Legislating on economic-social rights amidst de-democratisation: lessons from a lapsed Indian bill on the right to health

Abstract

ABSTRACT Due to their special nature, the economic-social rights (ESRs) – compared to civil-political rights (CPRs) – entail distinct legislative methodology. This is still a nascent area of knowledge globally. ESRs are increasingly pivotal in the trending populist governments. Also, there is growing practical clarity on the paradigm of indivisibility and interdependence of ESRs and CPRs. However, unlike CPRs, the ESRs continue to be seen as resource-contingent, and therefore not amenable to legislative regulation but to ‘progressive realization’ through policies. This article foremost contests that, and instead asserts that ESRs too are legalisable and even justiciable, though differently from CPRs. It illustrates this from a lapsed national health bill of the Indian government, drafted and steered by the author. The matrix comprising the right to health and an Indian legislative initiative is used: the right to health as a particularly complex ESR; and India as a representative democracy with rising influence of privatisation and a declining legislature. Secondly, this experience demonstrates that ESRs need alternative concepts, techniques and practices of legislating. The unfolding nature of ESRs and their deep political-economic entrenchment require nimble and intricate negotiations among competing stakeholders. This makes the ESR laws evolving non-linear processes more than finished end-products. Also, process heaviness makes their legislation necessarily complicated and slow. Thirdly, the case study shows, legislating on ESRs invokes a qualitatively different understanding of democracy. Since ESRs essentially involve multiple interest groups and the larger regulatory framework comprising both the legislature and the executive, they implicate innate democratic values. In the contemporary de-democratisation context, their long-drawn legislative process – even a disingenuous one, initiated only for legitimacy – could counter-intuitively bolster deliberative democracy. For all three reasons, the process itself – besides the enacted law, the product – deserves recognition as an underexamined critical success-indicator of legislative methodology, especially for ESRs.