Abstract
During its tenure from 2004 to 2014, the UPA government introduced several pieces of legislation promising a multitude of services to Indian citizens as ‘rights’. While the wording of ‘rights’ has a very positive ring to it, merely formulating such rights or entitlements does not lead to tangible results in practice. As these rights are based on fundamental rights, either explicitly or implicitly (through extensive reading of the right to life) guaranteed by the Indian Constitution, they must also be enforceable in India’s courts in practice. Otherwise, they remain ‘rights’ only on paper. Unfortunately, the Indian higher judiciary is virtually inaccessible for those parts of the society that these rights are actually aimed at. However, the rights legislations of the first two decades of the 2000s do provide alternative means of enforcement, called grievance redressal mechanisms. This article examines these mechanisms and argues that decisive structural changes need to be made to make them effective, and that the judiciary could help in making these changes through Public Interest Litigation. Having functioning grievance redressal mechanisms ‘at the bottom’ and the high courts and the Supreme Court ‘at the top’ could then allow a system of ‘micromanagement’ and ‘macromanagement’ at the two levels that has decisive benefits for socio-economic rights adjudication, both in India and elsewhere.
The arguments made in general terms in this article were first made more specifically for the right to education in the author’s book The Right to Education in India: The Importance of Enforceability of a Fundamental Right (OUP 2019).
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Notes
- 1.
Mahabir Prashad Jain, Ruma Pal, and Samaraditya Pal, Indian Constitutional Law, 6th edition (LexisNexis Butterworths Wadhwa Nagpur 2010), 1430; H.M. Seervai, Constitutional Law of India: A Critical Commentary (4th edn, N.M. Tripathi; F.H. Seervai; Distributors, Universal Law Pub Co 1991–1996) 1449.
- 2.
The reasons for lack of access to justice to the higher judiciary are actually, surprisingly, understudied; there appear to be no thorough empirical studies on why exactly poorer citizens do not, and probably cannot, litigate in India’s Supreme Court and high courts. There is, however, a thorough study on India’s lower judiciary, see Jayanth K. Krishnan et al., ‘Grappling at the Grassroots: Access to Justice in India’s Lower Tier’ (2014) 27 Harvard Human Rights Journal 1. On the question to what extent this study’s findings may be transferable to the higher judiciary, see Florian Matthey-Prakash, The Right to Education in India: The Importance of Enforceability of a Fundamental Right (OUP 2019) 217 et. seq.
- 3.
See Florian Matthey-Prakash (n 2), 205 et. seq. for a study on cases concerning the right to education (such cases that mention Article 21A of the Indian Constitution, which, since its introduction in 2002, has elevated free and compulsory education to the status of a fundamental right). The findings are that no cases raised in the Supreme Court were raised by affected children or their parents themselves. Even in the somewhat accessible Delhi High Court, the vast majority of cases were raised by educational institutions, teachers, or persons acting in public interest.
- 4.
The reasons given in famous PIL cases clearly shows that its primary goal was to compensate for lack of access to justice for the poor. See, for instance, the Asiad case, in which Justice Bhagwati declared that ‘a new dimension’ had been given to the concept of locus standi, and that this dimension had ‘revolutionised the whole concept of access to justice in a way not known before to Western Systems of jurisprudence’. Because of widespread ‘poverty, illiteracy, and ignorance obstructing and impeding accessibility to the judicial process’, it was necessary to ‘evolve a new strategy’ so that ‘justice may become easily available to the lowly and the lost’, see People’s Union for Democratic Rights v Union of India 1982 AIR 1473.
- 5.
Balakrishnan Rajagopal, ‘Pro-Human Rights but Anti-Poor? A Critical Evaluation of the Indian Supreme Court from a Social Movement Perspective’ (2007) 8 Human Rights Review 3, 157–186. Similarly, Shukla observes that ‘from the beginnings of PIL as pro-poor and trying to effectuate rights for the exploited, it is increasingly taking a diametrically opposite direction’ (see Rakesh Shukla, ‘Rights of the Poor: An Overview of Supreme Court’ (2006) XLI Economic & Political Weekly 35). Thiruvengadam agrees insofar as that ‘the Indian Supreme Court has, in a process that began in the 1990 s and has continued across the 2000 s, transformed the nature of PIL, turning away, in several cases, from concerns it embraced in its original phase’ (see Arun Thiruvengadam, ‘Revisiting the Role of the Judiciary in Plural Societies (1987): A Quarter-Century Retrospective on Public Interest Litigation and the Global South’, in Sunil Khilnani et al. (eds), Comparative Constitutionalism in South Asia (OUP 2013) 356.
- 6.
Ineke van de Meene and Benjamin van Rooij, Access to Justice and Legal Empowerment: Making the Poor Central in Legal Development Co-Operation (Leiden University Press 2008) 14.
- 7.
