The onset of globalisation and
liberalisation are resetting not just terms of market and trade but
priorities in the judicial arena too are undergoing significant
changes. Hope ignited among poor and less privileged through the
seventies by a series of epoch making rulings in their favour by
Supreme Court in India has started fading as court has of late been
takding quite different view of issues involved.
Judicial activism is a contested phenomenon, with the liberals and even
the conservatives championing it while denouncing its particular
manifestations. In this article, I examine the recent judicial practice
of one of the most activist judiciaries in the world, that of India,
where progressive politics is often, and bsometimes always, associated
with an activist and benign court.
Indeed, the Indian Supreme Court has a global reputation as a
torchbearer on human rights. In this article, I adopt a social movement
perspective to understand the actual impact of the court on the
struggles of the poor for livelihood, resources, values, and identity,
enacted through struggles for the recognition and realisation of
economic, social, and cultural rights. After an analysis of the record
of the Supreme Court of India, I conclude that the Court has
increasingly shown a bias against the poor in its activist rulings and
made judicial activism a more problematic device for social movements
in India to rely upon.
To explain why this is happening, the article introduces two ideas:
first, the emergence of the judiciary as an organ of governance and its
attendant problems, and second, the internally biased nature of the
rights discourse which tends to reproduce binary arguments for either
increasing state capacity or for increasing choice of goods in the
marketplace.
The article concludes by exploring lessons from the jurisprudence of
other countries and international law and urges the Indian Supreme
Court to reinvent a jurisprudence informed more by the social movements
of the poor.
Social movements in India have depended heavily upon the Indian Supreme
Court since it began its activist phase in the late 1970s. Human rights
groups and concerned citizens have approached the Court for remedy, and
the Court has responded impressively. It has sneaked "due process" into
Indian jurisprudence to curb detention without trial, expanded the
meaning of right to life under Article 21 to include livelihood and
environment, defended the freedom of the media, guarded the rights of
employees, read some Directive Principles in Part IV such as basic
education into fundamental rights, taken measures to advance gender
justice through a progressive incorporation of international law into
domestic law, and innovated procedural measures such as an expansive
concept of standing, continuing mandamus, and court-appointed
commissions of inquiry. Indeed, it will not be an exaggeration to say
that most social movements in India since the 1970s have actively used
the courts - especially the Supreme Court - as part of their struggle,
whether it be the women's movement, the labor movement, the human
rights movement, or the environmental movement. Despite this activism,
it is now increasingly recognised that the impact of the Court on
ground reality has not been consistent.
In the area of human rights for instance, studies show that the Court's
seminal rulings are often not translated into reality for a range of
reasons. In addition, the Court's activism, especially under the
umbrella of social action litigation (SAL), has itself come under
criticism for its undemocratic nature, lack of effectiveness and
judicial grandstanding, and its alleged violation of separation of
powers. As one distinguished observer of judicial activism puts it,
"judicial activism is at once a peril and a promise, an assurance of
solidarity for the depressed classes of Indian society as well as a
site of betrayal."
In this essay, I join this critique and call attention to the
limitations of judicial activism, as it has been practiced more
recently, for a progressive social movement politics. Rather than
criticizing judicial activism for its counter-majoritarian character or
its lack of effectiveness on the ground, I focus attention on the
ideological character of the Court's particular approach to human
rights. In particular, I suggest that the Court's activism increasingly
manifests several biases - in favour of the state and development, in
favour of the rich and against workers, in favour of the urban
middle-class and against rural farmers, and in favour of a
globalitarian class and against the distributive ethos of the Indian
Constitution - that, when taken together, result in an ideological
interpretation of human rights. This ideological interpretation is the
result, I suggest, of at least two dynamics: the first one is internal
to the Court itself and grows out of the particular history of the
evolution of the Court since 1970s, as an organ of state governance
thereby leading to the emergence of what I call "judicial governance"
.
