2010/10/01 by Madhav Khosla · 46 citations
Social Sciences · #Human Rights and Development #Judicial and Constitutional Studies #Legal Issues in South Africa #Adjudication #Social rights #Political science #Fundamental rights #Law #International human rights law #Supreme court #Human rights #Law and economics #Sociology
paper · pdf · doi:10.1093/icon/mor005
published in International Journal of Constitutional Law 8(4), 739-765 (Oxford University Press)
openalex publication_date 2010/10/01 · openalex created_date 2025/10/10 · openalex updated_date 2026/08/01
Recent years have witnessed important advancements in the discussion on social rights. The South African experience with social rights has revealed how such rights can be protected without providing for an individualized remedy. Comparative constitutional lawyers now debate the promise of the South African approach, and the possibility of weak-form judicial review in social rights cases. This article considers the Indian experience with social rights, and explains how it exhibits a new form of social rights adjudication. This is the adjudication of a conditional social right; an approach that displays a rare private law model of public law adjudication. This article studies the nature and significance of this heretofore ignored adjudicatory approach, and contrasts it with, what is termed as, the systemic social rights approach. The conditional social rights thesis has important implications for the present debate on social rights adjudication, and presents an account of the Indian Supreme Court that is truer than those we presently encounter.