Coronavirus and the Constitution – XXV: Socio-Economic Rights and the Shifting Standards of Review [Guest Post]

[This is a guest post by V.G. Shreeram.]

---

Over the past few weeks, the spread of Covid-19 and the State’s response to the same has prompted a flurry of petitions in the Supreme Court and the various High Courts of the country. A significant number of these petitions pertain to the protection and enforcement of important socio-economic rights, which have been severely compromised as the social security nets of vulnerable populations have been pierced by the nationwide lockdown. Inter alia, this includes the right to health which was tested by the free testing order of the Supreme Court, the right to wages, food security and livelihood of migrant workers, and the right to education of students in the Union Territory of Jammu and Kashmir, tested in the form of the petition challenging the sanctioned Internet speed in the Union Territory.

As readers of this blog would be familiar, in contentious cases regarding policy decisions, over the past few months, the Supreme Court has shown a degree of executive deference despite the overarching concerns regarding the compromise of fundamental rights in such petitions. We’ve seen a repeat of this pattern in the recent cases pertaining to socio-economic rights, which have arisen in light of Covid-19, where the Apex Court has deferred to the executive and has had a hands-off approach to socio-economic concerns despite the established justiciability (i.e. the protection and enforcement of these rights by the State is subject to strict judicial review) of these rights, usually by citing concerns of the Court supervising the government.

It is an established principle of Indian Constitutional law that a constitutional court cannot intervene in matters of policy and that it is the exclusive domain of the government. Nonetheless, this comes with a caveat that these policy decisions do not infringe any justiciable fundamental rights. And to the extent that there is any infringement of any fundamental right, the court would be duty bound to intervene and remedy such infringement. It is my case that, that the kind of executive deference that constitutional courts are able to afford in response to the concerns being put before them, is not merely a function of the disposition of a particular bench or the facts put before it, but also a structural jurisprudential concern with socio-economic rights as adjudicated under the Indian Constitution.

In order to dismiss/dispose of a petition concerning the enforcement and/or protection of fundamental rights, the court is duty bound to record its satisfaction that either any fundamental rights at stake are duly protected to the extent as envisaged under the constitution, or that the purported infringement is in line with permissible restrictions. But socio-economic rights present a slightly different challenge. Socio-economic rights are not formally enumerated under the fundamental rights chapter of the Constitution and their development has come about through judicial precedent, primarily through courts liberally interpreting the phrase “life and personal liberty” under Article 21 and using the Directive Principles of State Policy as interpretive devices for fundamental rights. While this has had the laudable effect of elevating and according socio-economic rights formal justiciable fundamental rights status, it has left significant issues in its adjudication unaddressed.

Fashioned almost entirely out of precedent, socio-economic rights adjudication under the Indian Constitution has no fixed anchor when it comes to the standard of judicial review. While constitutional courts in India have carved out and arguably established the right to housing, education, health and food security, given that these rights are not enumerated in the text of the Constitution, the meaning, scope and extent of these rights is not grounded in any Constitutional text and adjudication is driven entirely by precedent. In a poly-vocal judicial setup, where multiple co-equal benches simultaneously adjudicate upon the same constitutional rights and where the rules regarding stare decisis (the doctrine establishing binding nature of judicial precedents upon future smaller and co-equal benches) are often themselves contested, the lack of an established standard of review can be immensely problematic. In the absence of courts declaring and explicitly setting out a threshold for state action (or inaction), as to when socio-economic rights stand violated, future adjudication upon these rights becomes fraught with inconsistency. Indian constitutional courts, while adjudicating upon socio-economic rights, often employ a shifting standard in recording their satisfaction regarding the protection and enforcement of these rights and what one bench might find as an “adequate” guarantee of the right to health might differ from what another bench finds inadequate.

For instance, in Paschim Banga Khet Mazdoor Samity, the SC, in 1996, observed that financial constraint is a constitutionally unacceptable reason to deny the right to healthcare. The court observed that it was the “constitutional obligation of the State to provide adequate medical services to the people” and that “whatever is necessary for this purpose has to be done.” The breadth of the language employed by the court is very stark, with the court having no hesitation in suggesting that whatever is necessary for this purpose has to be done, imposing a high burden on the State. While the question of free diagnostic testing presents a different challenge, it is nonetheless evident that the Court while adjudicating upon the right to free testing for Covid-19, did not engage with the question of the responsibility of the state towards a universal right and the scope of the right vis-à-vis financial constraints.

