Making social rights conditional: Lessons from India

International Journal of Constitutional Law

Volumn 8, Issue 4, 2010, Pages 739-765

  Khosla, Madhav ^a  

^a CENTRE FOR POLICY RESEARCH   (India)

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[No Author keywords available]

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EID: 79960759115     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mor005     Document Type: Article

References (108)

1. See Charles Fried, Right and Wrong 110 (1978) (on the distinction between negative and positive rights).
2. See Frank I. Michelman, The Supreme Court, 1968 Term - Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7 (1969).
3. Frank I. Michelman, In Pursuit of Constitutional Welfare Rights: One View of Rawls' Theory of Justice, 121 U. Pa. L. Rev. 962 (1973).
4. For a recent critique of Michelman's work and an alternate argument in favor of social rights, see Goodwin Liu, Rethinking Constitutional Welfare Rights, 61 Stan. L. Rev. 203 (2008).
5. See Amartya Sen, The Idea of Justice 379-385 (2009).
6. Pablo Gilabert, The Feasibility of Basic Socioeconomic Human Rights: A Conceptual Exploration, 59 Phil. Q. 659 (2009).
7. Vagueness is often mistakenly associated with social rights when in fact it is a feature of law.
8. See Timothy A. O. Endicott, The Impossibility of the Rule of Law, 19 Oxford J. Legal Stud. 6 (1999) ("Not every law need be vague, but legal systems necessarily have vague laws. So we can go so far as to say that vagueness is an essential feature of law... We can put the claim even more strongly: we cannot conceive of a community regulated with precise laws. Law is necessarily vague").
9. See Bruce Ackerman, The New Separation of Powers, 113 Harv. L. Rev. 633, 721-724 (2000) (positing the possibility of a "distributive justice branch").
10. And, fittingly, those who oppose the constitutionalization of social rights seek to preserve this putative distinction.
11. See, e.g., Frank B. Cross, The Error of Positive Rights, 48 UCLA L. Rev. 857 (2001).
12. Cécile Fabre, Social Rights Under the Constitution: Government and the Decent Life 41 (2000).
13. As Fabre notes, "the civil right to be tried by a jury and with the assistance of a counsel is not a negative right, since it demands that a whole state apparatus be established....".
14. Stephen Holmes & Cass R. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes 35-48 (1999).
15. Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties 65 (2008).
16. AIR 1981 SC 746 at 753.
17. See, e.g., Ran Hirschl, Towards Juristocracy: The Origins and Consequences of The New Constitutionalism 246 n.81 (2004) ("The Indian Supreme Court... has developed the world's most comprehensive body of judgments dealing with social welfare rights as protected by the unqualified "right to life" enshrined in the Indian Constitution.").
18. See, e.g., Arun Kumar Thiruvengadam, The Social Rights Jurisprudence of the Supreme Court of India from a Comparative Perspective, in Human Rights, Criminal Justice and Constitutional Empowerment 264-309 (K. Chockalingam and C. Raj Kumar eds., 2007).
19. Jayna Kothari, Social Rights Litigation in India: Developments of the Last Decade, in Exploring Social Rights: Between Theory and Practice 171-192 (Daphne Barak-Erez & Aeyal M. Gross eds., 2007).
20. Shylashri Shankar & Pratap Bhanu Mehta, Courts and Socioeconomic Rights in India, in Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World 146-182 (Varun Gauri & Daniel M. Brinks eds., 2008).
21. Shylashri Shankar, Scaling Justice: India's Supreme Court, Anti-Terror Laws, and Social Rights 129-166 (2009).
22. Each of these contributions suggest that the Indian Supreme Court enforces a systemic model of social rights (though, surprisingly, none elaborates upon whether the systemic approach allegedly adopted takes the reasonableness form or the minimum core form).
23. Further, as Francis Coralie Mullin reveals, social rights analyses are often performed in cases where such rights are not at issue.
24. See S.P. Gupta v. Union of India, A.I.R. 1982 SC 149; Bandhua Mukti Morcha v. Union of India, A.I.R. 1984 SC 802.
