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Analysis of the article:



By Rehan Abeyratne

This article through its vast research and analysis has tried to ascertain the legitimacy of the
Constitution with regard to Socioeconomic Rights.

After reading this article and understanding the conflicts in view, I have reached to a
conclusion that is same to that of the author of this article, which I would like to explain
through the paragraphs that follow,

The fact that there has been a drastic change with regard to Supreme Courts’ scope of control
and functioning of socio-economic-political issues in the country is something that none of us
can deny but the way that the same has been done, is problematic and questionable.

The Constitution adopted in 1950 had a clear demarcation of justiciable and non-justiciable
rights in the form of Fundamental Rights mentioned in Part III and Directive Principles of
State Policy mentioned in Part IV of the constitution; where the former based on the
Rawlsian Principle of Liberal Legitimacy comes under the ambit of “constitutional
essentials” i.e. the first principle and the latter comes under the ambit of “distributive policy
on the society” i.e. the second principle.

Rawls here clearly notes that at the “stage of the constitutional convention”, only the first
principle is applied as “it is more urgent” and forms the premise while the second principle is
less important as it deals with the framing of socio-economic policies to attain the goals of
first principle and hence, can be left to the legislature itself. And the same was the intention
of the framers of the constitution where after months of deliberations and discussions, the
words “due process” was removed so as to restrict the interference of the judiciary into the
legislative framework.

From the time where the Supreme Court could just entertain cases related to violation of
Fundamental Rights without enforcing the Directive Principles of State Policy to the present
time where the powers of Supreme Court are not only limited to adjudicating cases of
violation of Fundamental Rights and the Directive Principles of State Policy but also
policymaking and enforcement of the same by the states, a great shift is noticeable.

This change is debatable keeping in mind the Constitutional Provisions of Article 32 and
Article 37 where the Supreme Court has been given the power to check violation of
Fundamental Rights but to not take into consideration the enforcement of Directive Principles
respectively. The shift is because of the expansive interpretation of Article 21 of the
Constitution in various case laws by the Honorable Supreme Court of India, starting from the
Maneka Gandhi case where the court ruled that Right to Life also includes right to live with
dignity which in turn includes right to food, health, medical care, housing etc as they are the
means to the end of living in a dignified manner.

The changes have both been substantive and procedural and in the present status quo, the
Supreme Court has no area left untouched from its ambit and includes policymaking also.

The article states that this change to be legitimate constitutionally should clear two types of
objections, namely Democratic Objection and Contractarian Objection.

DEMOCARTIC OBJECTION as explained means that this judicial activism through judicial
review and widened power scope leads to judicial overreach and judicial supremacy over the
other element of the state, that is, the legislature. The court by both substantive and
procedural changes has intruded the area where the legislature was to function solely i.e.
policymaking which is not the function of a judicial body. However, Rawls tries to defend the
system of Judicial Review saying that the necessity of the same depends on the historical and
cultural background of the country in question and as per my analysis, it is for the good for a
country like India where all socio-economic welfare schemes have negligibly benefitted the
rightful beneficiaries because of bribery, corruption and other such malpractices. But on the
whole, there is no denying that there is a democratic objection that can be rightfully raised.

CONTRACTARIAN OBJECTION as explained means that a citizen will only agree to abide
by the provisions of the constitution and to be governed by the same if that rationale citizen
reasonably understand all its terms. The Court here has been able to justify the procedural
changes as being important to attain all fundamental rights but has not been able to justify the
substantive change, that is, derailment from Article 37 which unlike Article 32 is not
ambiguous and can be interpreted beyond imagination. Thus, the same does not appeal the
normal human reasoning of the citizens and hence, the objection questioning the legitimacy
of the constitution stands. Supreme Courts’ work through such extensive powers may have
done good to the public thereby, making the Court popular among the masses but the failure
of fulfilling the onus on the Court to explain and give clear reasons is something that cannot
be ignored.

To conclude, The Supreme Court has tried to explain to us through various case laws as to
how Part IV of the constitution is dependent on Part III of the constitution and hence, can be
realized through Article 32 of the Constitution but has not clearly explained to us the
reasoning behind the existence of the contrary provision of Article 37 of the Constitution.

All these objections thereby rightly stand and the debate regarding the legitimacy of the
constitution is answered negatively.