In 2010, the Delhi High Court issued a landmark ruling on the right of poor women to access maternity benefit schemes. The case involved Fatema, a woman suffering epilepsy, who went into labor in May, 2009. Although Fatema’s mother went to the hospital to request an ambulance and assistance, as the baby girl was also suffering an epileptic seizure, she was turned away.
The Court held that, "(f)or the violation of the fundamental rights of Fatema by being compelled to give birth to Alisha under a tree which is only on account of the denial of basic medical services to her under the various schemes, the MCD and the GNCTD will jointly and severally be liable to pay her compensation in the sum of Rs 50,000 within a period of four weeks from today." Recently, the Indian Supreme Court upheld this approach, holding that 40 private, state-of-the-art hospitals in Delhi were required to provide free treatment for poor patients.
Judicial interventions like this are increasingly common. Over the past three decades, courts around the world have become ever more involved in what were previously considered purely political matters: policy making has become increasingly judicialized. This is also true in the area of development, especially in social policy, where there has been a sharp increase in judicial enforcement of what were once merely nominal constitutional rights.
In Colombia, the courts hear and largely support tens of thousands of cases a year on demands for medications and health care services (over 140,000 in 2008). In 2008 it issued a landmark ruling directing the government to develop a more equitable health financing scheme. In the Brazilian state of Sao Paulo alone, over 10,000 patients were receiving drugs ordered by courts in 2005. The South African courts famously challenged the HIV/AIDS policies under President Mbeki, directing a reluctant state to begin to provide anti-retrovirals. In Indonesia, the Constitutional Court ordered the government comply with a constitutional requirement that specifies that the government devote 20% of its expenditures to education, contributing to an increase in education’s share from 7% to nearly 12% over the next few years (and eventually 20%, once the definition of the numerator changed). The Hungarian Constitutional Court struck down a structural adjustment loan agreement that the executive had made with the International Monetary Fund and the World Bank. It would not be difficult to multiply examples of this judicialization of development policy from many more countries, including the Philippines, Costa Rica, Egypt, Poland, and, certainly, many more from India.
What do we make of this trend? There are a variety of concerns about judicializing development policy, including worries that i) legal rights reduce policy flexibility; ii) judicialization weakens democratic accountability; iii) benefits are captured by those who access courts more readily. There is also the somewhat contradictory worry that iv) judicialization is a fool’s errand because executive branches typically ignore courts, anyway.
In the Indian context, Pranab Bardhan recently expressed this last concern:
Consider India, where courts have been active in taking on public-interest litigation brought by civil-society groups on behalf of the poor and the abused or the victims of environmental degradation. India is already littered with hundreds of unenforced or spasmodically enforced court injunctions, some of them on the implementation of rights. This proliferating judicial activism, egged on by the rights-based movement and the media, may end up, for all its good intentions, undermining the credibility and legitimacy of the judiciary itself.
Bardhan is right in that there is widespread executive branch foot-dragging. For instance, it took many months for Fatema to receive her court-ordered compensation. But if these sorts of cases undermine the legitimacy of the Indian judiciary, it is not evident in the data. The 2006 World Values Survey found a high degree of confidence in the Indian “justice system,” relative to other state institutions. This does not mean, of course, that the Indian judicial system is efficient or free from corruption. The point is that, despite its well-known shortcomings, it remains well-regarded. Furthermore, it is likely that judicial populism of the sort Bardhan describes enhances, rather than undermines, support for the judicial system.
The other worries regarding the judicialization of development policy are real, but they are usually overstated. For instance, it appears to be the case that courts do not typically replace democratic accountability, but supplement it by creating an additional venue for the expression of social and economic demands. The reason for this is that when adjudicating on policy concerns, courts do not usually make final, all-or-nothing decisions; rather, they typically use what Mark Tushnet calls “weak remedies,” including orders that government agencies explain their reasoning, present plans to comply with their previous commitments, or that committees resolve factual controversies and oversee implementation plans. Often (but not always), these remedies have the effect of enhancing the deliberative quality of democratic decision-making and improving the quality of information available to policy makers.
On the question of their distributive impact, the important point to note is that while the direct beneficiaries of individual claims for basic services are likely to be those with the resources to get into court, the overall impact of these individual demands cases (such as the medications cases in Colombia and Brazil) is much smaller than cases that involve regulation (such as the Delhi air pollution case), the abstract review of legislation (such as the Colombian Constitutional Cout’s review of health care financing), and substantial precedent (such as the South African case Khosa, which required the state to provide social grants to resident non-nationals). Overall, outcomes are dominantly weighted to the indirect effects of court cases, and as a result are not that dependent on the initial endowments of the litigants. On balance, then, the policy effects tend to be modestly progressive.
For expanded treatments of these issues, see my own work here and here, but also a new book on litigating health rights, and a review of thousands of social and economic rights court cases around the world.
Like it or not, the judicialization of development policy is on the rise. The goal for development practitioners should be to find ways to make it work better, not to eliminate it.
Photo credit: flickr user afsart