25. See Ashok H. Desai & S. Muralidhar, Public Interest Litigation: Potential and Problems, in Supreme but not Infallible 159, 162-167 (B.N. Kirpal et. al. eds., 2000) (describing various procedural innovations undertaken).
26. Indian Const. art. 21 reads as follows: "Protection of life and personal liberty - No person shall be deprived of his life or personal liberty except according to procedure established by law.".
27. See, e.g, Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, in Judges and the Judicial Power: Essays in Honour of Justice V.R. Krishna Iyer 289-315 (Rajeev Dhavan et. al.
28. See, e.g., Ran Hirschl, Towards Juristocracy: The Origins and Consequences of The New Constitutionalism 246 n.81 (2004) ("The Indian Supreme Court... has developed the world's most comprehensive body of judgments dealing with social welfare rights as protected by the unqualified "right to life" enshrined in the Indian Constitution.").
29. See, e.g., Arun Kumar Thiruvengadam, The Social Rights Jurisprudence of the Supreme Court of India from a Comparative Perspective, in Human Rights, Criminal Justice and Constitutional Empowerment 264-309 (K. Chockalingam and C. Raj Kumar eds., 2007).
30. Jayna Kothari, Social Rights Litigation in India: Developments of the Last Decade, in Exploring Social Rights: Between Theory and Practice 171-192 (Daphne Barak-Erez & Aeyal M. Gross eds., 2007).
31. Shylashri Shankar & Pratap Bhanu Mehta, Courts and Socioeconomic Rights in India, in Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World 146-182 (Varun Gauri & Daniel M. Brinks eds., 2008).
32. Shylashri Shankar, Scaling Justice: India's Supreme Court, Anti-Terror Laws, and Social Rights 129-166 (2009).
33. Each of these contributions suggest that the Indian Supreme Court enforces a systemic model of social rights (though, surprisingly, none elaborates upon whether the systemic approach allegedly adopted takes the reasonableness form or the minimum core form).
34. Further, as Francis Coralie Mullin reveals, social rights analyses are often performed in cases where such rights are not at issue.
35. See S.P. Gupta v. Union of India, A.I.R. 1982 SC 149; Bandhua Mukti Morcha v. Union of India, A.I.R. 1984 SC 802.
36. See Ashok H. Desai & S. Muralidhar, Public Interest Litigation: Potential and Problems, in Supreme but not Infallible 159, 162-167 (B.N. Kirpal et. al. eds., 2000) (describing various procedural innovations undertaken).
37. Indian Const. art. 21 reads as follows: "Protection of life and personal liberty - No person shall be deprived of his life or personal liberty except according to procedure established by law.".
38. See, e.g, Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India, in Judges and the Judicial Power: Essays in Honour of Justice V.R. Krishna Iyer 289-315 (Rajeev Dhavan et. al.
39. Jacob Mathew v. State of Punjab, A.I.R. 2005 SC 3180.
40. There is another minor issue that ought to be pointed out. Shankar and Mehta note that in the 1992 decision C.E.S.C. Limited v. Subhash Chandra Bose, AIR 1992 SC 573, Justice Ramaswamy recognized the constitutional right to health in a minority opinion, but "the majority opinion, however, held that in the absence of legislation, one could not talk of a right to health.".
41. They proceed to observe that by 1997, "the minority ruling had become settled law" and the right to health was recognized as a key ingredient of the right to life.
42. This analysis is doubly wrong. First, the constitutional right to health was recognized well before 1992 (let alone 1997). See, e.g., Rakesh Chandra Narayan v. State of Bihar, A.I.R. 1989 SC 348. Secondly, their analysis mistakes the majority view in C.E.S.C. Limited. In C.E.S.C. Limited, the Supreme Court considered the meaning of "supervision" in Section 2(9) of the Employees' State Insurance Act 1948. In particular, it examined the relationship of a principal employer and an immediate employer to an employee. The majority opinion mentioned neither the word "health" nor Article 21 and concentrates solely on the interpretation of Section 2(9). It did not involve any analysis of fundamental rights under the Indian Constitution. This of course begs the question as to why Justice Ramaswamy's minority opinion referred to the right to health. The Employees' State Insurance Act 1948 requires inter alia