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7/29/2019 Seminar Paper on Constitution
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DIRECTIVE PRICIPLE OF STATE POLICY AND
JUDICIAL PROCESS
PRASHANT KUMAR VERMA
RISHABH SINGH
1ST YEAR (2ND SEMESTER)
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY
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TABLE OF CONTENT
I. OBJECTIVES
II. INTRODUCTION
III. JUDICIARY WITH SOCIAL SOCOIALIST PRINCIPLE
AND JUDICIARY
IV. CAN JUDICIARY SAVE OR PROTECT GANDHIAN
PRINCIPLE
V. SEPERATION OF JUDICIARY FROM EXECUTIVE
VI. RESULTS AND CONCLUSION
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OBJECTIVES
To study the amendments in part IV of our Indian constitution i.e. 42 nd amendments dealing
with Protection and improvement of environment and safeguarding of forests and wild life inarticle 48-A. Article 45, which ensures Provision for free and compulsory education for
children, was added by the 86th Amendment Act, 2002.
To examine the social action litigation process and judicial restraint in India and the validity
of Gandhian principles in the present India.
To scrutinise article 50 which talks about independence of judiciary from executive and the
village administration in India khap panchayats in north India and katta panchayats in
south India and the related article 40 to it.
To analyse the measures taken by judiciary and government to implement directive principle
of state policy, the State has made many efforts to implement the Directive Principles. The
Programme of Universalisation of Elementary Education and the five year plans has been
accorded the highest priority in order to provide free education to all children up to the age of
14 years. The 86th constitutional amendment of 2002 inserted a new article, Article 21-A,
into the Constitution, that seeks to provide free and compulsory education to all children aged
6 to 14 years. Welfare schemes for the weaker sections are being implemented both by the
Central and state governments. These include programmes such as boy's and
girl's hostels forscheduled classs orscheduled tribes students. The year 1990-1991 was
declared as the "Year of Social Justice" in the memory of B.R Ambedkar.
http://en.wikipedia.org/wiki/Constitution_of_India#amendmentshttp://en.wikipedia.org/wiki/Five-Year_Plans_of_Indiahttp://en.wikipedia.org/wiki/Education_in_Indiahttp://en.wikipedia.org/wiki/Hostelhttp://en.wikipedia.org/wiki/Scheduled_tribeshttp://en.wikipedia.org/wiki/Scheduled_tribeshttp://en.wikipedia.org/wiki/Scheduled_tribeshttp://en.wikipedia.org/wiki/Scheduled_tribeshttp://en.wikipedia.org/wiki/Hostelhttp://en.wikipedia.org/wiki/Education_in_Indiahttp://en.wikipedia.org/wiki/Five-Year_Plans_of_Indiahttp://en.wikipedia.org/wiki/Constitution_of_India#amendments7/29/2019 Seminar Paper on Constitution
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I. INTRODUCTION
Directive principles of state policy have created and overseen the evolution of public interest
litigation in India. Directive principles of state policy present a strong defence for public
interest litigation model as an instrument for the delivery of fair and equitable justice,
resistant to governmental apathy as well as economic and social privilege.The concept of PIL is in consonance with the objects enshrined in article 39A of the
constitution to protect and deliver prompt social justice with the help of law. It provides an
account of the evolution of Indias constitutional courts, and particularly the Supreme
Courts, role prior to the emergence of public interest litigation. It discusses the nomenclature
of social action litigation and characterizes its evolution as unique and indigenous,
distinguishable from the practice of public interest law in the United States of America. The
obstacles faced by this radical new form of preserving social and economic rights are also
examined. Supreme Courts approach to increasing access to justice and overcoming these
impediments, especially through procedural innovations such as broadened locus standi and
non adversarial, investigative proceedings using court appointed investigative commissions
and amicus curiae. Even as it recognizes the possibility of misuse of social action litigation, itconcludes with a strident defence of judicial activism and of social action litigation as a
means for bringing the promise of justice to the ordinary and disempowered.
Blessed are they who hunger and thirst for justice, for they
Shall have their fill.
The Eight Beatitudes, the Bible
Directive principles can be a clear statement of social revolution. It helps a country like India
to be a welfare state and not merely a police state.
