India RTD Final Report

7/21/2019 India RTD Final Report

1/90

FINAL REPORTJanuary 1, 2001-December 31, 2004

RIGHT TO DEVELOPMENT PROJECT

Ministry of Foreign Affairs of the NetherlandsActivity Number: WW 180301

COUNTRY STUDY No. 4:

THE RIGHT TO DEVELOPMENT IN INDIA

Franois-Xavier Bagnoud Center for Health and Human RightsHarvard School of Public Health


2/90

ii

INDIA COUNTRY STUDY

ON

THE RIGHT TO DEVELOPMENT

C entre for D evelopm entand

H um an Rights

CDHR TeamMoushumi Basu (Principal Author)

Rakkee ThimothyReji.K. Joseph

Kaushik Ranjan BandyopadhyayAnit Nath Mukherjee.

Our sincere thanks toArjun Sengupta

Archna Negi

New Delhi


3/90

iii

India Country Report

Table of Contents

I Introduction 1

1.1 The Essential Elements of the Right to Development Approach 6

1.2 Right to Development in the Context of the Indian Development 12

Experience

II The Institutional Framework Supporting a Human Rights 24

Approach in India

III The Rights to Food, Health and Education 34

3.1 The Right to Food 37

3.2 The Right to Health 54

3.3 The Right to Education 64

IV International Cooperation and the Right to Development in India 69

V Right to Development in the Future 75

References 83


4/90

iv


5/90

1

Introduction

The discourse on rights in India predates the formation of the modern Indian state.1

Providing an important basis to the nationalist discourse on freedom and numerous other

subaltern struggles, rights have formed an integral part of the Indian polity. Representing

claims made upon the State, the notion of rights has played an important role in defining

certain fundamental precepts of the obligations and duties that the Indian State has towards its

citizens. 2The Constitution of India, drafted roughly around the same period as the Universal

Declaration of Human Rights, provides for a separate chapter on the protection and promotion of

Fundamental Rights.

3

However, unlike the Universal Declaration that does not distinguish

between sets of rights (civil, political, economic, social and cultural), the Indian Constitution

makes a fundamental distinction between justiciable and non-justiciable rights.4 While the

1Demands for some of the fundamental rights were made as early as in 1918 at the Bombay session of the IndianNational Congress. The Commonwealth of India Bill, finalised by the National Convention in 1925 embodied aspecific declaration of rights like equality before law, freedom of speech, assembly and religion etc. A resolutionpassed at the Madras session of the Congress in 1927 reiterated the demand for fundamental rights. The MotilalNehru Committee appointed in 1928 by the All Parties Conference in its report declared that the first concern of the

people of India was to secure justiciable fundamental human rights. The Karachi Congress Resolution of 1931formally adopted the resolution on Fundamental Rights. Interestingly, ten of the nineteen fundamental rightsincorporated in the Nehru Committee Report were included in the Constitution of India in a substantially unchangedform. For details see Subhash C. Kashyap, Our Constitution: An Introduction to Indias Constitution andConstitutional Law (Delhi 2004 reprint), pp 8-42. Other references include Granville Austin, The IndianConstitution: Cornerstone of a Nation(Bombay, 1985), D. D. Basu,Introduction to the Constitution of India ( NewDelhi, 1997, 18thedn.) and P. M. Bakshi, The Constitution of India (New Delhi, 2000).

2The first civil liberties association in the country was formed in 1936 in Bombay with Rabindranath Tagore as itspresident. The basic idea behind setting up of the Indian Civil Liberties Union was to formalise the right to freedomof expression and association that the Indian people vis--visthe Government. For a comprehensive background ofcivil and democratic rights movement in pre and post Independence see Ghanshyam Shah, Social Movements in

India: A Review of Literature (Delhi, 2004), pp. 242-262 and A.R. Desai, ed., Violation of Democratic Rights in

India (Bombay, 1986).

3 Many of the articles of the UN Declaration find specific mention as legally guaranteed rights in the IndianConstitution. For example, the provisions of equality contained in Article 7, the right to constitutional remedies(Article 8), freedom of movement and residence (Article 13), freedom of thought, conscience and religion (Article18), are some of the important provisions of the UDHR that have been accorded the status of fundamental rights inthe Indian Constitution.4 Discussion within the Constituent Assembly, which was responsible for drawing up the Indian Constitution,indicates that the Advisory Committees classification of rights into two categories of justiciable and non-justiciablerights did not have unanimous acceptance. Some members for example, like Mr. Somnath Lahiri from Bengal drew


6/90

2

protection and promotion of civil and political rights is legally binding upon the State, the

responsibilities of promoting economic, social and cultural rights are relatively less explicit.

Enlisted as Directive Principles of State Policy, these do not enjoy the justiciable status of

fundamental rights, but are nevertheless important as they embody policy guidelines that are to

be progressively realised and observed by the State in good faith.

The present study on the implementation of the right to development, builds on the

normative and legal foundations for linking rights with development in the Indian context. While

India is an official signatory to the UNDeclaration on the Right to Development, discussions on

the specifics of the right to development at the formal level have been limited. Although there is

recognition of the need to institutionalise more democratic norms of governance, linkages to the

right to development have not been sufficiently explored. At the policy level, while certain

elements of a rights-based approach have been institutionalised, the progress made in adopting a

holistic and comprehensive approach that characterises the right to development has been slow.

The possibility of the implementation of the right to development in India remains as yet a

largely untested proposition. Keeping in mind the constraints political, social, economic, and

cultural that typically inhibit development efforts in low and middle-income countries, as well

as the contradictions and challenges confronting development within the country, there exists a

strong case for exploring how the right to development approach may be adopted in the Indian

context.

