Supreme Courts in the USA and India should adopt a stronger role in protecting the Right to Water

(Photo: Mark Fischer )

In recent months it has increasingly been noticed a great number of structural cases that reflect a clear need of promoting processes of judicial activism not only in developing countries but also in developed countries. For instance, countries such as the USA characterized by so much wealth, progress and development has been affected by ongoing violations of social rights such as the Right to Water. This week  the Interamerican Commission of Human Rights will hold a hearing about the problems facing many americans that include the situation in Flint, Detroit, Boston, Baltimore, Salinas & San Joaquin Valley, Navajo Nation, Lowndes County and Shell Bluff among others places that are facing water contamination, lack of adequate sanitation and water shut-offs. The same situation is facing India were water levels in rivers have receded leaving millions also facing water shortages. India has the world´s highest number of people without access to clean water and this is currently generating many social conflicts. These two particular cases has one thing in common. They need a strong and robust solution. However, the solution provided until now by democratic processes such as the social protest in these countries has not been able to deliver a massive social change. Despite recent events where many americans have tried to influence the State to generate social change, however, these campaigns have not been translated into concrete results. History has demonstrated that social change cannot be achieved without social dialogue, however, in modern times this dialogue need to be coordinated and led by a legitimate institution which might ensure that the unconstitutional state of affairs will be overcome. Therefore, for quite some time, different Courts in the South have been promoting what has been known as Judicial Activism. Constitutional Courts in countries such as Argentina, Colombia, South Africa and Brasil have been issuing Structural Remedies for structural cases with the objective of protecting their populations. More specifically, Courts have been issuing dialogic remedies by engaging with different stakeholders and this has led to a substantial transformation that has allowed the population to have more social justice. This entails that the situation of the USA cannot be solved only by protesting on the streets asking for the adoption of immediate measures by President Obama (such as a moratorioum or an Executive Order) and the situation in India also cannot be solved only with some declarative remedies issued by the Supreme Court of India. The Supreme Courts in these two countries need to adopt a stronger role in terms of coordinating actions of the Governments and other actors while at the same time ordering dialogic remedies with mechanisms of supervision in order to achieve sustainability in the long term.

The impact on democracy

Some of the criticism that Supreme Courts face through this Judicial Activism is related to the impact of Structural Reform Litigation processes on democratic participation. The argument is that the participation of citizens in democratic processes could be replaced by judicial participation, creating a high number of prosecution of cases and this could seriously affect social mobilization since everything would tend to be resolved at the Supreme Court and Tribunals. However, contrary to what many people think one of the objectives of Structural Reform Litigation processes is to promote and to strengthen democracy. For instance, a citizen could not make use of his right to participate without before enjoying some minimum Social Rights, i.e. access to food, access to health services “…there can be no true democracy without a guarantee of Freedom of Expression and the protection of due process. In a similar way the incorporation of Social Rights assumes that there can be no real democratic deliberation if there is not at least some social equality and guarantee of social minimum (Cervantes Alcayde et al. 2014, p.92). Thus, the new role of Supreme Courts is to activate democratic processes against the omissions of State institutions. The Judge promotes civic and democratic mobilization in order to create a balance of power when the “majority” threaten to impose their own ideologies and interests. Therefore judicial intervention is justified since there must also be a state institution that puts limits on political majorities, this clearly will help to create a more equal and representative democracy.  The Supreme Court could perform that role since the issue here is to try to control that the majority fulfill its duty to guarantee those rights in order to materialize social citizenship (Cervantes Alcayde et al. 2014, p.93). The issue at stake here is then to interpret judicial intervention as a collaborative process promoted by the judiciary in order to strengthen democracy and create a social balance. Finally, some commentators have also suggested that “…the proponents of dialogic activism advocate for judgments that declare the rights violated but at the same time allow the democratically elected authorities the  responsibility to decide how to correct the situation (Dixon 2007, Gargarella 2007 cited by (Rodríguez Garavito & Rodríguez2010, p.57). Therefore, dialogic activism seeks to become a new type of judicial intervention that promotes democratic deliberation, while at the same time, protects Social Rights and generates a process of collaboration between the powers in a context of democratic dialogue. It is then evident that the obstacles of institutional capacity, separation of powers and the impact on democracy do not currently represent a concern so that Courts issue Structural Dialogic Remedies. In the case of India, this is not new. The Supreme Court of India has already successfully worked with the Government in order to protect the Right to Food (People´s Union for Civil Liberties v. Union of India & Ors, In the Supreme Court of India, Civil Original Jurisdiction, Writ Petition (Civil) No. 196 of 2001) by ordering the state moderate remedies with a strong monitoring mechanism in order to achieve solid results for the benefits of the poorest, and finally, in the case of the USA, The Supreme Court of the United States also has some experience in this type of activism. For instance, the Case Brown v. Board of Education, 37 U.S. 483 brought an end to state sanctioned racial segregation and discrimination in the United States. The solution is already there. 





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