Where should the Court draw its Lakshman Rekha ?

Shantanu’s post a few days ago highlights the fact that the Indian judiciary is very often guilty of overstepping its limit. This has most often arisen when the judiciary seeks to enforce positive duties arising from socio-economic rights. In this post, relying on theoretical writing and South African case laws, I analyze what exactly the role of the judiciary is while enforcing such rights.

This issue is best analyzed by breaking it down into the following questions:

1. Is the judiciary competent to enforce socio-economic rights (“SER”)?
2. If so, upto what extent can the judiciary interfere in the enforcement of SER before it starts performing the role of the Legislature/ Executive?

Competence of judiciary to enforce SER

This can be split into two further issues, i.e.

1. Are SER enforceable at all or are they merely ideals that the Legislature must seek to promote.
2. If SER are enforceable should it be the judiciary who enforces them.

These two issues are considered together. I have stated below the arguments against enforcement and more specifically judicial enforcement of SER followed by the counter-arguments (in italics).

First, it may be argued that it is inevitable that SERs will clash with an individual’s civil and political rights (“CPR”) and the easiest solution to this conflict is to enforce only CPR that give rise to duties of restraint. Fuller argues that law cannot perpetrate actions of creation as these lead to reordering of the rights of a system. It can only provide creative actions by preventing destructive actions. This conflict of rights is largely avoided when law does not enforce SER. The rationale is that when the State plays an active role in promoting collective good, it is at the expense of the rights of certain individuals.

However, the solution does not lie in not enforcing SER. A conflict can also arise between the CPRs of two individuals. For instance, prohibition of murder is justified although it can be argued that it amounts to a restriction on the liberty of the murderer.

The solution therefore lies in reconciling conflicts rather than not enforcing SER. The Indian Courts, have adopted this approach as elucidated in the case on conflicts between the Directive Principles of State Policy  and Fundamental Rights. One of my earlier posts elucidates the jurisprudence on this point.   

What the Indian experience shows is that it is possible to reconcile conflicts between rights and merely because there is a likelihood of a conflict between SER and CPR, a stand that this potential conflict would be avoided by not granting and enforcing SER, is not justified.

Secondly, it may be argued that it is impractical to enforce SER as these rights are expensive to enforce and are not immediately realized.

These are valid concerns, but again these do not justify not enforcing SER. A number of CPR’s like right to free trial are also resource heavy and involve programmatic realization.

However, the cost and programmatic realization of SER are factors that need to be taken into account while discussing the restrictions on judicial enforcement of SER (discussed in the next section).

The third argument relates to whether the judiciary is the appropriate institution to enforce SER.

1. The democracy argument- Waldron argues that empowering judges to decide on policy issues amounts to disrespecting the democratically elected representatives of the majority.

 However, Waldron’s argument is based on two mistaken presumptions (as pointed out by Sandra Fredman):

First, that justiciability means that judges have the final say on the policy issue. The judges can promote decision making relating to policy issues without being the ultimate decision maker. It is conceded that the Parliament which is accountable to the electorate is the institution that has the duty of drafting legislative policy and that if the Court does take decisions on policy matters, it will be overstepping its limits.

Second is the assumption that the Parliament and Executive make policy decisions based on effective participation with the citizens. This is a flawed notion and the judiciary ensures that participation is effective.

1. The competence argument- The argument is that determination of policy issues may require certain amount of specialization and fact finding which judges may not be best equipped to carry out.

 While no doubt true, the Court can still play the important role of ensuring that the bodies more competent than them to take policy decisions act, and act reasonably.

None of the criticisms are strong enough to conclude that SER should not be enforced by the judiciary. There are arguments that overwhelmingly suggest that SER are fundamental to the successful functioning of a State.

First, in the absence of SER many CPR cannot be enjoyed. What use is the right to vote for a person who does not have basic food and shelter?

Second, every so called CPR has a SER angle to it. For instance, right to life is violated not only due to positive state action but also when the State refuses to act to provide basic food and shelter. Hence the straight jacketed division of a right into CPR and SER is without any basis.

Third, the Courts, by enforcing SER act in furtherance of democracy. This is explored further in the next section.

From this discussion of pros and cons of judicial enforcement of SER, a few important limitations of the Courts power come through:

1. The resources available to the Executive are an important factor that the Court ought to consider before enforcing a SER.
2. The Court’s role is not to take a final call on policy issues but to ensure that the Parliament/ Executive takes appropriate steps in furtherance of enforcing SER. 
3. Where decisions are better made by a more competent body, the Court should refer these issues to such bodies (like specialized Commissions).
4. The Court’s actions are legitimized only so long as they are in furtherance of democracy.

