Revisiting the Indian Experience of Economic and Social Rights Adjudication: the Need for a Principled Approach to Judicial Activism and Restraint

Pillay, Anashri

Abstract

The Indian Constitution embraces economic and social rights as directive principles of state policy, ostensibly insulated from judicial review. The Supreme Court's interpretation of traditional civil and political rights to include economic and social guarantees has been praised by academics and activists keen to advance the cause of justiciable economic and social rights. In recent commentary, however, the extent to which the court's jurisprudence furthers the goal of increasing access to goods such as health care, housing, food and water for India's poor, is questioned. This article reconsiders the court's record in this area. It suggests that a more realistic assessment of the court's jurisprudence is necessary and draws on the South African experience of economic and social rights adjudication to argue for more serious engagement with factors that inform the level of judicial activism or restraint applied in the cases.

Citation

Pillay, A. (2014). Revisiting the Indian Experience of Economic and Social Rights Adjudication: the Need for a Principled Approach to Judicial Activism and Restraint. International and Comparative Law Quarterly, 63(02), 385-408. https://doi.org/10.1017/s0020589314000074

• Journal Article Type: Article
• Acceptance Date: Dec 16, 2013
• Online Publication Date: Apr 24, 2014
• Publication Date: Apr 24, 2014
• Deposit Date: Apr 29, 2014
• Publicly Available Date: Jan 25, 2016
• Journal: International and Comparative Law Quarterly
• Print ISSN: 0020-5893
• Electronic ISSN: 1471-6895
• Publisher: British Institute of International and Comparative Law
• Peer Reviewed: Peer Reviewed
• Volume: 63
• Issue: 02
• Pages: 385-408
• DOI: https://doi.org/10.1017/s0020589314000074
• Keywords: Adjudication, Directive principles of state policy, Economic and social rights, India, South Africa.
• Public URL: https://durham-repository.worktribe.com/output/1456070