Enforcement of Social and Economic Rights: South Asian Judicial Discourses

Abstract

This thesis aimed to bring new dimensions to the contextual interpretation of the Constitution, particularly in the field of judicial enforcement of social and economic rights. So far, the attempt of judiciaries to interpret social and economic rights adjudication has been limited to the discussions of the “right to life” discourse or a retrogressive approach. By offering a broader and liberal perspective, this thesis work has tried to encroach on that barrier. This study has worked within the jurisprudential contention of the global south and global north in approaching and adjudicating social and economic rights performed by the judiciaries. It has identified some significant features of South Asian judicial discourses by analyzing predominant scholarly thoughts and arguments. The study has analyzed the contexts and conditions of the constitutional journey of South Asian countries especially, India, Pakistan, and Bangladesh which has unleashed the changing phenomena of judicial approaches from positivistic to interpretivist while dealing with social and economic rights. The thesis has found that the approach of treating principles, whether directive or fundamental, so far has been applied by the judiciaries, and legal scholars of South Asian countries is mainly dominated by positivistic jurisprudence. The principles have been treated through the lenses of rules and so the judiciaries often feel difficulties to find the enforceability of social and economic rights. To address this situation, the study has attempted for contextual interpretation of principles. The study has experimented with internal and external aids to constitutional interpretation in finding more justification and rationality for enforcing social and economic rights taking into consideration of constitutional framework of Bangladesh. It has examined the preamble as an internal aid and various pre-constitutional documents of the Bangladesh Constitution, like- the 21 Points Programme of 1954 Provincial Election (which was the Election Manifesto of the United Front, and demand was for Complete Provincial Autonomy), 11 Points Demands of All-Party Students’ Action Committee in 1969, Historic Speech of 7th March by Bangabandhu Sheikh Mujibur Rahman in 1971, the Proclamation of Independence of 1971, and pre-constitutional documents in the post-Liberation period including the speeches and proceedings in the Constituent Assembly as external aids to interpretation. After examining all of these, the study has argued that these internal and external aids can be used as effective tools for constitutional interpretation for more efficient enforcement of social and economic rights. It has further claimed that the subsequent economic and social development of Bangladesh over the last 50 years has also to be considered as another external aid to constitutional interpretation for enforcing social and economic rights. Along with it, the thesis has also underscored some concerning factors of using internal-external aids, which prescribes for conscious and purposive use of aids otherwise judicial transgression in the guise of activism may occur. Being alert about judicial transgression, the figuring out a justified, comprehensive, and effective enforcement discourse for social and economic rights is the prime object of this thesis.