Negative Enforcement Of Economic, Social And Cultural Rights In Bangladesh And India

Negative Enforcement Of Economic, Social And Cultural Rights In Bangladesh And India: A Comparative Study

MD Arif Rayhan

ABSTRACT

The Constitution is regarded as a 'higher law' to regulate the affairs of the State, which prescribes the structure of the government; along with governing the fundamental rights and duties of the citizens. Different countries worldwide have placed some human rights that are civil, political, economic, social and cultural in nature in their constitutional framework to ensure freedom, security and worth of human life for the individuals living in the jurisdiction of particular countries. However, while incorporating these human rights in constitutions, countries vary in respect of enforceability or justiciability of these rights, particularly economic, social and cultural rights (ESCRs). Both Bangladesh and India have written constitutions where numbers of ESCRs have been placed along with civil and political rights (CPRs), with the difference of judicial enforceability of two sets of rights. Realisation and enforcement of these ESCRs are subject to the available resources, ample wealth and capacity of countries; and as such, both these countries have termed them either as 'fundamental principles' (Bangladesh) or 'directive principles' (India); rather than 'rights.' However, over the years concept of judicial enforceability of constitutional principle of ESCRs has been subjected of judicial interpretation and case laws in both constitutional contexts of two countries have been evolved in this regard. This article aims to have a comparative study upon the constitutional context of Bangladesh and India regarding the scope of negative enforcement of ESCRs, or in other words, the judicial enforcement of the constitutional principle of ESCRs.

Keywords: Constitution, Civil Rights, Political Rights, Economic Rights, Social Rights and Cultural Rights.