DR.

RAM MANOHAR LOHIA NATIONAL LAW UNIVERSITY, LUCKNOW

Session 207-18

Socioeconomic rights in the Indian Constitution: Toward a broader

conception of Legitimacy

Submitted To: Submitted By:

Prof. Manvendra Kumar Tiwari Akanksha Singh

Asst. Professor (Jurisprudence) Roll No. 10

Dr. RMLNLU, Lucknow V Semester

Socioeconomic rights in the Indian Constitution: Toward a broader
conception of Legitimacy

This article takes on a critical look upon the Indian judiciary and its overreach in
the context of giving certain Directive Principles of State Policy the same
protection as that given to Fundamental Rights. The author consistently points out
in the article that the judiciary has clearly gone above and beyond its duties in
including rights like right to food, shelter, sleep and a decent livelihood within
Article 21 and completely ignored Article 37 of the Constitution which states that
directive principles are not justiciable.

The author has analyzed these socio economic rights from a Rawlsian perspective,
specifically, John Ralws’ liberal principle of legitimacy which states that the
essentials of a constitution must be reasonably acceptable to all citizens.

Additionally, while questioning the conferring of constitutional status on

socioeconomic rights, the author uses Frank Michelman’s The Constitution, Social
Rights and Liberal Political Justification to raise two major objections. These are a
‘democratic objection’ and a ‘contractarian objection’.

The author then moves on to discuss the drafting and enactment of the Indian
Constitution and what events led to the creation of Directive Principles of State
Policy.

He then takes a look at the Indian Supreme Court and how it has moved away from
its early precedents and understanding of the Indian Constitution over the past
forty years.

He then discusses the two objections, ‘democratic’ and ‘contractarian’ in detail and
highlights if and how these can be overcome.
Theoretical Framework

John Rawls stated that justice as fairness rests on three basic premises –

 It is framed for a democratic society

 The basic structure of society is the primary subject of political justice
 Justice as fairness if a form of political liberalism that aims to justify the
coercion of the state over free and equal citizens in society.

For Rawls, justice as fairness could be achieved through the liberal principle of
legitimacy. This principle holds that ‘political power is legitimate only when it is
exercised in accordance with a constitution (written or unwritten) the essentials of
which all citizens, as reasonable and rational, can endorse in light of their common
human reason’.

Emanating from this principle are two principles of justice that specify basic rights
and liberties and regulate economic and social inequalities in the basic structure.
The first principle requires that democratic societies put in place a basic set of
fundamental rights available to all citizens. This principle is constitutionally
essential. The second principle focuses on social and economic inequalities and
requires that there should be no discrimination in the selection process for pulic
offices and social positions and all citizens should have a fair chance to attain these
offices or positions. It also requires the society to distribute resources to the
greatest benefit of its least privileged members.

The two principles are to be applied at different stages of a society’s development.

The first principle is more urgent and applies at the stage of constitutional
convention. The second principle applies at the legislative stage. Another
difference between the two principles was that the first could be easily agreed and
decided upon by reasonable citizens while the second principle is subject to
differences of opinion.

Thus, this principle of Rawls highlights the key differences in Fundamental Rights
and socio economic rights and why it is necessary to give greater weight to the
former rather than the latter.
Framing of the Indian Constitution

The drafting committee of the Indian Constitution saw huge debates regarding
what the constitutional status should be for socioeconomic rights, with some like B
N Rau, relying on the Irish model, advocated that India should set out positive
rights in the nature of moral precepts for the authorities of the State, while others
like K.M Munshi and B.R. Ambedkar wanted the Indian Constitution to include
justiciable socioeconomic rights.

Eventually however it was decided to separate justiciable fundamental rights from

non enforceable directive principles. There were two major reasons for this. One
was that the framers wanted the legislature to have some discretion over matters of
socioeconomic justice. The other was related to the Assembly’s skepticism of
judiciary and their desire to minimize its impact on social legislation. They wanted
the judiciary to limit its powers and did not want a particularly strong judiciary.

Thus, they included Article 37 which clearly states that directive principles ‘shall
not be enforceable by any court but the principles laid down are nevertheless
fundamental in the governance of the country and it shall be the duty of the State to
apply these principles in making laws’. This article fulfills the Assembly’s twin
desires to defer to the legislature on matters of socioeconomic justice and to limit
the power and reach of the judiciary.