The second, a dynamic that is external to the Court and is the result
of the human rights discourse itself, especially as it has been
constructed at the international level and reproduced at the domestic
level. The first dynamic neutralises the transformative potential of
the Court, whereas the second dynamic shows the inherently elitist and
anti-poor nature of international human rights. These dynamics produce
a constrained, court-centered approach to human rights, despite the
occasionally inspiring judgments that emanate from the Court. I argue
that this constrained approach by the Court to human rights is
primarily because of its concern that its decisions are compatible with
an overall "logic of the state" in which the higher judiciary plays its
appointed role as an instrument of governance much more often than its
traditional role as an institution of justice. This notion of "judicial
governance" imposes inherent limitations on the extent to which the
Court can be expected to be an active part of social movement struggles
for the realisation of human rights, particularly those rights that are
sought to be exercised in conflict with statist and developmentalist
ideologies.
"The Supreme Court and Human Rights: A Mixed Record" provides a brief
survey of the Indian Supreme Court's mixed record in protecting human
rights, including the incorporation of international legal norms. In
"Explaining the Mixed Judicial Record: Judicial Governance and the
Ideology of Judging," I explain that this mixed record in protecting
human rights is the complex product of several factors including the
evolution of the Indian Supreme Court as an organ of governance, its
historical tensions with the legislature, its expansion of the human
rights agenda because of its prominence as a site of movement politics,
and the political and class alignment of individual judges. "The
Ideology of Human Rights Discourse and the Limits of the Court's Value
to Social Movements" discusses the ideological biases that are inherent
in the discourse of human rights itself, including the biases against
economic, social, and cultural rights, which operate to render the
Court as marginal to social movement struggles, even when it tries to
incorporate international norms into domestic law. In particular, I
focus on the way the realisation of economic and social rights under
international law is seen to be dependent upon either state capacity or
greater free market-led consumption and argue that this
conceptualisation is part of the reason why the Court has been biased.
In "Judicial Activism on Socioeconomic Rights and Social Movements:
Lessons from Abroad," I discuss some recent dissident strands of
comparative and international jurisprudence on human rights, which have
had a much more active relationship with social movement politics, and
ask whether the Indian Supreme Court can learn any lessons from this
experience. In "Conclusion," I conclude by arguing that the Court must
abandon its ideological approach to human rights and refashion its
jurisprudence in ways that strengthen social movement struggles of the
poor.
SC and HR : A mixed record
The human rights record of the Indian Supreme Court is, by and large, a
product of the post-Emergency period in Indian politics. Partly because
of its desire to atone for its mistake in deciding the infamous habeas
corpus case, and thereby to recover the moral ground that it had lost
among the public, the Supreme Court began an activist phase,
interpreting constitutional rights liberally to expand the domain of
freedom. Its focus on human rights was also politically acceptable
given that the Janata government in power between 1977 and 1979 could
only favourably look upon a Court which was trying to
address some of the worst legacies of the Emergency such as the abuses
in prisons. Thus, in a series of cases the Court expanded the legal
rights of detainees and under-trials, addressed custodial deaths and
extra-judicial killings, awarded compensation for violation of
fundamental rights, and expanded the substantive meaning of equality
through affirmative action. The Court has also expanded the rights of
women including rape victims and the rights of children. Its commitment
to human rights continues to inspire public admiration, as the public
reaction to the recent Best Bakery Case shows. In many of these cases,
the Court has liberally interpreted the constitutional provisions,
reading international law into domestic law. Many of these human rights
rulings were made possible through a procedural revolution that is a
unique Indian contribution to the world, through the democratisation of
standing to sue and through such innovative devices as a continued
mandamus and judicial commissions of inquiry. The Court has converted
an ordinary list of fundamental rights into a veritable weapon of the
weak through creative judicial interpretation. In this, the Court was
doubtless riding a human rights wave, driven by a range of social
movements that were sprouting all over India in the aftermath of the
Emergency, and were seeking refuge in the Court after finding that
bureaucratic and traditional political avenues of action were proving
to be more intractable.
