This article compares the socio-economic rights of South Africa to the author’s perspective as to how these rights defeats the current condition of the social movement. It shows how the discourse of rights is increasing social hardships. It therefore reveals, the “emptiness” of the socio-economic rights law in the constitution of South Africa. The author feels that the socio-economic jurisprudence of the country is disappointing. The two main objectives are- importance of social justice through justiciable socio-economic rights and the obstacles regarding the same. The interpretation of socio-economic act demands two balancing acts-Firstly, the courts should be careful not to (over)formulate governmental policy and Secondly, that Constitutional courts should engage in the process of formulating the meaning of socio-economic right.
These rights have become subject to manipulation by the powerful members of the society. It is contended that focus on needs rather than rights would be better in order to search for the social justice and enabling social benefits in the poor and marginalized sectors of the society. One of the scholars also argued that it would be better if we avoid the “rights talks” and focus only on the “real experiences”. Let us understand this via this example, people need food and shelter and people demand of the same. Now, if that need is being satisfied will be characterized by enforcing the right. Also, the strikes may more likely be succeeded rather than claiming these rights should be enforced. Rights demand enforceable obligations against whom it is claimed and demands justification for non-fulfilment of such obligations. The society must not only respect citizens but must also ensure that it has access to all kinds of social amenities as to enable them to live with their human dignity. In International human rights law, the socio-economic rights are incapable of being realized as the protection of such rights are indistinct, interdependent and indivisible. The entitlement of goods and services for the survival of human being contributes to the idea of rights and needs. The guarantee ensuring these socio-economic rights contributes to a more just society in which the human dignity of all citizens is respected and affirmed. But these rights would be useful only to the extend that it improves the physical conditions of their lives. They must serve as a useful to enable people gain their access to basic social services and resources needed to live life with human dignity.
In South Africa, it was acknowledged that the Constitution has to eradicate the inequalities occasioned by apartheid for the socio-economic upliftment of the greater majority of the population. Some of the people felt that the only way by which this constitutional text could be proved meaningful is to include socio economic rights along with civil liberties. But this was countered by others saying that it is highly realistic. It was argued that these rights should not be justiciable as it involves illegitimate judicial encroachment. These rights at minimum could be protected from improper invasion. The constitutional courts, as mentioned in Section 38 may grant “appropriate relief”. In the case of Soobramoney V. Minister of Health, KwaZulu Natal, the appellant was not provided with kidney dialysis at state expense. It was stared that sometimes the court has to approach to larger needs of the society rather than focussing on the specific needs of a particular individual in the society. Therefore, some rights in the Constitution are ideal and some to be strived for. In another case of Republic of South Africa V. Grootboom, the court as stated in the constitution allowed for access to housing but this does not entitle them to claim shelter upon demand. But this was the real question.
Such implementations of order must be within the financing and capacity of the state and have to be comprehensive, flexible, coherent and balanced. Therefore, this plan of government was unreasonable. In the case of Minister of Health V. Treatment Action Campaign, the availability of a drug in public health sector was held to be unconstitutional as this policy was unreasonable subjected to overly rigid and inflexible. In the case of Khosa V. Minister of Social Development, the social security for the permanent residents was unconstitutional because it was unfair discrimination. Finally, the case of Jaftha V. Schoeman, stated that it was possible for the immovable property to be sold doe execution without judicial oversight to be unconstitutional as it meant infringement and an obligation to right of access to housing. The courts have left only to disappointment.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
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We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge