By Professor Satya Narayan Misra in Bhubaneswar, November 20, 2025: Conventionally, human rights have been divided in to two broad categories: civil and political or ‘first generation rights and social and economic rights’ or ‘second generation rights’. The Constitution of India drew inspiration from the Irish constitution and made first generation rights ‘fundamental rights’, which could be enforced by courts of law; on the other hand, several second generation rights were encompassed as non–binding aspirations in the nature of directive principles.

In this conundrum of individual rights and goals before the state to promote socio economic justice of society at large, the Indian Supreme Court has played a very pioneering role after the 1980s. Granville Austin, the American historian calls the two parts of the Constitution (Part III & IV) ‘the conscience of the constitution’ while the Supreme Court in the Minerva Mills Case (1980) calls them as two wheels of a nation’s chariot. As the Indian Constitution turns 86, its time to assess how the two rights have melded and evolved, and compare them with the provisions of Constitution that South Africa has crafted in 1996, considered very progressive, with judges playing a proactive role.

Approaches to Second Generation Rights

Three distinct approaches have emerged to realise second generation rights, viz (a) rights should be aspirational only, (b) the guiding principles should be delineated which are not enforceable and (c) where they are justiciable and enforceable. While constituent assembly members like KM Munshi & KT Saha wanted the socio economic rights to be justiciable, Ambedkar plumped for the Irish model. Justice Albie Sachs, who was part of ANC movement by Mandela and part of Constitution making in South Africa writes in his celebrated book ‘The Strange Alchemy of Life & Law’ that they went beyond Ronald Dworkin’s concept of “Equal protection” and pitched for equal protection with affirmative action to assist the emerging new black middle class.

Behind the argument advanced against the judicial enforcement of socio economic rights, lay a basic concern that the involvement of the courts in this area would lead to a dilution of their respect for fundamental civil and political rights. The right to freedom would be submerged in pursuit of the right to bread. their experience demonstrated that instead of undermining each other, freedom and bread were interrelated and interdependent. The approach of the South African Constitution was neither libertarian, nor communitarian. It was dignitarian, an approach which ensures that it is the fundamental right of all human beings to have their human dignity respected, and that linked the right to freedom with right to bread.

The Olga Tellis Case (1985)

In the early years of independence, the Supreme Court unwaveringly followed the framework of justiciable Fundamental rights and unenforceable directive policies to enforce first generation rights. A case in point is Champakam Dorairajan Case (1950) where it gave primacy to Article 29(2), a FR over Article 46, a directive, which aimed at promoting educational interests of SC/ST & other weaker section through reservation. Olga Tellis Vs BMC was one of the pioneering cases through which the Supreme Court brought socio economic rights within the sweep of Part III – holding that the right to livelihood and shelter is a fundamental right, thus impacting millions of slum /pavement dwellers in India.

It reasoned that the right to life is not treated as part of the bland constitutional right to life under Article 21. Sadly in 2000, the Supreme Court allowed the dam height of Sardar Sarovar Dam to be raised in disregard of its own decisions in Olga Tellis, emphasizing the significance of the right to shelter. As per reports in October 2010, over 2 lakh people affected by the raised height still remain under constant threat of flooding and yet to compensated. This is the largest court sanctioned forced eviction in the world.

Grotboom Case (2000)

One of the most significant decisions in the context of the right to shelter was made in South Africa Vs Grotboom , a community of 900 people including 510 children living in appalling condition , who petitioned the court for temporary shelter. S 26 of the Constitution provides for right to access adequate housing and S 28 right to basic shelter for children. The Court found that the state’s housing program failed to meet the constitutional guarantee of providing adequate housing.The court focussed on rectifying the broader defects in the state housing policy. The Court made it plain that that the right of access to housing could not be separated from the right to human dignity. It also evolved a ‘reasonable standard’ approach where the state takes reasonable measures in the short run, medium term and long term to provide shelter to all its citizens.

A multi-pronged Challenge

India faces a massive growing urban crisis. As per UN habitat (2020) report, nearly 236 million live in slums, with 66% of slums lacking proper drainage,41% latrines. NFHS V report brings out how 35.5% of children below five are suffering from stunting, a phenomenon where persistent malnutrition is complemented by poor sanitation. Besides nearly 57% of adolescent girls suffer from anaemia.

This is patently contrary to Article 47 in the constitution which enjoins upon the state to ‘to raise the level of nutrition and to improve public health.’ Article 38(2) enjoins upon the state ‘to minimise the inequalities in income’. And yet as per the World inequality report, the share of bottom 50% of population in total income has plummeted from 17% in 1990 to 13% in 2023 , while that of the top 10% it has gone up from 33% to 57% . This is not accident of history but a fall out of a public policy that patronizes the super-rich and oligarchy, as Piketty brings out.

The South African experience clearly brings out the importance of ‘right to human dignity’ and making the state accountable for ensuring that a minimum core approach is ensured for every citizen. The Indian Court will do well to achieve a harmonious balance between right to shelter, minimum nutrition, basic sanitation and economic growth founded on sustainable eco system. P Sainath, in an article “Troubled Countryside” rightly asks: Can the Supreme Court treat the Directive Principles more seriously beyond reemphasizing their importance from time to time?