Unlearn, Re-orient and Govern: Exploring Justiciability of DPSPs for Sustainable Development
Updated: Dec 18, 2021
Authored by Shambhavi Srivastava, a 3rd year student of Campus Law Centre, University Of Delhi.
“Growth is one of the stupidest purposes ever invented by a culture.” Donella Meadows did not sugarcoat her words when she argued in her 1972 Limits to Growth Report that instead of blindly following a never-ending curve of exponential growth, we should be asking ourselves ‘growth of what, and why, and for whom, and who pays the cost, and how long can it last, and what’s the cost to the planet, and how much is enough?’
The onset of COVID-19, a global pandemic is largely fueled by humankind’s unsustainable ventures into wild spaces. Coming into contact with animals, bacteria, viruses we are not ready for, by making the planet’s remote spaces less remote is one of the major reasons for outbreaks of diseases. The justification for such activities is always economic growth, ironically so, when we are seeing economies crumbling under the pressure exerted by an invisible virus. And this is only one aspect of a whole bleak picture including other broad problems like climate change, poor enforcement of socio-economic rights, unstable political structures and so on. These are the dire consequences of making growth the goal rather than treating it as a means to achieve an end.
There are various issues in the world on which countries don’t have a consensus; they regularly disagree with each other. But the words and tone of almost all political leaders are more or less the same when it comes to wealth generation – increment in the growth rate of their GDPs. However, we do not live on a planet with indefinite resources. This inflexible focus on growth as a goal is detrimental. Our economics has started believing that problems like inequality or pollution will automatically be solved as a by-product of economic growth.
The Kuznets curve says that the problem has to get worse before it can get better as the growth will eventually even out the inequalities automatically. This is not true. The ‘automatic resolution’ approach implies that solving inequalities or environmental problems is a matter of luxury which will happen only when we have enough growth and money for it. Simon Kuznets himself realised later on in his career that the ‘welfare of a nation can scarcely be inferred from a measure of national income.’ Despite this, the popularity of the usage of GNP and later on GDP kept on increasing.
Now, it is high time that we realise that we are at a point when our ‘always looking forward’ approach is harming human society. Fixation on an ever-increasing metric of economic growth is not growth in the real sense at all because it is neither integrated with the aim of strengthening the social foundations nor does it heed to the ecological warnings of the planet. But, rather than abandoning our capitalist system completely, we can work on making it compatible with a long-term goal of environmentally and socially sustainable development. An intrinsic role in the same is to be played by legal systems.
A model developed by Kate Raworth, in her book ‘Doughnut Economics’ posits that policymakers should focus on social and environmental metrics first instead of on a supply-demand capitalist model of growth. The doughnut model limits us to space within the inner and outer circle which is a ‘just and safe space for humankind’. Breaching the inner circle which represents social foundation will lead to inequality and lacking amenities. Going beyond the outer circle which represents an ecological ceiling will be an overshoot leading to climate change, pollution, freshwater shortage, etc. This new approach will allow us to pursue growth but within a limited space, to develop sustainably.
While bringing such a model into works requires immense effort and positive political will, it should be understood that sustainable development would not be possible without significant changes in mindset and consequently, in laws. In the Indian context, it should be a leading question as to how Raworth’s Doughnut Model can be achieved within the framework of the Indian Constitution.
Raworth identifies several metrics in regards to the interior circle of social measures such as gender equality, education, livelihood, health, food security, political voice, etc., and exterior circle for environmental boundaries. Looking at the Indian Constitution, several of these should be available to all citizens as a part of their fundamental rights under Part III. However, some vital requirements lie in the domain of Directive Principles of State Policy, like ‘Right to work’ under Article 41 and ‘Protection and improvement of environment and safeguarding of forests and wildlife’ under Article 48A.
Thus, attention should be given to the question of whether economic and social rights which are predominantly included in the DPSP can be made justiciable. On the international plane, scholars draw an apparent distinction between rights under ICCPR and those under ICESCR arguing that civil and political rights are human rights and economic, social and cultural rights are merely aspirations. This distinction holds good even in the Indian context between fundamental rights and DPSP. Article 37 spells out the bar to the justiciability of DPSP in the Constitution itself. While these principles are meant to be fundamental in the governance of the country, it is with a caveat that it should be within the limits of State’s economic capacity and development. But this implies that socio-economic facilities (metrics for the inner circle of the doughnut) are luxurious achievements, not important in themselves but rather to be fulfilled only when there is growth. Such an idea reinforces the present fixation on a never-ending upward curve of growth as a goal with socio-economic and environmental requirements only as a side achievements
To live in the ‘just and safe space’ that Raworth envisioned in her doughnut model, the reverse has to be the case. Socio-economic and environmental considerations have to be the priority FOR which economic growth takes place. Conforming to the notion that these are merely aspirations will not convert them into priorities. A strong legal framework with enforceable rights that people know about and actively advocate for will rework them into mainstream goals.
Meanwhile, the Courts of India, Supreme Court, and High Courts have been interpreting Fundamental Rights and DPSP in a manner such that various provisions of the latter are brought within the fold of Article 21 - Right to Life. These include the Supreme Court’s observations regarding the Right to Work in Bandhua Mukti Morcha v. Union of India. The Court converted a non-justiciable issue into a justiciable one in the context of Articles 21 and 42, in Vishaka v. State of Rajasthan when it evolved legally binding guidelines to deal with problems of sexual harassment at workplace. The Supreme Court in Hussainara Khatoon v. State of Bihar observed that the Constitutional Directive of ‘equal justice and free legal aid’ embodied in Article 39-A is a mandate implicit in Articles 14 and 21. The State cannot, therefore, avoid its constitutional obligation to provide free legal aid to the accused by pleading financial or administrative inability. These are a few examples of how the interpretation of Constitutional provisions can be an excellent starting point towards a legal framework needed for moving towards a sustainable development system.
It is imperative that as the next step to interpretative strategies, there are legislations that create rights in favour of citizens that make the DPSPs enforceable. This would give a legal element to the interior and exterior boundaries of social foundations and environmental considerations respectively. Governments should be accountable for fulfilling defined basic political and socio-economic needs of every individual and industries should limit their ongoing consumption of scarce planetary resources. Instead of indefinite growth in mind, they should be made to focus on environmental and human rights considerations in their operations and investments.
The society needs a shift in the prevailing mindset, political will, and robust institutions working on a set of ethos geared towards sustainable development and a strong international community. But for all this, the foremost thing that is required is increased knowledge and information amongst the citizens of what their rights are, how they can enforce them, and what are the implications of sustainable development not being pursued. We cannot remain mute spectators to politicians promising us ever-increasing GDP growth rates and take it as the only parameter for our well-being. The costs incurred by lower- and middle-income strata of the population and the planet’s ecological diversity have been huge because of such a mindset. We cannot afford to treat them as externalities anymore.
This requires a very radical change from the status quo but sustainable development is the need of the hour. The wheels of change need to start turning now so that our chances of living in an equal and healthy world are better.
1. Kate Raworth, Doughnut Economics (2017).
2. D. J. Ravindran, Human Rights Praxis: A Resource Book for Study, Action and Reflection (Bangkok: Asian Forum for Human Rights and Development) (1998).