Socioeconomic Rights in the Indian Constitution: Toward a Broader Conception of Legitimacy

71 Pages Posted: 15 Dec 2012 Last revised: 5 May 2015

Date Written: February 19, 2014

Abstract

The Indian Constitution contains “Directive Principles of State Policy” that require the state to pursue socioeconomic justice. In contrast to justiciable fundamental rights, these principles are explicitly non-justiciable, and the Constitution’s framers intended them to guide elected representatives towards improving socioeconomic conditions. However, the Indian Supreme Court has held that the right to life in Article 21 of the Constitution should be read more broadly to encompass a “right to live with dignity.” The Court has relied on this interpretation to make many Directive Principles justiciable, including rights to food and education. Much scholarship has been devoted to the Supreme Court’s jurisprudence in this area, focusing mostly on the judiciary’s role in democratic government. These works either criticize the Court for “judicial activism” or applaud it for proactively defending the rights of the poor and marginalized.

This Article analyzes socioeconomic rights in India from a social contractarian perspective, which illuminates a neglected aspect of this debate. While addressing concerns of judicial overreach, the Article argues that the Supreme Court’s reasoning for locating justiciable socioeconomic rights in the Indian Constitution raises a more fundamental concern: it threatens the Constitution’s legitimacy. The Court’s reasoning is vague and non-transparent, which prevents rational and reasonable citizens from knowing with any clarity or conviction what the Constitution requires in the realm of socioeconomic justice. Thus, drawing on Rawls’s concept of public reason, citizens might not agree to be governed by the Constitution, which then loses its legitimacy as a basis for democratic political rule.

The Article aims to make two contributions to the existing literature. First, it surveys Indian constitutional history to distinguish between procedural changes that may lead to judicial overreach and interference in representative government, and substantive changes in the law – such as the widening interpretation of Article 21 – that detract from the Constitution’s legitimacy. Second, and more broadly, the Article moves past the notion that a legitimate constitutional system simply requires acceptable institutional arrangements and desirable political outcomes. A legitimate system also requires that public institutions, particularly the Supreme Court, present clear and transparent reasons for their decisions, accessible to all citizens in light of their common reason.

Keywords: Economic and Social Rights, Socioeconomic Rights, Indian Constitution, Directive Principles

Suggested Citation

Abeyratne, Rehan, Socioeconomic Rights in the Indian Constitution: Toward a Broader Conception of Legitimacy (February 19, 2014). 39 Brooklyn Journal of International Law 1, 2014, Available at SSRN: https://ssrn.com/abstract=2189277 or http://dx.doi.org/10.2139/ssrn.2189277

Rehan Abeyratne (Contact Author)

Chinese University of Hong Kong ( email )

6/F, Lee Shau Kee Building
Shatin, New Territories
Kowloon, Sha Tin
Hong Kong

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