Deva, Surya

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BLOG SERVICE COMMUNITY ABOUT !SURYA  DEVA — 15 September, 2017 Print " 0 ! " # $CURRENT DEVELOPMENTSAccess to Justice for Socio-Economic Rights: Lessonsfrom the Indian ExperienceThis is a cross-post shared with  the blog of the International Associationof  Constitutional  Law  as  part  of  a  collaborationbetween Voelkerrechtsblog and the IACL Blog.Professor  David  Bilchitz  in  a  recent  blog  considered  obstaclesconcerning  access  to  justice  for  litigating  socio-economic  rights  inSouth Africa and potential solutions to overcome these obstacles. Heargued  that  South  Africa  should  (i)  empower  individuals  to  enablethem to  make  claims  and  (ii)  expand  its  current  model  of  dividinglabour  between  courts  and  other  non-judicial  institutions  to  hearcases related to socio-economic rights.In this blog, I engage with Bilchitz’s arguments. My response will relyon the constitutional experiences from India. The reliance on India forcomparison with South Africa is justified for several reasons. First ofall, this would allow a horizontal comparison between two states of theGlobal  South  with  similar  political,  social,  cultural  and  economiccharacteristics  (for  another  such  comparison,  see  this).  Second,whereas  the  South  African  Constitution  of  1996  represents  a  2.0Access to Justice for Socio-Economic Rights: Lessons from the I... http://voelkerrechtsblog.org/access-to-justice-for-socio-economic...1 von 6 15.09.17, 12:40version  of  constitutionalising  socio-economic  rights  as  justiciablerights, the Indian Constitution of 1950 belongs to an earlier 1.0 versionof constitutional treatment of socio-economic rights. Drawing lessonsfrom  the  Indian  experience  should  be  instructive  for  any  countryembarking on the 2.0 version of justiciable socio-economic rights.While I am broadly sympathetic to the arguments advanced by Bilchitz,I  flag below two issues which require further exploration. The thirdissue, which I do not discuss here but is important and is dealt with byBilchitz elsewhere, is about ascertaining and allocating the obligationof corporations to respect, protect and fulfil socio-economic rights.Access to justice: Narrow or wider? ‘Access to justice’ is a term with diverse meanings. In a narrow sense, itis often equated with access to judicial remedies. However, access tojustice  can  also  be  used  in  a  wider  sense  to  seek  freedom  fromsystematic and entrenched injustices such as poverty, inequality anddiscrimination.Bilchitz takes access to justice as a capability. Yet, it seems that he isusing this  term in  a  narrow sense to  denote access  to  courts  (andother quasi-judicial  bodies such as the South African Human RightsCommission).  However,  a  meaningful  realisation  of  socio-economicrights in my view requires a wider understanding of access to justice.For example, if a claim for the right to food is limited only to seekingaccess to certain quantity of food, this may not adequately empowerindividuals  suffering  from  hunger.  A  more  empowering  and  lastingresponse to a claim for the right to food should also entail the stateremoving structural conditions which lead to hunger in the first place.If access to justice is taken in such a wider sense, then courts cannotbe the sole  (or  even the dominant)  actor  to realise  socio-economicrights.  Courts  can  definitely  expose,  or  at  times  also  trigger,  thefundamental  structural  changes  required  in  political,  social  andeconomic frameworks which disadvantage certain sections of society.However, it is unlikely that courts would be able to bring about thesechanges on their own.Alternatively, even if access to justice is taken in a narrow sense, thefocus should be on both procedural and substantive aspects. MerelyAccess to Justice for Socio-Economic Rights: Lessons from the I... http://voelkerrechtsblog.org/access-to-justice-for-socio-economic...2 von 6 15.09.17, 12:40providing  an  effective  access  to  courts  will  not  suffice:  individualsshould  also  be  able  to  obtain  appropriate  remedial  outcomes  fromcourts and get these enforced. As Bilchitz argues, raising awarenessabout rights and making courts  accessible as  well  as  affordable arevital  preconditions  to  realise  socio-economic  rights.  But  equallycritical would be to consider the types of remedies courts should grantto  secure  socio-economic  rights  and  how  to  monitor  theimplementation of those remedies by the state (see the recent work ofLangford et al). As I have discussed elsewhere, the tools developed bythe Indian Supreme Court in public interest litigation (PIL) cases mayoffer some lessons as to what may work and what may not.Bilchitz  makes several  suggestions to  improve individuals’  access  tocourts in the context of South Africa. Many of these suggestions wouldbe  relevant  in  other  countries  too,  if  not  already  tried.  The  onlyproposal  about  which  I  am  less  certain  is  the  idea  of  creatingspecialised human rights courts  to deal  with socio-economic rightsclaims.  