The judicial activist

In 1993, political scientist Gerald Rosenberg published a book on the American court system titled The Hollow Hope: Can courts bring about social change? At that time, Rosenberg’s answer to the titular question was negative, and he argued that courts are constrained by a multitude of factors – institutional, ideological and structural. Over the last two decades, however, judges throughout the world have become increasingly active in promoting ‘non-justiciable’ vrights – those issues that by traditional practice cannot be settled by a court of law.

Judges in India, Brazil and South Africa have ruled in favour of rights to health, education, better environment and housing, and women’s rights, among others. Such actions have prompted some scholars to note the “decline and fall of parliamentary sovereignty”, the “global expansion of judicial power”, and even the creation of a “juristocracy”. Indian judges have stormed ahead, issuing judgements on seemingly every question imaginable, including the sealing of illegal urban constructions, affirmative action in educational institutions, religious freedom, alcoholism and pollution, and even castigating the behaviour of governors and parliamentarians.

Are Indian courts encroaching on the domains of the executive and legislative branches? Are judges telling the legislature what to do, or are they merely prodding the government to fulfil its legal obligations? A close examination of some legal decisions in public-health cases over the past couple of decades shows that the latter is more often the case. What Indian judges have done is to ease the process through which citizens can hold the government accountable for its failure to comply with its statutory duties.  

Since the early 1980s, India’s Supreme Court has increasingly become the champion of poor and vulnerable citizens, handing down judgements in favour of rights to education, livelihood, health and social justice. In health, by the late 1990s the justices had moved from a narrow focus on the rights of organised workers to health benefits, to more expansive judgements informed by the general right to health for all citizens.  

The failure of municipalities to provide adequate public sanitation and clean water subsequently became some of the most frequently litigated cases. Over 80 percent of these complaints were upheld on grounds of a ‘right to health’. In a case dealing with the degradation of Jaipur city, the court ruled that the ‘right to life’ included rights to food, shelter, reasonable accommodation, decent environment and a clean city. The ruling judge said that through its proactive stance, the court could compel a statutory body to carry out its duties to the community, including the creation of sanitary conditions.  

What’s already promised
Why are Indian judges increasingly solicitous of social rights? Some, such as legal scholars S P Sathe and Upendra Baxi, attribute the change to ‘penance’ for the judiciary’s quiescence during Indira Gandhi’s Emergency rule of 1975-77. The post-Emergency period saw judges such as P N Bhagwati and Krishna Iyer evolve procedures that made it easier for citizens to approach courts, including through public interest litigation (PIL). This relaxation of procedural rules allowed public-spirited persons to appeal to judges simply by writing a letter.  

The judicial community in turn expanded the interpretation of Article 21, which states that a person cannot be deprived of life or liberty except according to procedures established by law. The article was now interpreted to encompass economic and social rights, such as basic education, health, food, shelter, speedy trial and equal wages for equal work. Judges even found that, in order for a right to be treated as fundamental, it need not be included in the fundamental rights section of the Constitution. In the 1992 Peerless v Reserve Bank of India, the court argued that “the right to self interest is inherent in the right to life … Right to life includes the right to live with basic human dignity with necessities of life such as nutrition, clothing, food, shelter over the head, facilities for cultural and socio-economic well being of every individual. Article 21 protects right to life.”  

A spate of judgements from the 1980s onwards established precedents for a transformation by which non-enforceable social rights – enumerated in the directive principles section of the Constitution, but once unprotected by the courts – became enforceable. For instance, according to one observer in 2003, the introduction of midday meals in the primary schools of India “would not have happened without the Supreme Court cracking the whip.”  

Throughout this course, judges have carefully highlighted legislative actions as the basis for all shifts towards justiciability, emphasising time and again that their judgements have merely ensured that citizens received the entitlements already provided to them by law. During this period, Indian courts in various states have directed the government to implement existing laws on wearing helmets, sided with a PIL petitioner who asserted that authorities must not provide groundwater with high fluoride content (and subsequently asked the state to consider evacuating affected villagers), banned noise pollution and the sale of firecrackers, and outlawed child labour for children under 10 years of age.  