Judicial process has a very deep link into it. The inclusion of such instruction proposed thatwhoever captures power will not be free to do whatever he likes with it, he cannot ignore
them and shall have to answer for their breach in court of law. But he will certainly have to
answer before the electorate at election time.
The Indian judiciary, especially at the level of the Supreme Court and the High Courts, has
for long been concerned with the concept and practice of justice. What constitutes justice and
for whom? How do we truly achieve the laudable constitutional precepts that no one is
above the law and that all persons are entitled to the equal protection of the law? How do
we cope with the problem that in principle, all persons are equal under the law but in
reality, some are more equal than others?
One of the key features for attaining true justice is by freeing judiciary from the influence of
executive and legislature which is the basic structure of the constitution (article 50).
Separation of judiciary from executive:
The framers of the Constitution did not and could not have meant by a "judicial office" which
did not exist independently and the duties or part of the duties of which could be conferred on
any person whether trained or not in the administration of justice. The Directive Principles as
enshrined in Article 50 of the Constitution, give a mandate that the State shall take steps
to separate the judiciary from the executive which means that there shall be aseparate judicial
service free from the executive control. Chapters V and VI in part VI of the Constitutionprovide for the High Courts and subordinate courts in the State. The scheme under the
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Constitution for establishing an independent judiciary is very clear. The Constitution-scheme,
therefore, only permits members of the judicial service as constituted in terms of Article
236(b) of the Constitution to be considered for the post of District judge and that of the High
Court Judge.
Directive principles of state policy were also framed keeping in mind local administrationand people, in a country like India where most of the people in 1950s as well as in 21st
century still depend on agriculture judicial process should be very smooth and transparent in
village panchayats were most of the people are not aware of their rights. Framers of our
constitution by adding article 40 which advocates for organisation of village panchayats
according to which state shall take steps organise village panchayats and them with such
powers and authority as may be necessary to enable them to function as units of self
government.
Thus, the areas concerns for judiciary in directive principles of state policy are:
Social action litigation (article 39A) Separation of judiciary from executive (article 50)
Uniform code for citizens (article 44) Socio-economic justice (article 38) Gandhian principles (article 40 and 47)
II. JUDICIARY WITH SOCIAL WELFARE
Social welfare comes from the satisfaction of the public; we can relate social welfare to
Benthams theory of maximum happiness. What is Justice? It can have different meaning for
different people but the most common answer is satisfaction, if the individual or the masses
get satisfied from decision made by judiciary they feel that they have got justice.
Beginning with the first few instances in the late-1970s, the category of Public InterestLitigation (PIL) has come to be associated with its own people-friendly procedures. The
foremost change came in the form of the dilution of the requirement of locus standi for
initiating proceedings. Since the intent was to improve access to justice for those who were
otherwise too poor to move the courts or were unaware of their legal entitlements, the Court
allowed actions to be brought on their behalf by social activists and lawyers 1. In numerous
instances, the Court took suo motocognizance of matters involving the abuse of prisoners,
bonded labourers and inmates of mental institutions, through letters addressed to sitting
judges. This practice of initiating proceedings on the basis of letters has now been
streamlined and has come to be described as epistolary jurisdiction.
Public Interest Litigation (PIL), the nature of proceedings itself does not exactly fit into theaccepted common-law framework of adversarial litigation. The courtroom dynamics are
substantially different from ordinary civil or criminal appeals. While an adversarial
environment may prevail in cases where actions are brought to highlight administrative
apathy or the governments condonation of abusive practices, in most public interest related
litigation, the judges take on a far more active role in the literal sense as well by posing
questions to the parties as well as exploring solutions. Especially in actions seeking directions
for ensuring governmental accountability or environmental protection, the orientation of the
proceedings is usually more akin to collective problem-solving rather than an acrimonious
contest between the counsels. Since these matters are filed straightaway at the level of the
1Refer: Susan D. Susman, Distant voices in the Courts of India: Transformation of standing in
Public Interest Litigation, 13 Wisconsin International Law Journal57 (Fall 1994)
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Supreme Court or the High Court, the parties do not have a meaningful opportunity to present
evidence on record before the start of the court proceeding. To overcome this problem, our
Courts have developed the practice of appointing fact-finding commissions on a case by-
case basis which are deputed to inquire into the subject-matter of the case and report back to
the Court. These commissions usually consist of experts in the concerned fields or practicing
lawyers. In matters involving complex legal considerations, the Courts also seek the servicesof senior counsels by appointing them as amicus curiae on a case-by-case basis.2
One of the earliest cases of public interest litigation was reported as Hussainara Khatoon v.
