-Thulasi K. Raj*
COVID-19 has exposed the staggering levels of inequality of income and wealth in India. It has also shown how a poor governmental response can impose significant costs on individuals – of starvation, unemployment and insufficient access to health care.[1] A number of Public Interest Litigations (‘PIL’s) were filed in the Supreme Court in the wake of COVID-19. These are part of a continuing pattern of litigations moved before the court, which began largely in the 1980s. Recently, PILs were filed to seek directions to frame guidelines for treatment in private hospitals,[2] for declaring financial emergency under Article 360 of the Constitution, to explore non-allopathic alternative medicines for the epidemic,[3] for monetary compensation to for next of kin of the victims of the pandemic,[4] to name a few.
This type of litigation demonstrated at least two aspects of our legal system. First, how PILs, originally conceived with a substantive idea of access to justice, are now largely reduced to a suggestion-box for litigants with dubious merits about specific violations of legal rights.[5] Second, how this trend erroneously presumes that the judicial institution will resolve various socio-economic issues. Courts have attempted to provide intuitive solutions to various socio-economic concerns. My argument, focused on the second aspect, is that the court’s institutional role in the realm of socio-economic rights (‘SER’) is a limited one. The judicial overreach, without recognizing this, presents the following problems.
I. Institutional Legitimacy
Socio-economic rights are contained as Directive Principles of State Policy (‘DPSP’s). The text of the Constitution, through Article 37, makes DPSPs non-justiciable, as opposed to the justiciable fundamental rights. DPSPs guide the general principles of state policy and reflect a political philosophy of governance. They emphasize on inequalities of wealth, right to work and public assistance, living wage for workers, free and compulsory education for children, nutritional levels, public health, maternity relief, and so on.
It does seem that most of these aspects touch upon policy issues, which are not for the court to decide. Courts are adjudicators of competing rights claims. Their function consists of identifying the legal issues, engaging with arguments, and presenting a legal analysis to resolve disputes. Elected members of the legislature decide the policy that the state must follow in distributive justice, allocation of resources of health care, education or unemployment allowance. The separation of powers model is grounded on a principle of legitimacy. The principle is rooted in the premise that democratic law-making lies with the legislature validly elected by the people and, “therefore, that legislation enacted in accordance with majority rule by the people or by their elected representatives is, in principle, democratically legitimate.”[6]
The claim that the state is inefficient, or utterly incompetent does not yet justify breaching this principle of legitimacy. Such claims also rely on value judgments about what the state ought to do, on which people disagree. It is for the people, through elected representatives, to determine the kind of policy that would ensure access to public health, universal education, and enact laws levying higher taxes on the rich to reduce inequalities. Constitutional courts, on the other hand, should provide the best interpretation of the Constitution.[7]
Indian courts, by contrast, tend to bring in a wide array of socio-economic aspects, that are often mentioned as DPSPs, under the ambit of Article 21. By reading the rights to education,[8] health,[9] shelter,[10] food,[11] as part of the right to live with dignity, courts have often stepped into the legislative realm.
Legitimacy is also linked to expertise. Since the legislature is elected to power to choose the best policies for its citizens in the realm of SER, they are equipped to command and receive expert input. The government has a wide array of options to consult, debate and deliberate in drafting policies and governance. While deciding what economic policy the state should follow to overcome the crisis deepened by COVID-19, it is expected to form expert panels consisting of economists, policy makers and civil servants, invite suggestions from the public, form parliamentary committees and engage in large-scale deliberations. They are conceptually devised and, thus, legitimate to enact and implement policies.
The courts, however, are not. For instance, on April 8, the court issued an order directing the central government to enable all citizens to get free testing for COVID-19 in private labs.[12] This order was later modified, reserving the free tests for only the poorest category. Assume that the health budget allocation for testing is one hundred crores and compliance with the free testing order costs more. What must the state do? Where should it cut down while navigating the accounts? Here, the court is unaware of the budgetary constraints on health care, unlike the legislature and the executive. The court is incompetent to determine what health policies are best for the state and what fair priorities in spending scarce budgets are. As I have argued in a co-authored blogpost elsewhere, the court is not “institutionally designed to fight poverty or bad healthcare.”[13] Judges are simply not experts of health care, nor should they pretend to be.