The Supreme Court has not lagged behind in this process. During the past two decades it has directed Pepsi, Coke and other manufacturers of carbonated drinks to reveal the highly secret contents of their products, upheld charges against those accused of adulterating liquor, required the Uttar Pradesh government to set up a monitoring committee to ensure safe drinking water, awarded compensation for negligence in medical treatment, directed that a committee examine ways to improve services in government hospitals, and ordered the state to evolve a time-bound plan to deal with inadequacies in mental hospitals. All of these decisions instructed the state to follow through on issues that it had already promised to act on by law or policy.  

Contrast this with the small number of cases where the courts have struck down new policies, on grounds that they conflict with prior constitutional obligations. For instance, citing the obligation of the government to improve the situation of public nutrition, the Madras High Court halted a new method of distributing sugar that allotted greater quantities to persons with higher income, saying that it would result in inequitable distribution and nutrition. Where new policies were required, the judges usually asked (not directed) the government to do so. The courts urged the central government to pass legislation banning the use of carcinogenic insecticides and colour additives; the government of Kerala was pushed to issue a new order banning smoking in public places; and a Delhi judgement compelled the state government to switch to clean fuels by mandating the phasing out of old taxis, unless they were converted to using compressed natural gas.  

Poor enforcement
Judges do not tend to be crusaders. After all, the judiciary is an arm of the state, and judges are conscious of the limits of what they can do within that structure. The modus operandi of the court is to ask the government to set up expert committees to assess possible actions, and then to issue directives based on the recommendations of those committees.  

The enforcement of these directives tends to be patchy at best. High-profile cases, such as those dealing with the quality of air in Delhi or the sealing of illegal buildings, have indeed generated some compliance by the government. But preliminary findings from the author’s study assessing judicial behaviour on social rights suggest that the enforcement of judgements on complex issues, such as hospital management or municipal provision of clean water, has been lax unless civil-society organisations are actively involved in the follow-up. Despite judicial support, the poor enforcement of several important court decisions has prompted right-to-food campaigners, for instance, to focus on non-legal avenues to carry out their work.  

The judiciary has proven itself capable of monitoring enforcement only in cases where complexity is low and solutions clear. So even when judgements have been made alongside ringing declarations about the right to life with dignity, universal human rights and the like, implementation suffers in the face of governmental excuses, such as budgetary and manpower constraints.  

It would be unfair to blame judges for the poor enforcement of their decisions. Judges may have more time to influence enforcement at the high-court level, where they typically serve for 12 to 18 years, than at the Supreme Court, where they serve less than six years. High caseloads do not allow judges the time to follow up, and so issues are not revisited unless individual judges take a personal interest in them, as with Justice Kuldip Singh’s passion for environmental causes. Moreover, social-rights litigation, which deals primarily with the provision of public goods and failures of the government to fulfil its public-interest obligations, does not lend itself to easy solutions. To be successful, enforcement in such cases requires greater budgetary resources and coordination between different government agencies. The only tools available to the court in cases of non-compliance are contempt-of-court orders. Given this, what are judges to do when senior bureaucrats plead their inability to, for instance, pay government teachers salary arrears?  

In this light, Rosenberg’s 1993 assessment seems still to hold true: courts can only have little impact on social change. Legal victories rarely change official actions or social relationships in significant ways, because judges cannot influence social behaviour without the support of the public and certain key actors.  

Nonetheless, courts have become more important in public life in India, and this is partly due to the general deterioration in governance. Plagued by a splintering of politics and the squabbling of coalition partners, the executive and legislative branches have shifted some of the burden of governance to the judiciary. In order to avoid a meltdown in the next assembly elections, for instance, the Delhi government has recently sought to deflect ire over the sealing of buildings by reiterating that the courts have been “forcing us to demolish shops”. But judges have not yet crossed the line into lawmaking. One hopes that they never will.