Legislating Rights: Parliament, Courts and Separation of Powers

In an interesting column in the Indian Express, Mihir Sharma ponders over ‘The Four Rights that millennial India has promised its people — to information, to food, to education, and to (rural) employment’ and notes that they ‘aren’t just remarkably ambitious for a state that has never impressed with its efficiency. They also represent a shift in how we think about governance’. He claims that this is not a partisan agenda driven by ‘Congress-under-Sonia’: instead, he suggests that a BJP government would have done little different. We can only speculate on this claim, given that our Opposition parties mostly remain reactive to government policy – very rarely do we see them initiating policy debates proactively between elections.

But we can consider Sharma’s other controversial suggestion that this move to constitutionalise socio-economic rights is a largely-judicial reaction to poor governance by other branches of the government (a phenomenon, he suggests, that can be seen globally rather than just in India). At least in the contemporary Indian context, this claim needs to be nuanced. While it is true that the constitutionalisation of socio-economic rights was driven by judicial pronouncements in the 1980s and the 90s, what we are witnessing in this century is something quite different. Unlike broadly-worded, unenforceable declaratory orders that courts made in recognising a constitutional right to food, shelter, employment, information etc, most of the current initiatives are legislative. They usually come complete with attention to details regarding enforcement, budgets and individual entitlements. The probable exception is the Right to Food case where the Supreme Court has tried to mirror a legislative intervention by not merely declaring a constitutional right to food, but identifying details of entitlements and overseeing implementation. But the right to food case is exceptional, and so it should remain (it appears, at any rate, that Parliament will take over the right to food agenda from the courts before too long). A deliberative legislative process is usually a much-better way of attending to details of entitlements and enforcement, even when they concern positive rights. That Parliament has finally decided to take this role seriously needs to be noted and commended.

This is not to suggest that the courts did not play their part. Perhaps judicial declarations of these goods as ‘rights’ laid the necessary groundwork for Parliament to build upon two decades later. Surely, it mattered that what was being legislated upon was not state largesse but a constitutional right. One has only to compare the usually top-down ‘welfare’ legislation of the pre-Emergency era which betrayed remarkable faith in honest implementation by benign bureaucrats with the broadly victim-driven, state-sceptic ‘rights’ legislation we now have. This claim regarding the movement from ‘welfare’ to ‘rights’ and the attendant difference in enforcement mechanisms, is, admittedly, based on generalisation and intuition rather than any serious research. But I suspect there might be some truth in it. At any rate, any story on these new social rights cannot afford to ignore the very important role that Parliament is playing in shaping and delivering them, even when it rightly acknowledges the courts for initiating the process.

Two implications follow. First, legal academics not only need to acknowledge, perhaps even celebrate, a resurgent Parliament, the often-ignored legislative process now deserves critical scholarly attention. This task has mostly been left with broadcast media, which loves noisy scenes in Parliament but has no time for MPs questions or work done in committees. State legislatures fare even worse in attracting legal scholars. Academic attention to the functioning of the legislative committees, to MPs/MLAs questions, to lack of transparency and consultation in the pre-legislative process, to private members’ bills, to anti-defection laws, to executive non-notification of legislative acts etc is urgently needed. The folks at PRS have begun taking the legislatures seriously, but much more needs to be done by many more people.

Secondly, if my above-mentioned intuitions regarding the realisation of social rights in India are true, the traditional view of separation of powers where different branches of government battle it out for supremacy is too simplistic. Practice suggests a two-way conversation: not only does Parliament take more seriously what the courts declare as a ‘right’, constitutional courts often invite policy suggestions from executive and legislative wings of government and incorporate them in their orders. Co-operative and/or dialogic accounts of separation of powers might provide a better account of practice and make more sense normatively.

Written by
Tarunabh Khaitan
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