Adjudicating social rights for the poor: the reality of judicial enforcement of basic necessities of life through public interest litigation in Bangladesh

Despite the worldwide evolution of human rights and constitutional norms towards the judicial enforcement of social rights, in Bangladesh, constitutionally these rights exist as ‘basic necessities of life’ in the chapter on fundamental principles of state policies. In addition to this recognition of social rights as mere directives, the constitution is explicit about the non-justiciability of these necessities. However, over the last two decades, mostly through public interest litigation the judiciary has been enforcing the provisions of basic necessities relating to housing, health, medical care, social security, education, and food by liberally interpreting them as the core components of right to life. But, public interest litigation is often criticised for missing the opportunity to redress the violation of basic necessities of the poor. Current paper argues that this failure of public interest litigation is deeply rooted in the incrementalist approach of the court. For a comparative study, the paper focuses on India where social rights also exist as directive principles of state policies. By analysing the landmark judicial decisions, it reveals that although in both the countries social rights have same constitutional status, the Indian judiciary has been showing more activism in its approach and remedial decision in the public interest litigation on basic necessities and thereby producing positive impact upon the poor litigants. The paper then finds out the reasons that influence the conservative tendency of the Bangladeshi judiciary and sheds light on the Indian judiciary as well to explore the causes of its activist approach. Hence, various factors that act behind the role perception of the court, for example, constitutional status of social rights, separation of power concern, scope of judicial review, judicial independence, inter-institutional cooperation, and judicial willingness is critically examined. The aim of this paper is not to debate over the efficacy of public interest litigation on basic necessities in Bangladesh. It rather suggests that pro-poor adjudication of basic necessities requires a strong judicial role and Indian experience indeed can be a guiding example for the Bangladeshi judiciary in this context.