Two important matters that perplex the society are the forms of enforcement and the remedies that can be granted in cases of violation of socio-economic rights, and yet some continuing concerns about their effective enforcement. I. Introduction With respect to the constitutional status of the social and economic rights, two points have emerged so far.[1] First, such rights… Read More »

Two important matters that perplex the society are the forms of enforcement and the remedies that can be granted in cases of violation of socio-economic rights, and yet some continuing concerns about their effective enforcement.

I. Introduction

With respect to the constitutional status of the social and economic rights, two points have emerged so far.[1] First, such rights now properly find a place in modern constitutions, and second, they stand on the same footing with respect to their enforceability as the first generation rights to political participation, free expression and the like.

Further, two important matters that perplex the society are the forms of enforcement and the remedies that can be granted in cases of violation of socio-economic rights, and yet some continuing concerns about their effective enforcement.

The Irish Constitution of 1937, for the first time, enumerated social and economic rights in a section labelled “Directive Principles of Social Policy”, which included a statement that such principles were exclusively in the domain of the nation’s parliament and not be enforced by the courts. The Indian Constitution adopted in 1949 contained a similar section, with a similar limitation.[2] However, there has been judicial enforcement of such rights by expanding the scope of Article 21 which has entailed several objections based on the principles on separation of powers, expense and ineffectiveness.

And rejecting all of them, in order to achieve the Preambular goals, the Supreme Court of India constituted “Social Justice Bench”, to be functioned on every Friday for timely disposal of pending cases, and taking timely cognizance of matters relating to the gross violation of fundamental rights of the citizens, is being considered as another effective mode of the democratization of judicial process.[3]

With due decline in political will and leadership of the legislatures and lack of efficient implementation of the Constitutional directives on the part of the executives left working of social revolution in abeyance; and these revolutionary dogmas finally led to open the account of social justice distribution in the recession of the social justice and become the charioteer of social revolution through taking the cognizance of irregularities and inactions of the other organs of the state.

II. Presenting The Audit Report Of Constitutional Balance Sheet – The Social Justice Deficit in Constitutional Balance Sheet

At present, India is one of the youngest nations of the world and by 2020, the average age of a median Indian will be 29 years, but still, there are grave problems in equal access to opportunities and lack of emphasis on education.[4] The picture of bonded labour and discrimination in access to education is displayed by Sailajananada Saikia, who noticed that an estimated 1.3 million Dalits in India make their living through the inhuman and outlawed practice of manual scavenging and 50% of all SC children, and 64% of girl students drop out due to discrimination being practised against them in school.[5]

The accurate and forceful attack is launched by B. Jagat Narain against the unrealized social justice stating that: “it is that violence which emanates from the fact that millions of citizens, in reality, does not possess the “right” to an adequate means of livelihood and which is manifested in the abuse of the health and strength of workers and tender age of children, in acute pressure on those millions to take up avocations wholly unsuited to their age and strength.”[6]

In spite of liberal interpretation of Article 21 of the Constitution of India by upholding that all the ancillary requirements for better realization of “life and personal liberty” are fundamental; the judiciary has not been able to enhance the scale of realized justice as the implementation of direction and orders has not taken place efficiently. As one author, in a comparative note on Constitutional Courts of India and South Africa, concluded that both institutions are lacking in institutional capacity to implement and monitoring their own direction and suggested that considerable innovations are required as the traditional remedies are quite inadequate for the task of overcoming developmental problems.[7]

The pressing concern rises in the sphere of implementation of the court directives. The implementation process is not in the hands of the judiciary but in the hands of government agencies and if they fail in making compliance with the direction passed by the judiciary then the purpose of Social Action Litigation (as used interchangeably) is frustrated.[8] In India, the jurisdiction of implementing government policies and court directives falls in the State’s executive department, as bound under the Constitutional tent, but the inactions on the part of these state authorities, have left the remedial mechanism for redressing violation of people’s rights vulnerable, which finally led people to lose faith in the judicial system of this country.

In the present times the seeds of ‘judicial activism’ have stopped to produce desired fruits as the directives are not being implemented properly due to institutional incapacity on the part of the judiciary for deprived section of Indian population, and further, it may cause great legitimacy danger for the judiciary, as concerns spill over by various jurists like Fali S. Nariman and Justice Krishna Iyer and they called for an urgent measures to arrest the decline creeping into the vitals of the higher judiciary.[9]

It is submitted that, though judiciary was not considered as appropriate forum to initiate social revolution by proper implementation of Directive Principles of State Policy, but the remaining organs of the State, i.e., the Executive and Legislature stand responsible for silent killing of Directive Principles, as yet not realized, and silent filling of their pockets, though fully enjoyed. In the words of Prof. M.P. Singh, “There has been less or almost no amelioration in the living conditions of the majority of the people since the commencement of the Constitution. They neither know their rights nor have the means for their realization. And since the machinery envisaged by the Constitution has failed to implement the Directive Principles or even the Fundamental Rights, we must look for other possible alternatives.”[10]

It is, therefore, absolutely essential for the success of judicial activism to mould some method for securing enforcement of the court’s directives in such litigation.