State of Bihar3. This case was concerned with a series of articles published in a prominent
newspaper - the Indian Expresswhich exposed the plight of under trial prisoners in the state
of Bihar. A writ petition was filed by an advocate drawing the Courts attention to the
deplorable plight of these prisoners. Many of them had been in jail for longer periods than the
maximum permissible sentences for the offences they had been charged with. The Supreme
Court accepted the locus standi of the advocate to maintain the writ petition. Thereafter, a
series of cases followed in which the Court gave directions through which the right to
speedy trial was deemed to be an integral and an essential part of the protection of life and
personal liberty.
It needs to be recognized that there will inevitably be opposition from affected quarters to the
strategy of social action litigation. Such criticism may be blatant or subtler4. They may come
from expected quarters or unexpected ones including from within the judiciary itself. An
example of this may be seen in the judgement of a two-judge bench of the Supreme Court
speaking through Katju, J.while setting aside a High Court judgement (which had directed the
State to regularize the plaintiff gardener as a truck driver since he had been working in that
capacity for the past 10 years)5. The two-judge bench then went on to make gratuitous
comments on the role of the judiciary and on the supposed limitations of public interest
litigation in India. These were questions not arising for determination in that case. As long as
forty years ago, the Supreme Court rightly prescribed that, Obiter observations and
discussion of problems not directly involved in any proceeding should be avoided by courts
in dealing with all matters brought before them, but this requirement becomes almost
compulsive when the Court is dealing with constitutional matters. Blithely ignoring this
sound directive, the two-judge bench went on to pronounce upon the supposed limitations of
public interest litigation. Even worse, the two-judge bench went on to criticize two
judgements delivered by a three-judge bench (in Jagadambika Pals caseof 19986, and the
Jharkhand Assemblycaseof 20057) calling those judgments glaring examples of deviations
from the clearly provided constitutional scheme of separation of powers. This strain of
criticism of judicial activism as articulated in judgement of Katju, J., as such is untenable.
Courts have been consistent in granting relief in social action litigation cases relating tolabour, to victims of custodial violence, and to victims of the excesses committed by the
2Ashok H. Desai & S. Muralidhar, Public Interest Litigation: Potential and Problems in
B.N. Kirpal et. al. (eds.), Supreme but not Infallible (OUP, 2000) 159-192, at p. 164-1673(1980) 1 SCC 81; See Upendra Baxi, The Supreme Court under trial: Under trials and the
Supreme Court, (1980) Supreme Court Cases(Journal section), at p. 354
Balakrishnan Rajagopal, Pro-Human Rights but Anti-poor? A Critical Evaluation of theIndian Supreme Court from a Social Movement Perspective, 18 (3) Human Rights Rev. 157
(2007).5Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683. Rajindar
Sachar, Judicial Power - No Tinkering Please, 199 Asian Centre for Human Rights (ACHR)
Weekly Review 1 (2007).6Jagdambika Pal V. Union of India (1999) 9 SSC 95
7Jharkhand Party v. State of Jharkhand, (2005) 2 BLJR 1559.
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executive. Since previously the targets of the Courts orders were comparatively junior
officials, and certainly not prominent politicians, the issue of judicial activism were not raised
by the executive. The present charge of alleged interference by the courts has only now begun
to emerge, as those who wield political and economic power are beginning to be threatened
by the impact of social action litigation8. In this context, Justice Sachar maintains that: It
will thus be amply clear that the judiciary (barring some rare escapades) as mentioned in thetwo-judge judgment is aware of its precise role in the constitutional set up. So when
seemingly interested people, mostly politicians, accuse it of overstepping its constitutional
limits, the anger is borne more out of frustration at their own partisan actions being
challenged before the judiciary rather than the usurpation of power and jurisdiction by the
courts.
