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Constitutional Protection of Human Right to Education by Judicial Activism through Doctrine of Equality: The Sri Lankan & Indian Experiences

Author:

S Sarath Mathilal de Silva

Attorney at Law, Senior Lecturer Law, Department of Commerce, Faculty of Management Studies and Commerce, University of Sri Jayewardenepura., LK
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Abstract

The paper seeks to examine the judicial approach by means of doctrine of equality towards the constitutional protection of the rights to education in Sri Lanka and India in a comparative perspective. The relevant constitutional provisions and the case law would be dealt within this exercise. A Bill of Rights which is a fundamental feature of the modern written constitutions is not a self-executing instrument. The judicial creativity pioneered by the Indian Supreme Court and followed by Sri Lankan Supreme Court facilitated the transition of the right to education and some of the judiciable Economic, Social and Cultural Rights (ESCR) from their non-justiciable constitutional status of the Directive Principles of State Policy (DPSP) to that of justiciable rights. Equality provisions of both Constitutions also served as a source of judicial activism for this transition. The study recommends the incorporation of judicial review of legislation and justiciable ESC Rights including the right to education in the 1978 Constitution for the proper constitutional governance as proposed by Draft Constitution of 2000.

Keywords:  Educational Rights; Access to Education; Educational Opportunity; Equal Justice

Sri Lankan Journal of Humanities and Social Sciences Vol.1(2) Oct 2009
How to Cite: de Silva, S.S.M., (2010). Constitutional Protection of Human Right to Education by Judicial Activism through Doctrine of Equality: The Sri Lankan & Indian Experiences. Sri Lanka Journal of Humanities and Social Sciences. 1(2), p.None.
Published on 13 Dec 2010.
Peer Reviewed

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