observations on the judicial enforcement of social and economic rights in india varun gauri may 6,...
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Observations on the Judicial Enforcement of
Social and Economic Rights in India
Varun Gauri
May 6, 2010
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.
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
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
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
Judicial sovereignty?
“We live in a sort of judicial dictatorship”.
Arundhati Roy 2007
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
Fundamental Rights Cases
Percentage of Cases in Favour of Advantaged Classes vs. Others
0
20
40
60
80
100
1950 1960 1970 1980 1990 2000 2010Year
Pe
rce
nta
ge
Advantaged Classes Not Advantaged Classes
Fundamental Rights Cases
Percentage of Cases in Favor of ST/SC/OBC Complainants vs. Others
0
20
40
60
80
100
1950 1960 1970 1980 1990 2000 2010
Year
Pe
rce
nta
ge
Not SC/ST/OBC SC/ST/OBC
Cases Involving SC/ST/OBC
Percentage of Cases in Favor of SC/ST/OBC Complainants vs Others
0
20
40
60
80
100
1950 1960 1970 1980 1990 2000 2010
Year
Pe
rce
nta
ge
Not SC/ST/OBC SC/ST/OBC
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
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
Two case studies
Right to food litigation Orissa, 1985-1990 PUCL, 2001-present
Delhi vehicular pollution case 1985-1998 1998-2002