Although the Constitution does not explicitly deal with governance gaps, two
aspects are worth noting. First, a combined reading of Articles 12 and 13 means that
all government actions, both legislative and executive, must conform to FRs –
implying thereby that the government should not, for instance, treat similarly
placed people in an unequal manner; indulge in arbitrary arrests or detentions;
allow the practice of child labour, gender discrimination or untouchability; and
discriminate against minorities. Second, Article 37 declares that DPs are ‘funda-
mental in the governance of the country’ and that the government is obliged to
apply them in making laws. This provision again infuses good governance in the
formulation of laws and arguably also, by implication, in their implementation.
As far as remedying environmental pollution is concerned, Article 48 A provides
that the state ‘shall endeavour to protect and improve the environment and to
safeguard the forests and wild life of the country’.^137 Even citizens have a
fundamental duty ‘to protect and improve the natural environment including forests,
lakes, rivers and wild life, and to have compassion for living creatures’.
138
The
judiciary has also recognised the right to a pollution-free environment as an FR.
139
How can one analyse the relationship between constitutional developments and
the three challenges identified in this chapter? Two broad points can be made.
First, there has been no dearth of executive, legislative and judicial measures
tackling socio-economic inequalities, governance gaps and environmental pollu-
tion. However, despite these measures, not much progress has been made in
overcoming the challenges. One should then ask questions about the implementa-
tion efficacy of the legislative and executive measures. The propriety and efficacy of
judicial measures in strengthening good governance or promoting sustainable
development should also be evaluated. As I have argued elsewhere, PIL should
not be used by the Supreme Court to govern the country on a day-to-day basis by
trying to do everything by itself – from legislating to monitoring the execution of
laws and adjudicating disputes.^140 The Supreme Court lacks the means, resources,
legitimacy and authority to fix all social problems. It is also ill-equipped to
understand the complex socioeconomic conditions prevailing in the country. Nor
does it fully understand the resource implications or practical feasibility of imple-
menting its decisions.
Second, one can also note that whereas the executive and legislature have been
more active in bridging socioeconomic inequalities, it is the judiciary that has
shown greater zeal in fighting governance gaps. One explanation for this difference
(^137) This provision was inserted by the Constitution ( 42 nd Amendment) Act 1976.
(^138) The Constitution of India, Art. 51 (g).
(^139) See, for example,Vellore Citizens Welfare Forumv.Union of India( 1996 ) 5 SCC 647 ;
Narmada Bachao Andolanv.Union of India( 2000 ) 10 SCC 664.
(^140) Surya Deva, ‘Constitutional courts as positive legislators: the Indian experience’ in Allan
Brewer-Carias (ed.),Constitutional Courts as Positive Legislatures: A Comparative Law
Study(New York: Cambridge University Press, 2011 ), p. 587.