Law, Poverty and Development

This is one of the newer additions to the Jurisprudence syllabus, so questions are drawn from a small and predictable pool: Amartya Sen (entitlements, capabilities, freedoms), Nussbaum's central capabilities, the Right to Development (1986), the MDGs and SDGs, the law and development movement (and its critics), Hernando de Soto's legal empowerment idea, and Indian Supreme Court decisions on the rights of the poor. Memorise names, books, dates and numbers.

• Absolute poverty: inability to afford the minimum basket of goods and services needed for survival (the poverty line). Relative poverty: deprivation measured against the average standard of living in a society.

• Multidimensional poverty: poverty measured by deprivations in health, education and living standards, not only by income. The Global Multidimensional Poverty Index (MPI) was introduced in 2010 by the UNDP and the Oxford Poverty and Human Development Initiative (OPHI) (Sabina Alkire and James Foster developed the method). It has three dimensions (health, education, living standards) and ten indicators.

• India's poverty measurement: the Lakdawala method; the Tendulkar Committee (2009); the Rangarajan Committee (2014). NITI Aayog's National MPI (first report 2021; the 2023 report) showed a sharp fall in multidimensional poverty (roughly from about 25 per cent in 2015-16 to about 15 per cent in 2019-21). Check the latest figures, as they are updated.

• World Bank's international poverty line: updated in 2022 to US\$ 2.15 a day (2017 prices) and, in 2025, to US\$ 3.00 a day (2021 prices), so verify the current figure if it appears in your exam.

• Human Development Index (HDI): introduced in 1990 in the first Human Development Report by Mahbub ul Haq with Amartya Sen's contribution; it measures health (life expectancy), education (years of schooling) and standard of living (GNI per capita).

Amartya Sen (Nobel Prize in Economics, 1998; Bharat Ratna, 1999):

• Poverty and Famines: An Essay on Entitlement and Deprivation (1981): famines are caused not only by a shortage of food but by a failure of entitlements (the means by which people command food: production, trade, labour, inheritance). The Bengal famine of 1943 is his example, where food supply was not much lower than in previous years.

• Commodities and Capabilities (1985), Development as Freedom (1999): development is the expansion of the real freedoms that people enjoy; poverty is capability deprivation (not just low income). He identified five instrumental freedoms: political freedoms, economic facilities, social opportunities, transparency guarantees, and protective security.

• The capability approach: the focus is on what people are actually able to do and to be (their functionings and capabilities), instead of resources or utility. He criticised both utilitarianism and Rawls's focus on primary goods.

• The Idea of Justice (2009): a critique of 'transcendental institutionalism' (the Rawlsian search for perfectly just institutions) in favour of a realisation-focused comparative approach to reduce manifest injustice. He draws a distinction in Sanskrit between niti (rules, institutions, organisation) and nyaya (realised justice in the lives of people), and the images of the three children and the flute (Anne, Bob, Carla). He values public reasoning and the impartial spectator (from Adam Smith).

• Also: Collective Choice and Social Welfare (1970), Inequality Reexamined (1992), The Argumentative Indian (2005), Development and Participation.

Martha Nussbaum: a philosopher who developed the capabilities approach, with a more specific, universal list.

• Works: Women and Human Development (2000), Frontiers of Justice (2006), Creating Capabilities (2011).

• Ten central human capabilities: (1) life; (2) bodily health; (3) bodily integrity; (4) senses, imagination and thought; (5) emotions; (6) practical reason; (7) affiliation; (8) other species; (9) play; (10) control over one's environment (political and material).

• Nussbaum says each citizen must have these to a minimum threshold; she ties them to constitutional guarantees.

• Difference from Sen: Sen does not give a fixed list (he leaves it to public reasoning); Nussbaum proposes a definite list.

Mahbub ul Haq (the HDI) and Muhammad Yunus (Grameen Bank, microfinance; Nobel Peace Prize 2006) are associated with the practical side.

