Implementing Human Rights: The Sri Lankan Experience. Seminar on Human Rights in Education before the Ethics Committee of the Sri Lanka Association for the Advancement of Science (Aug.8,

2003). The electronic copy is available at (accessed on Apr.2, 2017 at the link below): (http://www.island.lk/2003/08/22/featur02.html).

Bhagwati, PN. “Judicial Activism and Public Interest Litigation.” Colum. J. Transnat'l L. 23, (1984).

Chapman, Audrey R. “A Violations Approach for Monitoring the International Covenant on Economic, Social and Cultural Rights.” Human Rights Quarterly 18, no.1 (Feb.1996): 23-66.

“Constitutional Reforms over the Years.” Sunday Observer. Sri Lanka (Sunday, Sep.5, 2010).

The Crisis Group Asia Briefing No.7. Nepal Peace Postponed. Kathmandu/Brussels, Dec.18, 2007.

Dahal, Dev Raj. “Political Perspective on Social Development in Nepal.” Contributions to Nepalese Studies 22, no.1 (1995).

Dennis, Michael J., and David P. Stewart. “Justiciability of Economic, Social, and Cultural Rights: Should there be an International Complaints Mechanism to

292 Bibliography

Adjudicate the Rights to Food, Water, Housing, and Health?.” American Journal of International Law 98, no.3 (July 2004): 462-515.

De Silva, KM. “A Tale of Three Constitutions 1946-8, 1972 and 1978.” The Ceylon Journal of Historical and Social Studies VII, no.2 (1977): 1-17.

Eide, Asbjørn. “Making Human Rights Universal: Achievements and Prospects.” Human Rights in Development Online 6, no.1 (1999).

Ellingson, Ter. “The Nepal Constitution of 1990: Preliminary Considerations.” Himalaya, the Journal of the Association for Nepal and Himalayan Studies 11, no.1 (1991).

Fernando, Laksiri. Human Rights Day: Importance of the UDHR. Colombo Telegraph (Dec.9, 2012). (accessed on Jan.04, 2016 at the link below): (https://www.colombotelegraph.com/index.php/human-rights-day-importance-of-the- udhr/).

Gellner, David N. “Democracy in Nepal: Four Models.” New Delhi: Seminar 576 (2007): 50-56.

Gianviti, François. “Economic, Social and Cultural Rights and the International Monetary Fund.” IMF Seminar on Current Developments in Monetary and Financial Law. Washington, DC, May 7-17, 2002.

Glendon, Mary A. “Knowing the Universal Declaration of Human Rights.” Notre Dame L. Rev. 73, issue 5 (1998): 1153-90.

Golay, Christophe. “The Food Crisis and Food Security: Towards a New World Food

Order?.” International Development Policy 1, (2010): 215-232.

Hensman, Rohini. “Independent Judiciary and Rule of Law: Demolished in Sri Lanka.” Economic and Political Weekly 48, no.09 (Mar.2, 2013). The electronic copy is available at (accessed on Apr.3, 2017 at the link below):

(http://www.epw.in/journal/2013/09/commentary/independent-judiciary-and-rule- law.html).

Hussain, M Nazeer. “ICESCR and India: At Fiftieth Anniversary.” Social Action 66, (April-June 2016).

Hicks, JR. “Reflections on the Economic Problems of Ceylon.” Papers by Visiting Economists. Colombo: Planning Secretariat, 1959.

Keller, Linda M. “The Indivisibility of Economic and Political Rights.” Human Rights and Human Welfare 1, no.3 (2001): 9-14.

293 Bibliography

Kjellin, Karin. “Socio-Economic Rights: What Relevance in an Era of Globalization?” (Master Thesis, Stockholm University Department of Law,

Stockholm, Nov.2007). (accessed on Jan.05, 2016 at the link below): (http://www.juridicum.su.se/juruppsatser/2007/ht_2010_karin_kjellin.pdf).

Kodituwakku, Nagananda. “Judicial Decision Making in the Cases of Bracegirdle & Gunaratnam.” Colombo Telegraph. (Sri Lanka, Apr.3, 2016). This article is available at (accessed on Mar.28, 2016 at the ink below):

(https://www.colombotelegraph.com/index.php/judicial-decision-making-in-the- cases-of-bracegirdle-gunaratnam/).

Kothari, Jayna. “Social Rights and the Indian Constitution.” Law, Social Justice & Global Development Journal 2, (2004).

Langford, Malcolm. “Closing the Gap – An Introduction to the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.” Nordisk tidsskrift for menneskerettigheter 27, no.1 (2009).