See, for instance, UNDP, ‘Programming for Justice: Access for All—A Practitioner’s Guide to a Human Rights-Based Approach to Access to Justice’ (2005) https://www.un.org/ruleoflaw/files/Justice_Guides_ProgrammingForJustice-AccessForAll.pdf accessed 29 December 2020. Legal empowerment of the poor means that there needs to be a ‘focus on the lack of power, opportunities and capabilities that impede poor and marginalised people’s use of law and (para) legal tools to take control of their lives and improve their livelihoods’, see Ineke van de Meene and Benjamin van Rooij (n 6) 6–7.
- 8.
Consequently, even though the right to free and compulsory education has been a fundamental right explicitly added to the constitutional text, it appears that to most Indian parents, education is still not seen as a service that the State must provide at acceptable quality. Rather, education is seen as a service that one must pay for if one expects a certain amount of quality, with even some poorer parents sometimes stating that government schools are ‘meant for the poor’ (i.e. those who are even poorer than themselves, who can at least afford some sort of low-cost private school), see Florian Matthey-Prakash (n 2), 259 et seq., quoting Anuradha De, Probe Revisited: A Report on Elementary Education in India (OUP 2011) 51: ‘The discourse commonly heard during the village studies was that government schools are ‘bad’ and meant for low-caste and poor children only’. A similar effect may be observed concerning other services as well, particularly in the field of health care.
- 9.
On the issue of teacher (and also student) absence and its detrimental effect on the Indian education system, see Florian Matthey-Prakash (n 2), 29 et seq.
- 10.
Article 32(2) says that they may be empowered to do so, but they have not been as of now, which will be discussed in more detail below.
- 11.
Nick Robinson, ‘Closing the Implementation Gap: Grievance Redress and India’s Social Welfare Programs’ (2015)53 Columbia Journal of Transnational Law 2, 360. For the process of ‘fire alarm monitoring’ through grievance redress, also see Varun Gauri, ‘Redressing Grievances and Complaints Regarding Basic Service Delivery’ (2011) http://elibrary.worldbank.org/doi/pdf/10.1596/1813-9450-5699 (accessed 28 June 2020) 5.
- 12.
Johannes Masing, Die Mobilisierung des Bürgers für die Durchsetzung des Rechts: Europäische Impulse für eine Revision der Lehre vom subjektiv-öffentlichen Recht (Duncker & Humblot 1997).
- 13.
A similar system has been created by the National Food Security Act, 2013 (with the ‘local authority’ being a designated District Grievance Redressal Officer, and the appellate body being the State Food Commission), for instance.
- 14.
The degree varies in different states, as some states have followed a central government advisory suggesting that ‘grievance redress local authorities’ should be kept separate from ‘implementing local authorities’, see Florian Matthey-Prakash (n 2), 296 et seq., where an overview of the solutions employed by the states is given. This issue could have been avoided by clearly defining responsibilities in the Right to Education Act, rather than merely using the term ‘local authority’ for both implementation as well as grievance redressal authorities.
- 15.
See Sections 13, 14, and 24 of The Commissions for Protection of Child Rights Act, 2005.
- 16.
The only enforcement mechanism they have is initiating litigation themselves by referring a case to the higher judiciary. This, however, generally does not happen in practice, perhaps in part of a lack of financial means of the commissions to follow through with litigation, as a former member of the National Commission of Child Rights has pointed out in an interview with the author. For more on this, see Florian Matthey-Prakash (n 2), 314 et seq.
- 17.
Malini Bhattacharjee and Dolashree Mysoor, ‘‘Unredressed’ Grievances under RTE: Navigating the State Labyrinth’, (2016) 29 Governance: An International Journal of Policy, Administration, and Institutions 1, 44.
- 18.
ibid at 40 et seq. for several examples of how seemingly ‘resolved’ cases ultimately led to disappointment.
- 19.
Robinson (n 11) at 10.
- 20.
See Sect. 18 of the Protection of Human Rights Act, 1993. Similarly, the State Food Commissions may also only ‘give advice’ to the State Government when dealing with grievance appeals, see Sect. 16 of the National Food Security Act, 2013.
- 21.
Robinson cites Shrinivasan, who reports that ‘for common people, especially slum dwellers, RTI applications have become a means to access basic government services’ (see Rumini Shrinivasan, ‘‘Paper Power’, Times of India’ The Crest (India 2013) https://web.archive.org/web/20160417132947, http://www.timescrest.com/society/paper-power-10113 accessed 28 June 2020, cited in Robinson (n 11) at 344.
- 22.
‘While bribery still appears to be the fastest way to obtain the desired public good, the RTIA is nevertheless impressively effective. […] [R]ecourse to the RTIA is considerably more effective than standard application procedures and is almost as effective as bribery’ (see Leonid Peisakhin and Paul Pinto, ‘Is Transparency an Effective Anti-Corruption Strategy? Evidence from a Field Experiment in India’ (2010) 4 Regulation & Governance 3.
- 23.
