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AbstractThe Indian Constitution embraces economic and social rights as directive principles of state policy, ostensibly insulated from judicial review. The Supreme Court's interpretation of traditional civil and political rights to include economic and social guarantees has been praised by academics and activists keen to advance the cause of justiciable economic and social rights. In recent commentary, however, the extent to which the court's jurisprudence furthers the goal of increasing access to goods such as health care, housing, food and water for India's poor, is questioned. This article reconsiders the court's record in this area. It suggests that a more realistic assessment of the court's jurisprudence is necessary and draws on the South African experience of economic and social rights adjudication to argue for more serious engagement with factors that inform the level of judicial activism or restraint applied in the cases.

One of the most important issues facing administrative lawyers today is that of the appropriate role of the judiciary in a constitutional democracy. This concern is at the centre of many of the recent important decisions on the legality, rationality and reasonableness of exercises of public power.

In Phillips v Director of Public Prosecutions, Witwatersrand Local Division 2003 (1) SACR 425 (CC), the High Court's finding that s 160(d) of the Liquor Act 1989 was unconstitutional came to the Constitutional Court for a confirmation of invalidity. Section 160(d) `made it an offence for any holder of an on-consumption licence who allowed any person (i) to perform an offensive, indecent or obscene act; or (ii) who was not clothed or not properly clothed, to perform or to appear, on a part of the licensed premised where entertainment of any nature was presented or to which the public had access' (at 430g-h). The court noted, per Yacoob J, that findings of invalidity would not be routinely confirmed (at 432b-c). The court is obligated to enter into a thorough investigation into the constitutionality of the legislative provision (at 432d). The court found it unsatisfactory that the relevant members of the executive provided no reasons for their decision not to oppose the application for confirmation of invalidity (at 432i-j). Under the separation of powers doctrine, the courts, and not the executive, must decide on the constitutionality of laws.