. “Domestic Adjudication and Economic, Social and Cultural Rights: A Socio- legal Review.” Sur. Revista Internacional de Direitos Humanos 6, no.11 (2009): 98- 133. The electronic copy is available at (accessed on Nov.21, 2016 at the link below): (http://www.scielo.br/scielo.php?pid=S1806- 64452009000200006&script=sci_arttext&tlng=en).

, and Ananda Mohan Bhattarai. “Constitutional Rights and Social Exclusion in Nepal.” International Journal on Minority and Group Rights 18, (2011).

Lijphart, Arend. “Comparative Politics and the Comparative Method.” American Political Science Review 65, no.3 (1971): 682-693.

MacMillan, C. Michael. “Social Versus Political Rights.” Canadian Journal of Political Science 19, no.2 (1986): 283-304.

Marks, Stephen P. “The Past and Future of the Separation of Human Rights into Categories.” Md. J. Int’l L. 24, issue 1 (2013): 209-243.

Mills, Melinda, Gerhard G. Van de Bunt, and Jeanne De Bruijn. “Comparative Research: Persistent Problems and Promising Solutions.” International Sociology 21, no.5 (2006): 619-631.

Morgan, David Gwynn. “The Indian ‘Essential Features’ Case,” The International and Comparative Law Quarterly 30, no.2 (Apr.1981).

Nariman, Fali S. “The Constitution and Human Rights: An Overview.” Journal of the National Human Rights Commission of India 1, (2002).

294 Bibliography

Nehru, Jawaharlal. “Parliamentary Democracy: Report of the First All-India Seminar.” Inaugural Speech, New Delhi, 1956. Indian Bureau of Parliamentary Studies.

Nickson, R Andrew. “Democratisation and the Growth of Communism in Nepal: A Peruvian Scenario in the Making.” Journal of Commonwealth and Comparative Politics 30, no.3 (1992).

“Protecting Human Rights: The Role of National Institutions.” Commonwealth Conference of National Human Rights Institutions. Cambridge: Commonwealth Secretariat, July 4-6, 2000.

Radhakrishnan, S. “Parliamentary Democracy: Report of the first All-India Seminar.” Speech, New Delhi, 1956. Indian Bureau of Parliamentary Studies.

Regmi, Khil Raj. “A Step toward Reformation of Legal System.” Quarterly Newsletter of JICA 57. April-June 2010. The electronic copy is available at (accessed on Nov.20, 2016 at the link below): (https://www.jica.go.jp/nepal/english/office/others/pdf/newsletter_57.pdf).

th Roosevelt, Franklin D. “The Four Freedoms.” Speech, 77 Congress, USA, Jan.6, 1941.

Ruparelia, Sanjay. “Enacting Socioeconomic Rights: Lessons Learned from India.” Global Thematic Consultation. 2012.

. “India’s New Rights Agenda: Genesis, Promises, Risks.” Pacific Affairs 86, no.3 (2013): 569-590.

Sachs, Jeffrey D. “From Millennium Development Goals to Sustainable Development Goals.” The Lancet 379, no. 9832 (2012): 2206-2211.

Sibbel, Lejo. “ILO Conventions and the Covenant on Economic, Social and Cultural Rights: One Goal, Two Systems.” Dialogue and Cooperation 1, no.2001 (2001).

Uyangoda, J. “The Birth of a Tragedy” Frontline 15, (1998). (accessed on Mar.15, 217 at the link below): (http://www.frontlineonnet.com/fl1505/15050620.htm).

Waage, Jeff, Rukmini Banerji, Oona Campbell, Ephraim Chirwa, Guy Collender, Veerle Dieltiens, and Andrew Dorward. “The Millennium Development Goals: A Cross-Sectoral Analysis and Principles for Goal Setting after 2015.” The Lancet 376, no. 9745 (2010): 991-1023.

Weiss, Thomas G. “ECOSOC and the MDGs: What can be Done?.” The Global Poverty Summit (Johannesburg, 2011). (accessed on July 20, 2016 at the link below):

295 Bibliography

(https://www.researchgate.net/profile/Thomas_Weiss10/publication/265533392_ECO SOC_and_the_MDGs_What_can_be_done/links/56cae26b08ae5488f0da8d4c.pdf).

Wickeri, Elisabeth. “No Justice, No Peace: Conflict, Socio-Economic Rights, and the New Constitution in Nepal.” Drexel Law Review 2, no.2 (2010).

