Covid-19: Securing access to socio-economic rights in times of a nationwide lockdown

Ever since the nationwide lockdown was imposed on 25^th March, we have come across heart-wrenching reports of the sufferings of migrant workers, daily wage laborers and other sections of the population - who lack access to means of livelihood till this lockdown prevails. This has led to multiple discussions on the manner in which the State should provide them access to basic resources, so that they can sustain themselves during the continuance of the lockdown.

Two of the biggest challenges that migrant workers, daily wage earners etc. have faced in this lockdown are: (i) lack of access to sufficient quantity of food; and (ii) lack of access to financial resources - in a situation where they may not be able to earn wages, or have lost their only source of income. Policy experts have persuasively argued that in this situation, it is the State’s duty to ensure that the deprived sections of society have access to food and social security. There has however not been sufficient discussion on the nature of this duty, which is to be fulfilled by the State.

Now, right to food and social security are undoubtedly socio-economic rights that fall within the penumbra of rights that have been read into Article 21 of the Constitution. Reading Article 21 in consonance with international human rights law principles, I  shall in this post argue that the State has a constitutional obligation to secure access to - (i) a basic level of nutrition, by providing a certain minimum quantity of food; and (ii) a basic level of cash or sustenance income, for those who cannot earn wages and are bound to lose their means of livelihood during the lockdown.

The corollary between rights and duties

Every right imposes both positive and negative obligations on the State. The negative obligation requires the State to refrain from infringing that right. The positive obligation on the other hand requires the State to secure access to that particular right, by framing requisite schemes and policies. For instance, with respect to the right to food, the State has a negative obligation to ensure that it does not discriminate between citizens while granting food rations. The State also has a positive obligation to ensure that the deprived sections of society have adequate access to food. This obligation of securing access to food requires the State to spend financial resources, and also draw up an effective policy to achieve the same. During a situation of a lockdown, the obligation on the State is positive in nature – to ensure that underprivileged sections of society are not deprived of food or basic social security.  

Now, the State may not have the financial means to immediately secure access to a certain quantity of food and thereby a minimum level of nutrition. Similarly, the State may not have the resources to provide access to a minimum level of income to those who have lost their means of livelihood during the lockdown. Hence, the question that arises here is – What is the scope and ambit of the State’s positive obligation to secure access to food and social security, during this pandemic? This is where the principles laid down in the International Covenant on Economic, Social and Cultural Rights (ICESCR) come in handy.

General Comment No.3 of the ICESCR talks about a ‘minimum core’ obligation – which means that the minimum essential levels of each of the rights recognized by the Covenant should be immediately realized by the State. Aspects of the right which do not form part of the minimum core should be progressively realized by the State – based on availability of financial resources. In other words, States should immediately secure access to those aspects of a right that forms part of the minimum core. This can be illustrated by referring to the example mentioned in the General Comment itself, which is as follows. If in a particular State, a number of individuals are deprived of essential foodstuffs, then that State party is failing to fulfil its minimum core obligation under the ICESCR.

The minimum core obligation is designed to ensure that deprived sections of society have access to a minimum level of resources, through which they can live with dignity. What aspects of a particular right constitute the ‘minimum core’ may also vary based on the prevailing circumstances. Different countries have however adopted different approaches in the past, while elucidating the scope of the minimum core obligation. Courts have especially found it difficult to define the content of the ‘minimum core’ of a right. The approaches adopted by Courts in South Africa, Argentina and India shall be discussed below.

Differences approaches adopted by Courts to define the ‘minimum core’ obligation

South Africa:

In decisions such as Grootboom and Treatment Action Campaign, the South African Constitutional Court has held that minimum core is not an independent enforceable standard in itself, and that it can only be used to examine the reasonableness of the measures adopted by the Government. In Mazibuko v. City of Johanesburg, it was contended that a minimum quantity of 50 litres of water should be provided to every household, in accordance with Section 27 of the South African Constitution, which prescribed a right to access sufficient water. The appellants fixed 50 litres as the minimum threshold of water to be provided based on expert evidence.