When is the judicial enforcement of SER in furtherance of democracy?

As discussed, judicial enforcement of SER is legitimized only so long as the action is in furtherance of democracy. According to Sandra Fredman, democracy consists of three values:

1. Accountability- The representatives of the people are accountable to the people and the judiciary, by eliciting reasons for their actions from the Parliament acts in furtherance of this value of electoral accountability.
2. Participation- The judicial process involves participation from all affected parties. Thus where a right is violated, the Court notifies all affected groups to present their case and this brings about deliberation between the groups and the State therefore ensuring that the representatives of the people know the people’s stand point on the issue at hand. South African Courts have also gone further and directed the affected groups and the State to sort out the issues privately and attempt to arrive at a solution.

 The best example is the Rand Properties case[1] which involved a challenge to the State’s eviction of inmates of dilapidated buildings in central Johannesburg. The Petitioners argued that they had a right to housing and demanded that the State provide a suitable alternative before evicting them. The Court required the parties to “engage with each other meaningfully … and in the light of the values of the Constitution, the constitutional and statutory duties of the municipality and the duties of citizens concerned” to resolve the dispute.

 The Court, by its interventions, ensures that these deliberations are on a level playing field as the final result is susceptible to scrutiny by the Court.

 Another stage where deliberation comes in is after the order is passed, where the Court can order that the State report to Court continuously and in cases where the State has failed to keep up to this schedule, the aggrieved parties are permitted to make further representations and engage with the State and the Court on a continuous basis.

 Minister of Health v. Treatment Action Campaign[2] (“TAC case”) is a perfect example of such a method. This case pertained to an action against the policy of the South African Government’s program relating to distribution of antiretroviral drugs(Nevirapine). Despite the the manufacturers being willing to supply the drug free of cost to the Government, the availability of the drug was restricted to two sites in each province effectively reaching out to only 10% of the population. Thus patients who did not have access to one of the two sites in every province, and who could not afford private health care, were left without access to this important drug.

TAC, a non-governmental organization, questioned this unexplainable government policy and claimed that the government programme resulted in a violation of the right to health. The Court ordered the government to remove these unreasonable restrictions on distribution of Nevirapine. The Court also ordered that the counsellors based at public hospitals and clinics be trained with respect to administering Nevirapine. The government was also ordered to plan an effective and comprehensive national programme to prevent Mother To Child Transmission(MTCT) of HIV. In order to ensure enforcement, the Court required that MTCT prevention policy should have time-frames for its implementation and that it must take into consideration the condition of those who cannot afford to pay for medical treatment. Most importantly, the Court required the State to continuously report to it about the implementation of the programme.

3. Equality- Judicial enforcement of SER ensures that the unheard voices of the minority are heard by the Government. The Court ensures that bargaining between the Government and different interest groups are on an equal footing.

Laying down the limits

Where the Court does not consciously limit its role while enforcing SER to that of furthering democracy as explained in the previous section, there is a great likelihood of the Courts stepping onto the Legislature’s shoes and making law. Roach states that the Court should not create policies to enforce rights but must require the government to draft its own policy and submit it to Court along with a timetable for execution. The finalization of this plan must be only after the Court has heard objections from other interested parties.

Once such a policy is framed by a Legislature/ Executive, it is to be interfered with by the Courts in a very restrictive manner, using the principle of deference. According to this principle the Court, while evaluating Executive/ Legislative action (or inaction) should modify the policy framed only the reasons provided are not reasonable.[3] The Court should merely see whether the reasons provided by the Executive justifies its decision; not whether the Court would have reached the same decision. This standard should be applied not only when a Legislative/ Executive policy is tested before the Courts but also by Courts to see if Executive / Legislative inaction is justified.

Courts should also be cautious in interfering with budgetary allocations of the Government. However, Courts can interfere when these budgetary allocations are wholly irrational. According to the example provided by Mureinik, assuming the Government is under a duty to eradicate starvation, if there are no budgetary allocations made towards this end but large budgetary allocation is made towards building a nuclear submarine, the Court would be justified in interfering.

Conclusion

While there is a possibility that Courts may overshoot their powers while enforcing SER, this itself is no reason for the Courts to not enforce these rights. However, a thin line needs to be drawn between judicial restraint and judicial over-activism and so long as this line is drawn, such judicial enforcement of SER will be in furtherance of democracy.

 

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[1] City of Johannesburg v Rand Properties (Pty) Ltd  [2007] ZASCA 25.

[2] 2002 (5) SA 721 (CC) (S. Afr.)

[3] D Dyzenhaus ”The Politics of Deference: Judicial Review and Democracy” in M Taggart (ed) The Province of Administrative Law (Hart Oxford 1997).