Adjudication and Enforcement of Socio-economic Rights under the Indian Constitution: A Critical Study

Abstract

The literature on constitutional socio-economic Rights world over engages with the long-standing debate over democratic legitimacy and the courts' capacity, to enforce socio-economic rights and seeks to move beyond it by addressing the more complex challenges of identifying principled and effective court enforcement mechanisms. The Constitution of India expressly recognises the divide between Fundamental Rights and Directive Principles of State Policy (DPSP) in Part III and Part IV of the Constitution respectively by making Fundamental Rights justiciable in a court of law and DPSPs non-justiciable. At the same time though, this does not amount to relegation of DPSP to Fundamental Rights. This divide has more to do with the traditional conception of the constitutional role of the three organs of State; viz. Legislature, Executive and the Judiciary. Adjudication has traditionally been associated with an institution which is mainly concerned with corrective justice and hence the functional character of judicial role presupposes violation of legal rights. Economic and social rights or socio-economic rights include the right to access to food, water, housing, healthcare, education and social security and what might approximate the basic goods and services necessary to secure a dignified life. In the modern times, the civilized States have moved long back to being the welfare States rather than adhering to the notion of a laissez faire State, yet it is still more of a political assertion not accruing enforceable socio-economic rights to individuals against the State. Constitutionalism is about putting the government under check and about devising means to ensure that the governmental power is exercised with civility and not in an arbitrary manner. So, a laissez-faire principle of working for a State would be consistent with the ideals of constitutionalism. However, abdication of governance imperatives by way of omission of fundamental governance duties by the State cannot be allowed to go unchallenged on the basis of it being not a case of State acting arbitrarily and therefore perhaps there is a strong case for broadening our understanding of constitutionalism to include within its fold arbitrary and unexplained omissions in relation to fundamental governance imperatives as well. It is also significant that fundamental governance imperatives do not flow from directive principles only; even fundamental rights impose positive obligations and therefore positive obligations of State even by the narrative of fundamental rights being only obligatory cannot be placed outside the confines of constitutionalism.