Juridification of the right to development in India
Publisher DOI
Abstract
The right to development is a legally non-binding treaty under international law. In this paper, however, the distinction between legally binding and legally non-binding treaties in international law, around which many of the controversies regarding the right to development have arisen, is challenged. I argue that the right to development is used in the Indian legal system through case law, which I interpret as a process of juridification. The juridification, I claim, is manifested through Indian judges who have shown an increased inclination to refer to the United Nations Declaration on the Right to Development in their legal argumentation to solve judicial conflicts. Judges explicitly affirm the existence of a human right to development and statutorily regulate it by interpreting it as part of the constitutional fundamental ‘right to life’. Furthermore, the paper approaches the question of how different concepts of development and correlated ideas of justice are negotiated in the genesis of interpretations of the right to development in Indian case law. The application of the right to development mainly reflects a legal argument for the protection of minority rights, such as women’s rights, Dalit rights and Adivasi rights, in cases on affirmative action in education, land acquisition and labour rights. However, I consider an additional imminence of misusing the right to development for a utilitarian legal argument to justify human rights violations of small groups of people in the name of development and public interest.
Date Issued
2016
Publication Type
Article
Language(s)
en
Additional Credits
Journal
Verfassung und Recht in Übersee / Law and Politics in Africa, Asia and Latin America
Publisher
Nomos
ISSN
0506-7286
Access(Rights)
metadata.only