Making Social Rights Conditional: Lessons from India

Recent years have witnessed important advancements in the discussion on social rights. The South African experience with social rights has revealed how such rights can be protected without providing for an individualized remedy. Comparative constitutional lawyers now debate the promise of the South African approach, and the possibility of weak-form judicial review in social rights cases. This article considers the Indian experience with social rights, and explains how it exhibits a new form of social rights adjudication. This is the adjudication of a conditional social right; an approach that displays a rare private law model of public law adjudication. This article studies the nature and significance of this heretofore ignored adjudicatory approach, and contrasts it with, what is termed as, the systemic social rights approach. The conditional social rights thesis has important implications for the present debate on social rights adjudication, and presents an account of the Indian Supreme Court that is truer than those we presently encounter

Is a Science of Comparative Constitutionalism Possible?

Nearly a generation ago, Justice Scalia and Justice Breyer debated the legitimacy and value of using foreign law to interpret the American Constitution. At the time, the matter was controversial and invited the interest of both judges and scholars. Foreign law had, after all, been relied on in significant cases like Roper v. Simmons and Lawrence v. Texas. Many years on, there is still much to be debated — including the purpose and potential benefits of judicial engagement with foreign law — but “comparative constitutional law” has unquestionably emerged as a field of study in its own right. We have seen the publication of scores of articles and books that compare constitutional systems and elaborate reflections by judges over the nature and form of comparative judicial reasoning. Today, it no longer seems necessary to demonstrate, as Professor Mark Tushnet once did, “the possibilities of comparative constitutional law.” Though the study of comparative constitutional law may not quite require a defense at present, much remains to be settled. In the late 1990s and early 2000s, the question — crudely put — was whether we could compare the constitutional law of different nations. Could a comparison between rules and developments in country A and country B occur in an intelligible and meaningful fashion? Though comparative constitutional law was not new to the American legal academy, it had declined in importance over the years, thereby requiring the field to be somewhat reborn. Now that comparisons between constitutional orders are commonplace, greater attention is being devoted to a different question: how is comparative constitutionalism to be conducted? The question implicates tasks that stretch far beyond the judicial citation of foreign legal materials. The recent crisis of constitutional democracy and the phenomenon of democratic backsliding has, for example, led to an outpouring of comparative literature. It seems natural, even important, to compare the authoritarian turn in, say, Hungary, where Viktor Orbán was recently reelected as Prime Minister, with developments in countries such as India, Poland, Russia, Turkey, and Venezuela — and perhaps to reflect on President Donald Trump’s term in office in light of the global experience. But the ease of making such comparisons masks the hard question of precisely how to conduct such inquiries

“The great tragedy in India today is that there is little political will to do away with conservative laws” – Madhav Khosla

At the second LSE India Summit Madhav Khosla took part in the Constitution Panel, which explored India’s constitutional founding and the extent to which the principles of the Constitution of India have been realised to date. After the panel Alexander Spalding probed him further about the capacity for progressive constitutional reform in India

Courts, Constitutionalism, and State Capacity: A Preliminary Inquiry

Modern constitutional theory deals almost exclusively with the mechanisms for controlling the exercise of public power. In particular, the focus of constitutional scholars lies in explaining and justifying how courts can effectively keep the exercise of public power within bounds. But there is little point in worrying about the excesses of government power when the government lacks the capacity to get things done in the first place. In this Article, we examine relations between the courts, constitutionalism, and state capacity other than through limiting state power. Through a series of case studies, we suggest how courts confront the problem of state building, and how the question of state capacity informs constitutional doctrine. Our studies consist of litigation over life-saving medication in Brazil, “engagement” remedies in South Africa, the problem of pretrial detention in India, and the validity of India’s recent biometric identification project. As we show, state capacity is a crucial variable in the development of constitutional doctrine — and while engaging with the issue of state capacity, courts often play a role in facilitating its expansion. The case studies identify a number of mechanisms that courts use to encourage capacity development: providing incentives to enhance capacity, guiding and directing the state to perform specific actions, compensating for weak capacity by absorbing the problem, and endorsing measures that purport to increase capacity. We then offer an expressly idealized model by which courts can negotiate capacity-related concerns. Courts can, in certain instances, respond to the problem of state capacity through weak-form, dialogic, experimentalist forms of review. The precise role that courts can and should play in this regard remains to be fully studied, but focusing on the question of state capacity allows us to better explain contemporary constitutional doctrine in several jurisdictions, and highlights the challenges involved in at once creating and limiting state power

Addressing Judicial Activism in the Indian Supreme Court: Towards an Evolved Debate

The Indian Supreme Court has invited a great deal of interest for its alleged activism and the role that it has begun to play in Indian governance. Recent years have been witness to substantial debate on the Court\u27s functioning, with scholars positing views and raising concerns with considerable passion. This paper analyzes the judicial activism discourse in the Indian Supreme Court by focusing on the contributions of Professor Upendra Baxi. It argues that, despite the attention the Court has received on the question of judicial activism, the debate in this area has, for the most part, failed to engage with the meaning of the term judicial activism and examine the manner in which it is determined. This paper contends that a recent model measuring judicial activism proposed by Cohn and Kremnitzer can fill this void. It applies the model to three major cases of the Indian Supreme Court to demonstrate how it can enable us to arrive at a sophisticated understanding of when decisions are activist, and how decisions may be activist by some parameters and restrained by others. In particular, it illustrates that commentary on the Court needs to evolve and engage with judicial decision-making in a far more rigorous fashion. Through its analysis, this paper suggests that the Cohn-Kremnitzer model can play an important role in moving beyond the current impasse in the debates on judicial activism in the Indian Supreme Court