• Meaning: the study and practice of using law as a tool for economic and social development, especially in developing countries.

• First movement (1960s to 1970s): led mainly by American foundations (Ford Foundation) and law schools; it assumed that exporting Western legal institutions, legal education and 'modern' law to the Third World would speed up modernisation. Its failure was explained in David Trubek and Marc Galanter, 'Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States' (1974).

• Second movement (1980s to 2000s): concentrated on the rule of law, property rights, judicial reform and market-friendly legal frameworks in support of the Washington Consensus (a term coined by John Williamson, 1989) and structural adjustment policies of the IMF and World Bank; the World Bank's World Development Report 2002 and the Doing Business report (discontinued in 2021 after data irregularities) belong to this phase.

• Contemporary phase: the stress on institutions and governance, human rights-based approaches, and sustainable development. In 2024, the Nobel Prize in Economic Sciences was awarded to Daron Acemoglu, Simon Johnson and James Robinson for studies of how institutions are formed and affect prosperity (see Acemoglu and Robinson, Why Nations Fail, 2012: inclusive versus extractive institutions). The 2019 Nobel went to Abhijit Banerjee, Esther Duflo and Michael Kremer for an experimental approach to alleviating global poverty.

• Douglass North (Nobel 1993): institutions, including law, are the 'rules of the game' that shape economic performance.

• Hernando de Soto (The Mystery of Capital, 2000): the poor hold vast assets as 'dead capital' because they lack formal, enforceable property titles; formalising property rights unlocks credit and capital. The Commission on Legal Empowerment of the Poor (co-chaired by Madeleine Albright and Hernando de Soto, report Making the Law Work for Everyone, 2008) identified four pillars: access to justice and the rule of law, property rights, labour rights, and business rights.

• Critics: Third World Approaches to International Law (TWAIL) scholars (B.S. Chimni, Upendra Baxi, Antony Anghie) see development law as a continuation of colonial hierarchies. Dependency theorists (Prebisch, Frank) see underdevelopment as a product of the global capitalist system. Others stress that legal transplants fail without local fit (the transplant effect).

• New International Economic Order (NIEO, 1974) (UN General Assembly Resolution 3201 (S-VI)), the Charter of Economic Rights and Duties of States (1974), and Permanent Sovereignty over Natural Resources (General Assembly Resolution 1803 (XVII), 1962) reflect the developing countries' demands.

• Declaration on the Right to Development (1986) (UNGA Resolution 41/128, 4 December 1986): Article 1 describes development as an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to and enjoy economic, social, cultural and political development. The human person is the central subject of development. It was reaffirmed in the Vienna Declaration (1993) as a universal and inalienable right and an integral part of fundamental human rights. Arjun Sengupta (an Indian economist) was Independent Expert on the right to development.

• Stockholm Conference (1972), Brundtland Commission's report Our Common Future (1987): sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs; Rio Declaration (1992) (Principle 3: right to development to be fulfilled so as to equitably meet developmental and environmental needs of present and future generations); Johannesburg (2002); Rio+20 (2012).

• Millennium Development Goals (MDGs) (2000 to 2015): eight goals (including halving extreme poverty and hunger by 2015).

• Sustainable Development Goals (SDGs) (Agenda 2030, adopted in 2015): 17 goals and 169 targets. SDG 1: No Poverty; SDG 2: Zero Hunger; SDG 3: Good Health; SDG 4: Quality Education; SDG 5: Gender Equality; SDG 10: Reduced Inequalities; SDG 16: Peace, Justice and Strong Institutions; SDG 17: Partnerships.

• Indian recognition: Vellore Citizens' Welfare Forum (1996) treated sustainable development as part of Indian law; Narmada Bachao Andolan v Union of India (2000) (the Sardar Sarovar Dam case; the Court balanced displacement and development and upheld the project with conditions for rehabilitation); Samatha v State of Andhra Pradesh (1997) (tribal land cannot be transferred to non-tribals; mining leases on scheduled-area land).