Evolution of the Indian Judiciary

This section highlights the transformation of the Indian Supreme Court’s

jurisprudence with respect to Articles 21 and 32. At the time of adoption these
articles were construed narrowly. Article 21 did not mention ‘due process’ and
instead had the phrase ‘procedure established by law’ so that the due process
doctrine of the United States could be avoided. The Supreme Court also had a strict
standing rule for Article 32 which made it mandatory for the petitioners to be
directly affected or injured by a law to allow the application of the article.

However with time, the Supreme Court has moved towards the American due
process and Article 21 is said to include the right to live with human dignity which
includes other socioeconomic rights as well. Along with this, Article 32 no longer
has a strict standing position thanks to the advent of Public Interest Litigation
which allows parties other than those directly affected to redress fundamental
rights violations.

All these developments have led to a major increase in the judiciary’s role within
the Indian Constitutional framework. There has been an increase in

 The range of rights that courts can enforce

 The number of people that are permitted to file petitions alleging
fundamental rights violations
 The extent to which courts can supervise the implementation of their orders

Thus, clearly the courts have now come to have a much greater role and power in
the society than was originally envisaged for them.

Article 21

Initially, the courts stuck to the restricted understanding of Article 21. Particularly,
in Gopalan v State of Madras1 which raised the issue that the Preventive Detention
Act violated articles 13, 19 and 21. In this case, the petitioner argued that Article
21 should be interpreted keeping in mind the American jurisprudence. However
the court rejected this stating that in the US context the word liberty has a broader
meaning as compared to the Indian context where it merely means ‘personal
liberty’. To substantiate this the judge looked at the Constituent Assembly debates
and pointed out that the words ‘due process’ were intentionally omitted to put in
the phrase ‘procedure established by law’.

This interpretation of the court was later challenged and rejected in Keshavananda
Bharati v State of Kerala2 which brought the ‘basic structure’ doctrine and also
paved the way for future cases in which the Supreme Court equates fundamental
rights and directive principles in terms of their importance. In Minerva Mills Ltd v
Union of India3 Justice Chandrachud stated that Parts III and IV of the Constitution
act like a ‘twin formula for achieving a social revolution which is the ideal the
founders of the Indian Constitution set before themselves’. This case laid the

1
(1950) S.C.R. 88, 111
2
A.I.R. 1973 S.C. 1461
3
, (1981) 1 S.C.R. 206
foundation for the Supreme Court to rule that Article 21 includes socioeconomic
rights within its ambit.

Then came the Emergency rule and with it the Forty Second Amendment which
gave the non justiciable directive principles in Part IV of the Constitution
precedence over the fundamental rights in Part III. Even though this amendment
was later majorly repealed, the Supreme Court relied on the Keshavnanda
judgement to hold that directive principles and fundamental rights are both
equivalent parts of the ‘basic structure’ of the Constitution.

The Supreme Court’s decision in Maneka Gandhi v Union of India 4 further

expanded the ambit of Article 21. In this judgement, Justice Bhagwati construed
the phrase ‘personal liberty’ to include the right to travel abroad’ as well. He said
that the expression ‘personal liberty’ is of the widest amplitude and covers a
variety of rights which go to constitute the personal liberty of man. Thus, this case
essentially overruled the Gopalan case and adopted the American due process
standard.

The ambit of Article 21 was made even broader with the judgment in the case of
Francis Mullin v Union Territory of Delhi5. In this case it was held that right to life
includes a broader right to ‘live with human dignity’. This included the bare
necessities of life such as nutrition, clothing and shelter.

These changes greatly expanded the Court’s authority to strike down legislations if
it found them to be incompatible with fundamental rights.

Article 32

Article 32 is the primary mechanism in the Indian Constitution to redress

violations of fundamental rights. It also states that citizens may move the Supreme
Court for the enforcement of a right through ‘appropriate proceedings’.

In the Court’s early jurisprudence, the phrase ‘appropriate proceedings’ was

construed narrowly to permit only those individuals whose rights had been directly
infringed to bring a suit. In Chiranjit lal v Union of India6, for instance, the court

4
(1978) 2 S.C.R. 621
5
(1981) 2 S.C.R. 516
6
(1950) S.C.R. 869
held that shareholders of a company did not have standing under Article 32 to
petition the Court to enforce a corporation’s right to hold and dispose of property
under Article 19(1)(f) of the Constitution. It noted that only the corporation could
properly bring this claim.