Despite this laudable activism in human rights, the Court's record is
characterised by a serious measure of substantive adhocism. In
particular, the Court's record on economic, social, and cultural rights
remains deeply unsatisfactory. With some notable exceptions, such as a
judgment dealing with the right to education, the record of the Indian
Supreme Court in enforcing internationally recognised economic, social,
and cultural rights is patchy and is getting worse, especially when
compared to the heyday of its activism when Justices such as Krishna
Iyer and Chinnappa Reddy were on the bench. In the area of labour
rights, despite the impression that the Indian Courts remain
sympathetic to labour because of India's pro-labour laws, the record of
the Court shows an inconsistent approach without affording protection
to crucial rights such as the right to strike, although it has passed
several important judgments relating to the abolition of forced,
bonded, and child labour. Although many of these latter judgments
remain current law, they were all issued in the early 1980s and not
after the economic liberalization began in earnest in 1991. Indeed, a
judgment that refects the current judicial trend is the Court's
decision in the T.K. Rangarajan case, declaring that the Tamil Nadu
government employees had no legal, moral, or equitable right to strike.
While individual judges in the past have shown a great deal of sympathy
to labour, including Justices Desai and Krishna Iyer, the more recent
crop of judges appears to display less sympathy. This change in the
attitude of the judges towards labour rights cannot be divorced from
the broader socioeconomic context of liberalisation, privatisation, and
World Bank and International Monetary Fund (IMF) demands for the reform
of labor laws since 1991.
Even in the case of land rights as a distinct category of human rights,
the Court's record is far from satisfactory. The record of the Court
during the first two decades of its existence could only be described
as a grudging and resigned support, as it struggled to constrain the
political branches from carrying out the agrarian/land reform that was
seen to be necessary to realise the vision of the Constitution. Thus,
the Court frequently held that such land reforms violated aspects of
the constitutional right to property, especially the requirement to pay
compensation , even as it upheld the protection of land reform laws
from judicial scrutiny. The attitude of the Court began to change in
the early 1970s as more pro-poor judges such Krishna Iyer, and Bhagwati
joined the Court began to uphold agrarian reform, especially under the
new Constitutional amendments that has been adopted to shield land
reform laws from judicial scrutiny.
…This nuanced understanding of the importance of agrarian reform and
land rights was, however, limited to some justices and temporally
limited between the early 1970s and the early 1980s. On the whole, the
record of the Court has been more in favour of property rights,
narrowly construed, and not land rights. The agonised and complex
balance that the Court struck in Kesavananda Bhararti between the
amendment power and the structural integrity of the Constitution could
also be seen, from one angle, as a balance between property rights and
human rights. Indeed, with the repeal of the property rights clause in
the Constitution through the 44th Amendment in 1978, it could be said
that the role of the Court in securing land rights (as opposed to
property rights) has been almost negligible. This was so even during
the 1970s, when the political focus was on the issue of land, as
compared to the more activist role of the political branches at the
federal and state levels. Since the mid-1980s, and especially since
economic liberalization began in 1991, land issues have not been at the
top of the political or judicial agenda.
...in the case of land rights as a distinct category of human rights,
the Court's record is far from satisfactory. The record of the Court
during the first two decades of its existence could only be described
as a grudging and resigned support...
In cases relating to housing rights or the right to health, the Court
has rarely shown the kind of aggressive public policy interventionism
that it exhibits in other areas such as the environment. Even in
landmark rulings such as Olga Tellis, the Court has never ruled that
the slum dwellers actually had a right to housing but only that an
eviction without notice and a hearing would amount to an arbitrary
violation of their right to livelihood which is part of the right to
life under Article 21. What is affirmed is thus a right to a process
and not a remedy for the structural violation itself. The removal of
the right to property as a fundamental right by the 44th Amendment to
the Constitution in 1978 has also made it more difficult to advance a
claim of right to housing understood substantively as a spatial
assertion by any individual, despite the presence of Articles 31A and
300A which provide for some elementary property rights protections.
Although the Court has not hesitated from using even soft law sources
such as resolutions of the United Nations (UN) or even the
International Law Commission to reinterpret Indian constitutional
provisions relating to environment, sustainable development, or
workplace gender discrimination, it does not show the same kind of
adventurism while dealing with socioeconomic rights such as housing.
