In this blog post, Rishika Sahgal discusses the contribution of her article titled, ‘Proportionality Review and Economic and Social Rights in India’ to comparative human rights and constitutional law.
Economic and Social rights are by now well-recognised. They are enshrined in the Universal Declaration of Human Rights and in most other key international and regional human rights systems (for example, the International Covenant on Economic and Social Rights (ICESCR) at the international level). More than three-quarters of the world’s constitutions contain at least one formally justiciable economic and social right (Rosevear, Hirschl and Jung).
How do courts check if these rights have been breached? Courts have followed a different approach to the adjudication of economic and social rights, in comparison with their adjudication of civil and political rights. The proportionality standard has increasingly been applied in the context of civil and political rights and some argue that we have entered the ‘age of proportionality’ (Vicki Jackson). A four-part structured proportionality test requires that the purpose being fulfilled by rights-limiting action is sufficiently important, the means are rationally connected to the purpose, are least restrictive of rights, and are overall proportionate based on the importance of the purpose and the extent of limitation of the right. The overall aim is to prioritize rights, and any intrusions on rights must be justified through sufficiently important reasons.
The application of this standard of review in the context of economic and social rights has remained a less discussed issue. As Katherine Young notes, ‘the comparative constitutional practice around economic and social rights reveals little resembling proportionality analysis’. My article fills a gap in the literature on the application of the proportionality standard of review in the context of economic and social rights. It focuses on one right – the right to housing; and one jurisdiction – India; but the arguments have wider implications for comparative human rights and constitutional law.
As I indicate below, the South African ‘reasonableness’ approach to the adjudication of economic and social rights has been influential. For example, it has influenced the standard adopted under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR). The OP-ICESCR creates an individual communications mechanism to hold states accountable for violations of rights protected under the ICESCR. India offers a new frontier for application of the proportionality standard in the context of economic and social rights. My article explores how this standard might apply to test limitations of economic and social rights.
South Africa: reasonableness
The South African Constitution explicitly enshrines several justiciable economic and social rights, and the approach of South African courts to interpreting and applying these rights has drawn much comparative attention. Courts adopt the ‘reasonableness’ standard, checking whether state measures in relation to these rights are ‘reasonable’ (Grootboom) and implemented in a procedurally fair manner (Olivia Road). The South African Constitutional Court has laid down several open-ended, non-exhaustive procedural and substantive parameters that must be fulfilled for state action to be considered ‘reasonable’. For example, measures in relation to economic and social rights must respond to the needs of the most vulnerable (Grootboom) and must not make unreasonable limitations or exclusions (Treatment Action Campaign and Khosa).
This standard has been critiqued on two main grounds. First, that courts have been reluctant to develop the content of economic and social rights, and to test whether measures taken by the state are reasonable as against this normative content (David Bilchitz). Second, that the reasonableness standard is not as rigorous as a structured proportionality test and leaves economic and social rights less well-protected. It does not take seriously enough the rights of the impoverished (Stuart Wilson and Jackie Dugard). Despite the criticisms of the reasonableness standard within South Africa, the standard has been influential beyond its borders, most notably being adopted under Article 8(4) of the OP-ICESCR.
OP-ICESCR: reasonableness and proportionality
Despite the criticisms of the reasonableness standard within South Africa, the standard has been influential beyond its borders, most notably being adopted under Article 8(4) of the OP-ICESCR. Yet, in its emerging jurisprudence, the Committee on Economic Social and Cultural Rights seems to be applying proportionality rather than reasonableness as the standard of review in individual communications brought before it. For example, in López Rodríguez v Spain the Committee held that social security benefits could not be reduced except through measures provided for by law that were ‘reasonable and proportionate’ and guaranteed at least a minimum level of benefits (paragraph 11.3). In a series of individual communications against Spain involving eviction of people from their homes, the Committee has applied the proportionality standard of review (Grohmann). For example, in Gómez-Limón Pardo v Spain the Committee recognised that limitations to rights recognised under the ICESCR, including the right to adequate housing, must meet the four steps of a structured proportionality test. There is, therefore, a growing body of jurisprudence emerging under the OP-ICESCR that applies the proportionality test in the context of economic and social rights.
India: new frontier for proportionality
While the use of proportionality seems to be growing under international human rights law, within comparative constitutional law there is little use of proportionality analysis in the context of economic and social rights, despite its prevalence in the context of civil and political rights. This is replicated in India. The Indian Supreme Court has only recently adopted the structured proportionality test to check limitations on rights, most notably through Modern Dental College and Research Centre v Madhya Pradesh (2016) and Puttaswamy v Union of India (2017). While justiciable economic and social rights are recognised under the Indian Constitution as part of the broadly conceived right to life, courts are yet to apply a structured proportionality test to check limitations on economic and social rights. Nor have legal researchers explored whether the test ought to apply in economic and social rights cases. My article thereby fills a gap in legal doctrine and research in India. And it contributes more broadly to comparative constitutional and human rights law, by imagining how the test could apply in social rights cases, and what difference this makes to the adjudication of these rights.
Focussing on the right to housing, and particularly the context of eviction and demolition of homes, the article argues that the application of the test has important implications for the all-things-considered content of the right to housing, impacting both procedural and substantive entitlements forming part of the right to housing. It argues that it becomes much more difficult for the state to justify limitations on procedural requirements prior to evictions. Moreover, evictions that result in homelessness violate the necessity step of a proportionality analysis, given that a less restrictive means may be employed while pursuing necessary evictions. This means that alternate housing must be provided in all eviction cases that result in homelessness. Until now, Indian courts have only accepted conditional entitlements to alternate housing, when the state has framed primary legislation or executive schemes to provide alternate housing to those facing evictions.
Application of the proportionality standard thereby carries exciting possibilities for economic and social rights adjudication, in India and beyond.