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Since the election of the Bharatiya Janata Party (BJP) to power in the federal elections in India in 2014, the country's performance in key indicators of democratic quality has suffered. Over the course of its two terms in power, the party has sought to subvert key institutions for accountability, enact an ethno-cultural majoritarian electoral agenda, and use federal law enforcement agencies against their political opponents. While there is extensive literature on the erosion of civil-political rights in the past ten years, the effects of the BJP government on social rights like education and healthcare remain under-explored. Therefore, in this post, I explore three striking dimensions of primary educational policy under the BJP government.

The jurisprudence of the Supreme Court of India is generally celebrated in the academic literature for its creative use of constitutional interpretation to read in certain socioeconomic rights into the 'right to life' provision despite their textual absence from the Constitution. However, this line of case law made the obtainment of a judicial remedy highly conditional upon an extant scheme or law, was necessarily piecemeal, deferent to the executive, and incapable of fixing precise accountability upon a violation or addressing issues of systemic material insufficiency. Much of this had to do with the absence of a rights-based legislative framework. The enactment of the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (MGNREGA) and the National Food Security Act, 2013 (NFSA) presented major developments in the livelihood and food security regimes in India, and a leap forward for legislated social rights. These legislations consolidated, expanded and entrenched a number of existing rights which had come into being through judicial decisions. In this paper, I examine the antecedents of social rights in India, and show the afterlife of disagreements over appropriateness, practicality and affordability, which resulted in the adoption of the Directive Principles of State Policy (DPSP) in the Indian Constituent Assembly, persist in legislative design and judicial reasoning. In this paper, I analyse judicial treatment of these laws and propose a novel theoretical framework for better understanding them. The theoretical framework has discursively antagonistic and discursively catalytic components, and sheds light on the inter-branch institutional dynamic which arises when NFSA and MGNREGA based public interest litigation (PIL) is activated. I suggest that such PIL and the kinds of complex, dialogic remedies which result from them have effects in the political, legal, and social fields. These remedies result in a form of hybridized politico-legal accountability that enables the Supreme Court of India to safeguard its institutional capital, while also being able to better engage with concerns such as polycentricity, democratic legitimacy, lack of expertise, federalism, and the separation of powers.

This article concerns remedial design by courts in cases where constitutional rights are jeopardised by a recalcitrant administration. We focus on the recent judgment of the South African Constitutional Court in Bhekindlela Mwelase v Director-General for the Department of Rural Development and Land Reform – in particular its doctrinal innovation in appointing a Special Master to oversee the processing of labour tenant claims by the Department of Rural Affairs and Land Reform. We argue that the case raises both conceptual and practical questions about the relationship between rights and remedies, substantive law, and the separation of powers. We approach these questions after considering the judgment in its socio-political context through a consideration of the factors underlying the granting of the remedy, from both a theoretical and comparative perspective. The paper identifies a set factors that underpinned the Court's decision that will be likely to influence the granting of invasive remedies in future cases. We then apply these factors to the judgment of the Supreme Court of India in the Right to Food Case to better understand the ways they play out in a different jurisdictional context. These factors can provide doctrinal and normative guidance for courts – especially in the so-called Global South – that often operate under conditions of chronic recalcitrance, inattentiveness, inaction, or incompetence of the coordinate branches of government.