In 1993, political scientist Gerald Rosenberg published a book on the American court system titled The Hollow Hope: Can courts bring about social change? At that time, Rosenberg's answer to the titular question was negative, and he argued that courts are constrained by a multitude of factors – institutional, ideological and structural. Over the last two decades, however, judges throughout the world have become increasingly active in promoting 'non-justiciable' vrights – those issues that by traditional practice cannot be settled by a court of law.
Judges in India, Brazil and South Africa have ruled in favour of rights to health, education, better environment and housing, and women's rights, among others. Such actions have prompted some scholars to note the "decline and fall of parliamentary sovereignty", the "global expansion of judicial power", and even the creation of a "juristocracy". Indian judges have stormed ahead, issuing judgements on seemingly every question imaginable, including the sealing of illegal urban constructions, affirmative action in educational institutions, religious freedom, alcoholism and pollution, and even castigating the behaviour of governors and parliamentarians.
Are Indian courts encroaching on the domains of the executive and legislative branches? Are judges telling the legislature what to do, or are they merely prodding the government to fulfil its legal obligations? A close examination of some legal decisions in public-health cases over the past couple of decades shows that the latter is more often the case. What Indian judges have done is to ease the process through which citizens can hold the government accountable for its failure to comply with its statutory duties.
Since the early 1980s, India's Supreme Court has increasingly become the champion of poor and vulnerable citizens, handing down judgements in favour of rights to education, livelihood, health and social justice. In health, by the late 1990s the justices had moved from a narrow focus on the rights of organised workers to health benefits, to more expansive judgements informed by the general right to health for all citizens.