From Theory to Reality
I ENVIRONMENTAL JURISPRUDENCE:
Constitutional Courts are forums of principles. Development of constitutional law takes place when jurisprudential expansion of the contours of the rights enumerated in Part III of the Constitution and Part IV of the Constitution is undertaken. Jurisprudential development embodies evolving concepts like inter-generational equity in environmental laws, modern ultra-vires doctrine based on rule of law, the precautionary principle in environmental laws, the polluter pays principle in environmental laws and the bare minimum provision principle in resource allocation disputes (socio-economic rights). Since such jurisprudential expansion of law is an on-going process from time to time, we need to revisit constitutional values like welfare rights. That is the reason why we have selected the theme of this lecture to be “Reframing of Welfare Rights under the Indian Constitution”.
Environment is a national asset. It cannot be treated as an asset to be exploited by the Govt(s) for revenue purposes. It incorporates the principles – “Polluters Pay” and “Precautionary” principles. Its object is inter-generational. These come under the doctrine of “sustainable development” which ensures inter-generational equity (better quality of life for present and future generations). Between 1927 (when the Indian Forest Act came into force) and 1980 (when the Forest Conservation Act came into force), “forests” were treated as assets to be exploited for revenue. However, with the enactment of the Forest Conservation Act, 1980, “forests” are to be preserved. The object is to protect “nature” on whom our survival depends. Natural resources are brought into Article 21 by invoking the doctrine of Public Trust. Thus, “precautionary principle”, as an aspect of doctrine of sustainable development, is no more a political principle but a constitutional principle in our jurisprudence. This is what I call as “development of law”. The consequence of such an interpretation is that absence of legislation is no hurdle. It is important to note that when a right in the form of basic human value or where the concept is given recognition of a constitutional value, constitutional adjudication principles steps in which is much wider in its ambit as compared to norms under administrative laws. Lastly, I believe that “laws” constitute response to life. The doctrine of “sustainable development” is all about balancing of rights. Conflict arises – when principles intersect. Substitution of “environmental capital” by “man-made capital” is impermissible once environment is read into Article 21.
(iii) Problems in implementation of the above principles
(a) Multiple definitions of the words “sustainable development”. Difficulties in ascertaining the substantial meaning of the words “polluters pay principle”. When have they to be applied? In some cases, economic considerations may outweigh environment consideration and vice-versa. The Supreme Court of India may have the authority to give weightage to these considerations. However, the question is – should it? How to balance these principles which intersect?
(b) Are these “legal” or “political principles”? The Supreme Court has given legal recognition but problem is due to multiple definitions of “sustainable development”.
(c) In most countries (except India), they are not recognized as legal principles; though approach is present. According to WTO Appellate Tribunal, Courts should look at the above principles in the specific context. The reason seems to be that although enactments like the Forest Conservation Act, 1980, the Environment (Protection) Act, 1986 regulate human activities, these Acts give wide discretionary powers to the Authorities under the Act(s).
(d) The Threshold Test – when to apply the Precautionary Principle. Neither the Environment (Protection) Act, 1986 nor the Forest Conservation Act, 1980 provides for it. If so, whether a successful judicial review could be brought? The view in some of the countries is that these principles are to be kept in mind by the executive decision makers as the principles relating to environment should be the responsibility of the Executive and not the Courts and that judicial review should be left to extreme cases because the provisions of the Forest Conservation Act, 1980 and the Environment Protection Act, 1986 are symbolic or that these provisions be monitored through procedural requirement. In this connection, we must keep in mind the difference between judicial enforcement where the Court is the primary tool and the court’s supervisory role of administrative programmes.
(e) None of the Acts create criminal or administrative offences in relation to sustainable development. The duties in the two Acts are directory.
II NEED BASED JURISPRUDENCE:
Ideas which pretend to be universal are historical delusions. As times change our premises and assumptions about the context of the Fundamental Rights will change. What is made of currently accepted rights in each country and each generation by its courts is itself a function of time and place. Even the so called certainties of law change constantly. That is why it is said that debates bring about clarity.
In recent times, courts are called upon repeatedly to adjudicate in complaints over the failure of the State Governments and local authorities to meet the welfare needs of citizens. In such cases, the defendant tolls the bell of tight resources. Time has, therefore, come to examine the role of the courts in resolving fundamental tensions between the welfarist principles embodied in the Constitution and the legislations for the delivery of public services, on the one hand, and the policy of financial cost-cutting, on the other hand. Cases which come in PIL often question the relevance and appropriateness of rights-based adjudication in welfare needs context and the reluctance of Courts to intervene in the resolution of resource allocation disputes even where Fundamental Rights are engaged.
(ii) International Views
With economic and financial meltdown, a debate has ignited in US and UK in recent years over the extent to which the doctrinal fairy tale of the ultra vires and the judicial interpretation of statutes “in accordance with the intention of the Parliament” could provide a credible theoretical basis for the legitimacy of the jurisdiction of courts on an application for judicial review. Instead an alternate view is posited that the basis of the jurisdiction in administrative review lies in the need to vindicate the rule of law, by giving effect to Fundamental Rights embodied in the Constitution. The problem is that courts with ultra vires paradigm of review have set limits around their own powers to review in cases where issues of resource allocation are raised. In the process, courts have devised doctrine of non-justiciability of resource allocation.
