The positive obligations. The first is that

April 23, 2019 Philosophy

The expansion of ‘judicial review’ (which is often described as ‘judicial activism’) has of course raised the popular profile of the higher judiciary in India and Bangladesh.
However, arguments are routinely made against the accommodation of ‘aspirational’ directive principles within the ambit of judicial enforcement.
There are two conceptual objections against the justifiability to these positive obligations.
The first is that if judges devise strategies to enforce the directive principles, it amounts to an intrusion into the legislative and executive domain. It is reasoned that the articulation of newer fundamental rights is the legislature’s task and that the judiciary should refrain from the same.
Furthermore, it is posed that executive agencies are unfairly burdened by the costs associated with these positive obligations, especially keeping in mind that these obligations were enumerated as directive principles by the framers on account of practical considerations. This criticism mirrors the familiar philosophy of ‘judicial restraint’ when it comes to constitutional adjudication.
However, the second objection to the reading in of positive obligations raises some scope for introspection amongst judges. It can be argued that the expansion of justifiability to include rights that are difficult to enforce takes away from the credibility of the judiciary in the long-run. The judicial inclusion of socio-economic objectives as fundamental rights can be criticized as an unviable textual exercise, which may have no bearing on ground-level conditions. In turn the unenforceability and inability of state agencies to protect such aspirational rights could have an adverse effect on public perceptions about the efficacy and legitimacy of the judiciary.


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