The Supreme Court of India and the Inter-Institutional Dynamics of Legislated Social Rights

2020 ◽  
Vol 53 (4) ◽  
pp. 411-437
Author(s):  
Gaurav Mukherjee
Keyword(s):  
Food Security ◽  
Supreme Court ◽  
Separation Of Powers ◽  
Theoretical Framework ◽  
Democratic Legitimacy ◽  
Social Rights ◽  
Socioeconomic Rights ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The Right

The jurisprudence of the Supreme Court of India is generally celebrated in the academic literature for its creative use of constitutional interpretation to read in certain socioeconomic rights into the ‘right to life’ provision despite their textual absence from the Constitution. However, this line of case law made the obtainment of a judicial remedy highly conditional upon an extant scheme or law, was necessarily piecemeal, deferent to the executive, and incapable of fixing precise accountability upon a violation or addressing issues of systemic material insufficiency. Much of this had to do with the absence of a rights-based legislative framework. The enactment of the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (MGNREGA) and the National Food Security Act, 2013 (NFSA) presented major developments in the livelihood and food security regimes in India, and a leap forward for legislated social rights. These legislations consolidated, expanded and entrenched a number of existing rights which had come into being through judicial decisions. In this paper, I examine the antecedents of social rights in India, and show the afterlife of disagreements over appropriateness, practicality and affordability, which resulted in the adoption of the Directive Principles of State Policy (DPSP) in the Indian Constituent Assembly, persist in legislative design and judicial reasoning. In this paper, I analyse judicial treatment of these laws and propose a novel theoretical framework for better understanding them. The theoretical framework has discursively antagonistic and discursively catalytic components, and sheds light on the inter-branch institutional dynamic which arises when NFSA and MGNREGA based public interest litigation (PIL) is activated. I suggest that such PIL and the kinds of complex, dialogic remedies which result from them have effects in the political, legal, and social fields. These remedies result in a form of hybridized politico-legal accountability that enables the Supreme Court of India to safeguard its institutional capital, while also being able to better engage with concerns such as polycentricity, democratic legitimacy, lack of expertise, federalism, and the separation of powers.

The Israeli Unfinished Constitutional Revolution: Has the Time Come for Protecting Economic and Social Rights?

2004 ◽  
Vol 37 (2-3) ◽  
pp. 299-345 ◽  
Author(s):  
Yoram Rabin ◽  
Yuval Shany
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Hard Core ◽  
Social Rights ◽  
Cultural Rights ◽  
Basic Law ◽  
The Supreme Court ◽  
The Status ◽  
Interpretive Strategies ◽  
The Right

AbstractThis article addresses the constitutional discourse surrounding the status of economic and social rights in Israel. It examines the principal interpretive strategies adopted by the Supreme Court with regard to the 1992 basic laws (in particular, with respect to the right to human dignity) and criticizes the Court's reluctance to apply analogous strategies to incorporate economic and social rights into Israeli constitutional law. Potential explanations for this biased approach are also critically discussed. The ensuing outcome is a constitutional imbalance in Israeli law, which perpetuates the unjustified view that economic and social rights are inherently inferior to their civil and political counterparts, and puts in question Israel's compliance with its obligations under the International Covenant of Economic, Social and Cultural Rights. At the same time, encouraging recent Supreme Court decisions, particularly the YATED and Marciano judgments, indicate growing acceptance on the part of the Court of the role of economic and social rights in Israeli constitutional law, and raise hopes for a belated judicial change of heart concerning the need to protect at least a ‘hard core’ of economic and social rights. Still, the article posits that the possibilities of promoting the constitutional status of economic and social rights through case-to-case litigation are limited and calls for the renewal of the legislation procedures of draft Basic Law: Social Rights in the Knesset.

