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Judicial Challenges in Implementing Social and Economic Rights in India

This study examines the judicial enforcement of social and economic rights in India, focusing on how courts rely on allies to implement rulings. It delves into the evolution of Public Interest Litigation (PIL) in the country, highlighting landmark cases and the challenges around judicial sovereignty and anti-poor bias. The text discusses the fragility of the foundations of PIL and fundamental rights litigation, emphasizing the role of political and social allies in shaping outcomes. Case studies on the right to food and Delhi vehicular pollution provide practical insights into the complexities of enforcing ESC rights.

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Judicial Challenges in Implementing Social and Economic Rights in India

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  1. Observations on the Judicial Enforcement of Social and Economic Rights in India Varun Gauri May 6, 2010

  2. Theoretical position • Courts rely on other actors for information, resources, coercive power, and the motivating energy of the “lifeworld.” • In any given case, the range and strength of their political and social allies determines whether courts’ rulings on ESC rights are implemented.

  3. PIL in India • Originated in late 1970s, post-Emergency • New rules of standing, case filing, adversarial process, and judicial remedies • Landmark cases: rights of prisoners, bonded laborers, pavement dwellers, children • 1990s: urban air pollution, waste disposal, corruption, elections

  4. Legitimacy of Indian PIL “Policy, environmental and social, must emerge from a socio political process and must be considered in a legitimate forum, not a judicial one.” Lavanya Rajamani 2004

  5. Anti-poor bias? “The Court’s decisions are increasingly characterized by an urban and elitist bias against the poor and the countryside.” Balakrishan Rajagopal 2008

  6. Judicial sovereignty? “We live in a sort of judicial dictatorship.” Arundhati Roy 2007

  7. The face of PIL in India? Court-appointed committees amount to an “outsourcing of judicial functions” that is “wholly illegal.” “Indian PIL has developed into an uncontrollable Frankenstein.” Justice Markandeya Katju 2008

  8. Foundations of PIL and FR litigation are fragile • This change in attitudes shows illustrates the fragility of judicial foundations • Specific judges and judges are better at identifying and cultivating political and social allies • Availability of allies • Politics of governing coalition • Interests of bureaucracy • Economic interests • Civil society

  9. The weakness of “strong-form” enforcement • Tushnet (2008) distinguishes strong form from weak form judicial review, and strong and weak enforcement • But strong form enforcement also requires allies (lower courts) • It is not an option in India

  10. Two case studies • Right to food litigation • Orissa, 1985-1990 • PUCL, 2001-present • Delhi vehicular pollution case • 1985-1998 • 1998-2002

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