III. SOCOIALIST PRINCIPLE AND JUDICIARY
Socio-economic rights exist with deep dilemmas and live a life of contradictions. On the one
hand, the states support socio-economic rights and ostensibly give them equal status and onthe other hand, they fail to constitutionally entrench those rights. One reason behind this non
entrenchment is the economic rationale that pleads lack of resources. The other and more
striking reason is that in the political theory rooted in principles of enlightenment (that the
individuals primary need is for liberty ) the concept of rights serves only a two-fold purpose
to legitimate government and to control it. Thus, welfare rights/socio-economic rights
featured as mere moral precepts and the poor had no rightto be free from want (and) the
purposes of government were police and safeguard, not to feed and clothe and house. The
difference between classical liberty rights and socio-economic rights is that liberty rights
reflect an individualist political philosophy, that prizes freedom and welfare rights,
acommunitarian or collectivist one that is willing to sacrifice freedom. This distinctness is
also described as difference between freedom from (interference by others) and freedom
to (various things regarded as necessities), wherein the obligation to supply those things is
distributed among all tax payers. The countries thriving on hard capitalism no doubt support
the negative rights of right to property and contract, and wipe their hands clean off the
positive obligations that include ensuring food security, subsidized housing. All the organs of
state (judiciary included) treat them with unusual apathy and indifference.
The judiciary, especially, looks oblivious of its role to effectuate, if not enforce, these
rights. The Constitution of India is especially sensitive to the socio-economic rights, as DPs
have not been completely constitutionally de-recognized. The legislature could carry out
large-scale agrarian reforms, abolish privy purses and nationalize industry only because of
the group rights recognized in Part IV; but in the contemporary era of liberalization, thesocialistic principles and socio-economic rights of the deprived masses have been forgotten to
secure the trade, business , occupation and property of a few elite. In this scenario, when the
state is failing to apply and implement them, the role of judiciary with respect to Part IV
becomes extremely important.
The primordial importance of these socio economic principles and judiciary can be
understood by the following words of Dr. B.R Ambedkar, when he insisted on the use of the
word strive in the language of Article 38 which mentions the governmental objective of an
equitable distribution of material resources:
8Prashant Bhushan, Supreme Court and PIL: Changing Perspectives under Liberalisation 39
EPW 194 (2004).
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We have used it because it is our intention that even when there are circumstances which
prevent the Government, or which stand in the way of the Government giving effect
to these directive principles, they shall, even under hard and unpropitious
circumstances, always strives in the fulfilment of these directives. Otherwise it would
be open for any Government to say that the circumstances are so bad, that the finances
are so inadequate that we cannot even make an effort in the direction in which theConstitution asks us to go. [Constituent Assembly Debates, 19-11-1948]
Thus, the enforceability of measures relating to social equality though incorporated in
aspirational terms was never envisaged as being dependent only on the availability of state
resources. In some instances, the Courts have privileged fundamental rights over directive
principles while in others they have creatively drawn a harmonious relationship between the
two. An example of this is the expansion of the conception of personal liberty underArticle
21 of the Constitution which was traditionally invoked in the civil political context to check
governmental abuses. The judicially expanded understanding of the same now includes
several socio-economic entitlements for citizens which place positive obligations on the state.
What is interesting is that the reading in of these socio-economic entitlements by judges has
often directly referred to the language of provisions contained in the part dealing withdirective principles. In this sense, judicial creativity has transformed the substantive character
of the protection of life and liberty. Article 21 of the Constitution of India reads as follows:
No person shall be deprived of his life or personal liberty except according to procedure
established by law. The interpretation of this article in the early years of the Supreme Court
was that personal liberty could be curtailed as long as there was a legal prescription for the
same. In A.K Gopalans case, the Supreme Court had ruled that preventive detention by
state agencies was permissible as long as it was provided for under a governmental measure
(e.g. legislation or an ordinance) and the Court could not inquire into the fairness of such a
measure. It was held that the words procedure established by law were different from the
substantive due process guarantee provided under the 14th amendment to the US
Constitution. It was also reasoned that the framers of the Indian Constitution consciously
preferred the former expression over the latter. This narrow construction of Article 21
prevailed for several years.