Shoumojit Banerjee, ‘Centre’s decision to bring amendments to RTI Act draws criticism from activists’, The Hindu (India 2019) https://www.thehindu.com/news/states/centres-decision-to-bring-amendments-to-rti-act-draws-criticism-from-activists/article28629973.ece accessed 28 June 2020.
- 24.
Without it, he said in the Constitutional Assembly, the Constitution ‘would be a nullity’, see Constituent Assembly Debates, Vol VII, https://web.archive.org/web/20180205040135/https://parliamentofindia.nic.in/ls/debates/vol7p23.htm accessed 28 June 2020.
- 25.
L. Chandra Kumar v Union of India 1995 AIR 1151.
- 26.
On the doctrines of ‘respect, protect, fulfil’ see Asbjørn Eide, ‘Economic, Social and Cultural Rights as Human Rights’, in Asbjørn Eide, Catarina Krause, and Allan Rosas (eds) Economic, Social and Cultural Rights. A Textbook (2nd edn, Martinus Nijhoff 2001) 23–4. The obligation to fulfil does not only concern socio-economic rights, but, at least by a more modern understanding, all rights, because ultimately, it is not possible to strictly distinguish in between several categories of rights. For more on this, see Florian Matthey-Prakash (n 2), 125 et seq.
- 27.
Philip Alston, International Commission of Jurists, ‘Development and the Rule of Law: Prevention Versus Cure as a Human Strategy’ (1981) 31 Human Rights and the Rule of Law 51.
- 28.
Maurali Karnam of Tata Institute of Social Sciences explained in an e-mail exchange with the author (10 June 2016) that ‘[m]ost of the legal aid at present is only at advisory level and at litigation it is very poorly organized even for prisoners’. He had done ‘a preliminary study on how much of legal aid is provided to victims of domestic violence but it was almost nothing […] Only semblance of legal representation is provided in case of prisoners’. With the situation being this precarious, ‘[n]obody tried to study a system that does not exist in practice’, see Florian Matthey-Prakash (n 2), 233.
- 29.
For an overview of these options and how they have not been chosen as an option by the government, see Florian Matthey-Prakash (n 2), 270 et seq.
- 30.
For more on this argument, see Florian Matthey-Prakash (n 2), 351 et seq.
- 31.
Providing free and compulsory primary education is not only mandated by Article 21A of the Indian Constitution, but is also considered to be itself part of the ‘minimum core’ obligation of a state in international human rights law, see Committee on Economic, Social and Cultural Rights, General Comment 13 (Twenty-first session, 1999), pp 51 et seq. India is bound by the relevant international human rights treaties in this regard, and it has translated these obligations in national law, for instance by prescribing pupil/teacher ratios in the Right to Education Act of 2009. Even if it had not done so, these international obligations would still be considered in national fundamental rights adjudication in India, considering that the Indian Supreme Court effectively (though not explicitly) follows a philosophy of ‘monism’, meaning that international treaties are directly applicable without being transferred into national law, see Aparna Chandra, ‘India and International Law: Formal Dualism, Functional Monism’ (2017) 57 Indian Journal of International Law 1–2.
- 32.
See Bokaro And Ramgur Ltd v The State of Bihar and Another MANU/SC/0404/1962 (Supreme Court of India, 14 March 1962), in which the Court stated that ‘[b]efore a party can complain of an infringement of his fundamental right to hold property he must establish that he has title to that property and if his title itself is in dispute and is the subject of adjudication in proceedings legally constituted, he cannot obviously put forward any claim based on his title’, cited in Mahendra Pal Singh, V.N. Shukla's Constitution of India (12th edn, Eastern Book Co 2013) 354.
- 33.
See BVerfGE 125 (Bundesverfassungsgericht, 9 February 2010—Hartz IV), pp 175–260, http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2010/02/ls20100209_1bvl000109.html (last accessed on 28 June 2020).
- 34.
See Anne Lenze, Sind die neuen Hartz-IV-Sätze verfassungskonform?, Neue Zeitschrift für Verwaltungsrecht (NVwZ2011) 1104.
- 35.
Robinson cites the RTI Assessment & Analysis Group & National Campaign for People’s Right to Information, who have found that only 30 per cent of rural and only 15 per cent of the urban applicants belonged to the economically weaker class of society: see RTI Assessment & Analysis Group & National Campaign for People’s Right to Information, Safeguarding the Right to Information. Report of the People's RTI Assessment 2008. Executive Summary, 2018, http://freedominfo.org/documents/india-safeguarding-executivesummary.pdf accessed 28 June 2020 8–9, cited in Robinson (n 11) at 344.
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Matthey-Prakash, F. (2021). Public Interest Litigation and Grievance Redressal: Combining ‘Macromanagement’ and ‘Micromanagement’ for Effective Socio-Economic Rights Adjudication. In: John, M., Devaiah, V.H., Baruah, P., Tundawala, M., Kumar, N. (eds) The Indian Yearbook of Comparative Law 2019. The Indian Yearbook of Comparative Law. Springer, Singapore. https://doi.org/10.1007/978-981-16-2175-8_14
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