Juridification of the right to development in India

Wolf, Anna-Lena (2016). Juridification of the right to development in India. Verfassung und Recht in Übersee / Law and Politics in Africa, Asia and Latin America, 49(2), pp. 175-192. Nomos 10.5771/0506-7286-2016-2-175

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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.

Item Type:	Journal Article (Original Article)
Division/Institute:	06 Faculty of Humanities > Department of Art and Cultural Studies > Institute of Social Anthropology
UniBE Contributor:	Wolf, Anna-Lena
Subjects:	300 Social sciences, sociology & anthropology 300 Social sciences, sociology & anthropology > 320 Political science 300 Social sciences, sociology & anthropology > 340 Law 300 Social sciences, sociology & anthropology > 360 Social problems & social services
ISSN:	0506-7286
Publisher:	Nomos
Language:	English
Submitter:	Anna-Lena Wolf
Date Deposited:	21 Sep 2016 10:18
Last Modified:	05 Dec 2022 14:58
Publisher DOI:	10.5771/0506-7286-2016-2-175
URI:	https://boris.unibe.ch/id/eprint/87453