As I mentioned earlier, it is this shifting scale of the standard of review that permits the degree and frequency of executive deference that we see in socio-economic adjudication in Indian courts. Since there is no fixed standard as to what the scope and extent of the right in question is, it is relatively easy for the Court to accept the executive’s response in court as adequate. What is important to note is that it is highly unlikely that while answering in Court, the executive will deny the protection of the right or its existence as a justiciable right, simply because it would be too politically expensive to do so. The contention in most petitions will likely revolve around the mode and quantum of protection which only reinforces the need of having a robust and fixed standard of review. Additionally, given that socio-economic rights are almost exclusively framed as positive obligations upon the state, their protection and enforcement usually entails an engagement with the question of the court’s jurisdiction over the state’s budgetary constraints. Such a question only served to highlight the importance of a fixed standard of review that in turn leads to consistent and certain application of law.

As Gautam Bhatia argued in his concluding post concerning the SC’s free Covid-19 testing order, one of the reasons that the order was constitutionally warranted was because it satisfied a “minimum core” – or a threshold – “that is non-negotiable” and without which the right became “illusory.” While the merits of the minimum core test has invited much scholarly disagreement, Gautam’s argument is a reminder that the Indian socio-economic jurisprudence operates without an anchor in the form of a fixed standard of review. While some Indian scholars have pointed out that the Indian experience with socio-economic rights has largely been a form of administrative review of existing government schemes and that the court has limited itself to directing implementation of the extant socio-economic policies, the SC has also gone far beyond that in cases like the Right to Food litigation where the court passed detailed orders, converting existing schemes into fundamental rights based entitlements, extending the case to every state in the country, calling for regular implementation reports and even prescribing the minimum quantity of food and nutrition for mid-day meals.

One of the review standards that the Indian Supreme Court can perhaps consider is the “reasonableness” standard, which has been endorsed by South African Constitutional Court (SACC), widely recognised as one of the most progressive socio-economic rights courts in the world. Under the reasonableness standard, the Court, instead of providing individualised relief (i.e. no one person is entitled to shelter as an individual), would rather enquire into whether the state had undertaken reasonable measures to fulfil its constitutional obligations. Thus, the reasonableness standard would require that “a significant number of desperate people in need are afforded relief, though not all of them need receive it immediately.” While the test itself has been criticised for being overly deferential to the executive, the reasonableness standard is nonetheless recognised as being mindful of the institutional competence of courts (by not directly supervising policy) and still ensuring a judicial review of the wider, systemic problems regarding access to socio-economic rights.

The consistent application of the reasonableness standard in the case of the SACC has also contributed to what is recognised as the dialogic function of socio-economic rights adjudication in South Africa. Dialogic engagement envisages that judicial review in not limited to the idea of reviewing state action (or inaction) but also to the Court acting as a public forum for the government to justify and explain its policies. This is relevant because questions of improving systemic socio-economic concerns may be “reasonably” answered in many different ways which may all be constitutionally permissible. For instance, as argued here, some may consider the right to housing to mean reasonable access to private housing while others may construe it as a direct obligation to provide public housing or a combination of both of these approaches. Therefore, a dialogic approach, where the Legislature is asked to justify its policies in Court and therefore “converse” with Court, can allow the Court to correct socio-economic policies either directly (through narrow remedies on right-based claims) or indirectly (by providing representation for counter-majoritarian voices) and remove any blind-spots that maybe present in the Legislature’s approach. Crucially, this is only possible if the Court is insistent on asking the Legislature to meet a particular, constitutionally affirmed, fixed standard of review.

While it is beyond arguing that finding the correct standard of review for socio-economic rights presents a difficult and complicated task for judges and courts across the world, it is one that cannot be left unaddressed. There is a schism in our socio-economic rights jurisprudence wherein a common and fixed standard of review for socio-economic rights is absent despite the presence of a rich rhetoric around the normative importance of these rights. This has resulted in a jurisprudential structure that permits a degree of executive deference that hampers the progressive realisation of our constitutional goals and precludes a closer scrutiny of the measures taken by the government towards the same.