Pro-Human Rights but Anti-Poor? A Critical Evaluation of the Indian Supreme Court from a Social Movement Perspective

Abstract

Abstract:Judicial activism is a contested phenomenon, with the liberals and even the conservatives championing it while denouncing its particular manifestations.

Courts as Entrepreneurs: The Case of the Indian Mid‐Day Meals Programme

“…In addition, the connection between development and education has been strongly asserted (UN Millennium Project Task Force on Hunger, 2005, p. 29). Because the Court shares ideologies of development with the central government (Rajagopal, 2007), the Mid-Day Meals Scheme, within the right to food case, fits well with a national narrative of better-educated citizens leading to national development. An ideology of governance that promotes a particular model of development and agricultural growth explains the Court's progressive stance on the issue of mid-day meals, as compared to other food programs such as ICDS, which lead less clearly to national development.…”

“…Due to the Court's post‐Emergency activism in the 1970s, it still retains a global reputation for supporting human rights (Rajagopal, ). However, a closer look at the substance of many of the Court's rulings indicates that the Court shows bias against the poor, workers, and farmers (Gauri, ; Rajagopal, ) and that it has been unable to have a strong impact on socioeconomic rights and policies, particularly in the health and education sectors (Shankar & Mehta, ). In addition, the Court has often chosen weak remedies for socioeconomic problems and been most successful when dealing with private providers, rather than government provision of services (Shankar & Mehta, ).…”

“…Due to the Court's post-Emergency activism in the 1970s, it still retains a global reputation for supporting human rights (Rajagopal, 2007). However, a closer look at the substance of many of the Court's rulings indicates that the Court shows bias against the poor, workers, and farmers (Gauri, 2009;Rajagopal, 2007) and that it has been unable to have a strong impact on socioeconomic rights and policies, particularly in the health and education sectors (Shankar & Mehta, 2008).…”

Land, Law and Courts in India: Tracing Land Rights Debates through Processes of Judicial Decision Making

“…While the Emergency had eroded the autonomy of the court by taking away several of its powers, the PIL initiative (or as it is often called, the 'PIL revolution') ushered in by the court in the post-Emergency era is viewed by legal scholars as an attempt both to restore the institutional credibility of the court, and to compensate for offences committed during the Emergency (Baxi, 2000;Ramanathan, 2014;Thiruvengadam, 2013). Now, Congress was replaced by the Janata Party coalition, which welcomed the progressive stance of the judiciary (Rajagopal, 2007;Ruparelia, 2013). Furthermore, the earlier stance of the court, that mainly favoured the propertied classes at the expense of weaker sections of society, had given the court an 'elitist' image.…”

Rights, Development and Critical Modernity

“…Enthusiasm about ground‐breaking decisions by courts soon engendered criticism. Judgments against forced evictions of urban pavement dwellers and rural farming and tribal communities in India provided little sustenance against mass displacement as courts weakened or were unwilling to enforce remedies (Rajagopal, ); South African shack dwellers in Cape Town remained consigned to their shacks after the celebrated Grootboom judgment (Pieterse, ); while in Brazil early judgments on access to HIV medicines laid the basis for a middle‐class capture of the courts to secure access to expensive medicines (Ferraz, ). The weight of the critique seemed to confirm Hazard's (: 712) conclusion and prediction that ‘the contribution of civil justice is diffuse, microcosmic, and dull’.…”