The South African Constitutional Court held that Section 27 of the Constitution does not confer the right to claim sufficient water immediately. It held that a minimum quantity of water cannot be prescribed by the Court, and that the Court should only determine whether reasonable measures are being taken to progressively achieve the right of access to sufficient water. This decision has however been criticized by scholars such as David Bilchitz, who have argued that this approach conflates the distinction between a right and a duty. Such an approach of not spelling out the content of the right may also adversely affect the vulnerable sections of society.

Argentina:

In the Miguel Angel case, where the fact situation that was similar to Mazibuko, the Court spelt out the minimum content of the right to water by referring to the Argentinian Constitution and other provincial regulations. This approach of spelling out the content of the minimum core of the right in question is better than the approach adopted in Mazibuko - as spelling out the content gives clarity regarding the State’s obligation to enforce the right, which may work to the benefit of the deprived sections.

India:

The Indian Courts have imposed a minimum core obligation in certain situations, such as while examining the scope of right to health under Article 21. In Mohd Ahmed v. Union of India (Delhi HC) and Manoj v. State of Kerala (Kerala HC), the Courts have held that the right to health under Article 21 imposes a minimum core obligation of providing access to life-saving drugs, especially to the deprived sections of society. Specifically in Mohd Ahmed,  the Indian Courts held that for obligations that fall within the ambit of the minimum core, a paucity of financial resources is not an excuse. Indian Courts have hence imposed a non-derogable minimum core obligation for certain aspects of the right to health.

In my view, this approach is better than the one adopted by the South African Constitutional Court for two reasons. First, it aims to define the minimum content of the right, by taking into account the basic essential levels of the right in question - which is necessary for a person to live a life with dignity. This imposes a specific obligation that the State has to fulfil, to secure access to this right. Second, while defining this minimum core obligation, the approach places specific emphasis on meeting the needs of deprived sections of society.

Applying this ‘minimum core’ standard during a nationwide lockdown

Let us take forward the ‘minimum core’ standard applied in Mohd Ahmed and Manoj to the situation of nationwide lockdown, which exists as of today. Now, if we consider the basic essential levels of the right to food and the right to social security that is necessary in this situation for deprived sections of society to live a life with dignity, there can only be one common end. During a nationwide lockdown, providing a minimum basic level of food (and thereby ensuring basic levels of nutrition) and basic sustenance income to deprived sections of the population who have lost their means of livelihood can be considered as components of the ‘minimum core’ of the right to food and the right to social security. 

The State hence has a constitutional obligation to secure access to the minimum levels of each of these rights. Now, with respect to the right to food, this would mean providing a certain minimum quantity of foodgrain, along with other commodities such as cooking oil and pulses – to the deprived sections of society who may have lost their only source of income. While framing this minimum quantity, the parameter should be to secure access to a minimum essential level of nutrition that is necessary for deprived sections of society to live with dignity. 

While the modalities of framing this minimum quantity falls within the domain of the executive, the constitutional benchmark imposed by the minimum core obligation should be satisfied. Similarly, with respect to social security for the deprived sections of the population, the constitutional benchmark shall be for the State to provide a basic level of cash or sustenance income, that shall be in consonance with the income otherwise earned by such individuals. Providing such a basic sustenance income along with basic levels of nutrition is integral for migrant workers and laborers to live with dignity. 

Meeting this minimum core obligation also serves as an answer to the debate that we are having in India today - on saving lives (through enforcing a lockdown) v. ensuring livelihood (by relaxing the lockdown measures and permitting economic activity). While saving lives v. ensuring livelihoods is being seen as a binary and a trade-off, it is definitely possible for us to fulfill both these goals simultaneously. This can be done by meeting the minimum core obligations discussed above – through which those who have lost their livelihood get access to food and basic sustenance income, even during the prevalence of the lockdown. Fulfilling the minimum core can hence ensure that safeguarding health does not come at the cost of destroying livelihood, and vice versa.

While many State Governments are providing food and cash to migrant workers, daily wage earners etc, a lot more needs to be done to ensure that similarly placed individuals are not excluded from such schemes. Until this is done, the constitutional duties imposed by the ‘minimum core’ aspects of the right to food and social security shall not be enforced in letter and in spirit.

(This is our second post highlighting certain constitutional aspects of the nationwide lockdown and the Covid-19 pandemic. In the next post relating to Covid-19, we shall deal with the right to privacy, and whether it should necessarily be ‘traded-off’ in favor of public health.)