Observations on the Judicial Enforcement of Social and Economic Rights in India Varun Gauri May 6, 2010

Theoretical position Courts rely on other actors for information, resources, coercive power, and the motivating energy of the “lifeworld.” In any given case, the range and strength of their political and social allies determines whether courts’ rulings on ESC rights are implemented.

PIL in India Originated in late 1970s, post-Emergency New rules of standing, case filing, adversarial process, and judicial remedies Landmark cases: rights of prisoners, bonded laborers, pavement dwellers, children 1990s: urban air pollution, waste disposal, corruption, elections

Legitimacy of Indian PIL “Policy, environmental and social, must emerge from a socio political process and must be considered in a legitimate forum, not a judicial one.” Lavanya Rajamani 2004

Anti-poor bias? “The Court’s decisions are increasingly characterized by an urban and elitist bias against the poor and the countryside.” Balakrishan Rajagopal 2008

Judicial sovereignty? “We live in a sort of judicial dictatorship.” Arundhati Roy 2007

The face of PIL in India? Court-appointed committees amount to an “outsourcing of judicial functions” that is “wholly illegal.” “Indian PIL has developed into an uncontrollable Frankenstein.” Justice Markandeya Katju 2008

Foundations of PIL and FR litigation are fragile This change in attitudes shows illustrates the fragility of judicial foundations Specific judges and judges are better at identifying and cultivating political and social allies Availability of allies  Politics of governing coalition  Interests of bureaucracy  Economic interests  Civil society

The weakness of “strong-form” enforcement Tushnet (2008) distinguishes strong form from weak form judicial review, and strong and weak enforcement But strong form enforcement also requires allies (lower courts) It is not an option in India

Two case studies Right to food litigation  Orissa,  PUCL, 2001-present Delhi vehicular pollution case  