The limits of prescription: courts and social policy in India and South Africa

ABSTRACT

This paper explores the social policy-making role of supreme courts in India and South Africa. It argues that both significantly shaped social policy. But neither imposed its will on elected government – both recognised that judicial power is limited and sought negotiation with the government and other interests to ensure compliance with rulings. Despite the difference between them, both courts promote and support collective action by the poor or their allies in civil society. The paper traces the institutional roots of the relative strength of the two courts and their relations with their governments and links their rulings to the political environment.

KEYWORDS:

• Courts
• social policy
• constitutionalism
• rights
• collective action
• popular agency

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1 On the abuse of PIL in India and the frivolous use of this instrument see Deva (2009). India’s Supreme Court has issued rulings and orders on a very wide variety of subjects that cannot be covered here. See, among others, Deva (2009), Gauri (2009), Rajagopal (2007), Sathe (2002) Shankar and Mehta (2008).

2 The heated debate that accompanied the introduction of the Mahatma Gandhi National Rural Employment Guarantee Act is a good example (see Chopra, 2011).

Additional information

Funding

This work was supported by the Economic and Social Research Council [grant number ES/J012629/1].