Socioeconomic rights, human dignity, and constitutional legitimacy in India

This chapter has sought to examine the concept of human dignity in Indian constitutional law, with a focus on socioeconomic rights. It set forth two non-substantive objections to the Indian Supreme Court's jurisprudence in this area: a democratic objection and a contractarian objection. While the first objection can arguably be overcome in light of India's history and political dysfunction, the second objection is more problematic. Two aspects stand out: (1) the Court has located the enforced socioeconomic rights in the Indian Constitution using the explicitly non-justiciable directive principles and, in some cases, has declared new rights that do not even appear in the directive principles (like the right to sleep); and (2), the Court has not established a standard of review in these cases to judge the constitutionality of socioeconomic schemes, As a result, Indian citizens cannot know with any clarity or certainty how the court might rule in future cases on socioeconomic rights. This seriously threatens the Constitution's legitimacy. This threat is exacerbated by the inconsistency in the Courts' fundamental rights jurisprudence, where, as in the recent Naz Foundation judgment, it trumpets the importance of judicial restraint and the presumption of constitutionality in response to prima facie violations of core fundamental rights.