Illuminating the possible in the developing world: guaranteeing the human right to health in India.

• Author: Shah, Sheetal B.

"If we believe men have any personal rights at all as human beings, they have an absolute right to such a measure of good health as society, and society alone is able to give them."

Aristotle(1)

1. INTRODUCTION

   The reality that one fifth of the world's population is forced to live at subsistence levels, facing constant starvation, malnourishment, and poor health is one of the greatest human rights offenses in the modern world.(2) These types of social conditions are concentrated mostly in the developing world, where society is characterized by low economic and infrastructure development, crushing poverty, and uncompromising: political structures. The human fights movement has begun to recognize that these conditions are the result of a massive deprivation of social human rights. Such deprivations result in the systematic disempowerment of individuals in their ability to gain control over their social environments and become capable members of society.

   This Note argues that the recognition of the social right to health offers a step forward in empowering individuals to gain control over their social environments in the developing world. Part II discusses the potential of social human rights to alleviate suffering in the developing world. Social human rights recognize that the state must provide individuals with the basic social conditions necessary to live with human dignity. Part IH explores the legal obligations of social fights and their current status in human rights jurisprudence. It also discusses the most pressing challenges facing implementation of social rights at the national level. Part IV explores the contours of the social human right to health and its ability to empower individuals. Even though the right to health presents some of the most difficult conceptual and practical problems associated with social human rights, providing for the conditions necessary for good health is essential in allowing individuals to live with human dignity.

   The final section addresses India's experiment with litigating social rights, such as the right to health, and its potential use for the developing world. The Indian judiciary has developed a legal mechanism that can help make social empowerment a reality for Indian citizens. Through public interest litigation, India has been able to provide the majority of Indian citizens, who are poor or socially disadvantaged, with the ability to gain control over and improve their social environments. The judiciary has provided individuals with the procedural ability to guarantee social rights and entitlements in court, and has also provided substantive recognition to the right to health as a legally recognizable entitlement. The Indian "experiment" demonstrates that with creativity and commitment, social rights can be made justiciable and used to alleviate human suffering in the developing world.

2. THE MODERN HUMAN RIGHTS MOVEMENT

   The tremendous social and economic changes sweeping through the developing world have rapidly transformed developing societies. Current economic development programs have had a devastating impact on vulnerable members of the population with millions of people living in abject poverty.(3) Structural adjustment programs have required governments to shift expenditures away from social programs to more productive sectors.(4) The focus of these programs has been massive industrial development and macro-economic production instead of providing basic social services to the population.(5) According to the World Bank, states are required to provide only the minimum level of social services to the poor.(6) National governments have not begun to address these social deprivations on a systematic level, which has left the poor to face unbearable living conditions. The world is now confronted with ever-increasing popular demands for the protection of basic human rights, greater economic justice, and political freedom.(7)

   1. The Ability to Live With Human Dignity

      The new demand for social and economic justice has led to a normative shift within the human rights movement.(8) The traditional role of human rights has been to protect the civil and political rights of individuals.(9) Initially, these rights imposed negative duties on the state to refrain from interfering with certain individual freedoms.(10) The world community, however, has been forced to search for a deeper understanding of the meaning of human fights for individuals and societies around the world.(11) The modern focus of human rights has begun to shift towards the empowerment of individuals through the provision of social and economic resources necessary to live with human dignity. (12)

      A fundamental tenet of the human rights movement is that every human being possesses an inherent dignity by virtue of being human.(13) The primary purpose of the human rights movement has been to guarantee that individuals live with basic dignity.(14) The concept of living with "human dignity" has many components, and includes political liberty, freedom of thought and expression, economic subsistence, cultural freedom, and the provision of social services.(15)

      The duty of the state in guaranteeing human fights is to ensure that the individual is provided with the resources necessary to live a life of dignity. (16) These "resources" may include the guarantee of economic, social, cultural, civil, and political fights which that the individual to flourish in her political, economic, and social environment.(17) States should be assessed on whether existing societal structures or direct state actions interfere with the individual's fight to live with basic human dignity. Some examples of productive social environments include societies where people have access to resources for good physical and mental health, sufficient food, basic education services, and an adequate livelihood.(18) The guarantee of these social "goods" is a necessary precondition of the enjoyment of all human rights and allows individuals to fully participate in all other areas of their lives.(19)

   2. The Potential of Social Rights

      Faced with endemic poverty, the developing world has been unable to provide individuals with these types of social goods. Furthermore, developing countries have hierarchical power structures which are often hostile to the needs and concerns of ordinary people. In response, human rights advocates have begun to demand the legal recognition of social human rights as enforceable guarantees against the state. Through the use of social human rights, international and national communities can directly address individual suffering and the systematic disempowerment of individuals by guaranteeing the right to an essential level of social services. More importantly, social rights can be used to penetrate social and economic power structures to determine whether the structures act as a barrier to personal empowerment.(20) Social rights are also important tools because they can challenge the national power structures,(21) and help ensure that weaker populations have the opportunity to change their current situation through a judicial, legislative, or political process.(22)

      Countries must recognize the validity and legitimacy of social rights as human rights in order for these rights to be meaningful. Even though the international community has consistently acknowledged the importance of human rights, the guarantee of any right remains the primary responsibility of states who must translate the right into a cognizable reality.(23) The legitimacy of social human rights stems from the belief that the definition of a human right is controlled by society.(24) In fact, the propositions sustaining and validating human rights are created by people living in particular historical, social, and economic environments.(25) This view of human rights recognizes that people live in vastly different societies and require certain social and economic guarantees beyond rhetorical political affirmations for survival.(26)

      The definition and enjoyment of a human right is directly related to an individual's socioeconomic and political circumstances. The contours of a human right are best understood in particular social contexts and power structures.(27) For instance, human rights are often required to protect vulnerable individuals from the mercy of others such as private actors, the state, or social and economic institutions.(28)

      By providing guarantees for social rights, the weak, poor, and disempowered will be given the opportunity to participate meaningfully in society.(29) The legal recognition of social human rights signifies the beginning of an alliance of the victims of economic development programs who have been too weak to fight against the powerful social, economic, and political forces working against them.(30) The focus of the human fights movement on the guarantee and implementation of social rights at the national level offers a radical agenda for social change and alleviation of misery for the developing world.(31) Due to its potential impact, a greater understanding of the obligations and implications of social rights is necessary.

3. CURRENT STATUS OF SOCIAL RIGHTS

   Presently, social rights occupy a controversial and tenuous position in human rights jurisprudence and the world community.(32) The modern recognition of human rights is found in the Universal Declaration of Human Rights (UDHR).(33) The UDHR was part of the post-war commitment to peace, development, and human dignity.(34) The UDHR was based on the acknowledgement that human beings possess an inherent dignity that is inviolable.(35) The UDHR was quite comprehensive and sought to guarantee civil and political freedoms as well as provide welfare guarantees. The UDHR did not make any distinctions between civil and political rights and social and economic rights in terms of their legitimacy.(36) With respect to social rights, the UDHR guaranteed individuals the right to a...