The term development has been open to several conflicting interpretations. As an activity,

development has come to signify different things to different classes and groups of people. The

attention to the difficulties of making a fine line of distinction between justiciable and non-justiciable rights.Similarly Mr. Promatha Ranjan Thakur again from Bengal specifically called for making economic rightsjusticiable.Debates: Constituent Assembly of India, 29thApril, 1947.


7/90

3

amazingly fast growth of consumerism in the contemporary period, its coexistence with

abominable conditions of poverty and deprivation, and the absence of analysis regarding the

distribution of benefits is a relevant illustration of the problems of finding appropriate definitions

of development. Whereas for some people development is synonymous with economic growth,

for others it is the positive outcomes that flow from growth such as fulfillment of basic needs,

human development, opportunities and freedoms that qualify as development.5 The

conceptualisation of development as aprocessthat consciously focuses on the realisation of the

human rights and fundamental freedoms6 that form the central proposition of the right to

developmentprovides a fresh and innovative interpretation of development.

Coined by the Senegalese jurist, Keba Mbaye, in 1972, the right to development has

been amongst the most controversial issues in contemporary international relations.7In the last

few years, there has been a significant re-examination of the concept and value attached to

adopting a rights-based approach to development, especially in reducing the levels of poverty

5See Gerald M. Meier, and Dudley Seers, ed.,Pioneers in Development(New York, 1984), John Toye,Dilemmas ofDevelopment: Reflections on the Counter-Revolution in Development Theory and Policy(Oxford, 1987) and

Amartya Sen,Development as Freedom(Oxford, 1999) for an elaboration of the changing theoretical notions ofdevelopment.

6The process of development, in which all human rights and fundamental freedoms can be fully realized has beenelaborated in the literature on the right to development as objectives of development policies. For a useful summaryof the relevant provisions see Commission on Human Rights, Economic and Social Council E/CN.4/1999/WG.18/2,Report of the Independent Expert on the Right to Development, 27 July, 1999.

7Cited primarily as a claim to development by the developing world countries against the more developed states, thedemand for the right to development (read along with the call for a New International Economic Order) was focusedon eliminating injustice and inequality of nations and peoples, with little reference in the beginning to the concept orinstruments of human rights. The reference to right to development was implicit in the articles of the UniversalDeclaration and the International Covenants. Taken to be a natural corollary of the right to self-determination, the

right to development was interpreted as a collective right the right of peoples to freely determine and pursue theireconomic, social and cultural development than a right of the individual. Keba Mbaye was the first to interpret theclaim of the right to development as a human right. As Chairman of the Commission on Human Rights in 1977, hewas instrumental in securing a formal recognition of the right to development as a human right through a resolutionof the Commission. See Philip Alston, Making Space for New Human Rights: The Case of the Right toDevelopment, Harvard Human Rights Yearbook, 1988, Vol. 1, pp. 3-40, Oyvind Waeenskjold Thiis, The Right toDevelopment: A Report to NORAD (Oslo, 2000), Arjun Sengupta, The Right to Development as Human Right,Working Paper, Harvard School of Public Health, 2000 for a historical account of the debates and discussionssurrounding the right to development in the international fora.


8/90

4

and deprivation prevalent across large areas of the globe. At the policy level, the main discussion

has been in the United Nations forum, where the adoption of the Declaration on the Right to

Development8 has provided a rallying point around which academics, policy-makers and civil

society may formulate concrete proposals identifying the main parameters of the right. The

current resurgence of interest in the right to development amongst policy makers and academia

comes at a time when concerns are being expressed about the contradictions and biases of the

process of globalisation, especially its effects on the lives of the poor in the developing world.

The present study is part of a larger research project undertaken by the Franois-Xavier

Bagnoud Center for Health and Human Rights of the Harvard School of Public Health. The

Centre for Development and Human Rights (New Delhi) has attempted to document the

prospects and challenges confronting the implementation of the right to development; thus this

report focuses on the meaningful applications of the right to development in the realisation of

basic needs and rights in India. The report is based on preliminary research undertaken by the

Centre concerning the application of a rights-based framework in the areas of food, health and

education.9The report has five main sections. Section I lays down the basic precepts of the right

to development approach that differentiates it from other approaches to development. Section II

presents an historical overview of the process of development in India encompassing a review

of the goals, policies, approaches and structures influencing the formulation and implementation

of development programmes. Section III reviews the possibilities and implications of adopting

the rights approach in fulfilling the basic needs related to food, health and education in

8UN General Assembly Resolution 41/128. December 4, 1986.

9 See Centre for Development and Human Rights, The Right to Development: A Primer(New Delhi, 2004) and thethree background reports by S. Mahendra Dev, Right to Food in India (2003), Ravi Duggal, Health and

Development In India: Moving Towards Right to Health Care(2003) and Ravi Srivastava, The Right to Education inIndia (2003) prepared as a part of the above project on the Implementation of the Right to Development in India.


9/90

5

development.10Section IV outlines the role of international cooperation in realising the right to

development. The last section, Section V, presents the conclusions and main findings of the

research.

The interpretation of development in human rights language undoubtedly raises certain

questions.11

For example, how does the claim to a right to development actually help

individuals? To whom does the right belong and who are the duty bearers? What is the scope of

the right, or the range of specific cases or instances to which the right applies? While the actual

content and meaning of the right may still not be in a final form, the importance of assimilating

rights with development cannot be discounted. For example, while a country may not

consciously follow the right to development model, it is still possible to identify the linkages

between development and rights and the extent to which the rights framework is interwoven with

the realisation of development. The section below takes a look at the basic precepts of the right

to development, before undertaking a larger discussion on the relevance of the right to the Indian

context.