Executive Lethargism has caused loss of hope and faith in the people

The seeds of social justice were planted on the fertile land of Indian Constitution but the deprived class is still waiting for the fruits of that plantation in the state of inequality, poverty and discrimination. The unenforceability clause under Article 37 of the Constitution, concerning Directive Principle of State Policy, does not reflect that the founding fathers never intended to make them enforceable but they placed a blind faith- a sign of danger in the democratic form of the government- on Constitutional “haves” (the political class). Moreover, the founding fathers gave the political class, a reason to make the fool of “We the People” by making the false and never intended promises just to secure a legitimate seat of political corruption.[11]

The noble aims and objectives enshrined in the Preamble have not been achieved. Instead of being based on some self-sacrifice and motivated by the spirit of public service, politics has become a lucrative profession for sharing a lot of offices. We have not been able to solve the basic problems of poverty, population, illiteracy, drinking water and development quality.[12] The state must give effect to ‘Directive Principles of State Policy’ so that they do not remain ‘Decorative Principles’.

The source of Constitutionalisation of social and economic rights need not be traced from any alien country but they are very much imbibed in the traditions of Indian society.[13] But corruption lured the executives not to give effect to certain directive principles. However, the Constitution of India, under Part IV, guides for better governance and rejects discrimination and arbitrariness while framing government policies and in their implementation.

III. The Pressing Need For Judicial Intervention To Enforce Socio-Economic Rights

Judicial Activism Acting in Aid to Overcome the Social Justice Deficit

The Supreme Court of India- after struggling with the Parliament over the question of final arbiter of the Constitution, which culminates into the putting of substantive restraints on the amendment power of the Parliament, i.e., the doctrine of basic structure,[14] embarked upon keeping a check on legislative and executive organs on excessive encroachment upon people’s fundamental rights, notwithstanding Habeas Corpus Case[15], as the custodian and conscience keeper of the Constitution, and placed the fundamental right to life at a higher pedestal by interpreting the due process clause[16] under Article 21 of the Constitution to check the substance of law that is required to be fair, just and reasonable.

The critique of this expanded role of the judiciary termed it as Judicial Activism.[17] The judicial activism which essentially refers to the active judicial participation of taking cognizance of fundamental rights violation is an inherent and inseparable part of writ jurisdiction, that is, Articles 32 as well as 226 of the Constitution of India.[18]

The constitutional principle of Judicial Activism, in India, is not the development of fortnight but embodies the vast experience of constitutional practice concerning rights and justice jurisprudence containing the narrow[19] and later on, broad[20] or liberal interpretation of Article 21 of the Constitution by the Supreme Court. In this respect, the Supreme Court expanded its power in governance through this activist approach in the post- Emergency era and gave birth to the PIL regime.[21]

Further, on the question of realization of right to life, which was going through huge recession as no substantial focus was placed by legislative and executive organs of the State,[22] the Supreme Court stated, in 1980s, manufacturing the bridge of “Judicial Activism” by reading Directive Principles of State Policy- unenforceable in the Court of Law but essential imperative for the governance and framing of laws for fulfilling the mandate of welfare state- into the fields of Fundamental Rights- enforceable in the Court of law- not only on the part of substantive realization but procedural realization by devising the liberal rule of standing for the public cause to take cognizance of the people’s rights in the country.

In India, this movement, as initiated and lead by Supreme Court of India, is the attribution of relaxed procedural requirements for raising the oppressed voice of the have-nots, appointments of Commissioners for gathering the information of the concerned PIL case and adoption of non-adversarial mode of the judicial adjudication process among others for abiding the public concern.[23] Former Chief Justice of India, Justice J.S.Verma, in this regard, observed that “judicial activism has advanced the cause of justice, attempted to achieve the constitutional purpose in accordance with constitutional scheme and thereby ensured proper implementation of Rule of Law. This is an attempt to realize the hopes and aspirations of the people and to strengthen the foundations of rule of law which is the bedrocks of democracy.”[24]

The Legitimacy of Judicial Activism

In the atmosphere of a welfare state, to quote K.K. Mathew, the role of the Supreme Court must be that of an active participant in Government, the positive government, assisting in furthering the democratic ideals.[25] Some author noted that: “The Indian Supreme Court has grounded the legitimacy of its interpretive interventions on a conception of human rights as being interconnected and on a more integrated, holistic and inclusive vision of freedom and community membership…and a methodology that attempts to interpret rights from the perspective of the socially disadvantaged.”[26]

