Enforcing Socioeconomic Rights in Neoliberal India

63 Pages Posted: 20 Oct 2020 Last revised: 21 Oct 2020

Date Written: February 27, 2020

Abstract

This Article challenges the conventional narrative on fundamental rights adjudication in India. The narrative goes like this: The Indian judiciary, led by the Supreme Court, produced several transformational decisions in the 1980s. These decisions, among other things, loosened procedural rules to permit fundamental rights petitions on behalf of poor and marginalized groups and also recognized an array of socioeconomic rights, such as rights to work and shelter. In the 1990s, however, the Court retrenched its fundamental rights jurisdiction. It has since been limited to ensuring good governance and adjudicating within neoliberal economic constraints. The Article calls this narrative into question in two ways. First, by providing a forum for civil society activism toward greater socioeconomic justice, it shows how the Court played a pivotal role in leading the Indian Parliament to pass comprehensive socioeconomic legislation that, inter alia, entrenched the rights to food and education in India. Second, though the Court issued fewer landmark judgments on socioeconomic rights, it would be mistaken to equate this with a lesser judicial role. To the contrary, the Article demonstrates how the Court took on a more substantial, governance role in which it dictated how large-scale public schemes would operate. The Court’s interventions led to numerous interim orders – as opposed to a few landmark judgments – that contained detailed policy instructions to state and national governments. The Article acknowledges that some of the Court’s interventions on the rights to food and education have been heavy-handed and ineffective. However, it also argues that the Court can still play a useful monitoring and enforcement role if it reorients its approach in a few ways.

Keywords: Socioeconomic rights, economic and social rights, judicial review, public interest litigation, Indian Supreme Court

Suggested Citation

Abeyratne, Rehan, Enforcing Socioeconomic Rights in Neoliberal India (February 27, 2020). 29 Minnesota Journal of International Law 1 (2020), Available at SSRN: https://ssrn.com/abstract=3545061

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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