employers and employees to contribute, in different proportions, towards a fund that can assist in the medical expenses of employees (i.e., it creates a form of social security). Justice Ramaswamy chose to refer to the constitutional right to health because, considering the statute's objective, he believed that the right provided guidance on its interpretation. The majority chose, on the other hand, to interpret this provision without any reference to the Constitution. It is clear that the majority and minority opinions disagree on what interpretive technique to adopt, but it is incorrect to suggest that they disagree on the nature of the right to health under the Indian Constitution.
43. See, e.g, Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (2008).
44. To my count, Tushnet refers to India at four places in his book.
45. These references are in passing and no Indian case is cited.
46. This enterprise does not attempt a comprehensive analysis of every social right being adjudicated in India. The right to shelter and livelihood, the right to education, and the right to health have been considered.
47. For a detailed account of the South African experience, see Eric C. Christiansen, Adjudicating Non-Justiciable Rights: Socio-Economic Rights and the South African Constitutional Court, 38 Colum. Hum. Rts. L. Rev. 321 (2007).
48. See also Marius Pieterse, Possibilities and Pitfalls in the Domestic Enforcement of Social Rights: Contemplating the South African Experience, 26 Hum. Rts. Q. 882 (2004).
49. Dennis M. Davis, Socioeconomic rights: Do they deliver the goods?, 6 Int'l J. Const. L. (I·CON) 687 (2008).
50. Rosalind Dixon, Creating dialogue about socioeconomic rights: Strong-form versus weak-form judicial review revisited, 5 Int'l J. Const. L. (I·CON) 391 (2007).
51. See also Kim Lane Scheppele, A Realpolitik Defence of Social Rights, 82 Tex. L. Rev. 1921, 1933-1935 (2004).
52. Alana Klein, Judging as Nudging: New Governance Approaches for the Enforcement of Constitutional Social and Economic Rights, 39 Colum. Hum. Rts. L. Rev. 351 (2008).
53. Olga Tellis v. Bombay Municipal Corporation, (1985) 3 S.C.C. 545.
54. One of the techniques routinely employed by the Court in social rights cases is to read the Constitution as a whole. This technique finds relevance in another important instance: the formulation of the basic structure doctrine.
55. See Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine 178-183 (2009).
56. On reading constitutional provisions as part of a whole, see generally Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747 (1999).
57. Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy 55 (2nd ed. 1996).
58. Ahmedabad Municipal Corporation v. Nawab Khan, (1997) 11 S.C.C. 121.
59. Mohini Jain v. State of Karnataka, (1992) 3 S.C.C. 666.
60. Unni Krishnan v. State of A. P., (1993) 1 S.C.C. 645.
61. Indian Const. art. 45.
62. Indian Const. art. 41.
63. The Indian Constitution has now been amended and the right to education has been explicitly included in Part III. See Indian Const. art. 21A.
64. See generally Vijayashri Sripati & Arun K. Thiruvengadam, India: Constitutional amendment making the right to education a Fundamental Right, 2 Int'l J. Const. L. (I·CON) 148 (2004).
65. Unni Krishnan also addressed other issues like whether Article 19(1)(g) of the Constitution guaranteed a right to establish an educational institution.
66. Vincent Panikurlangara v. Union of India, (1987) 2 SCC 165.
67. Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353, 393-405 (1978).
68. See Owen M. Fiss, The Forms of Justice, 93 Harv. L. Rev. 1, 39-44 (1979).
69. Jeff A. King, The Pervasiveness of Polycentricity, Pub. L. 101 (2008).
70. Rakesh Chandra Narayan v. State of Bihar, A.I.R. 1989 SC 348.
71. See Indian Const. art. 32.
72. Consumer Education & Research Centre v. Union of India, (1995) 3 S.C.C. 42.
73. Justice Ramaswamy went so far as to hold that "in an appropriate case, the court would give appropriate directions to the employer, be it the State or its undertaking or private employer to make the right to life meaningful....".
74. Paschim Banga Khet Mazdoor Samity v. State of W. B., (1996) 4 S.C.C. 37.
75. Rudal Shah v. State of Bihar, (1983) 4 S.C.C. 141 at 148.