10 Whether a right is basic or not is determined fundamentally, by the relationship that it has vis--vis all otherrights. A right is genuinely basic when the enjoyment of all other rights is dependent on the realisation of this basic

right. Needs related to food, health and education qualify as basic rights. Basic needs interpreted in the rightslanguage are represented as justifiable claims and not mere gifts or favour, motivated by love or pity. See HenryShue,Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (Princeton, New Jersey, 1980).

11For further reference on the discussion on the above aspects of the right to development see Philip Alston, ed.,Peoples Rights(Oxford, 2001), Henry J. Steiner and Philip Alston, Law, Politics, Morals (Oxford, 1996), J.Donnelly, In Search of the unicorn: The Jurisprudence and Politics of the Right to Development, CaliforniaWestern International Law Journal (1985) pp. 473-509, Franciscans International, The Right to Development:Reflections on the First Four Reports of the Independent Expert on the Right to Development (Geneva, 2003).


10/90

6

1.1: The Essential Elements of the Right to Development Approach

The inclusion of certain distinct elements differentiates the right to development thesis from

other mainstream theories on development (e.g. economic growth, basic needs, human development,

centralised planning, free market neo-liberal, participatory and community-driven models). These

include:

The right to development is a right to a process, not just outcomes, based on the five

principles of rights-based approach equity, non-discrimination, transparency,

accountability and democratic participation. 12

The right to development requires the realisation of all rights in an integrated

manner,rather than viewing them as discrete components. Trade-offs among rights or

between rights and economic growth that lead to the diminution of the enjoyment of

any right are inconsistent with the right to development.13

12The above interpretation of the right to development as a process of development in which all human rights andfundamental freedoms are realised, forms the crucial vantage point that distinguishes the right to development fromother mainstream theories of development. A process implies an interdependence of different elements. Theinterdependence can be understood in terms of time, as a related sequence of what happens today and what happenstomorrow The right to development in other words is the right to a process that expands the capabilities orfreedom of individuals to improve their well being and to realize what they value. Report of the Independent Experton the Right to Development, General Assembly, A/55/306, 17 August 2000.

13

There may be many different ways that a country can develop a sharp increase in GDP or rapidindustrialization or export-led growth which may result in growing inequalities, regional or international disparity,fluctuating employment with little social security, together with a concentration of wealth and economic power,without a commensurate reduction in poverty or improvement in social indicatorswith no improvement in thefulfilment of civil and political rights or of equity and social justice. These processes of development would not beregarded as part of the process of development protected by the 1986 Declaration, as objects of claim as a humanright.The implementation of the right to development should be seen as an overall plan or programme ofdevelopment where some or most of the rights are realized while no other rights are violated. Report of theIndependent Expert on the Right to Development A/55/306, 17 August 2000.


11/90

7

There exists a strong connection between the realisation of all the rights taken

together in theright to development and the need for economic growth in relaxing the

constraints of resources, technology and institutions.14

The identification of development with the fulfillment of rights and freedoms both at a

particular time and over a period of time or the phased realisation of rights distinguishes the

right to development from other existing approaches to development. Encompassing a broader

canvas of development that includes freedom from poverty, social deprivation and tyranny, the

right to development draws attention to the crucial aspects of the ends and means of

development. Whereas ends focus on goals or final outcomes, theprocessreflects the means by

which such goals are actually achieved. For policy makers, goals and objectives invariably form

an important basis for selection and design of policies. Expressed either in quantitative or

qualitative terms or a mix of both, goals lay the basis for programmes or policies, reflecting upon

what ought to be. In this respect, they stand to be distinct from outcomes. The process refers to

the crucial aspects of social, economic and political life that determines the possibilities of

change and transformation. The right to development makes it mandatory for both outcomes and

the process through which such outcomes are achieved to be consistent with human rights

standards. In such a framework both ends and means are accorded equal importance.

Unlike the preoccupation of most theories of development with achievements of certain

targeted goals without any considerations for the means or the process through which these ends

are achieved, the association of development with the process and not just the outcomesgives

14Like the rights to health, education etc., the growth dimension of the right to development is both an objectiveand a means. It is an objective because it results in higher per capita consumption and higher living standards; it isinstrumental in that it allows for the fulfilment of other development objectives and human rights. However, to berecognised as an element of the human right to development, growth of resources must be realized in the manner inwhich all human rights are to be realizedensuring in particular equity or the reduction of disparities. Third Reportof the Independent Expert on the Right to Development, Commission on Human Rights, Economic and SocialCouncil, E/CN.4/2001/WG.18/2, 2 January 2001.


12/90

8

the right to development a distinct identity. A process of development that does not follow the

principles of rights-based development (equity, non-discrimination, transparency, accountability

and participation) violates the tenets of the right, and thus the essence of development, even if it

manages to attain certain rights and freedoms. For example, a country may choose to prioritise

certain outcomes, such as compulsory schooling for all children or a social security programme

for the aged, as its goals for development. While consensus may prevail on the goals, there is a

possibility of disagreement over the process of realising the goals, given the existence of several

alternative processes.15

For example, among the many alternative processes available for implementing

compulsory education, there may be a situation in which the Government is faced with three

main policy options: (i) coercing parents to send their children to school; (ii) creating a demand

for education amongst parents and children; or (iii) diverting money from other development

needs in order to construct schools where none exist. The choice of options in the case of the

right to development is not determined simply by utilitarian calculations of the number of

persons benefited. Rather, in deciding upon the choice of policies, the consistency of human

rights with both outcomes and process is given primary importance. In all cases, policy decisions

must be evaluated in terms of each of the tenets of a rights-based development approach. Option

one, for example, directly contradicts the accepted norms of democratic decision-making.

