Fifty Years of Human Rights Jurisprudence in India

2013

This paper examines the protection of social and economic rights under the Constitution of India (“the Constitution”). At its inception, only civil and political rights were considered to be enforceable under the Constitution; however, since the late 1970s, the Indian Supreme Court (“the Court”) has interpreted the Constitution as ensuring an enforceable ‘right to human dignity’. The amorphous notion of ‘dignity’ has been held to encompass rights to education, healthcare and subsistence, and to impose corresponding duties upon the state to ensure such rights. This paper analyses the causes of this interpretive shift, including the changing nature of litigation before the Court, the Court’s attempts to reinforce popular perceptions of its legitimacy and the contributions of individual Justices. The relative contributions of each of these factors are evaluated. This paper argues that no individual cause of the Court’s turn towards activism can be viewed in isolation from the Court’s historical constitutional context or simultaneous political developments, with the corresponding decline in the legitimacy, reputation and capacities of other branches of the Indian state judged to be as responsible for the Court’s changing approach as developments within the Court itself. This paper draws upon the author’s research as a recipient of the 2011 Prime Minister’s Australia Asia Award, including coursework and independent research completed at the National Law School of India University, Bangalore. This paper also draws upon the author’s practical experiences in Indian constitutional litigation while working at the Alternative Law Forum (a public interest law firm in Bangalore), including involvement in cases in the High Court of Karnataka concerning the expansive scope of the constitutional ‘right to life’. In addition, this paper draws upon scholarship by Indian and international academics, as well as decisions of the Supreme Court and High Courts of India.

The judiciary performs an active role to uphold constitutional values and ethics under the constitutional scheme. For confronting civic dilemmas, the judiciary applies its intellect and creativity to fill the hiatus between the positive and normative aspects of legislations. It cannot properly uphold the interest of the citizen, if it is enclosed with legal hindrances and consequently the judicial activism is emerged. But, the embracement with judicial overreach can menace the good governance.

2010