76. Such a discussion may by usefully informed by the nature of constitutional tort actions in the United States. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). See also Monroe v. Pape, 365 U.S. 167 (1961).
77. Peter Birks, Rights, Wrongs, and Remedies, 20 Oxford J. Legal Stud. 1, 16 (2000).
78. See generally The Rt. Hon. Sir Thomas Bingham, Should Public Law Remedies be Discretionary?, Pub. L. 64 (1991).
79. See, e.g., Rameshwar Prasad v. Union of India, (2006) 2 S.C.C. 1 at 130-131.
80. Government of the Republic of South Africa v. Grootboom, 2000 (11) B.C.L.R. 1169.
81. Minister of Health v. Treatment Action Campaign, 2002 (10) B.C.L.R. 1033.
82. See S. Afr. Const. § 26. the respondents also relied upon S. Afr. Const. § 28(1)(c).
83. See U.N. Econ. & Soc. Council [ECOSOC], Comm. on Econ., Soc. & Cultural Rights, Report on the Fifth Session, Supp. No. 3, Annex III, ¶ 10, U.N. Doc. E/1991/23 (1991).
84. See generally Katharine G. Young, The Minimum Core of Economic and Social Rights: A Concept in Search of Content, 33 Yale J. Int'l L. 113 (2008).
85. Though popular, the reasonableness standard has not invited universal praise.
86. For a powerful critique, see David Bilchitz, Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights 141-149 (2007).
87. Cass R. Sunstein, Social and Economic Rights? Lessons from South Africa, in Designing Democracy: What Constitutions Do 231 (2001) [hereinafter Sunstein SA].
88. See also Cass R. Sunstein, The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More Than Ever 209-229 (2004) [hereinafter Sunstein FDR].
89. See generally Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L. J. 1346, 1353-1359 (2006) (elaborating upon the different forms of judicial review and limiting the argument against judicial review to strong-form judicial review).
90. I make the "private law" claim at several points in this article but I aim to do so narrowly. I refer to the conditional form of the substantive right being litigated but do not, of course, ignore important public law features of social rights litigation in India such as the non-bipolar party structure, role of judges, and the like.
91. Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1282-1283 (1976).
92. See James J. Park, The Constitutional Tort Action as Individualized Remedy, 38 Harv. C.R.-C.L. L. Rev. 393, 419-440 (2003).
93. Robinson's assertion adequately sums up the story: "Although the Constitution did not on its face give the Supreme Court a mandate to enforce social and economic rights like those in the Directive Principles, the Court gradually interpreted this to be its role.".
94. Nick Robinson, Expanding Judiciaries: India and the Rise of the Good Governance Court, 8 Wash. U. Global Stud. L. Rev. 1, 41 (2009).
95. Cass R. Sunstein, On the Expressive Function of Law, 144 U. Pa. L. Rev. 2021, 2043 (1996) ("A large point of law may be to shift social norms and social meaning.").
96. This recognition of the interdependence of rights can lead to some confusion regarding prioritization. In this context, Griffin's insight is important: "Welfare rights are indeed prior to liberty rights in the sense that they are the necessary condition for liberty rights' being of value to us; but this does not show that they are prior in the sense that they must be realized first.".
97. James Griffin, On Human Rights 305 n.4 (2008).
98. Ram Lubhaya Bagga, infra note 137, at 122.
99. Lawrence Lessig, The Regulation of Social Meaning, 62 U. Chi. L. Rev. 943 (1995).
100. Robert Nozick, The Nature of Rationality 28 (1993).
101. After all, as Dworkin once observed, law is "our most structured and revealing social institution.".
102. Ronald Dworkin, Law's Empire 11 (1986).
103. See generally Ronald Dworkin, Taking Rights Seriously 90-100 (1977) (on the difference between right and goals).
104. Pratap Bhanu Mehta, The Burden of Democracy 138 (2003).
105. Charles R. Epp, The Rights Revolution: Lawyers, Activists, and the Supreme Courts in Comparative Perspective 81 (1998).
106. Clark D. Cunningham, Public Interest Litigation in Indian Supreme Court: A Study in the Light of American Experience, 29 J. Indian L. Inst. 494, 501 (1987).
107. Parmanand Katara v. Union of India, (1989) 4 S.C.C. 286.
108. (1998) 4 S.C.C. 117.