The Irish courts are “timid, pessimistic and slow” when it comes to vindicating human rights that are supported by the Constitution, a leading Indian lawyer has said on a visit to Dublin.
Colin Gonsalves, who was lead counsel in the largest class action case ever taken, said that since the 1980s the Indian courts have recognised the right of genuine litigants to take cases on behalf of large numbers of poor or marginalised people, even where it concerns public budgets.
He said that this type of public interest litigation is common in jurisdictions in Latin America, Asia and Africa.
However, the State, along with other European jurisdictions, persists in resisting what is becoming the global norm.
"Ireland still has a very traditional way of using the law," he said in an interview with The Irish Times. "India broke away from that many decades ago."
In the State and elsewhere in Europe, only an individual with an interest in a matter that can take a court case.
But in India, where the majority of the population earn less than €1 a day, litigants have been able to take cases on behalf of the poor since the 1980s.
The Indian courts have recognised that poor people would otherwise not be able to vindicate their rights.
In 2000, Mr Gonsalves, a former trade unionist, was lead counsel in a case which led to the Indian supreme court issuing orders over food subsidies and other matters relating to basic nutrition that affected more than 300 million people in the country.
He said the Indian government was forced to comply with the orders that were issued by the court as a result of the case, as otherwise it would be in contempt and the secretary of government might have been sent to jail.
Mr Gonsalves said that Irish courts, like most of their European counterparts, take the view that courts should not make orders that impact on how governments organise their budgets, “but that’s rubbish”.
He said it is the business of governments to govern “in the first instance”, but if the government persistently fails to vindicate constitutionally protected rights, such as the right not to starve, then the court can inquire about what the government is doing.
“If the government is failing year after year, then the courts are duty bound to act . . . Constitutional supremacy is what matters, not parliament.
“Parliament must act in accordance with the constitution.”
Basic human rights
He said governments cannot argue that, even when basic human rights are being denied, the courts must stay silent.
He said the right to take collective actions on behalf of the poor is a “radical change” that is coming from outside Europe.
However, the State, like the rest of Europe, is refusing to accept proxy litigation on behalf of the poor if it impacts on public budgets.
With half of India’s urban dwellers living in slums, Mr Gonsalves is currently involved in a case where he is seeking a court judgment that, as housing is a human right, evictions of slum dwellers must stop.
Instead, the slums must be improved and provided with clean amenities.
He said that, in his meetings in Ireland with law students, he has heard they are being told that it is not the business of the courts to make orders about public budgets.
“I try to encourage them to think in a more international, less European way.”
Mr Gonsalves is giving a public lecture in the Graduates Memorial Building (GMB) in Trinity College Dublin at 5pm on Monday.