II. Contentless Rights
Judicial review of SER has led to hollow declarations on rights. Let us consider the right to education. In Unnikrishnan,[14] the Supreme Court was emphatic:
Every child of this country has the right to free education until he completes the age of 14 years. Thereafter his right to education is subject to the limits of economic capacity . . . the effect of holding that the right to education is implicit in the right to life is that the state cannot deprive the citizen of his right to education except in accordance with the procedure prescribed by law.
In 1993, neither Article 21A, which now guarantees a right to education, nor the Right to Education Act was in place. The court simply declared education to be a fundamental right of children. This is perhaps well-intended. It might very well be that without a decent education, one’s quality of life is substantially minimized, and a welfare state might be obliged to guarantee it. However, when the court judicializes an educational right, what is its content?
For instance, the Draft National Education Policy (‘the Policy’) was published in 2019.[15] The policy contained various suggestions, such as flexibility for students in course choices, effective teaching recruitment, career management, education of transgender, urban poor children and girl children and so on. The Policy was also subject to criticism in the public domain. Kumkum Roy argues that the Policy takes a unilateral approach to history, sidelining stories of marginalized groups, contains unhelpful and sweeping generalizations, and misses key concerns.[16] Should the Policy focus on the quality of outcomes of learning or enrolment of students and teachers? Should it contain a healthy nutritional diet for effective learning, or leave health concerns to parents and focus on improving awareness? When the court holds that children have a right to education, it does not say whether the right includes the right to an accessible school within a 5 km radius. It does also not say whether it includes mid-day meals for the child. What a good education policy requires is a crucial and complicated question with multiple dimensions. [17]
The Unnikrishnan case focuses on access to schools as a major component to achieve the right to education. However, there might be a combination of factors involved. As mentioned earlier, the court cannot specify what aspects of this combination are best suited for the country. The court does not have economists, educators, teachers, and public policy experts. It is unaware of the extent of teacher absenteeism and quality of education in all public schools, nor does it have the resources to.[18] Unlike determining whether a journalist has the right to publish an article in a case of free speech, these questions touch upon different kinds of education policy that the state enacts and implements. The democratic space outside the court is best suited for engaging in these questions.
As a result, many socio-economic rights are reduced to flowery declarations by the courts: unenforced and unexplored. In 2001, the Constitution was amended to insert Article 21A to guarantee a right to education to the children. The Parliament, thereafter, passed the Right to Education Act in 2009 and the rules were enacted by the States. This provided for an entire infrastructure to specify and ensure a right to education. Notwithstanding its hurdles, the Act led to a substantial increase in enrolment of upper primary students, and showed improvement in infrastructure norms.[19] It is unclear if the Unnikrishnan case has contributed at all to ensuring the right to education, in general. For the right to education to become closer to reality for Indian children, the executive and the legislature had to commit to an effective education policy.
III. The Problem of Distraction
One might respond to my argument by saying that court rulings on SER might at least have an instrumental effect by nudging the political wing to frame its policy in one direction. But this, in fact, might do more harm than good. The popular debate around judicializing SER will show that the court is placed as a major channel of such rights. It is hoped that “the judiciary thus wishes to bring about a silent revolution for the purpose of securing socio-economic justice to all”.[20] However, as has been argued earlier, this is nothing but a false hope.