However, if the State fails to create demand for education among minority groups, or follows a

discriminatory, non-participatory process of policy making, then option two likewise does not

15 The right to development, especially the interpretation provided by the Independent Expert of the right todevelopment as a right to a process of rights-based development, has been criticised by some scholars on thegrounds that the process is of purely instrumental value, and it would be a mistake to conceptualise it also as an endof development. See Siddiq Osmani in his article, Some Thoughts on the Right to Development in FranciscansInternational, The Right to Development: Reflections on the First Four Reports of the Independent Expert on the

Right to Development(Geneva, 2003).


13/90

9

constitute a suitable, rights-based policy choice. In the case of option three, while the

construction of new schools does improve upon the accessibility and availability of education, at

the micro level the cost of school construction could result in the corresponding reduction in

spending on the realisation of another right, such as a supplemental nutrition program for

pregnant women and children. The achievement of one right at the expense of another also fails

to be a viable policy choice.

The right to development framework does not sponsor a trade-off approach to

development outcomes, as all human rights are regarded as inviolable and none of them is

considered superior or more basic than another.16 Even so, it is possible to prioritise the

progressive realisation of rights, as the rate of fulfillment of some rights may be accelerated more

than others depending upon resource constraints and social preferences. One set of rights is not

considered superior over other rights; rather, individual communities and societies would choose

their own programmes of development in accordance with the given state of affairs. For instance,

a developing country may choose to prioritise the fulfillment of the right to food or the right to

basic health care while a relatively better-off country may choose to accelerate other areas of

rights fulfillment.

The integrated and holistic approach that takes into account the rights and freedoms of

citizens in determining the processes as well as outcomes of development distinguishes the right

to development from other existing approaches to development. Emphasising the interdependent

nature of rights, the right to development consciously links the realisation of each right with the

performance of other rights, conceptualising a framework of progressive and integrated

realisation of all rights. In doing so, it explicitly presses for a more comprehensive treatment of

16Report of the Independent Expert on the Right to Development A/55/306, 17 August 2000.


14/90

10

rights than has traditionally been the case in highlighting the inadequacies of the existing

processes of development.

Attention to process also raises other related concerns. The identification of development as a

human right makes it obligatory for the State, by virtue of being the primary duty-holder, to

undertake specific responsibilities towards respecting, fulfilling and protecting the right to

development of citizens. States have the obligation to respect, which includes a positive

affirmation on the part of the State not to undertake any action that would cause obstruction or

hindrance in the process of rights fulfillment. Then States also have the obligation toprotectand

safeguard the rights and freedoms of individuals from negative actions arising on account of

unethical practices. The protective function of the State is the most important as well as

manageable aspect of the States obligations, as the States role in the protection of economic,

social and cultural rights are very similar to its role as protector of civil and political rights.

However, the State also has the positive obligation to facilitate and aid the process of rights

realisation by undertaking affirmative action that guarantees suitable opportunities and means for

citizens to realise their needs.

The lack of sufficient resources has often been quoted by States, especially in the

developing world, as a reason for the inability to provide for certain basic rights for all. While

this may be a plausible situation, in order for a State party to be able to attribute its failure to

meet at least its minimum core obligations to a lack of available resources, it must demonstrate

that every effort has been made to use all resources that are at its disposition in an effort to

satisfy, as a matter of priority, those minimum obligations.17

While the full realisation of

17 United Nations, Compilation of General Comments and General Recommendations Adopted by Human RightsTreaty Bodies, HRI/GEN/1/Rev.5, 26 April 2001, p. 20.


15/90

11

relevant rights may be achieved progressively, deliberate, concrete and targeted steps towards

that goal must be taken by the State to demonstrate its seriousness in according importance to the

realisation of basic rights. It is significant that a State in which a significant number of

individuals are deprived of essential foodstuffs, of essential primary health care, of basic shelter

and housing, or of the most basic forms of education, is prima facieconsidered as having failed

in the discharge of its primary obligations.18

The obligation to take steps towards the realisation of basic rights by all appropriate

means by States includes a commitment to all three levels of obligations respect protect and

fulfill. While the obligations to respect and protect may appear to be less demanding than the

right to fulfill, which necessarily involves a certain degree of affirmative action on the part of

States, representatives of the State must still struggle to make themselves relatively autonomous

of the dominant structures of power within a country, in order to address conflicts and differing

interests among groups or individuals while respecting and protecting fundamental rights.19

In

India, contradictions in the development process necessarily create divisions between groups and

communities, so that affirmative action becomes a social necessity. In addressing concerns such

as equity, the selection of a set of policies from amongst many is not as technical as is made

out to be: the choice is a political one involving considerations and calculations of policies that

may not be acceptable to both powerful and dispossessed segments or classes of society.

Therefore, the State must mediate the crucial interests or various stakeholders, in the process of

ensuring a fair and equitable solution to the problems of development.

18Ibid., p 20.

19The concept of relative autonomy referring to the ability of the capitalist State to act and formulate policiesindependent of and even against interests of dominant groups and classes has been borrowed from the work ofscholars such as Nicos PoulantzasState, Power and Socialism (New York, 1980) and Theda Skocpol, States andSocial Revolutions: A Comparative Analysis of France, Russia and China(Cambridge, 1979).


16/90

12

1.2: Right to Development in the Context of the Indian Development Experience

As a country, the Indian experience with development provides an interesting test case.

Predominantly capitalist in orientation, traces of feudal life still exist in certain parts of the

country that pose a challenge to the democratic norms of modern society.20Bonded wage labour

as opposed to free employment, small-scale labour intensive manufacturing units vis-a vis larger

and fully automated units of production, the co-existence of a relatively small organised sector

with a massively huge and heterogeneous unorganised sector, are a few reflections of the

complexities involved. For example, while India ranks high in terms of global competitiveness

(rank 57)

21

, Indias social indicators remain weak by most measures of human development. In

terms of human development ranking, India ranks at par with countries having lower per capita

incomes (rank 127)22

. Desperately low achievements in attaining equity of opportunities to basic

goods and services, such as schools and hospitals, make the application of the rights-based

approach to development imperative in India.