Ensuring Food Security

2017 ◽  
pp. 221-247
Author(s):  
Rajesh Chakrabarti ◽  
Kaushiki Sanyal
Keyword(s):  
Food Security ◽  
Supreme Court ◽  
Political Support ◽  
Advocacy Coalition ◽  
Right To Food ◽  
The Supreme Court ◽  
Election Manifesto ◽  
The Government ◽  
Draft Bill ◽  
The Right

This chapter narrates the saga of the Right to Food Security. Briefly pointing out various prior food movements, the chapter dates the movement to 2001 in Rajasthan with a writ petition at the Supreme Court. The SC took up the issue with surprising enthusiasm issuing order after order to force the government to comply with reports and action. The government, while not antagonistic, was apathetic. Encouraged by the court orders the activists gathered under a single banner of Right to Food Campaign in 2004 and built on the campaign in court as well as on the ground. Political support finally came when the issue entered UPA’s election manifesto in 2009. Post UPA victory, the NAC submitted its draft bill in 2010 but a substantially altered bill finally got enacted in 2013. The movement reflects a combination of Punctuated Equilibrium Framework and Advocacy Coalition Framework.

scholarly journals Concept of right to life and its protection under the Constitution of India

2019 ◽  
pp. 55-68
Author(s):  
HARSH PATHAK
Keyword(s):  
Supreme Court ◽  
Fundamental Rights ◽  
Right To Life ◽  
Indian Constitution ◽  
Personal Liberty ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Original Sense ◽  
Life Itself ◽  
The Right

The constitution and jurist characterized Article 21 as, “the procedural magna carta, protective of life and liberty”. This right has been held to be the heart of the constitution, the most organic and progressive provision in Indian constitution, the foundation of our laws. Article 21 can only be claimed when a person is deprived of his “life” or “personal liberty” by the “State” as defined in Article 12. Violation of the right by private individuals is not within the preview of it. Article 21 applies to natural persons. The right is available to every person, citizen or alien. It, however, does not entitle a foreigner the right to reside and settle in India, as mentioned in Article 19 (1) (e). Everyone has the right to life, liberty and the security of person. The right to life is undoubtedly the most fundamental of all rights. All other rights add quality to the life in question and depend on the pre-existence of life itself for their operation. There would have been no fundamental rights worth mentioning if Article 21 had been interpreted in its original sense. This Article will examine the right to life as interpreted and applied by the Supreme Court of India.

Appointment of Judges to the Supreme Court of India

2018 ◽  
Keyword(s):  
Supreme Court ◽  
South Asian ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Basic Structure ◽  
Judicial Appointments ◽  
The United Kingdom ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
History Of

In Supreme Court Advocates-on-Record Association v. Union of India [(2016) 5 SCC 1], a five-judge bench of the Supreme Court struck down the 99th Amendment to the Constitution and the National Judicial Appointments Commission (NJAC) Act, 2014, which replaced the existing collegium system with the NJAC, a new bipartisan model for appointing judges. This edited volume uses the judgment in the NJAC Case as a springboard to address the politics, doctrine, and developments pertaining to judicial appointments in India. It critically examines fundamental constitutional concepts such as rule of law, separation of powers, basic structure, and judicial independence which formed the basis of the judgment. It provides a rich and detailed history of post-Independence appointment of judges to locate the NJAC Case in its proper constitutional context. It also analyses reforms to judicial appointments in key South Asian and common law jurisdictions to understand what appointments in India might look like in the future. The volume has 21 essays across three parts—Part I provides an analysis of judicial appointments in India from the time prior to Independence to the present day, Part II analyses constitutional principles and their application in the NJAC Case, and Part III is a comparative enquiry into appointments processes in the United Kingdom, South Africa, Canada, Pakistan, Sri Lanka, and Nepal.

