Advocata Institute was honored to host Prof Pratap Bhanu Mehta, an eminent political scientist and public intellectual in February. Prof Mehta delivered a public lecture on the topic of Should Socio economic rights be included in Sri Lanka's new constitution, speaking about the Indian experience. Prof Mehta also participated in a panel discussion that included Deputy Minister of Foreign Affairs, Dr Harsh de Silva and Prof. Rohan Samarajiva, the chair of LirneAsia and an advisor to Advocata Institute.
Speaking on a topic, which is actively debated in Sri Lanka Prof Mehta argued it's necessary to go beyond existing ideological and philosophical framing and ask the simple question of what precisely is the problem that constitutionalising socio-economic and cultural rights is meant to solve.
Prof. Mehta says that whilst we may all agree it’s good to have the best possible healthcare, education and other socio-economic factors, we may disagree on what the best institutional architecture is around the delivery of these factors to citizens. The second question, he said, is whether we as a society we’d want to trust judges and the courts over politicians and the democratic process to somehow deliver these rights.
Empirically, according to Prof. Mehta, there is very little evidence to suggest that constitutionalising socio-economic rights make a huge difference to governance or the delivery mechanisms. Speaking about the Indian experience, Prof. Mehta explained that B.R. Ambedkar, the chief framer of the Indian constitution was skeptical about including socio-economic rights. Ambedkar felt given that there is always a wide disagreement in society around economic matters, that the constitution shouldn’t ‘pre-judge’ any of these choices and that the enjoyment of these rights should be left to the give and take of representative politics, subject to iterative learning.
However, since about the 1990’s, Indian courts have taken the provision of ‘right to life’ and broadly interpreted it to include wide socio-economic rights. But such recognition has not resulted in significant improvements within the Indian governance architecture to actually deliver these rights. In fact, it has sometimes had the perverse effect where it has weakened property rights as a result of judicial activism being used by the state to dispossess the poor, more than it has dispossessed the rich.
If the society in Sri Lanka in fact decides that it must have economic and social rights in the constitution, Prof. Mehta noted that it is important to put in place a clear legislative framework that will sit underneath those rights. This must entail establishing the specific national laws and practices in which the rights are supposed to be exercised. It becomes then a conditional right and not an unspecified right.
Otherwise, according to Prof. Mehta, Sri Lanka might end up realising Ambedkar’s worst fears – an economy governed by courts, power taken away from the democratic process and a perverse outcome where ‘rights’ are used to protect the privileged rather than to protect the weak and the vulnerable.
The event was part of Advocata's public lecture series in partnership with Echelon Magazine.
A version of this article appeared on Groundviews.
Prof. Mehta’s full remarks are embedded in the video below.