The history of the last fifty-plus years of development planning in India has been

characterised precisely by attempts at resolving and reducing contradictions in development,

either through State-encouraged initiatives or direct public action. Despite impressive gains in

economic investment and output, massive overpopulation, disparate levels of welfare, extensive

poverty and high environmental degradation place India in a peculiar situation. On the one hand,

the country produces highly qualified professionals, yet on the other, approximately 20 percent

20

See Andre Beteille, Studies in Agrarian Social Structure (Delhi, 1974), Sumanta Banerjee,In the Wake ofNaxalbari (Calcutta, 1980), K. Balagopal, Probings in the Political Economy of Agrarian Classes and Conflicts(Hyderabad, 1988), Navdita Gandhi and Nandita Shah, The Issues at Stake: Theory and Practice in theContemporary Womens Movement In India (New Delhi, 1991) for an elaboration of the interface betweenfeudalism and capitalism in modern Indian society.

21Global Competitiveness Report 2003-2004(New York, 2004).

22Human Development Report 2003(New York, 2003).


17/90

13

of the worlds out-of-school children belong to India.23The issue at hand is not just about unmet

needs and aspirations, but a larger question of the States responsibilities and obligations towards

maximising the redress of socio economic imbalances and inequities. The poor suffer from

extreme lack of access to a range of basic services, denying them economic, social and cultural

rights, while assaulting the principles of political equality and social justice enshrined in the

Preamble of the Indian Constitution.

Historically, the formal end of two hundred years of colonial rule in August 1947

presented a significant opportunity for social and economic transformation.From 1757, the year

the East India Company established its control over Bengal till the very last years of colonial

rule, India remained a prized possession of the British.24

An ideology of paternalistic

benevolence, occasionally combined with talk of trusteeship and training towards self-

government, thinly veiled the realities of the Raj.25

The unsatisfactory diffusion and denial of

the accrued benefits to a large majority of the native Indian population, along with gradual

impoverishment under colonialism, provided the immediate imperative for an indigenously

designed, self-reliant programme of development. Amid other developing countries who gained

independence around the same period, the relatively better position of India gave rise to genuine

23

24 As a colony, India served as an important post for markets and raw materials which arose as a result of theIndustrial Revolution in Britain. Initially cotton, silk, spices and handicrafts formed the main exports from India, butwith the decline of traditional exports in the face of competition from Manchester, India started exportingcommodities such as raw cotton, jute, tea, oilseeds, hides and skins. For a more exhaustive commentary of theeconomic consequences of colonial rule, see Romesh Dutt, The Economic History of India: In the Victorian Age

1837-1900 (Delhi, 1963) and R. Palme Dutt,India To-day(Calcutta, 1970, 2nd

edn.).

25 Sumit Sarkar, Modern India 1885-1947 (Madras, 1983 reprint), p. 1. Administrative charges levelled by theBritish Government ,euphemistically referred to as the Home Charges came to 17.3 million in 1901-02 of whichinterest on railways made up for 6.4 million, the interest on India Debt 3 million, army expenses 4.3 million,stores purchase 1.9 million and pensions 1.3 million. Sumit Sarkar, pp. 25-27.This drain of wealth propoundedby early nationalist leaders such as Dadabhai Naoroji to highlight the exploitative relationship existing betweenBritain and India represented a potential surplus that if invested properly within the country might have helped raiseIndias income considerably.


18/90

14

expectations that despite the grinding poverty, the country would manage to embark on a

successful programme of national reconstruction and development. India benefited from a rich

stock of natural resources, an industrial base which by the standards of other colonies was fairly

broad and advanced, a bureaucratic and administrative apparatus and lastly a political leadership

committed to a programme of modernisation.

It is interesting to note that while the very political strategy of building up a mass

movement against colonial rule had required the nationalists to espouse Gandhis idea of

machinery, commercialisation and centralised state power as the curses of modern civilisation

imposed by European colonialism, Gandhis vision of national self-sufficiency through a vibrant

and largely self-reliant village economy was considered to be too impractical and unrealistic at

the eve of Independence.26 Instead of the Gandhian model of community-based decentralised

development, a centralised model of planned development was adopted, in the hope of rapid

industrial and economic transformation, very much influenced by the theories of socialist

development. The central core of the development policy was a move towards a capital intensive,

public sector led programme of heavy industrialisation. The strategy did not draw its principal

inspiration from a reasoned analysis and assessment of the political economy of the country, its

resources, social structure and the immediate needs of its people.27 Instead, it drew upon the

very model of the modern industrial economy that the freedom struggle had criticised severely in

its drain of wealth theory. The initiation of an aggressive policy of industrialisation minus

26Partha Chatterjee, The Nation and its Fragments: Colonial and Postcolonial Histories (Delhi, Indian edn.1995),p.201.

27Paul R. Brass, The Politics of India Since Independence (Delhi, 1994, 2nd edn.), p. 275.


19/90

15

commensurate attention on other equally more important goals of development therefore left

much to be desired. 28

The Planning Commission in Delhi was designated as the nodal body responsible for

formulating development plans between the Centre and the States. At the regional level, the State

was recognised as the fundamental planning unit. Each State unit was divided into several

districts, which in turn were divided into blocks. A cluster of villages made up a particular block.