However, the court’s interpretation of ‘appropriate proceedings’ shifted over time

toward the provision of greater social justice. This began in Fertilizer corporation
kamgar Union v Union of India 7 . In this case a concurring opinion written by
Justice Iyer and Bhagwati adopted a broader approach towards Article 32.
According to them, ‘locus standi’ must be liberalized to meet the challenges faced
by a developing country like India.

This view later prevailed in S.P. Gupta v Union of India8, which brought a number
of claims alleging government interference with the judiciary. However, the
petitioners were not judges themselves and were not directly affected by the issue.
Still, the Court held that the traditional standing rules were no longer appropriate
because those rules had been developed when private law dominated the legal
scene and public law had not yet been born. The court, to adapt to this new era of
public law, thus recognized the right of any member of the public to petition for
redress of a wrong to a ‘person or to a determinate class of persons… (who) by
reason of poverty, helplessness or disability or socially disadvantaged position’
cannot approach the court themselves. This led to the evolution of Public Interest
Litigation.

This was cemented in Bandhua Mukti Morcha v Union of India9. This case allowed
a nongovernmental organization not directly affected by bonded labour to bring a
claim under Article 32.

7
(1981) 2 S.C.R. 52
8
(1982) 2 S.C.R. 365
9
(1984) 2 S.C.R. 67
The Democratic Objection

The democratic objection stems from the concept of separation of powers which is
so deeply entrenched in any democratic society. The judiciary, through the
transformation we have seen over the years has made itself a significant
policymaking institution. Thus, the separation of powers framework set forth in the
Constitution has been substantially weakened.

However, this democratic objection can be overcome if the socioeconomic rights

as directive principles merely guide legislative action toward certain societal goals
and are not judicially enforceable rights. This way, even if courts cannot adjudicate
upon the socioeconomic rights, they will still have value on account of being
placed in the Constitution. This is exactly what the Constituent Assembly had in
mind while drafting part IV of the Constitution. However, the Indian judiciary, led
by the Supreme Court, fundamentally altered the original Constitutional
framework.

As mentioned above, the judiciary has essentially become a policymaking

institution and this has led to a number of serious democratic objections. A
suggestion made by the author is that the court instead of giving explicit executive
instructions to the government, simply pass a judgment on the constitutionality of a
law and leave the detailed law making procedures with the legislatures. This way
the democratic objection would not arise.

The Contractarian Objection

This objection rests on the fact that a constitution’s legitimacy requires, at a

minimum, that rational citizens understand its terms and agree to be governed by
them. If citizens don’t understand the terms or are unable to determine if their
government or fellow citizens are complying with constitutional principles, they
will not regard the constitution as a legitimate source of political authority.

Here the ‘constraint of public reason’ used by Rawls in his principle of justice is
applied to the Supreme Court. This constraint of public reason applies to
socioeconomic rights even more than fundamental rights. This is because
socioeconomic rights lack the transparency that fundamental rights possess.
Socioeconomic justice is different for different people. This is why Rawls said that
the first principle should be applied at the stage of convention of the constitution
while the second principle should be left to the legislature to be dealt with at a later
stage.

It is important for people to be given appropriate reasons and justifications for not
following something which is explicitly given in the Constitution, especially if this
is done by the Judiciary. Where Article 32 is concerned, the judiciary has been
successful in giving sufficient reason to fit within the constraint of public reason.
The text also provides for ‘appropriate proceedings’ which leaves the court with
some discretion when dealing with cases. The court has also interpreted the text
that recognizes framers’ broader goals of social revolution as well as the real need
for PIL in India. Thus it fulfills the constraint of public reason.

However, when it comes to Article 21, the courts have not been able to provide
sufficient reasoning for broadening the ambit of Article 21 to the extent of ignoring
Article 37 which explicitly says directive principles are not justiciable. Justice
Bhagwati tried to give an explanation for this stating that some directive principles
are essential for Article 21 to exist. However this is illusory and ambiguous and
does not fulfill the constraint of public reason. This contractarian objection was
avoidable if they had provided sufficient reason for ignoring Article 37. However,
the Supreme Court has not explained how it moved past Article 37’s plain
meaning. Until it does so, the contractarian objection cannot be removed.

However, despite all the criticisms, there is a positive side to the judiciary
overstepping its duties. It is one of the few public institutions that actually shows
the will and capacity to improve the conditions of our society, especially that of the
least privileged members. It enjoys widespread support among Indian citizens who
approach the Court in large numbers to obtain various sorts of relief against the
government. The public also sees the judiciary as one of the least corrupt state
institutions.