Wriggins, W Howard. “Impediments to Unity in New Nations: The Case of Ceylon.” American political science Review 55, no.2 (1961).

Yamin, Alicia Ely. “The Future in the Mirror: Incorporating Strategies for the Defense and Promotion of Economic, Social and Cultural Rights into the Mainstream Human Rights Agenda.” Human Rights Quarterly 27, no.4 (2005): 1200-1244.

Internet Sources

Breay, Claire, and Julian Harrison. Magna Carta: An Introduction. (accessed on June 15, 2016 at the link below): (http://www.bl.uk/magna-carta/articles/magna-carta-an-introduction).

Chicago Manual of Style Online. Chicago: Chicago University Press, 2010. (accessed on June 20, 2017 at the link below): (http://www.chicagomanualofstyle.org/home.html).

Cottrell, Jill, Surya Dhungel, Basant Subba, Kedar Bhattarai, and Dila Datt Pant. The Interim Constitution of Nepal, 2063 (2007): As Amended by the First to Sixth Amendments. Nepal: UNDP, UN House Pulchowk, Jan.2009. The document is available at (accessed on Nov.19, 2016 at the link below): (http://himalaya.socanth.cam.ac.uk/collections/rarebooks/downloads/Nepal_Interim_ Constitution_2007_first_to_sixth_amendements.pdf).

The Declaration of Independence 1776. (accessed on June 16, 2016 at the link below): (http://www.ushistory.org/declaration/document/).

The Declaration of the Rights of Man 1789. (accessed on June 15, 2016 at the link below): (http://avalon.law.yale.edu/18th_century/rightsof.asp).

The English Bill of Rights 1689. (accessed on June 15, 2016 at the link below): (http://avalon.law.yale.edu/17th_century/england.asp).

Harrop, Elizabeth Willmott. “The Universal Declaration’s Bias towards Western Democracies.” libertyandhumanity.com (Jan.2003). (accessed on Sept.5, 2016 at the link below): (http://libertyandhumanity.com/themes/international-human-rights-law/the universal- declarations-bias-towards-western-democracies/).

296 Bibliography

The International IDEA. Constitutional History of Sri Lanka. (accessed on Mar.27, 2017 at the link below): (http://www.Constitutionnet.org/country/Constitutional- history-sri-lanka).

“John Rawls” In Stanford Encyclopedia of Philosophy. (accessed on Sept.10, 2016 at the link below): (http://plato.stanford.edu/entries/rawls/#TwoPriJusFai).

Mainali, Sujit. How Discriminatory was the First Muluki Ain against Dalits?. South Asia Check (Aug.21, 2015). The article is available at (accessed on Nov.20, 2016 at the link below): (http://southasiacheck.org/fact-check/how-discriminatory-was-the-first-muluki-ain- against-dalits/).

Manandhar, Tri Ratna. “The 1990 Constitution Making in Nepal and its Implementation (Part1).” Telegraphnepal.com (Sep.30, 2014). The electronic copy is available at (accessed on Nov.22, 2016 at the link below):

(http://www.telegraphnepal.com/national/2014-09-30/the-1990-constitution-making- in-nepal-and-its-implementation.html).

Monahan, Sean. “Reading Paine from the Left.” Jacobin. (accessed on Sept.10, 2016 at the link below): (https://www.jacobinmag.com/2015/03/thomas-paine-american-revolution-common- sense/). Paper Prepared for the National Commission for Review of the Constitution of India, (accessed on Oct.25, 2016 at the link below): (indiacode.nic.in/mjr/En.%20of%20FR.doc).

Political Transition Monitoring in Nepal, 2009-2014. The Carter Centre Nepal. (accessed on Nov.10, 2016 at the link below): (https://www.cartercenter.org/resources/pdfs/news/peace_publications/election_report s/nepal-2014-final.pdf).

Suryanarayan, V. “Constitutional Imbroglio in Sri Lanka.” The Hindu. India: Online edition (Thursday, July 26, 2001). (accessed on Mar.22, 2017 at the link below): (http://www.thehindu.com/2001/07/26/stories/05262523.htm). nd Verma, CL. “Amendments Made under 42 Constitutional Amendment Act.” UPSC Guide.com. (accessed on Oct.22, 2016 at the link below): (http://upscguide.com/content/ammendments-made-under-42nd-constitutional- amendment-act).

Worldmark Encyclopedia of Nations. “The Economic and Social Council.” Encyclopedia.com (2007). (accessed on Dec.15, 2015 at the link below): (http://www.encyclopedia.com/doc/1G2-2586700029.html).

297