While the administrative structure was kept the same for all States, there was relatively little

uniformity maintained between States in terms of area or population size. For the smaller states

while the three-tiered structure did not create problems, for bigger states such as Madhya

Pradesh, even a district formed too big an administrative unit. While the village was accepted as

the basic unit of the organisational framework, there was relatively very little delegation of

decision-making powers at the level of local Panchayat bodies.29

The call for decentralised

planning that had been a rallying point during the freedom movement was shelved, inadvertently

leading to the exclusion of the community from the realm of policy making.

28The reluctance of the political leadership to undertake structural reforms has been theorised in the works of manyscholars such as Partha Chaterjee, Sudipto Kaviraj, Gunnar Myrdal and others. Both Chatterjee and Kaviraj haveborrowed Gramscis concept of passive revolution to describe the context in which the new claimants of power,lacking the social strength to launch a full scale assault on the old dominant classes, opt for a path in which thedemands of a new society are satisfied in small doses, legally in a reformist manner in such a way that thepolitical and economic position of the old feudal classes is not destroyed, agrarian reform is avoided, and thepopular masses are prevented from going through the political experience of a fundamental social transformation.Gunnar Myrdal on the other hand uses the soft state analogy to describe very much the same phenomena.According to him there is unwillingness among the rulers to impose obligations on the governed and acorresponding unwillingness on their part to obey rules laid down by democratic procedures. See Partha Chatterjee, The Nation and its Fragments: Colonial and Postcolonial Histories (Delhi, Indian edn.1995),Sudipto Kaviraj, ed.,

Politics in India (Delhi, 1999),Gunnar Myrdal, Asian Drama : An Inquiry into the Poverty of Nations (New Delhi,1992 reprint).

29Debates of the Constituent Assembly reveal that there existed a wide spectrum of views on Panchayati Raj,ranging from the Gandhian model of a decentralised village republic to a complete rejection of the village as a sinkof localism and a den of ignorance by Ambedkar. Even those who supported some sort of devolution of powerpreferred an arrangement within the larger framework of the modern nation state.Panchayti Rajas the foundation ofdecentralised governance was thus rejected and included instead as Article 40 of the Directive Principles of StatePolicy.


20/90

16

While a popularly elected representative form of government provided both the

legitimacy and the mandate to the Executive to determine the vision and course of development,

the Executive in India also retained a degree of autonomy from the civil society in determining

the goals and objectives of development. The Westminster model of parliamentary democracy in

fact replicated the colonial practice of giving the Executive de facto powers to decide, plan and

execute all policies related to national and regional development. A strong consensus existed

among the political leadership and the immensely powerful bureaucracy concerning the central

importance of industrialisation in laying the groundwork for development. While the

Government formally announced the abolition of zamindari and placed ceilings on land

ownerships, these concerns were considered to be of secondary importance to the

industrialisation that continued to be closely identified with modernisation.30

While it is understandable that situation prevalent at the time of Independence was a

complex one, the failure of the Indian State to undertake a proactive programme of social

reconstruction and development remains an anomaly. For example, on the issue of caste, while in

1955 the Government passed the Untouchability (Offences) Act, which made its practice in any

form a punishable offence, there was little that was done in concrete terms to tackle the issue of

caste-based discrimination. While the Act provided protection against social disabilities imposed

on certain classes of persons by reason of their birth in certain castes, it did not cover social

boycott based on conduct.31

In other words, there was no affirmative action to regulate

customary practices that prohibited persons belonging to lower castes from using the same wells,

30For a review of these two programmes see Atul Kohli, The State and Poverty in India: The Politics of Reform(Cambridge, 1987).

31InDevarajiah v. Padmanna(1961), the Supreme Court of India interpreted the objective of Article 17 of theIndian Constitution relating to the abolition of untouchability, as proclaiming the end of the inhuman practice oftreating certain fellow human beings as dirty and untouchable by reason of their birth in certain castes.


21/90

17

attending the same temples or marrying persons from other castes. Constitutional provisions

provided legal guarantee of greater equality; however, in practice, considerable inequalities

persisted. The majority of the lower caste either worked as agricultural workers or continued to

be engaged in traditional occupations, such as flaying and scavenging.32

Therefore, while economic growth and democratic arrangements buttressed the

legitimacy of political authorities by providing economic rewards to the upper class urban

professionals and the rural landed elite, the majority of workers in both agricultural and the

industrial sectors received relatively little benefits from this growth.33Studies undertaken have in

fact shown that the pattern and process of development in fact strengthened the primordial

system of caste-based loyalties.34

The Community Development Programme, instituted in 1952,

serves as a useful illustration of the inherent limitations of a process of development biased

against persons coming from lower castes. Although the first phase of the programme focussed

on the improvement of social amenities such as schools, health centres, roads, wells, etc., the

major beneficiaries were upper caste elites; lower caste workers who constituted the majority of

the poor continued to be both physically and socially deprived of the benefits of such

investments.35

Experiences in development planning in India over the last few decades have confirmed

the persistence of similar contradictions. For example, nearly fifty years later, scheduled castes

32Gail Omvedt,Dailt Visions: The Anti-Caste Movement and the Construction of an Indian Identity (New Delhi,

1995), M.N. Srinivas, Social Change in Modern India (Berkeley, 1966), GhanshyamShah, n. 2, pp.118-136, for areview of caste-based discrimination in India.

33Atul Kohli, The State and Poverty in India: The Politics of Reform, n.30, p. 8.

34See James Manor, Karnataka: Caste, Class, Dominance and Politics in a Cohesive Society in Sudipto Kaviraj,ed.,Politics in India, n.28, pp.262-273.

35Gunnar Myrdal,Asian Drama: An Inquiry into the Poverty of Nations, n. 28.