This is surely not because of lack of legal sources. For example, in
the infamous case of Narmada Bachao Andolan in 2000, the Court put its
seal of approval on the largest
Court-sanctioned forced eviction in the world, although
abundant
international legal materials existed to show that the raising of the
height of the Sardar Sarover dam was contrary to current legal
standards. Although counsel in that case argued that the forced
eviction of tribal people was a violation of right to life under
Article 21 read with International Labour Organisation (ILO) Convention
108, to which India is a party, the Court rejected the argument. But it
is remarkable that counsel did not argue that several economic, social,
and cultural rights of the tribal people were violated under the
International Covenant on Economic, Social and Cultural Rights
(hereinafter ICESCR), to which India is a party, showing perhaps how
much salience the language of socioeconomic rights has before the
Court. Nor did counsel argue that the Narmada tribal peoples had a
constitutional right to carry on a trade or business according to
Article 19(1) (g) of the Constitution or that the tribal peoples had a
property right under Articles 300A and 31A. In effect, this has meant
that constitutional rights - to trade, do business, or to property -
are recognised by the Court only for the rich and not for the poor who
are often outside the formal legal system and, therefore, lack any
formal entitlements under state law.
Subsequent case law on the Narmada dispute only reconfirms the
inability or unwillingness of the Supreme Court to ensure even a
minimal adherence to the rule of law and due process in the
construction of India's largest dam project and, indeed, makes the 2000
judgment appear benign by comparison. After dragging the case through
the Court for another 5 years, followed by an apparently favorable
ruling in 2005 for the displaced people on procedural grounds, the
Court has once again struck a grievous blow against the rights of the
displaced people in the Narmada valley by allowing the further raising
of the height of the main dam in the project, although most of the
displaced people have not been resettled according to the Court's own
previous orders. This troubling failure of justice has occurred despite
a finding of utter noncompliance by the authorities to fulfill the
terms of resettlement, according to a confidential report prepared by a
Group of Ministers appointed by the Prime Minister, and which was
followed by an unprecedented 20-day fast by the leaders of the affected
community in New Delhi.
This could be contrasted to other recent cases wherein the Court has
recently displayed remarkable activism in upholding the rights of urban
landlords under Article 19(1)(g) and struck down the Bombay Rent
Control Act. Only fierce agitation by the tenants in the aftermath of
the judgment prevented the government from revising the rents upwards.
On top of this, the Court ordered the government of Maharashtra to
change the law forthwith, intruding into the legislative domain through
activism that learned observers see as a violation of separation of
powers.
In addition, the Court's decisions are increasingly characterised by an
urban and elitist bias against the poor and the countryside. In a range
of cases involving conflicts between protection of the environment and
workers' rights/tribal rights/housing rights, the Court has chosen the
former, without bothering much to balance the two objectives. When the
Court orders polluting industries to be closed, the workers and their
families who are directly affected are rarely heard before orders are
issued. The Court's remarks often display much attention to the
environmental issues that are of importance to urban dwellers, such as
pollution, while showing relatively less attention to rural
livelihoods, which are often intricately tied to the land and forests.
In the Narmada case, for instance, the Court showed complete
callousness regarding the plight of the rural and tribal people
targeted for displacement and declared that "the displacement of the
tribals and other persons would not per se result in the violations of
their fundamental or other rights. The effect is to see that, on their
rehabilitation at new locations, they are better off than what they
were. At the rehabilitation sites, they will have more and better
amenities than which they enjoyed in their tribal hamlets. The gradual
assimilation in the mainstream of the society will lead to betterment
and progress." Implicit in this is the notion that rural and tribal
livelihoods are inferior and bound to be displaced through urbanisation
and modernisation. Likewise, the Court's activism in the environment
area is also characterised by a readiness to protect the environment
and health of the rich while ignoring the structural poverty and
governmental failure that causes these health problems in the first
place.