This also shows a bigger problem that Indian politics faces: reframing core political issues as legal disputes. Significant political questions are reduced to an interpretation of the constitutional rights of non-discrimination and dignity of life. The left government of Kerala passed the Kerala Disaster and Public Health Emergency (Special Provisions) Ordinance 2020, which enables the State to defer a part of the salaries of government servants to meet the expenditure of the public health crisis. This raised the most pressing political concerns on redistributive justice – taking from the more privileged to benefit the underprivileged. But, once challenged in court, the scope of the dispute was reduced to that of the right to property versus the right to healthcare. It led to the court being the forefront in the public debate, thereby blurring the significant political questions and erasing their relevance.[21]
This distraction also raises problems of shifting accountability. The political movement, composed of civil society organizations, students, and politicians, must engage on socio-economic issues and hold the government accountable when it makes mistakes. However, PILs have shifted the state’s role from a large player in politics, answerable to other institutions and citizens, to a respondent in a litigation. This conflation offends the political process and deeply harms deliberative democracy, where deliberation is key to decision making. It also lowers the bar for the state, since the debate is framed in terms of meeting a low minimum. For example, a fundamental right to education of every child as opposed to providing a ‘quality’ education for all. Socio-economic concerns, ultimately part of larger political concerns, must be met politically by improving democratic deliberation and devising accountability mechanisms.
IV. Towards resolution
So far, I have argued that the current judicial approach to SER breaches the principles of legitimacy and causes problems of contentless rights and distraction. How could courts work towards resolving these issues? Is it desirable for the court to take a hands-off approach to SER? In the Grootboom case, for example, the South African Constitutional Court expressed its inability to uphold a minimum state obligation for the right to housing, stating that “the needs in the context of access to adequate housing are diverse: there are those who need land; others need both land and houses; yet others need financial assistance.”[22] The court said that it could only examine whether the measures taken by the state are reasonable in the context of SER.
In Hartz IV legislation judgment,[23] the German Federal Constitutional Court went a bit further. While examining the constitutionality of a welfare legislation, it held that the state was obliged to grant a guarantee of a minimum subsistence to its people. Parts of the legislation were struck down because it failed to meet this minimum standard.
From a survey of jurisprudence, it is not clear which route the Indian courts want to travel. Even though there is some indication towards something resembling a minimum core in Francis Coralie Mullin, by interpreting the right to dignity under Article 21,[24] its possibilities remain unexplored. Whatever the right answer might be with respect to a judicial approach to SER, I have argued that high hopes for judicial interventions in socio-economic problems are misplaced.
*Thulasi is a lawyer at the Supreme Court & Kerala High Court. She is also an Equality Fellow at Centre for Law & Policy Research, Bangalore.
[1] Vidya Krishnan, ‘The Callousness of India’s COVID-19 Response’ (The Atlantic, 27 March 2020) <https://www.theatlantic.com/international/archive/2020/03/india-coronavirus-covid19-narendra-modi/608896/> accessed 5 August 2020. [2] Ashish Tripathi, ‘COVID-19: PIL filed in SC for allowing use of private hospitals for those who can afford’ (Deccan Herald, 16 May 2020) <https://www.deccanherald.com/national/covid-19-pil-filed-in-sc-for-allowing-use-of-private-hospitals-for-those-who-can-afford-838359.html> accessed 5 August 2020. [3] PTI, ‘Supreme court refuses to entertain plea for alternate medicines to treat coronavirus’ (Deccan Herald, 15 April 2020) <https://www.deccanherald.com/national/supreme-court-refuses-to-entertain-plea-for-alternate-medicines-to-treat-coronavirus-825676.html> accessed 5 August 2020. [4] PTI, ‘PIL in SC for compensation to next