Academia.edu no longer supports Internet Explorer.
To browse Academia.edu and the wider internet faster and more securely, please take a few seconds to upgrade your browser.
2013, South Asian Studies A Research Journal of South Asian Studies Vol. 28, No. 2, July – December 2013, pp. 329-340
The Constitutions of India and Pakistan guarantee justiciable human rights and incorporate the Directive Principles of State Policy. Fundamental rights are justifiable through courts, while the principles of policy enjoy immunity from judicial interference. Right to education was constitutionally recognized as one of the principles of policy, not as a fundamental right in both countries. Although its status was earlier elevated from the directive principles of state policy to a fundamental right, owing to judicial activism, however, it was incorporated by a Constitutional Amendment in the Indian Constitution under Article 21-A. While in Pakistan, it was the 18th Amendment of the Constitution which elevated it to the status of a fundamental right. Resultantly, now it is subject to judicial review, under newly inserted Article 25-A. Now, the governments are obliged for its provision to all children, aging from five to sixteen years. Learning a lesson from the Indian recognition, Pakistan must cover its distance more swiftly and smartly, instead of wasting time in litigation or enactment of supportive legislation.
Abstract In the last two decades, there has been a remarkable rise in the numbers of economic, social and cultural rights (ESC rights) decisions issued by judicial bodies. However, in many jurisdictions there are some or many judgments that remain unimplemented. While some of these cases have resulted in broader and indirect impacts despite non-implementation, the lack of enforcement poses not only an issue for the victims affected but also consequences for those who promote the relevance and impact of human rights law as a useful framework for ensuring economic and social justice. Another emerging trend is that some of the judgments are now yielding more complex remedies which have been expected when positive obligations of ESC rights are involved. In lights of these developments, there is a need to better understand the reasons for implementation or non-implementation of particular decisions, how impact is maximized and what strategies have been most effective in this regard. An important step in addressing these challenges is to analyze the reasons for implementation or non-implementation of particular decisions - is it the character of the cases (e.g., negative or positive obligations), the legal framework and judicial structure, political variables or the identity of the applicants and civil society partners. Equally, it is important to analyze what strategies have worked in different contexts to ensure implementation. This work will depict discourse on conceptual and empirical issues with discussion on feasible strategies for promoting the implementation of ESC rights. This article commends the concise and useful analysis of courts and the legal enforcement of economic, social and cultural rights. Yet, in order to complete the picture, a broader analysis of the enabling conditions for litigation and of the social and political impact of judicial activity in this field is required.
22 (2) Indiana Journal of Global Legal Studies (IJGLS symposium on Law and the Globalization of Austerity)
“Legislating safety nets: Comparing recent social protection laws in Asia”2015 •
In recent years, several Asian countries have begun moving away from patchwork welfare programmes, towards providing more comprehensive social protection. This is a significant shift in a region where social welfare has not been politically popular, and the family has traditionally absorbed the burden of supporting the young, the old and the ailing. Two of these states – India and Indonesia – have put new social protection initiatives into law, rather than simply formulating executive policy. In this article, I examine recent social protection laws in both countries. I look in particular at India’s National Food Security Law, passed in 2013, and Indonesia’s laws on the National Social Security System, passed in 2004 and 2011. These laws deserve attention because they aim not just to extend benefits, but to advance economic and social rights, which are recognised in both India and Indonesia at the constitutional level. These recent social protection laws potentially deepen what Brinks & Gauri describe as the “legalization” of welfare policy, whereby legal rights assume importance in policy, and legal professionals, judges in particular, become significant in implementing it. As such, these laws are likely to, and arguably should, impose quite hard-edged obligations on the government and enable individuals to hold the government to its obligations. At the same time, recent social protection laws have the potential to allay concerns that legal enforcement of economic social rights distorts policy and dilutes the separation of powers. Through my analysis, I show that social protection laws in both India and Indonesia have primarily expanded the policies that preceded them, rather than fundamentally restructuring how particular forms of social protection are delivered. Further, none of these laws define the socio-economic rights underlying them in a detailed, substantive manner, creating rights that are minimal and definite, or broad but weak. I go on to argue that despite gaps, flaws and missed opportunities, these laws – with the sum of rights, remedies and accountability mechanisms they contain – have made the rights to food and social security more stable, and are likely to make them more accessible to individuals.
Loading Preview
Sorry, preview is currently unavailable. You can download the paper by clicking the button above.
Economic, Social and Cultural Rights in South Asia: Justiciability and Beyond
Economic, Social and Cultural Rights in South Asia: Justiciability and Beyond2017 •
International Journal of Constitutional Law
India: Constitutional amendment making the right to education a Fundamental Right2004 •
2019 •
Policy Research Working Papers
Education, Labor Rights, And Incentives : Contract Teacher Cases In The Indian Courts2010 •
Strategic Litigation Impacts: Equal Access to Quality Education
strategic-litigation-impacts-education-20170322.pdf2017 •
2020 •
Sri Lanka Journal of International Law
The Protection and Promotion of Religious Rights: A Commonwealth Survey2000 •
Accountability from a human rights perspective: The incorporation and enforcement of the right to education in the domestic legal order
Accountability from a human rights perspective2017 •
Social Science and Policy Bulletin, LUMS
Politics of Public Interest Litigation in Pakistan2011 •
Comparative Constitutional Law and Administrative Law Quarterly
FUNDAMENTAL RIGHT TO FREE PRIMARY EDUCATION IN INDIA A Critical Examination of Society for Unaided Private Schools of Rajasthan v. Union of India2014 •
2010 •