A Tale of Two Judiciaries: Judicial Enforcement of Economic and Social Rights in China and India

Abstract

Chinese courts have generally played a limited, and rather ineffectual, role in implementing economic and social rights (ESR). In contrast, Indian courts have adopted a much more activist approach, and have been long regarded as a global leader in judicial enforcement of ESR. Nevertheless, compared to the average lower-middle income country, China has done relatively well on most social and economic indicators, and generally outperforms India. This chapter considers two main questions. First, what accounts for the different approaches in India and China? Second, what lessons, positive and negative, can Chinese legal reformers learn from the Indian experience? Part I provides a general introduction to the historical, social, legal, political and economic context in India that has contributed to the active role of the judiciary and implementing ESR, and then contrasts the situation in China. Part II then considers some of the main controversies and debates surrounding the Indian judiciary’s aggressive role in implementing ESR. One of the main lessons is that while there may be some room for a more robust role for the courts in China in implementing ESR, the judiciary ought to proceed cautiously and adopt an approach that seeks to collaborate with rather than antagonize state and party organizations. Part III then discusses how the judiciary might play a more positive role in implementing ESR while minimizing some of the risks experienced by the Indian courts and other judiciaries that have emerged as global leaders in judicial enforcement of ESR. Part IV concludes with some general observations about judicial enforcement of ESR in developing countries.