IV.CAN JUDICIARY SAVE OR PROTECT GANDHIAN PRINCIPLE
Our father of nation suggested someprinciples for our country which were to be followed asthe guidelines but at this moment they stand nowhere. The death of 143 people after
consuming toxic alcohols in 24 Parganas district of West Bengal speaks about the sad
position of these principles in our country. No strict laws are made for it nor government ofIndia are taking necessary steps to stop these activities. The only good consequences of
allowing consuming of alcohol are that it increases tax collection of the government and
increase in making more liquor barons such as Ponty Chadha.
The most suitable criticism of directive principles of state policy is that these are not
justiciable or enforceable it is very sad that these are taken only as moral principles but
cannot be implemented. In a country where most of the people try to imitate actors and
actresses of film, Delhi high court gave a good and noble decision to prohibit the display of
tobacco product in film and television programme but the Supreme Court put an interim stay
on the Delhi High Court's judgment.
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Union of India appealed a Delhi High Court decision finding certain sections of the Ministry
of Health and Family Welfare's rules to implement India's tobacco control
law unconstitutional in Mahesh Bhatt case.9This is how our judicial process works.
Good administration in village panchayat is what all about written in article 40, but in
practical life there are the good khap panchayats and the bad khap panchayats.The good ones
ban female foeticide. The bad ones sanction honour killings. This is how justice granted topeople at village level. The Supreme Court in a judgement termed Khap panchayats as
kangaroo courts and declared them illegal. The Supreme Court ruling said that Khap
panchayats are wholly illegal and have to be ruthlessly stamped out .A bench of justices
Markandeya Katju and Gyan Sudha Mishra said in a judgement that the new trends of
kangaroo courts, honour killings, khap panchayats in northern India and "katta" panchayats
in Tamil Nadu were barbaric and illegal, the perpetrators of which required the harshest
punishment. Terming honour killings as shameful, the apex court said, There is nothing
honourable in honour killing or other atrocities and, in fact, it is nothing but a barbaric and
shameful murder. Atrocities with respect to personal lives of people, committed by brutal,
feudal minded persons deserve harsh punishment. In his report to the Supreme Court Raju
Ramachandaran, Senior Advocate appointed by the Court to assist it in PILs against KhapPanchayats has called for arrest of "self styled" decision makers and proactive action by the
police to protect the fundamental rights of the people. It also asked for the recommendations
being converted as directions to all States and the Union, till a law is enacted by the
Parliament.
V.SEPERATION OF JUDICIARY FROM EXECUTIVE
Why do we need Separate Judiciary?
In order to promote accountability of government, hinder corruption and protect thefundamental freedoms of citizens from the will of the government of the day, it is essential to
keep separate the Parliamentspower to make laws, from the Executives power to administer
laws, and from the Judiciarys power to hear and determine disputes according to the law.
This separation is designed to protect the people from a concentration of power, and the
ability of individuals or groups to manipulate government for personal gain and to ignore the
will of the people
A true separation of government powers is essential to ensure the accountability of
government, hinder corruption and protect the fundamental freedoms of citizens against the
will of the government. Each branch of government must be, and be seen to be, free to act as
a check and balance on the other without fear or interference. There are three distinct
activities in every government through which the will of the people are expressed. These arethe legislative, executive and judicial functions of the government. Corresponding to these
three activities are three organs of the government, namely the legislature, the executive and
the judiciary. The legislative organ of the state makes laws, the executive enforces them and
the judiciary applies them to the specific cases arising out of the breach of law. Each organ
while performing its activities tends to interfere in the sphere of working of another
functionary because a strict demarcation of functions is not possible in their dealings with the
general public. Thus, even when acting in ambit of their own power, overlapping functions
tend to appear amongst these organs. The question which assumes significance over here is
that what should be the relation among these three organs of the state. Whether there should
be complete separation of powers or there should be co-ordination among them.
9Union of India v. Mahesh Bhatt, SLP (Civil) 8429-8431, Supreme Court of India (2009).
