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Revisiting the Indian experience of economic and social rights adjudication : the need for a principled approach to judicial activism and restraint.

Pillay, Anashri (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). pp. 385-408.

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.

Item Type:Article
Keywords:Adjudication, Directive principles of state policy, Economic and social rights, India, South Africa.
Full text:(AM) Accepted Manuscript
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Status:Peer-reviewed
Publisher Web site:http://dx.doi.org/10.1017/S0020589314000074
Publisher 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
Date accepted:16 December 2013
Date deposited:25 January 2016
Date of first online publication:24 April 2014
Date first made open access:25 January 2016

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