Tuesday, July 19, 2011

Social Rights in India

In the new issue of the International Journal of Constitutional Law, I study the social rights jurisprudence of the Indian Supreme Court. I make many arguments, and the piece is available here. The abstract is as follows:

"Recent years have witnessed important advancements in the discussion on social rights. The South African experience with social rights has revealed how such rights can be protected without providing for an individualized remedy. Comparative constitutional lawyers now debate the promise of the South African approach, and the possibility of weak-form judicial review in social rights cases. This article considers the Indian experience with social rights, and explains how it exhibits a new form of social rights adjudication. This is the adjudication of a conditional social right; an approach that displays a rare private law model of public law adjudication. This article studies the nature and significance of this heretofore ignored adjudicatory approach, and contrasts it with, what is termed as, the systemic social rights approach. The conditional social rights thesis has important implications for the present debate on social rights adjudication, and presents an account of the Indian Supreme Court that is truer than those we presently encounter."
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