The 1966 International Covenant on Economic, Social and Cultural Rights (came into force on January 3, 1976) is the inspiration and guide for many later constitutions for their inclusion of social and economic rights. Its preamble recognises that inherent dignity of all persons is the foundation of freedom, justice and peace in the world and that inherent dignity could not be achieved without enjoyment of economic, social and cultural rights, as well as civil and political rights. According to Article 2 of the Covenant, each State Party therefore undertakes to take steps, to the maximum of its available resources, with a view to achieving progressively the full realisation of these rights by all appropriate means.
The constitutional approach towards social and economic rights varies widely not only from state to state but also generation to generation. For example, classical liberal constitutions like that of US did not include provisions for social and economic rights, although such rights are protected there under other legislation and policies. Starting in the late nineteenth century, constitutional designers began to consider the political desirability of incorporation of social and economic rights in the highest law of the country. They were influenced (i) by the rise of social democratic parties which sought to advance workers' social welfare, (ii) by the conservative response to such parties through establishment of dedicated social welfare institutions, and (iii) by Roman Catholic churches whose social teaching was taken up by their political allies. For example, Irish constitution of 1937 incorporates social welfare rights by describing them as principles of policy for the legislature in the making of laws.
The Irish Constitution of 1937 has been influential in the incorporation of social and economic rights in the constitutions of other members of the British Commonwealth, most notably India. Political heritage against exploitation in both colonised India and post-independent East Pakistan also influenced the process. For example, the 1931 Karachi resolution of the Indian National Congress held that in order to end the exploitation of the masses, political freedom should include economic freedom. The 11 point movement and the 1970 election manifesto of Awami League included similar provisions.
In addition to the above and other constitutions, the South African Constitution of 1996 made a real breakthrough by not negating the judicial enforcement of socio-economic rights and by instructing the government to take reasonable measures with available resources for progressive realisation of the rights. Since the entry into force of the constitution of South Africa, judicial activism there and in some other areas like Latin America, East Europe and India, a growing consensus has developed over the desirability of the judicial enforceability of social and political rights. This consensus is founded upon the negation of three traditional arguments against the enforceability of social welfare rights.
First: According to one school of thought, the doctrine of separation of power should discourage the enforceability of social and economic rights by the judiciary. Planning, implementation and overseeing the implementation of these rights require legislative discretion and executive competence which the judiciary lacks. Moreover, according to this school of thought, the judiciary does not have clear structural mandate to dispose of this responsibility. The counter argument to this traditional thought is that the categorisation of political rights (often dubbed as first generation rights) from economic rights (second generation rights) is artificial. For example: right to vote may entail judicial intervention for obliging the government to make provisions for access to voting and right to equality before justice entails provision of courts, prosecution service, investigations authorities and counsel for defendants. Therefore, the negation of judicial enforceability of economic rights on the pretext that their implementation involves discretion and competence is untenable as judiciary often applies similar discretion and competence in enforcing political rights.
Second: More invoked argument in denying judicial enforceability of economic rights is that judicial enforcement of these rights would involve huge expenditure which a less developed country could not sustain. The counter argument is, in case of political rights as well budget expenditure is a must in most cases. For example, right to justice, at the most basic level, requires government expenditures for establishing and maintaining courts and ordinary enforcement apparatus while right to protest may entails huge social cost and government expenditure. The difference is, in the case of political rights, expenses are generally invisible as they are traditional to which public is used to live with or they are diffused across the society and political structures, while the other one is immediately visible in budget statement.
Third: Another growing consensus in favour of economic rights is that the perceived non-effectiveness of judicial intervention should not be a bar to their enforceability. This is due to the fact that effectiveness of judicial enforcement in case of political rights could equally be inadequate and uncertain.
Basing on the above line of thinking new generation constitutions are providing more scope for implementability of economic rights. In addition, the highest courts of many countries (e.g. South Africa, Mexico and Brazil) are increasingly intervening to enforce the government to provide citizens with the basic necessities of life. Unfortunately, in the case of Bangladesh, constitutional development has failed to notice the growing status and relevance of social and economic rights. Except in a few cases (mostly concerning eviction of slum dwellers), judicial activism in favour of these rights is also negligible.
As far as constitution is concerned, Article 37 of the Constitution of India explains the legal status of the directive principles, including those of social and economic rights. Accordingly, these principles are (i) fundamental in the governance of the country and (ii) the state is duty bound to apply these principles in making laws. Article 31C further provides that no law giving effect to the policy of the state towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 (equality before law) or Article 19 (protection of freedom rights).
The Bangladesh Constitution adds two more functions of social and political rights: (i) guide to the interpretation of law and constitution and (ii) work as basis of the work of the country and its citizens. But it does not have specific enabling provision like Article 31C of the Indian Constitution for elevation of economic rights to enforceable rights.
The Pakistan Constitution imposes more accountability on the government in regard to the implementation of the policies. Clause 3 of Article 29 states that in respect of each year, the president in relation to the federation, and each governor in relation to the affairs of his province, shall cause to be prepared and laid before House of Majlis-e-Shoora or the Provincial Assembly respectively, a report on the implementation of the Principles of Policy including those of social and economic rights, and provision shall be made for discussion on such report.
The constitution of all the above three countries has made the social and political rights judicial non-enforceable. However, the Indian courts, following the precedence of other jurisprudences, are making important contributions in the recognition and implementation of economic rights. Unfortunately, our judicial activism still mostly centres on traditional political rights.

The writer is Professor, Department of Law, University of Dhaka.