As  Bilchitz  himself  acknowledges,  it  may  be  difficult  tooperationalise  this  in  practice  as  claims  about  rights  may  often  beintertwined with other issues. It may therefore be better if all courtsand tribunals  are  empowered to  deal  with  claims  related  to  socio-economic  rights,  while  reserving  the  right  to  provide  authoritativeinterpretation about such rights to the apex court.Guarding against hazards of over-reliance on courtsSocio-economic  rights  in  the  Indian  Constitution  are  mostlyincorporated  as  non-justiciable  directive  principles  of  states  policy(DPs).  The  Indian  Supreme  Court  has  made  many  of  these  DPsjusticiable by reading them into the right to life and personal libertyunder Article 21 of the Constitution. This judicial innovation has beengenerally applauded by Indian and foreign constitutional scholars alike.However,  a  close  and  critical  review  of  Indian  PIL  experience  alsoprovides lessons as to what courts may not be able to deliver when itcomes  to  socio-economic  rights  or  what  side-effects  this  judicialprocess may have on governance generally. I will highlight here twopotential hazards of relying on courts excessively. The first one relatesto how over-reliance on courts to realise socio-economic rights (orAccess to Justice for Socio-Economic Rights: Lessons from the I... http://voelkerrechtsblog.org/access-to-justice-for-socio-economic...3 von 6 15.09.17, 12:40any  rights  for  that  matter)  could  create  or  exacerbate  democraticdeficits. Non-realisation of rights is often because of poor governanceand/or states abdicating their human rights obligations. If recourse tocourts is both easier and inexpensive as compared to engaging withpolitical processes to fix these governance gaps, the right-holders aswell as social activists might be tempted to look towards courts for aneasy fix. This inadvertently results in individuals and civil society notutilising fully  other avenues to realise socio-economic rights withinpolitical settings.The second potential  hazard concerns  the implementation of  courtdecisions. Individuals having the capability to approach courts with asocio-economic  right  claim  is  only  half  of  the  story:  the  actualimplementation  of  court  decisions  about  socio-economic  rights,especially if they require long-term or resource-intensive measures, isthe  other  equally  critical  half.  Indian  Supreme  Court’s  decisionsregarding rights to food, health, housing are a case in point. Millions ofIndians continue to lack access to food, health facilities and decenthousing despite recognition of these rights by the Court. So more thanmerely effective access to justice is required to realise socio-economicrights.A dynamic role for courts?   Both the issues that I  have flagged above may require new thinkingabout the role of  courts  in the Global  South in contributing to therealisation  of  socio-economic  rights.  Instead  of  conforming  to  thetraditional  model  in  which  courts  either  invalidate  a  government’slaw/policy or give it directions to take certain measures, courts shouldbe willing to play a much more dynamic role in securing individuals’socio-economic rights. Without compromising their independence ortotally disregarding the separation of powers, courts should be havinga ‘continuing constitutional conversation’ with the other two branchesof  the  government  on  how  best  to  realise  socio-economic  rights.Depending  upon  the  context,  courts  should  engage  in  such  aconversation as  a  watchdog,  advisor,  norm setter,  awareness  raiser,apolitical expert or mediator.Surya  Deva  is  an  Associate  Professor  at  the  School  of  Law  of  CityAccess to Justice for Socio-Economic Rights: Lessons from the I... http://voelkerrechtsblog.org/access-to-justice-for-socio-economic...4 von 6 15.09.17, 12:40University  of  Hong Kong,  specialising  in  business  and  human rights,India-China constitutional law, and sustainable development.  He is amember of the UN Working Group on Business and Human Rights, and afounding Editor-in-Chief of the Business and Human Rights Journal.Cite  as:  Surya  Deva,  “Access  to  Justice  for  Socio-Economic  Rights:  Lessons  from  the  IndianExperience”,  Völkerrechtsblog,  15 September 2017,  doi:10.17176/20170915-123858.ISSN 2510-2567Tags: Global Constitutionalism , India , Social and Cultural RightsPrint Facebook Twitter EmailNo CommentLeave a replyYour email address will not be published. Required fields are marked *   RelatedExpanding Access toJustice for Socio-Economic RightsComplaints in South AfricaTowards Post-WesternInvestment Law?Pushing forTransformation24 July, 2017In "Global South inComparativeConstitutional Law"14 September, 2015In "Symposium"20 July, 2017In "Global South inComparativeConstitutional Law"PREVIOUS POSTIs a bird in the handalways worth two in thebush?#NEXT POSTThis is the most recentstory.Access to Justice for Socio-Economic Rights: Lessons from the I... http://voelkerrechtsblog.org/access-to-justice-for-socio-economic...5 von 6 15.09.17, 12:40Name (required)E-Mail (required)WebsiteSUBMIT COMMENTNotify me of follow-up comments by email.Notify me of new posts by email.Copyright © 2016 · | ISSN 2510-2567 | Impressum & Legal % ! & "Access to Justice for Socio-Economic Rights: Lessons from the I... http://voelkerrechtsblog.org/access-to-justice-for-socio-economic...6 von 6 15.09.17, 12:40

Access to Justice for Socio-Economic Rights: Lessons from the Indian Experience

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Access to Justice for Socio-Economic Rights: Lessons from the Indian Experience

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