Rights and Wrongs

Rights – whether substantive or procedural – are a mirage for some groups because administrative and practical obstacles turn the Rule of Law into a chimaera. I tackle this question by examining the existence of a right to the effective access to rights as a core element of the Rule of Law. If the principle of equality before the law and fundamental rights have been enshrined and implemented at EU and national levels, and widely recognised as part of the Rule of Law, one conundrum remains. Many people do not have access to the rights they are entitled to because of practical and administrative barriers. I argue that beyond the ‘right to have rights‘, as masterfully theorised by Hannah Arendt concerning post-war stateless persons, the Rule of Law is not worthy of its name if it does not encompass a (proto-)right to the effective access to rights. In short, the right to have effective access to rights is not a pleonasm.

The Indian judiciary, has recognised a long list of constitutional rights beyond those explicit in the Constitution. This expansion of rights over time has resulted in the constitutionalisation of a wide range of norms, and has significantly blurred the line between constitutional text and doctrine. While this expansive approach has sometimes been viewed favourably as a model of transformative constitutionalism in CCL, it comes with certain risks and unintended consequences. I focus on one such aspect - the SCI‘s flawed approach in cases involving balancing or a clash of rights. I critique the way the SCI frames cases as involving a clash of rights even where there is no opposing right, the way it asserts the primacy of certain rights over others without explanation - and the Court‘s justifications for choosing “public interest“ as the meta-criteria for balancing. I then offer an alternative judicial framework for such cases which can also be useful for jurisdictions beyond India.

The relationship between equality and liberty is often seen as opposing each other. Equality is seen as at odds with liberty, and vice versa, because to increase one is to decrease the other. As a consequence there is a constant tension between equality and liberty. Contrary to this view, I propose that equality and liberty are in fact in a reciprocal relationship. I argue that liberty can flow from equality and equality from liberty, thus each benefitting from an increase of the other. This argument rests on the understanding that equality is not about sameness but about giving each person what they need to equally be able to enjoy the rights and fulfil the duties the law holds. By increasing each person‘s equality it is possible to also increase their liberty because everyone will be more able to enjoy their liberty the more equally they are protected in their rights and duties by law.

The paper explores contemporary equality regimes from a critical human rights perspective, its underlying rationale, theoretical implications, and impacts on group members throughout implementation processes. Of concern are classical domestic constitutional frameworks (comparatively), without losing sight of developments in the regional ius commune and international law. It examines equality regimes based on their capacity to accommodate difference, in the broader context of an increasing commitment towards multicultural governance as well as the recent right-wing turn in European governance frameworks. Relatedly, it shall understand such orders in relation to majority-minority relations, placing a particular focus on power asymmetries that contributed to the very making of such orders. Equality is thereby subjected to a multidimensional analysis, viewed from pluralism and postcolonial thought, ultimately rights holders on their collective rights and responses from current order(s).

The Abortion Information Case of 1995 halted the Supreme Court of Ireland‘s judicial activism as it ‘rejected an implication of Walsh‘s J‘s reasoning in McGee that a constitutional amendment could itself be declared unconstitutional for breach of the natural law‘ because Ireland was a ‘democratic state.‘ This case thus discouraged the natural law and the concomitant doctrine of unenumerated rights which was rebirthed as the derivative rights doctrine. Part I of this paper will examine the judicial reasoning of Mr Justice Brian Walsh in McGee to outline the significance of the natural law and the unenumerated rights doctrine during the heyday of judicial activism. Part II will examine the rise of the derivative right doctrine and how it differs from its predecessor. Part III will consider whether the derivative rights doctrine has the potential to safeguard against judicial activism and maintain Ireland‘s democratic ideals, an analysis that will benefit other common law jurisdictions.