(iii) Problem of enforceability
Therefore, the question is – to what extent courts should be prepared to apply a rights-based approach to the welfare needs disputes, even where the recognition and enforcement of the right in question would necessitate financial expenditure on the part of authorities? Are appeals for a broader rights approach of any relevance to claims where rights to medical services and educational services are at issue? In India, the personal income tax as % of GDP is only 2.2%. Should this aspect be taken into account by the Courts when resource allocation issues are raised as a defence before them and, if so, in which cases they should not be factored in?
Making of normative laws or judicial decisions without their capability of being enforced amounts to a futile exercise and this is the paramount reason for reframing of welfare rights as rights to “minimum provision” rather than right to equal access to public goods.
To what extent will courts be required to alter their approach to the resolution of Welfare Needs Disputes? The approach adopted by Courts so far to resource allocation disputes reflects their affinity with statutory – based paradigm of review. The two principal conceptions of judicial review are ultra vires and rights. These conceptions shape the response to welfare needs disputes. Broadly stated, the purpose of judicial review is the control of discretion in accordance with the rule of law. It is argued that since Courts have neither the competence nor the authority of an expert, they must exercise restraint, which is self-imposed. This is the doctrine of non-justiciability of resource allocation. The question is – how to enforce values embodied in Article 21 (example: every citizen is entitled to clean environment which is culled out by the Supreme Court of India) in the absence of statutory enactment? Ultimately, we must remember that judicial review is founded not only on a need to control abuse of power and protect individuals but also that its purpose is to promote individual rights. Ultimately, the Higher Courts in India are forums in which principles are formulated. While formulating principles, the “doctrine of reasonableness” has to be kept in mind. One must also evaluate the consequences of such formulations (including enforceability).
(iv) Discrimination in terms of Material Deprivation
Under Article 21 the State must not only refrain from taking life but also it must take steps to safeguard life. Lack of finance as a defence cannot be relied upon to preclude any statutory duty. To permit a local authority to avoid performing statutory duty on the ground that it prefers to spend in other ways is to downgrade a statutory duty to a discretionary power. Therefore, the doctrine of non-justiciability of resource allocation cannot apply to challenges founded on breach of statutory duty. This is one way of reframing of welfare rights. The other way is to understand the claims of wealth discrimination as claims of material deprivation, that is, as claims of inadequate rather than unequal provision of basic goods. This is because equality is not a free standing principle. It has to be seen in the context of the facts of each case which comes before the courts. Therefore, application of welfare rights in resource allocation disputes needs to be revisited. A welfare right is an affirmative constitutional right to particular social goods such as “education, healthcare, food security and the like”.
“The basic human needs must be taken not as window dressing but as a window into the decisions themselves.”
(v) Rights-based approach
The question is – how far should the courts be prepared to go, directly or indirectly, to adopt a principled “rights – based approach” in order to force authorities to meet the welfare needs of the claimants?
The answer lies in Protecting the Poor. Poverty is the violation of human rights. The basic touchstone of the jurisprudence of the Supreme Court should be that “all persons are entitled to a minimum, not necessarily equal, level of provision with respect to certain public goods”. The “judicial equality” be reawakened by sensitivity not to equal access but to a quite different sort of value or claim which might be called “minimum welfare”. The paradigm shift should be from “discrimination” to “deprivation”, that is, in non-satisfaction of basic needs as and when they occur without which right to life of dignity in Article 21 can never be achieved. Although discrimination and deprivation often go together, the two concepts differ as follows:
(i) The remedy for deprivation does not lie in “equalization” of circumstances which remedy is sought in the case of discrimination.
(ii) On “the minimum welfare” view a State’s duty to the poor is not to avoid unequal treatment but to provide basic human needs. These basic needs “must be taken not as a window dressing but as a window into the decisions themselves”.
(iii) The minimum welfare view if laced with wealth discrimination then it will cloud our understanding because a doctrine against wealth discrimination would be too broad. In that doctrine, there would be difficulty in distinguishing the needs of the poor from the claims of non-poor who may suffer wealth discrimination when compared to the rich. Further, discrimination against poor may generate false hopes. Thus, justiciable welfare rights should respond to claims of deprivation rather than discrimination. Welfare rights would be justiciable relatively when conceived as claims of minimum provision rather than as claims of wealth discrimination. This is what I mean by “reframing of welfare rights”.
In September 2000, the member States including India in the UNO unanimously adopted Millennium Declaration. We have eight enumerated goals including minimum level of medical assistance, potable drinking water, reduction of poverty through minimum wages and reduction in unemployment as well as through implementation of employment guarantee schemes, universal primary education, gender equality, empowerment of women, combating HIV/ AIDS and environment sustainability. The basis of these goals, if carefully analyzed, is based on the doctrine of discrimination in terms of material deprivation. This is where Reframing of Welfare Rights as a concept comes in.
Thus, by emphasizing “deprivation”, Courts do not issue normative declarations of welfare rights or injunctions to create new welfare programmes. Instead, the Court plays an interstitial role within an existing legislative scheme, invalidating those eligibility criteria which are unrelated to basic needs of the complainant. In attacking the ills of poverty, claims of wealth discrimination are better understood as claims of material deprivation – that is, claims of inadequate rather than unequal provision of certain basic goods. Thus, we need to articulate “welfare rights” in material deprivation, not unjust discrimination. This will provide an enduring insight and objective criterion on Protecting the Poor. This is what I mean by saying “reframing of welfare rights”.
“Go from village to village, do good to humanity and to the world at large. Go to hell yourself to buy salvation for others. ‘When death is so certain, it is better to die for a good cause.’”
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