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The executive has also resorted to them while justifying its (executive) actions. For instance,
in the case of Champakam Doriarajan10, while defending the communal order, of the Madras
government, the plea was taken that it was done to promote the interest of the weaker
sections of the society as per Directive Principle of the State Policy provided in Article 46 of
the constitution of India. It was the first major verdict regarding reservations in Republic of
India. In its ruling the Supreme Court upheld the Madras High Court verdict, which in turnhad stuck down the Communal Government Order (G.O) passed in 1927 in the Madras
Presidency.
In India, Judges of the Supreme Court and High Courts are appointed by the Executive. The
appointing authority is the President of India, who acts on the advice of the Council of
Ministers. But the President is required to consult the Chief Justice of Supreme Court at the
time of making such appointments. This principle of nominating of the judges by the
Executive from among the legal experts and practitioners is more acceptable than the other
systems. The executive nomination of the judges is done with adequate safeguard. Part IV of
the Indian Constitution deals with the topic of Separation of Judiciary from executive.
The object of Article 50 of the Constitution was that there should be separation of the
judiciary from the executive so that there may be an independent judiciary in which alone thepublic can have confidence. This view is also supported by the decision of the Supreme Court
in State of Maharashtra v. Labour Law practitioner's Association and others, AIR 1998 SC
1233.Judiciary is respected by the people because we have maintained an independentjudiciary whereas in countries under Dictatorship or Military Governance, there is not even
semblance of judiciary what to say of Independent judiciary, e.g., in our neighbouring
country and the judiciary is not respected in such countries by its own people because the
Judges there merely follow the dictates of the rulers in such regimes and hence, do not inspire
confidence of the public.
VI.RESULTS AND CONCLUSION
In a survey conducted by World Bank in 2011 on enforcing contracts: Resolving commercial
disputes through the courts India ranked 182 in enforcing contracts just behind a country
called Timor and takes 1420 days during trial .An interesting fact is that cost of claim is
39.6% i.e., for an individual to get justice he has to bear an expense of 39.6% of his principal
amount. It is a matter of deep concern for a country like India which is living in a dream of
becoming superpower in 2020.Without rendering justice to the citizens of the country how
can a country can grow. Judiciary is an indispensable part in a functioning of the state.
This survey gives us the picture of how our judicial process is and where the article 39 stands
in the present India. If judges devise strategies to enforce the directive principles, it amounts
to an intrusion into the legislative and executive domain. It is reasoned that the articulation of
newer fundamental rights is the legislatures task and that the judiciary should refrain from
the same. Furthermore, it is posed that executive agencies are unfairly burdened by the costs
associated with these positive obligations, especially keeping in mind that these obligations
were enumerated as directive principles by the framers on account of practical considerations.
10State of Madras v. Champakam Dorairajan (AIR 1951 SC 226)
http://en.wikipedia.org/wiki/Reservation_in_Indiahttp://en.wikipedia.org/wiki/Republic_of_Indiahttp://en.wikipedia.org/wiki/Republic_of_Indiahttp://en.wikipedia.org/wiki/Madras_High_Courthttp://en.wikipedia.org/wiki/Madras_Presidencyhttp://en.wikipedia.org/wiki/Madras_Presidencyhttp://en.wikipedia.org/wiki/Madras_Presidencyhttp://en.wikipedia.org/wiki/Case_citationhttp://en.wikipedia.org/wiki/Case_citationhttp://en.wikipedia.org/wiki/Madras_Presidencyhttp://en.wikipedia.org/wiki/Madras_Presidencyhttp://en.wikipedia.org/wiki/Madras_High_Courthttp://en.wikipedia.org/wiki/Republic_of_Indiahttp://en.wikipedia.org/wiki/Republic_of_Indiahttp://en.wikipedia.org/wiki/Reservation_in_India7/29/2019 Seminar Paper on Constitution
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This criticism mirrors the familiar philosophy of judicial restraint when it comes to
constitutional adjudication.It can be argued that the expansion of justiciability to include rights that are difficult to
enforce takes away from the credibility of the judiciary in the long-run. The judicial inclusion
of socio-economic objectives as fundamental rights can be criticised as an unviable textualexercise, which may have no bearing on ground-level conditions. In turn the unenforceability
and inability of state agencies to protect such aspirational rights could have an adverse effect
on public perceptions about the efficacy and legitimacy of the judiciary.