affiliated to the International Association of Constitutional Law
In his 2012 book, Judging Social Rights, Jeff King makes a powerful case for a limited, incrementalist, judicial approach to social rights adjudication. One of the incrementalist strategies King prescribes is constitutional avoidance, that is, ‘where a claim may succeed on constitutional or non-constitutional grounds’, the court should ‘prefer the non-constitutional remedy’. King advocates constitutional avoidance in social rights adjudication as a means of preserving administrative and legislative flexibility, particularly the capacity to adapt to new circumstances in social rights adjudication.
King’s prescriptions (including constitutional avoidance) are aimed primarily at states manifesting certain background political conditions based on current conditions in the United Kingdom. He expects Canada, Australia, New Zealand, much of Continental Europe, and possibly South Africa to satisfy these background political conditions. The qualified inclusion of South Africa notwithstanding, this list of mostly wealthy jurisdictions is disappointing. In countries such as India and Brazil, large numbers of people are denied social rights, so legal protection of those rights is especially significant. Using India as an example, this post suggests that King’s prescription of constitutional avoidance in social rights adjudication might well apply to ‘developing’ jurisdictions that do not meet the background conditions he sets – a possibility that King’s account leaves open.
Tarun Khaitan and I examined the potential for constitutional avoidance in 19 landmark Indian Supreme Court cases on social rights. Of these cases, the claimant was successful in obtaining some remedy in 18 cases. In 15 of these 18 cases, at least some of the remedies granted (whether substantive access to shelter, education, medical care, or procedural safeguards protecting such access) could have been granted without invoking constitutional guarantees. In other words, there was a statute, a policy, administrative law, common law or (in a few cases) private law provision upon which some of these remedies could have rested. For instance, the orders in Olga Tellis v Bombay Municipal Corporation AIR 1986 SC 180, a well-known social rights case in India, did not require an appeal to constitutional rights. The orders could have been made on administrative law grounds of legitimate expectations and procedural fairness instead. However the Court did not adopt constitutional avoidance in any of the cases we examined. Instead, it constructed every case as a denial of a social right implicit in, or entailed by, the ‘Fundamental Rights’ guaranteed by the Indian Constitution. This approach leads to two failures.
First, the Court loses an opportunity to underscore administrative failures. When the entitlement is based on an existing policy or procedural fairness, or where the entitlement would have been received but for an administrator’s unreasonable action or failure to exercise discretion, the judicial reluctance to articulate this explicitly fails to underscore the importance of these general administrative law norms. Moreover, since the remedies in these cases are not based on generalisable administrative norms, administrators gain no guidance for future cases. For instance, in Court on its Own Motion v Union of India (2013) 1 MLJ (SC) 639 the Court identified significant administrative problems: ‘the management and arrangements for the yatris [pilgrims] at the glacier and near the Holy Shrine are, to say the least pathetic … The management suffers from basic infirmity, discrepancies, inefficiency and ill-planning’ . Instead of addressing these administrative problems using administrative law, the Court passed 23 highly specific unreasoned directions  based on the expansive constitutional right to life -. It is difficult to infer from these directions what general administrative principles the administrators breached.
Secondly, the Court’s under-justified use of structural injunctions is encouraged by the use of constitutional law; this has adverse implications for institutional comity and for separation of powers. Of the 18 cases we examined where the claimant was given some relief, the Court ordered very specific structural injunctions with respect to its implementation in at least 10 cases. Sometimes the Court’s structural injunctions created new bodies to oversee or coordinate the functioning of existing implementation authorities. At other times, the judges tinkered with the composition or the manner of constitution of the existing bodies tasked with implementation. Often, existing bodies were given transparency, accountability and participation-seeking injunctions, including reporting requirements. Through these injunctions, the judiciary took upon itself the task normally performed by the executive and redesigned enforcement mechanisms often put in place by the legislature. Assuming that the three main state organs are designed bearing in mind their key functions, such judicial interference in the administration requires specific justification. We believe that many of the remedies actually ordered in these cases are defensible, even after the caution from institutional comity is borne in mind. But a judicial failure to properly articulate those defences harms institutional comity between organs of the state.
Constitutional avoidance, particularly the use of administrative law, in such cases would lead to better guidance for administrators, more honest adjudication and better respect for separation of powers in India. Beyond India, we believe that, under certain conditions, constitutional avoidance may prove a valuable incrementalist technique in jurisdictions with comparable administrative challenges. We expand on this argument in an article forthcoming in the Oxford Journal of Legal Studies in 2015.
Farrah Ahmed is a Senior Lecturer at the Melbourne Law School, University of Melbourne.
Suggested citation: F. Ahmed, ‘The Untapped Potential for Constitutional Avoidance in Social Rights Adjudication’ U.K. Const. L. Blog (6th Feb2015) (available at: https://ukconstitutionallaw.org/).