Rule of Law in Practice

2018 ◽  
pp. 63-104
Author(s):  
Harish Narasappa
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Separation Of Powers ◽  
Basic Structure ◽  
Critical Examination ◽  
The Rule Of Law ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
Rule Of Life ◽  
Political Understanding

In the first part, the interpretation and application of the rule of law by Indian courts, primarily the constitutional bench of the Supreme Court of India is analysed. A review of the major principles laid down by the Supreme Court in relation to equality and liberty is followed by a critical examination of the innovative jurisprudence developed by the Court while interpreting Article 21. The principles of judicial independence, separation of powers, and evolution of the basic structure doctrine, as well as their relationship with the rule of law is critically evaluated. In the second part the political understanding of the rule of law is examined, particularly focusing on Nehru’s comment that the rule of law should follow the ‘rule of life’ and its meaning and continued impact on lawmaking. The chapter concludes by identifying four broad themes of the Rule of Law in India.

scholarly journals The Revival of the Right to Property in India

2015 ◽  
Vol 10 (1) ◽  
pp. 23-52
Author(s):  
Tom ALLEN
Keyword(s):  
Supreme Court ◽  
Social Issues ◽  
Social Revolution ◽  
Constitutional Design ◽  
The Core ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The Right

AbstractOver the last six decades, the Supreme Court of India has created and re-created a right to property from very weak textual sources, despite constitutional declarations calling for social revolution, numerous amendments to reverse key judgments, and even, in 1978, the repeal of the core constitutional provisions guaranteeing a right to property. This article challenges the usual account of these developments. The primary contention is that the 1978 repeal is much less significant than it appears, due to the Court’s creative interpretation of other constitutional provisions. The Supreme Court has consistently advanced liberal models of constitutionalism and property, despite the influence of other models on the original constitutional design and later amendments. This article also examines whether the Court’s liberalism is compatible with the egalitarian values of theConstitution, and how its position will affect attempts to address social issues relating to the distribution of property in India.

Response of India towards Torture and Custodial Violence

2020 ◽  
pp. 81-149
Author(s):  
Joshua N. Aston
Keyword(s):  
Supreme Court ◽  
Armed Forces ◽  
Legal Framework ◽  
Special Rapporteur ◽  
Supreme Court Of India ◽  
The Supreme Court ◽  
The Right ◽  
Supreme Court Rulings ◽  
National Police

The chapter deals with the legal framework in India against torture and custodial violence and the response and role of the Indian police force in such crimes. It also gives statistical data on violence taking place in the country at the hands of the police and armed forces. It provides a summary of the report of the United Nations Special Rapporteur on arbitrary and extra-judicial executions. The chapter also discusses the right to protection against torture and the views and verdicts of the Supreme Court of India, and highlights the role of statutory bodies and commissions such as the Law Commission of India and the National Police Commission in preventing torture and custodial violence. Therefore, this chapter has reference to several laws of the country and the Constitution of India and its provisions, and it cites some cases and Supreme Court rulings for preventing torture and custodial violence, which provides India’s response towards the prevention of torture and custodial violence and protecting victims as well as every citizen from such crimes.

‘Using’ Crisis of Governance as an Opportunity for ‘Re-invention’: Why the Supreme Court of India Took To Hearing Public Interest Litigations—A Case Study

2020 ◽  
Vol 7 (2) ◽  
pp. 215-223
Author(s):  
Subrata Biswas
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
Good Governance ◽  
Positive Role ◽  
Indian Politics ◽  
Supreme Court Of India ◽  
The People ◽  
The Supreme Court ◽  
The Right

