The limits of prescription: courts and social policy in India and South Africa

Steven Friedman,Diego Maiorano

doi:10.1080/14662043.2017.1327098

Abstract

ABSTRACTThis paper explores the social policy-making role of supreme courts in India and South Africa. It argues that both significantly shaped social policy. But neither imposed its will on elected government – both recognised that judicial power is limited and sought negotiation with the government and other interests to ensure compliance with rulings. Despite the difference between them, both courts promote and support collective action by the poor or their allies in civil society. The paper traces the institutional roots of the relative strength of the two courts and their relations with their governments and links their rulings to the political environment.

Highlights

Do courts play a significant role in expanding social policy? If so, how do they play this role and what is their impact? These questions are raised by perceptions that courts in two BRICS countries, India and South Africa, have exerted significant influence over the development of social policy in their countries
This view is often resisted by jurists and legal scholars who either insist that courts are guided by a purely legal logic or, at the very least, that their political interventions are constrained by their need to convince legal practitioners that their judgements are credible (Roux 2009)
We argue that this is, at least in principle, more likely to produce sustainable social policy and to support democratic politics than dictation by the courts to the governments

Summary

The Courts and the Government

What enables and constrains constitutional courts when they instruct governments to fashion their social policies? Literature on the South African case offers a framework for addressing this question, which is applicable to the Indian case (and, all others). The Court’s activism started at least one decade earlier as a consequence, of its strategy of regaining the confidence of the public opinion (Mehta 2007); and, as a response to the growing assertiveness of a number of ‘non-party political movements’ during the 1970s which were empowered by the new ways to access the Court and tackle public interest issues in the presence of an unresponsive government (Ruparelia 2013a) In this situation, the government did not have the strength to confront an increasingly popular and increasingly active Supreme Court. The Indian court is arguably as sensitive of the limits of its power – and of the need to seek support for its rulings – as its counterpart, since it does negotiate its judgement with government and civil society organisations In both countries the government and the constitutional court have a relation that is far less adversarial than analyses which stress the divergent goals of the two institutions suggest. Throughout the world, courts are limited by their need to garner support in other institutions (Gauri and Brinks 2008) and both cases confirm that courts are likely to influence policy only if there is a significant degree of consensus between them and the government

The approach of the two courts

South Africa

Findings

The Effectiveness of Modesty