India\u27s Founding Moment: The Constitution of a Most Surprising Democracy

Britain’s justification for colonial rule in India stressed the impossibility of Indian self-government. And the empire did its best to ensure this was the case, impoverishing Indian subjects and doing little to improve their socioeconomic reality. So when independence came, the cultivation of democratic citizenship was a foremost challenge. Madhav Khosla explores the means India’s founders used to foster a democratic ethos. They knew the people would need to learn ways of citizenship, but the path to education did not lie in rule by a superior class of men, as the British insisted. Rather, it rested on the creation of a self-sustaining politics. The makers of the Indian Constitution instituted universal suffrage amid poverty, illiteracy, social heterogeneity, and centuries of tradition. They crafted a constitutional system that could respond to the problem of democratization under the most inhospitable conditions. On January 26, 1950, the Indian Constitution – the longest in the world – came into effect. More than half of the world’s constitutions have been written in the past three decades. Unlike the constitutional revolutions of the late eighteenth century, these contemporary revolutions have occurred in countries characterized by low levels of economic growth and education, where voting populations are deeply divided by race, religion, and ethnicity. And these countries have democratized at once, not gradually. The events and ideas of India’s Founding Moment offer a natural reference point for these nations where democracy and constitutionalism have arrived simultaneously, and they remind us of the promise and challenge of self-rule today.https://scholarship.law.columbia.edu/books/1323/thumbnail.jp

India\u27s Founding Moment: The Constitution of a Most Surprising Democracy

Britain’s justification for colonial rule in India stressed the impossibility of Indian self-government. And the empire did its best to ensure this was the case, impoverishing Indian subjects and doing little to improve their socioeconomic reality. So when independence came, the cultivation of democratic citizenship was a foremost challenge. Madhav Khosla explores the means India’s founders used to foster a democratic ethos. They knew the people would need to learn ways of citizenship, but the path to education did not lie in rule by a superior class of men, as the British insisted. Rather, it rested on the creation of a self-sustaining politics. The makers of the Indian Constitution instituted universal suffrage amid poverty, illiteracy, social heterogeneity, and centuries of tradition. They crafted a constitutional system that could respond to the problem of democratization under the most inhospitable conditions. On January 26, 1950, the Indian Constitution – the longest in the world – came into effect. More than half of the world’s constitutions have been written in the past three decades. Unlike the constitutional revolutions of the late eighteenth century, these contemporary revolutions have occurred in countries characterized by low levels of economic growth and education, where voting populations are deeply divided by race, religion, and ethnicity. And these countries have democratized at once, not gradually. The events and ideas of India’s Founding Moment offer a natural reference point for these nations where democracy and constitutionalism have arrived simultaneously, and they remind us of the promise and challenge of self-rule today.https://scholarship.law.columbia.edu/books/1323/thumbnail.jp

Is a Science of Comparative Constitutionalism Possible?

Nearly a generation ago, Justice Scalia and Justice Breyer debated the legitimacy and value of using foreign law to interpret the American Constitution. At the time, the matter was controversial and invited the interest of both judges and scholars. Foreign law had, after all, been relied on in significant cases like Roper v. Simmons and Lawrence v. Texas. Many years on, there is still much to be debated — including the purpose and potential benefits of judicial engagement with foreign law — but “comparative constitutional law” has unquestionably emerged as a field of study in its own right. We have seen the publication of scores of articles and books that compare constitutional systems and elaborate reflections by judges over the nature and form of comparative judicial reasoning. Today, it no longer seems necessary to demonstrate, as Professor Mark Tushnet once did, “the possibilities of comparative constitutional law.” Though the study of comparative constitutional law may not quite require a defense at present, much remains to be settled. In the late 1990s and early 2000s, the question — crudely put — was whether we could compare the constitutional law of different nations. Could a comparison between rules and developments in country A and country B occur in an intelligible and meaningful fashion? Though comparative constitutional law was not new to the American legal academy, it had declined in importance over the years, thereby requiring the field to be somewhat reborn. Now that comparisons between constitutional orders are commonplace, greater attention is being devoted to a different question: how is comparative constitutionalism to be conducted? The question implicates tasks that stretch far beyond the judicial citation of foreign legal materials. The recent crisis of constitutional democracy and the phenomenon of democratic backsliding has, for example, led to an outpouring of comparative literature. It seems natural, even important, to compare the authoritarian turn in, say, Hungary, where Viktor Orbán was recently reelected as Prime Minister, with developments in countries such as India, Poland, Russia, Turkey, and Venezuela — and perhaps to reflect on President Donald Trump’s term in office in light of the global experience. But the ease of making such comparisons masks the hard question of precisely how to conduct such inquiries

Making Social Rights Conditional: Lessons from India

Recent years have witnessed important advancements in the discussion on social rights. The South African experience with social rights has revealed how such rights can be protected without providing for an individualized remedy. Comparative constitutional lawyers now debate the promise of the South African approach, and the possibility of weak-form judicial review in social rights cases. This article considers the Indian experience with social rights, and explains how it exhibits a new form of social rights adjudication. This is the adjudication of a conditional social right; an approach that displays a rare private law model of public law adjudication. This article studies the nature and significance of this heretofore ignored adjudicatory approach, and contrasts it with, what is termed as, the systemic social rights approach. The conditional social rights thesis has important implications for the present debate on social rights adjudication, and presents an account of the Indian Supreme Court that is truer than those we presently encounter