It is widely believed that the Indian Supreme Court adjudicates social rights. The familiar narrative, about the rise of the Court during the post-Emergency years and the innovations of the PIL era, requires no elaboration. In a new article, available here (link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1742746), and forthcoming in the International Journal of Constitutional Law (I-CON), I challenge this narrative and present a detailed study of the social rights jurisprudence of the Indian Supreme Court. Before embarking upon my own thesis, I show why the literature on social rights in India is deeply flawed and has presented an inaccurate account of our jurisprudence. I then introduce a new distinction in the social rights debate between what I call systemic social rights and conditional social rights. This thesis goes against the literature on social rights in India, and suggests that the paradigm that constitutional lawyers currently adopt to study the South African experience with such rights (weak v. strong form review) cannot adequately grasp the Indian experience. The conditional rights approach is, I argue, a new form of social rights adjudication, and is a rare private law model of public law adjudication. I also discuss in detail what implications follow from the conditional social rights thesis.
The abstract is as follows:
Recent years have witnessed important advancements in the discussion on social rights. The South African experience with social rights has revealed how such rights can be protected without providing for an individualized remedy. Comparative constitutional lawyers now debate the promise of the South African approach, and the possibility of weak-form judicial review in social rights cases. This Article considers the Indian experience with social rights, and explains how it exhibits a new form of social rights adjudication. This is the adjudication of a conditional social right; an approach that displays a rare private law model of public law adjudication. This Article studies the nature and significance of this heretofore ignored adjudicatory approach, and contrasts it with the systemic social rights approach. The conditional social rights thesis has important implications for the present debate on social rights adjudication, and presents an account of the Indian Supreme Court that is truer than those we presently encounter.
Madhav Khosla (madhav.khosla@aya.yale.edu) is currently at the Centre for Policy Research, New Delhi.
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