kin of Covid 19 victims’ (The Times of India, 12 July 2020) <https://timesofindia.indiatimes.com/india/pil-in-sc-for-compensation-to-next-kin-of-covid-19-victims/articleshow/76925768.cms> accessed 5 August 2020. [5] For a detailed account on how PILs endowed courts with enormous powers, see Anuj Bhuwania, Courting the People: Public Interest Litigation in Post-Emergency India (Cambridge University Press 2017). [6] Luc B. Tremblay, ‘The legitimacy of judicial review: The limits of dialogue between courts and legislatures’ [2005] 3(4) Int’l J. Const. L., 617. [7] There is also the argument that SER review is constitutionally illegitimate, based on the social contract. “The worry with constitutional socio-economic rights is that citizens might not be able to determine with any clarity or conviction whether these rights are being met. Because socioeconomic rights require positive action by the government, the extent to which the government “complies” with these rights depends on an individual citizen’s views of distributive justice.”: Rehan Abeyratne, ‘Socioeconomic Rights and Constitutional Legitimacy in India’ (International Constitutional Law Blog, 11 April 2013) <http://www.iconnectblog.com/2013/04/socioeconomic-rights-and-constitutional-legitimacy-in-india> accessed 5 August 2020. [8] Unnikrishnan J.P v State of Andhra Pradesh (1993) 1 SCR 594 (Supreme Court of India). [9] Paschim Banga Khet Mazdoor Samity v State of W.B. (1996) 4 SCC 37 (Supreme Court of India). [10] Olga Tellis v Bombay Municipal Corporation (1986) 3 SCC 545 (Supreme Court of India). [11] PUCL (PDS matters) v Union of India (2013) 2 SCC 688 (Supreme Court of India). [12] The Wire Staff, ‘Supreme Court Orders Private Labs to Conduct COVID-19 Tests Free of Cost’ (The Wire Science, 8 April 2020) < https://science.thewire.in/law/surpeme-court-covid-19-test-private-labs/> accessed 5 August 2020. [13] Bastian Steuwer & Thulasi K. Raj, ‘Coronavirus and the Constitution – XII: The Supreme Court’s Free Testing Order – A Response (1)’ (Indian Constitutional Law and Philosophy Blog, 9 April 2020) < https://indconlawphil.wordpress.com/2020/04/09/coronavirus-and-the-constitution-xii-the-supreme-courts-free-testing-order-a-response-1-guest-post/> accessed 5 August 2020. [14] Unnikrishnan J.P v State of Andhra Pradesh (1993) 1 SCR 594 (Supreme Court of India). [15] Now, the Union cabinet has approved the New National Education Policy in July 2020. [16] Kumkum Roy, ‘Examining the Draft National Education Policy, 2019’ [2019] 54(25) EPW <https://www.epw.in/engage/article/examining-draft-national-education-policy-2019> accessed 5 August 2020. [17] For an account on India’s school system, please see ‘The Centrality of Education,’ in Jean Drèze, Amartya Sen (eds), An Uncertain Glory: India and Its Contradictions (Princeton University Press 2013). [18] Even if court either appoints an expert committee or takes upon itself the task of compiling reports on education policy, the result is too far off from what legislative and executive policy expertise would produce. [19] Sanchayan Bhattacharjee, ‘Ten years of RTE act: Revisiting achievements and examining gaps’ (ORF, 5 August 2019) <https://www.orfonline.org/research/ten-years-of-rte-act-revisiting-achievements-and-examining-gaps-54066/> accessed 5 August 2020. [20] T.K. Tope, ‘Supreme Court of India and Social Jurisprudence’ (1988) 1 SCC (Jour) 8. [21] In Kerala N.G.O Association and others v State of Kerala and others and connected cases, the High Court of Kerala repelled the challenge in its judgment dated 5.05.2020 in WP(C) TMP No. 279/2020 and others. [22] Also, “It is not possible to determine the minimum threshold for the progressive realisation of the right of access to adequate housing without first identifying the needs and opportunities for the enjoyment of such a right. These will vary according to factors such as income, unemployment, availability of land and poverty.” Government of South Africa v Grootboom and others [2000] 11 BCLR 1169 (South African Constitutional Court). [23] BVerfG 05.11.2019, 1 BvL 7/16 (German Federal Constitutional Court). [24] It was held: “We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and commingling with fellow human beings.” Francis Coralie Mullin v Administrator, Union Territory of Delhi and Others (1981) 1 SCC 608 (Supreme Court of India). It is interesting to note that the facts of the case did not deal with SER, but preventive detention.