… A fourth new issue that must be noted is the rising concern about the
increasing incompatibility between fundamental norms of international
law relating to human rights and other aspects of international law
that promote economic globalisation. In particular, conflicts are
emerging between the international trade regime on the one hand and
norms protecting human rights and environment on the other. Similarly,
conflicts have emerged between the policies of the Bretton Woods
institutions and norms of international law in the area of human rights
and environment. The Court cannot remain oblivious to these
developments. As India enforces its obligations under the World Trade
Organisation (WTO) regime of treaties through the enactment of
statutes, the Court is likely to see legal challenges to these statutes
on the ground, inter alia, that they violate international human rights
law, and the Court must decide on conflicts between trade law and human
rights law. In other words, the Court cannot simply call for the
incorporation of international law into domestic law in cases involving
human rights, when there are several unresolved issues concerning the
incorporation of other branches of international law into domestic law
and the relationship between different branches of international law
once they are incorporated into domestic law. The Supreme Court has not
begun paying attention to these issues nor has the Bar begun engaging
with them. In addition, questions are increasingly arising about the
legal responsibilities of international institutions such as the WTO,
World Bank, and the IMF, which remain oblivious to the broad
obligations of all actors under international law to respect human
rights. These organisations are not subject to the jurisdiction of the
Court. Because of their diplomatic immunity, they cannot be sued in
national courts even when they violate human rights norms through their
policies and projects. To address this partially, the World Bank
established the Complaints Panel in 1993 but that body is not a
judicial one. It does not apply international law; rather, it simply
checks if the projects complained of have violated the World Bank's own
internal policies known as "operational directives." The IMF's
Ombudsman is even weaker and does not allow complaints from individuals
to be entertained. The WTO has no mechanism for complaints by
individuals or groups from states that lose in its proceedings. The
impartiality and independence of WTO panels and its Appellate Body
leave a lot to be desired and poor countries - let alone vulnerable
groups within these countries - have very little, if any, say in how
the WTO is run. Yet, these organisations have a profound impact on the
human rights of poor people, farmers, women, minorities and indigenous
groups, fishermen/women, and other vulnerable groups. These impacts are
mostly on the livelihoods and cultural identity of these groups and
individuals. The last refuge of these groups and individuals is often
the Supreme Court, and the Court must begin to fashion a jurisprudence
of remedies for wrongs that are attributable to overseas entities.
Indeed, it is not inconceivable that the decisions of international
bodies - whether the Security Council or the WTO - may end up being
reviewed by domestic constitutional courts such as the Indian Supreme
Court in the future, involving difficult questions of balancing
different aspects of international law in domestic enforcement. In many
of the new areas of challenge, adjudication is some way off, and even
if begun, it may not immediately and by itself change the profound
inequities of the international system with its misdistribution of
resources, gender and race oppression, and assaults on cultural
identities. On the other hand, an activist judiciary may make an
important difference to the politics of reform in many social and
economic areas by compelling national states and international agencies
to acknowledge that there are limits to what they can do even in the
name of "progress" or "development." Judicialising socioeconomic rights
may also serve to recover human rights from their self-imposed
limitations, by aiding the political and social demands of social
movements, but only so long as socioeconomic rights are
reconceptualised, as I have argued…
Conclusion
I have argued in this article that the Indian Supreme Court's record in
protecting human rights shows a bias against socioeconomic rights of
the poor and the dispossessed and that this bias may be explained by
two sets of factors: a first set of factors, internal to the Indian
system, that have positioned the Court as an organ of governance,
thereby sharing the biases of many of the goals and methods of
governance itself; and a second set of factors that derive from the
biased nature of the human rights discourse itself. I have also argued
that recent international and comparative judicial experience has much
to offer the Indian Supreme Court to transform its jurisprudence into a
more people-friendly one. Socioeconomic rights do not have to remain
second-class rights, to which courts pay lip service and even then only
so long as theyfit into a developmentalist world view.
However, to do so, these rights must themselves be reconceptualised to
move away from market fundamentalism, state fetishism, and the
culture-ideology of consumerism. They must, instead, be refashioned as
counter-hegemonic mobilising strategies in which the Court and social
movements partner to achieve social justice. The Court must also begin
to pay more attention to emerging dimensions of socioeconomic rights,
including the responsibilities of transnational corporations and
agencies and the relationship between different branches of
international law in domestic law. There are creative opportunities for
expanding the jurisprudence of the Court. There are a number of
substantive and procedural areas where the frontiers of law can be
pushed to make it more legitimate. The Court's legitimacy will depend
to a large extent on its ability to offer support to social movement
struggles which are primarily focused on the realisation of economic
and social rights at a time of economic liberalisation and
globalisation.
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