Guide to an effective human rights response to the HIV epidemic

(b) Sufficient food and water; and
(c) Social security, including, if they are unable
to support themselves and their
dependants, appropriate social assistance;
(2) The state must take reasonable legislative
than as justiciable rights. DPSP are constitutional
guidelines that guide government actions that are
not justiciable. However, as the Supreme Court of
India has shown (see box below), these DPSP may be
used to interpret other rights in the constitution
in a way that enhances socio-economic rights.
and other measures, within its available resources,
to achieve the progressive realisation
of each of these rights.
Using DPSP to guarantee
other socio-economic rights
Article 24 of the Constitution of
Madagascar
The state shall organise public education, free
and accessible to all. Primary education shall be
In the case of Tellis v Bombay Municipality,
the Indian Supreme Court used the DPSP in
the Indian Constitution to interpret the justiciable
right to life as encompassing the
right to a livelihood.
compulsory for all.
Another case, Mohini Jain v State of Karnataka
The link between the HIV epidemic and poverty cannot
be over-emphasised. The spread of HIV is driven
by socio-economic conditions. For example, in countries
where there is food insecurity, women may
engage in sex for food and this makes them more
vulnerable to HIV. Socio-economic conditions, in
turn, are affected by the epidemic. For example,
when a member of a household becomes sick, the
household must spend more money on his or her
care. This makes less money available to purchase
food and other goods, and means there is less time
for the caregiver(s) to look for work. This results in
a household that is further entrenched in poverty.
Socio-economic rights should be protected as justiciable
guarantees in order to secure the right to
health care, social security and education.
((1992) AIR 1861 (SC)), challenged the constitutionality
of a state law that set a much higher
admittance fee for ‘non-government’ students
as compared to ‘government students’ at private
medical colleges in that state. It was argued
that the difference in fees was justified
on the basis that ‘government’ students are
‘meritorious’, while others are not. The Court
found that because it is only included among
the DPSP and not in the Bill of Rights, the
‘right to education’ is not a ‘fundamental right.’
However, the Court still determined that the
‘Constitution made it obligatory for the State
to provide education for its citizens’, in effect
finding that the ‘right to education’ is justiciable.
This decision was based on the Court’s
view that the justiciable right to life should be
‘read together’ with, and infused by, the nonjusticiable
‘right to education’ in the DPSP.
Some states in the region have included socioeconomic
rights in their constitutions in the form of
Directive Principles of State Policy (DPSP) rather
44 | Guide to an effective human rights response to the HIV epidemic