But for a considerable time, especially since the judicial innovation of Public Interest Litigations[27], the highest judicial department of India is being accused of transgressing into the fields of the legislature and the executives[28] notwithstanding the expanded role of the judiciary has received acceptability not only by the people but by the other wings of the State as well.[29]

Justice A.S. Anand notes that “Living Constitution is usually understood to refer to the understandings and the doctrines that the courts have created, spread, developed and applied to make the Constitution work in every situation. To be a living law it has to be pumped into the cold print of the Constitution in order to keep it vibrant at all times.”[30]

Building the argument from the above proposition, the criticism can be countered by stating that the judicial organ, the only organ, which interpreted the innovative steps of democratization of judicial process under Article 32 of the Constitution to make the writ jurisdiction more workable and to meet the demand of welfare state and the supply of justice administration at social equilibrium level by which the Supreme Court of India interpreted the liberal rule of standing to represent public cause and other inventions like epistolary jurisdiction- where many applications were treated as petitions by the Supreme Court – to establish the legitimate terrain of judicial activism.

There is a floating gap between the rocks of Constitutional goals and constitutional realities and the judiciary, the only department of the State, for last 30 years, has been trying to build the bridge between the two rocks for the people, to show the path of good governance to other departments of the State, which are struck by the mirage of power and to fulfill the mandate of the Constitution and to revitalize the dead-confidence in the people. But the political class has been trying to demolish the bridge built of blood; tears and sweat of have not to class by accusing the judicial organ – the prime architects of the bridge.

The Constitution, as a social contract, stand on people’s general will, is the fountainhead of the people’s conscience and the epitome of people’s political sovereignty. Different organs of the State i.e. Legislature, Executive and Judiciary, the creature of the Constitution, are carrying the legal sovereignty of the people on their shoulders to perform their function as ordained by the Constitution.[31] So, it is submitted that, if the judiciary the equal stakeholder in the people’s legal sovereignty, then it is the legitimate way to discharge its functions relating to the giving instruction to the other two organs of the state when they do not seem to discharge their functions in accordance with the Constitutional prescription.[32]

But it is argued that if the theory of the judicial branch stepping in to fill the vacuum has any justification, the political branches of government may, by the same logic step-in where the judiciary has failed to meet the demands of litigants.[33] The present argument, as forwarded, suggests the escape route for the legislatures and the executives for their inactions since the inception of the Constitution to protect themselves from their own wrongs. On the historical note, the play of “field encroachment” started by the Parliament which made the Constitution a battlefield and the apex judiciary had no option but to join the battle when it came to the threat to the supremacy of the Constitution and there is no indication in history that shows that the Union Legislatures did not try to encroach upon the independence of the judiciary.[34]

Further, this position will provide no solution but generate high voltage status quo of top players of the State, for better justice delivery system for Indian have-nots and in a society where freedoms suffer from atrophy and activism is essential, some risks have to be taken.[35]

In the concluding note on the question of legitimacy judicial activism, Prof S.P. Sathe observed, “Judicial activism is not an aberration. It forms to be an essential aspect of the dynamics of a constitutional court. Judicial Activism acts as a counter-majoritarian check on democracy. However, it must be borne in mind that the governance of the country must not be handed over to the judiciary. It also must function within the limits of the judicial process and thereby performing the function of legitimizing or, stigmatizing the actions of the other organs of government.”[36]

Conclusion: Proposing Installation Of Sustainable Social Justice Delivery System (SSJDS)

As observed, the aspired and astute goals of the Constitution-makers are yet to be achieved from the standpoint of the have-nots, and the judiciary is required to be more protective for arresting the grave concerns of social justice in the lights of some concerns expressed by eminent jurists. In the light of this, the most pressing issue for all those who hope for substantial effective judicial enforcement of social and economic rights should question: how can support be created and sustained?

As per the Report of the National Commission to Review the Working of the Constitution, there must be a body of high status which first revives the state of the level of implementation of the Directive Principles and Economic, Social and Cultural Rights[37] and further the proper procedure was devised for better realization of the Directive Principles of State Policies, which are still unimplemented.[38] And further suggestion made by National Commission to Review the Working of the Constitution that, “what is urgently required at this juncture is a straightforward recognition at the highest policy level that a district is a basic unit of planning for development – social, cultural, economic and human.”[39]

It is, then, by devising new techniques, more legitimacy can be granted to the “social justice bench” for the proper implementation of court’s directive in order to ameliorate the plight of the deprived class and set great fortune for this young nation by constituting a Judicial Review Commission for supervising the performance of the Court’s directives enforcing fundamental rights of the people by using the facilities of lower judiciary at the district level, and then, the judges will not be self-restraint in lieu of institutional incapacity and the “social justice” for the deprived masses will be secured.

By – Shashank Saurabh (NLU Ranchi)

[1] These comments draw heavily on David Landau, The Reality of Social Rights Enforcement, 53 Harvard International Law Journal, 2012.

