Economic, Social and Cultural Rights Under the Constitution: Critical Evaluation of Judicial Jurisprudence in Bangladesh

Incorporation of Economic, Social and Cultural (ESC) rights in the constitution evidences a state’s concern for creating conditions which will allow every individual to develop his maximum potentials. The principal object of having social and economic provisions in a constitution is simply to put the state under an obligation to utilize its available resources maximally in order to redress social and economic imbalances and inequalities and thereby creating equal opportunities for all. Under the constitutional dispensation of Bangladesh, however, the problem has not been the incorporation of ESC rights but the manner in which these rights are incorporated and the guarantee of protection afforded to them by the Constitution. They have been embodied in Part II of the Constitution not in literal ‘rights’ term but as ‘social welfare goals’ of the state and more crucially they have been explicitly declared by Article 8(2) of the Constitution to be judicially non-enforceable. However, the Supreme Court of Bangladesh even in the face of such an express constitutional bar is enforcing rights that are clearly or at the least predominantly socio-economic in nature as part of the enforcement of judicially enforceable ‘fundamental rights.’ From some immediate past years the Supreme Court has shown extreme activism or been considerably instrumental in enforcing socio-economic rights of various form and nature by extending the scope and ambit of the fundamental rights of ‘right to protection of law’ and ‘right to life and personal liberty’ guaranteed under Articles 31 and 32 respectively of the Constitution. In this backdrop, the principal objectives of this article are two-fold. First, to examine the propriety of enlarging the content of some fundamental rights so as to include within it a wide variety of socio-economic rights and thereby enforcing them indirectly. Second, to assess critically the utility and effectiveness of Supreme Court’s particular indirect approach for true and sure ensuring of the ESC provisions embodied in the Constitution as policy aspirations or goals of the state.