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

Pillay, Anashri

doi:10.1017/s0020589314000074

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

Pillay, Anashri

Authors

Dr Anashri Pillay anashri.pillay@durham.ac.uk
Associate Professor

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.

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Copyright Statement
© British Institute of International and Comparative Law 2014. This paper has been published in a revised form, subsequent to editorial input by Cambridge University Press, in 'International and Comparative Law Quarterly' (63: 02 (2014) 385-408) http://journals.cambridge.org/action/displayJournal?jid=ILQ