[2] Part IV, The Constitution of India, 1950.

[3] Supreme Court of India, Social Justice Bench,

[4] Girija Shivkumar, India is set to become the youngest country by 2020, The Hindu (Apr. 17 2013, 07:07 PM),

[5] S. Saikia, Discrimination of Fundamental Rights: A Critical Review on the Present Caste Based Status of Dalit’s in India, 2 J. Soc. Welfare & Hum. Rts. 41, 45-48 (2014).

[6] B. Jagat Narain, Comparative Constitutional Law: Festschrift In The Honour Of Professor P.K. Tripathy 683, 693 (Mahendra P. Singh ed., 2nd ed. 2011)

[7] Arun Thiruvengadam, Human Rights, Justice, And Constitutional Empowerment 264, 307 (C. Raj Kumar & K. Chockalingam eds., 2nd ed. 2010).

[8] P.N. Bhagwati & C.J. Dias, The Judiciary in India: A Hunger and Thirst for Justice, 5 NUJS L. Rev. 171, 182 (2012).

[9] Shylashri Shankar, Scaling Justice- India’s Supreme Court, Anti-Terror Laws and Social Justice 195 (2009).

[10] Id. at 57.

[11] S.P. Sathe, The Unfinished Agenda: The Constitution at the Crossroads, 42 Jili 171 (2000).

[12] 5 B. Shiva Rao, The Framing Of India’s Constitution- A Study 843 (Subhash C. Kashyap ed., 2nd ed. 2004).

[13] Dr. Uday Shankar, Socio-Economic Rights (SER) in India: Responses During Economic Crisis, II J.L. Pub. Policy 43, 49 (2015).

[14] Kesavanada Bharati v State of Kerala, (1973) 4 S.C.C. 225.

[15] A.D.M. Jabalpur v Shivakant Shukla, (1976) 2 S.C.C. 521.

[16] Sunil Batra v Delhi Administration, (1978) 4 S.C.C. 494, 518.

[17] A.S. Anand, The Indian Judiciary in the 21st Century, 26 Iicq 61, 69 (1999).

[18] Jamie Cassels, Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?, 37 The American Journal of Comparative Law 495-519 (1989).

[19] Gopalan v State of Madras, A.I.R. 1950 SC 27, 39.

[20] S.P. Sathe, Judicial Activism: The Indian Experience, 6 Washington University Journal of Law and Policy 29, 51-56 (2001).

[21] Manoj Mate, The Rise of Judicial Governance in The Supreme Court of India, 33 Boston University International Law Journal 169, 223 (2015).

[22] P. Parmeswara Rao, Comparative Constitutional Law: Festschrift In The Honour Of Professor P.K.Tripathi 649, 660 (Mahendra P. Singh ed., 2nd ed. 2011).

[23] Ashok Desai & S. Muralidhar, Supreme But Not Infallible: Essays In The Honour Of The Supreme Court Of India 159, 174 (B.N. Kirpal et al. eds., 2003).

[24] Just. J.S. Verma, Law And Justice: An Anthology 324, 331 (Soli J. Sorabjee eds., 2003).

[25] K.K. Mathew, Three Lectures 20 (1983).

[26] Craig Scott & Patrick Macklem, Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution, 141 University of Pennsylvania Law Review 1-48 (1992).

[27] Pratap B. Mehta, The State Of India’s Democracy 107, 108 (Sumit Ganguly et al. eds., 2009).

[28] Surya Deva, Public Interest Litigation in India: Overreaching or Underachieving? , 1 Indian J. L. & Econ. 71, 73-80 (2010).

[29] Justice A.S. Anand, Protection of Human Rights- Judicial Obligation or Judicial Activism, 11, 14 (1997) 7 SCC (J).

[30] Id. at 12-13.

[31] Indira Nehru Gandhi v Raj Narain, 1975 Supp. S.C.C. 1. 219.

[32] Pratap B. Mehta, Public Institutions In India: Performance And Design 158, 165 (Devesh Kapoor & P.B. Mehta eds., 2005).

[33] T.R. Andhyarujina, Citizens’ Rights And The Rule Of Law: Problems And Prospects- Essays In Memory Of Justice J.C. Shah 31, 46 (Venkat Iyer ed., 2nd ed. 2008).

[34] Zia Mody, 10 Judgements That Changed India 167-8 (2013).

[35] Soli J. Sorabjee, Law And Justice: An Anthology 266, 276 (Soli J. Sorabjee ed. 2003).

[36] S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits 310 (2002).

[37] 6 Subhash C. Kashyap, Constitution Making Since 1950, 334(2004).

[38] Id. at 334-335.

[39] Id. at 378.

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Updated On 18 March 2020 9:46 AM GMT
Deepanshu Rao

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