22/90

18

and tribes continue to be discriminated against and deprived of the right to participate in the

formulation and making of development policies affecting them. Although their exclusion from

the policy process as actors and beneficiaries has significantly reduced over the years, as a

community they continue to lag behind the rest of the population in terms of overall

development. For example, the highest proportion of underweight children continues to be from

scheduled caste and tribe families. The relative poverty in which they are forced to live makes

them vulnerable to increased morbidity and mortality that has a debilitating effect on their

capabilities. Intra-State and intra-commmunity differences in important indicators such as infant

mortality the infant mortality rate is over 80 among scheduled caste or tribe households,

compared to the national average of 70 deaths per 1000 live births signify the need for special

attention to be focussed on the development of socially and economically disadvantaged

communities. 36

Based on the Census for the last four decades, literacy rates of scheduled tribes and

scheduled castes vis-a-vis the rest of the population illustrates the widening gap and the

relatively slow progress that has been made in creating equal opportunity for all people.

Systemic discrimination in India is not just confined to grounds of caste, race and class, but

extends to criterion of sex and disabilities. For example, while the Constitution specifically

provides for equality between sexes, the roots of gender discrimination lie deeply entrenched in

the social and cultural fabric of communities. Elimination of the girl foetus through illegally

executed pre-natal sex determination and female infanticide is responsible for the declining sex

36A similarly broad difference exists in the under-five mortality rates too. While for India as whole the under-fivemortality is roughly 100, for scheduled caste and scheduled tribe families the rate is over 120 deaths per 1000 livebirths. Planning Commission, Tenth Five Year Plan, 2002-07, Vol. 2.


23/90

19

ratio between males and females,37 and is indicative of how technological advances can be

subverted to further discrimination and gender biases prevalent in modern Indian society. A

similar situation prevails in case of physically challenged persons. The lack of opportunities

towards the fulfilment of basic needs such as freedom of movement, schooling, employment,

etc., places such persons at a relative disadvantage vis-a-vis others living in the same society.

The above examples seek to reinforce the need for institutionalising a framework of

development that seeks to make the individual the central focus of attention. The legal

guarantees related to equality, non-discrimination, freedom of movement and association that

continue to be violated in different contexts across different segments of the population supports

a revision of conventional legal principles. Translated as a goal of development policy, the rights

framework shifts the focus of policy making from the realm of outcomes to a deeper concern

with the qualitative aspects of life. Development in such a framework is not judged solely on the

basis of achievement of certain quantitative targets but rather by the positive improvement or

contribution that the intervention makes to the enhancement of human capabilities. The right to

development in its form and spirit supports such a representation. The complexities and the

paradoxes prevalent in India support the association that the right to development makes between

development and public action. Disparities at multiple levels that have a direct bearing on all

facets of development (personal, social, political, cultural and economic) make it impending to

consciously articulate and integrate development with the rights discourse.

The reconceptualisation of the role of economic growth in development represents such a

move. The right to development intrinsically supports a process of growth that aids the positive

37As per official estimates, for India as a whole, the sex ratio in the age group 0-6 years has fallen from 945 in 1991to 927 in 2001. Source: Census 2001.


24/90

20

realisation of rights and freedoms. The achievement of growth per se is not taken to be the

representative indicator of development. Rather it is the process of growth its consistency with

the rights framework its content and character that are considered more important. For

example, if the distribution of growth is skewed disproportionately in favour of a few groups,

classes or regions, then such a process of growth is incompatible and fundamentally contrary to

the framework provided in the right to development. A comparative analysis of the trends in

growth in Tables 1.1 and 1.2 brings out the intricacies existing between growth and development

in India.

While progressive growth has been a regular feature of the Indian economy indicating a

steady improvement in the growth potential of the country, the widening gaps between regions

and communities in terms of income, resources and opportunities call for concern. Per capita

income in the richest State (Maharashtra) is approximately nine times that of Assam, the poorest

State in the country.38

While disparities between States certainly form an important area of

concern at the national level such as the relative backwardness of the North-Eastern States vis--

vis the rest of the country, from the rights perspective, it is iniquitous distribution at the local

intra-State level that is of greater concern. The case of Tamil Nadu provides a relevant

illustration of the above point. Tamil Nadu that ranks first in terms of growth in per capita

38The categorisation of rich and poor States is limited to the selected 15 States in Tables 1.1 and 1.2.


25/90

21

Table1.1: Gini Coefficient for Per Capita Consumption Expenditure Across State

1983 1993-94 1999-00

State Rural Urban Rural Urban Rural Urban

Andhra Pradesh 0.294 0.327 0.257 0.321 0.238 0.310

Assam 0.192 0.276 0.176 0.285 0.201 0.311

Bihar 0.256 0.301 0.221 0.309 0.208 0.318

Gujarat 0.256 0.172 0.236 0.285 0.233 0.288

Haryana 0.272 0.313 0.300 0.280 0.240 0.285

Karnataka 0.303 0.334 0.269 0.340 0.241 0.321

Kerala 0.330 0.374 0.290 0.340 0.270 0.320

Madhya Pradesh 0.295 0.306 0.278 0.326 0.241 0.312

Maharashtra 0.285 0.337 0.301 0.350 0.258 0.345

Orissa 0.267 0.296 0.243 0.304 0.242 0.292

Punjab 0.279 0.319 0.264 0.276 0.238 0.290

Rajasthan 0.343 0.304 0.260 0.290 0.209 0.281

Tamil Nadu 0.325 0.348 0.308 0.344 0.279 0.398

Uttar Pradesh 0.290 0.319 0.278 0.324 0.245 0.327

West Bengal 0.286 0.327 0.250 0.335 0.224 0.328

India 0.298 0.330 0.282 0.340 0.258 0.341

Source: Planning Commission,National Human Development Report 2001, p. 148.

income however also ranks first in terms of inequalities. The urban Gini39 of 0.39 for Tamil

Nadu vis-a-vis the rural Gini of 0.27 indicates that internal inequalities in terms of per capita

39The Gini coefficient is an indicator of the level of inequalities existing in a given society, where 0 and 1 representtwo extremes of perfect (0) equality and extreme (1) inequality.