• Preamble: justice, social, economic and political; equality of status and opportunity.

• Directive Principles: Article 38 (social order for the promotion of welfare, minimising inequalities), Article 39(a) to (f) (adequate means of livelihood, distribution of resources, equal pay), Article 39A (equal justice and free legal aid, inserted by the 42nd Amendment, 1976), Article 41 (right to work, education and public assistance), Article 43 (living wage), Article 46 (promotion of the educational and economic interests of Scheduled Castes, Scheduled Tribes and weaker sections), Article 47 (raising the level of nutrition and public health).

• Granville Austin (The Indian Constitution: Cornerstone of a Nation, 1966) described the Constitution as a social document and Fundamental Rights and Directive Principles as a 'seamless web' and the conscience of the Constitution.

• Fundamental rights and the poor:

  • Hussainara Khatoon v State of Bihar (1979): speedy trial and free legal aid are part of Article 21 (undertrial prisoners' case).

  • M.H. Hoskot v State of Maharashtra (1978); Khatri v State of Bihar (1981).

  • People's Union for Democratic Rights v Union of India (Asiad Workers' case, 1982): the denial of minimum wages is forced labour under Article 23; payment below the minimum wage is begar.

  • Bandhua Mukti Morcha v Union of India (1984): bonded labour is violative of Articles 21 and 23.

  • Olga Tellis v Bombay Municipal Corporation (1985): the right to livelihood is part of the right to life; pavement dwellers cannot be evicted without a fair procedure.

  • Francis Coralie Mullin (1981): the right to live with dignity includes the minimum necessities of life.

  • Shantistar Builders v Narayan Khimalal Totame (1990) and Chameli Singh v State of UP (1996): the right to shelter ('roti, kapda aur makaan') is part of Article 21.

  • Paschim Banga Khet Mazdoor Samity v State of West Bengal (1996): right to emergency medical aid; Consumer Education and Research Centre v Union of India (1995): the right to health.

  • People's Union for Civil Liberties v Union of India (2001, the right to food case): the Court monitored the mid-day meal scheme and public distribution to prevent starvation; later legislated through the National Food Security Act, 2013.

  • Unni Krishnan (1993) and Article 21A; Right to Education Act, 2009.

• Public Interest Litigation (PIL): S.P. Gupta v Union of India (1981) (the Judges' Transfer case) broadened locus standi, allowing any public-spirited person to move court on behalf of the poor; the 'epistolary jurisdiction' (letters treated as writ petitions) and social action litigation were developed by Justices P.N. Bhagwati and V.R. Krishna Iyer. Upendra Baxi's Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India (1985) is the classic scholarly treatment. Criticism: judicial overreach, lack of expertise in policy, and the 'PIL that serves the middle class'.

• Legislation for the poor: Legal Services Authorities Act, 1987 (free legal aid; Lok Adalats); Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA), 2005 (a legal guarantee of 100 days of wage employment per rural household); Right to Information Act, 2005; Forest Rights Act, 2006; National Food Security Act, 2013; Right to Fair Compensation... Act, 2013; Bonded Labour System (Abolition) Act, 1976; Minimum Wages Act (now the Code on Wages, 2019).

• Economic reservations: Indra Sawhney v Union of India (1992) held that reservation cannot be based on economic criteria alone, while the 103rd Constitutional Amendment (2019) inserted Articles 15(6) and 16(6) giving up to 10 per cent reservation for economically weaker sections (EWS), upheld by a 3:2 majority in Janhit Abhiyan v Union of India (2022).

• TRIPS Agreement (1994) and the Doha Declaration on TRIPS and Public Health (2001) affirmed the right of countries to protect public health and promote access to medicines for all (flexibilities such as compulsory licensing).

• Novartis AG v Union of India (2013): the Supreme Court refused a patent for the beta crystalline form of imatinib mesylate (Glivec) under Section 3(d) of the Patents Act, 1970, as the new form did not show increased therapeutic efficacy; seen as pro-access.