What do the different State organs do when they face a crisis? Do the suffering institutions successfully re-invent themselves or is it that some other institution uses the crisis to find an ‘opportunity’ to re-invent itself? Can one’s crisis be another’s opportunity? This case-study analyses how the Supreme Court of India (hereinafter SCI) reinvented itself in a bid to further the cause of good governance in the country ever since emergency had been clamped on the nation towards the end of 1970s. Surely there has been a crisis of governance in India, caused by the pathetic performance of both the legislature and the executive. It has led to myriad problems in both social and political arenas. If left unaddressed, Indian people might have turned more violent than they already are and that could have perpetrated a failure of democracy in the country. But the SCI has successfully played a positive role in this regard. If the other institutions have failed the people, the Supreme Court has championed their cause. The world’s largest democracy stands saved until now. But is it wholly the judges’ heartfelt concern for the people that has prompted the Supreme Court to function in this fashion? Did anything go wrong during the emergency? Why is it that it has been more and more active ever since the emergency ended? And why is it that there has been an exponential growth in public interest litigations (hereinafter PILs) in the Supreme Court even though it cannot handle so many cases because of infrastructural paucities? Situating itself in the specific context of PILs entertained by the SCI and supporting it with the theoretical inputs of the so-called ‘principal-agent framework’, this essay argues that there has been a competition (i.e., between the court and the elected politicians) for ‘occupying’ more space in the domain of governance since the inception of the Constitution and it is only the Supreme Court that got the right ‘opportunity’ to achieve its objective in the wake of crisis in governance that became so visible in Indian politics ever since the fag-end of the 1970s. While the court tried other instruments earlier in its game plan vis-a-vis the elected politicians, the crisis situation since the end of the 1970s made it ‘invent’ a new tool in the form of PILs capable of safeguarding the interests of the people and insulating them against the mindless functioning of multiple state agencies. But how far can the SCI (hereinafter SCI) proceed with this new tool? Is there a risk of ‘overusing’ it? Does the court not have its own limitations in this regard, too? What should the Supreme Court do in order to avert a fresh ‘crisis’?

International law in Japanese Courts

2019 ◽  
pp. 536-547
Author(s):  
Hiromichi Matsuda
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Constitutional Law ◽  
Positive Attitude ◽  
Separation Of Powers ◽  
Democratic Legitimacy ◽  
Global Community ◽  
Constitutional Review ◽  
Relative Lack ◽  
The Supreme Court

This chapter examines international law in Japanese courts in the context of separation of powers, treaty-making procedure, and transnational judicial dialogue under the Japanese Constitution. It analyzes international law in Japanese courts in the following four categories: (1) constitutional review of international law; (2) judicial application of international law; (3) consistent interpretation of statutory and constitutional law with international law; and (4) reliance on persuasive authority in constitutional interpretation. Although Japanese courts are reluctant to use international law as binding law, the Supreme Court of Japan recently began actively referring to foreign and international sources as persuasive authorities. Because of the practice of “implementing-legislation-perfectionism” and the relative lack of democratic legitimacy of international law, Japanese courts will probably continue to take a restrictive approach toward applying binding international norms. In contrast, the Supreme Court of Japan is expressing a positive attitude toward transnational dialogue. Japanese courts will probably expand and enhance transnational judicial dialogue in and out of the courtroom. This chapter concludes that Japanese courts have the potential to be one of the interesting benchmarks for whether any existing “global community of courts” can really be global and universal.

Galvanisation of the Right to Development within the Shared Constitutional Space in India

2018 ◽  
Vol 19 (2) ◽  
pp. 268-299
Author(s):  
Dharmendra Kumar Singh
Keyword(s):  
Supreme Court ◽  
Fundamental Rights ◽  
Social Scientists ◽  
Holistic View ◽  
New Horizons ◽  
Supreme Court Of India ◽  
Right To Development ◽  
The Supreme Court ◽  
The Right ◽  
The Impact

This article accentuates the concept of the right to development (rtd) and focuses on the various facets of rtd as developed by the Supreme Court of India in its multiple pronouncements since the advent of the last decade of the 20th century. The apex court, through a conjoint reading of various aspects provided in the Constitution’s Preamble, Fundamental Rights, Directive Principles and Fundamental Duties with the Declaration on rtd has interpreted various cases that have opened new horizons of curative developmental jurisprudence in India. The main aim of this study is to capture the various trends and directions of discourse on rtd and explore the constitutional space for rtd in India. This article also evaluates the impact that Declaration of rtd has had on the Supreme Court of India and to what extent has the Supreme Court of India galvanised rtd to provide remedies to millions of Indians. The article emphasises the holistic view taken by the Supreme Court in matters of private rights versus the developmental rights of millions. Another significant aspect of rtd that has been emphasised in this article is the conflict between human rights of the marginalised group with the burgeoning rtd. The discourse on economic growth and rtd within the constitutional space will remain in the heart of politicians, social scientists and the populace in the coming years.

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