26/90

22

consumption are higher in urban than rural Tamil Nadu. In contrast to Tamil Nadu, Assam which

ranks lowest in terms of income stands out as the State having the lowest rural Gini (0.20)

amongst the rest of the States selected for consideration.40

The relationship between growth and development is dependent on a number of

exogenous and endogenous factors. While centre-state relationships play an important role in the

determination and allocation of resources, at the local level the potential for growth is invariably

determined by the composition and structure of society, politics and the economy. Kerala and

West Bengal illustrate the contribution that social sector policies and land reform programmes

can have in reducing inequities associated with the development process. Rajasthan, which was

for long identified as a BIMARU (backward) State, has been successful improving human, while

other relatively faster growing states, such as Karnataka, Gujarat and Andhra Pradesh, have

fallen in their human development rankings.

While nearly all State Governments encounter problems in fiscal deficit management,

some states in India are worse off than others. Tamil Nadu, which carries a record of continuous

improvement in growth performance, has been better positioned to overcome challenges than the

states of Orissa or Bihar, which have long had lower rates of growth. While persistence of inter-

State disparities is a cause for concern, underdevelopment over a period of time, as in the case of

the Koraput-Bolangir-Kalahandi (KBK) region,41 is of greater concern. The KBK region in

Orissa accounts for approximately 30 percent of Indias total land area, and 19.7 percent of the

40 The states of North East India it may be noted have lower rural Gini coefficient figures than those recorded forthe rest of India. While the rural Gini for the India as a whole was 0.25 in 1999-2000, for Meghalaya, Manipur,Tripura and Nagaland the Gini was 0.14, 0.19, 0.18, 0.15 respectively. See Planning Commission,NationalHuman

Development Report 2001, and p. 148.41The eight districts that make up the region are: Koraput, Malkangiri, Nawrangpur, Rayagada, Bolangir, Sonepur,Kalahandi and Nuapada.


27/90

23

Table 1.2: Growth and Human Development

HDI Rank

Per capita

NSDP 1993-94

to 1999-00

Literacy Rate Infant Mortality Rate

States 1991 2001

Ranks

based on

state wise

NSDP

(1999-00at

constant

prices)

Ranks

based on

per capita

NSDP

(1999-00at

constant

prices)

AverageAnnual

Growth

Rate Rank 1991 Rank 2001 Rank 1996 Rank 2000 Rank

Kerala 1 1 12 8 4.6 6 89.8 1 90.92 1 13 1 14 1

Punjab 2 2 11 2 2.6 10 58.5 5 69.95 5 52 3 52 4

Tamil Nadu 3 3 3 5 6.7 1 62.7 3 73.47 3 54 5 51 3

Maharashtra 4 4 1 1 3.6 8 64.9 2 77.27 2 48 2 48 2

Haryana 5 5 13 3 3.9 5 55.8 8 68.59 7 68 9 67 8

Gujarat 6 6 6 4 5.5 4 61.3 4 69.97 4 62 7 62 6

Karnataka 7 7 8 6 6.6 2 56 7 67.04 8 53 4 57 5

West Bengal 8 8 4 9 6.5 3 57.7 6 69.22 6 55 6 51 3

Andhra Pradesh 9 10 5 10 4.2 7 44.1 12 61.11 12 66 8 65 7

Assam 10 14 15 13 0.8 13 52.9 9 64.28 9 75 11 75 2

Rajasthan 11 9 10 11 5.1 5 38.5 15 61.03 13 86 13 79 9

Orissa 12 11 14 15 2.1 11 49.1 10 63.61 11 96 14 95 12

Madhya Pradesh 13 12 7 7 2.6 10 44.7 11 64.11 10 97 15 87 11

Uttar Pradesh 14 13 2 12 3.5 9 40.7 13 57.36 14 85 12 83 10

Bihar 15 15 9 14 1.9 12 37.5 14 47.53 15 72 10 62 6

India - - - - 5.15* - 44.69 - 59.21 - 72 - 68 -

Sources: Handbook of the statistics on Indian Economy, RBI, 2002; Economic Survey2002-03, ProvisionalPopulation Totals Paper 1 of 2001, Series 1, Census of India 2001, India, Statistical Abstract 1997 and 2002, CSO,

National Human Development Report 2001, Planning Commission, Government of India 2001, Economic Survey2002-03,GOI.

Note: States are sorted according to HDI rank of 1991.NSDP figures were taken from RBI, and Per capita NSDP are obtained by dividing NSDP withpopulation totals computed from Economic Survey.*The figure for India is calculated from the per capita net national product.


28/90

24

total population. However, nearly 87.1 percent of the population living here subsists below the

poverty line.42 Despite the investment of various Government programmes, the KBK region

continues to be plagued by poor social and economic development. This continued persistence of

poverty points to the need for a wider range of public action, so as to create pressures for better

policy administration.

2: The Institutional Framework Supporting a Human Rights Approach in India

Historically, while rights constituted an integral theme of the nationalist movement and

were accorded special importance in the Constitution of India, the conceptualisation of

development in the post-Independence period was bereft of the rights framework. India it may be

noted was one of the few countries that constitutionally accorded equal civil and political rights

to both men and women at a time when certain countries such as Switzerland continued to deny

to its women the right to franchise. A separate section (Part III, Articles12-35) was devoted to

rights that were considered to be fundamental in the new Constitution. These were essentially

rights of a civil and political nature delineating limitations or restrictions on the actions of the

State, such as equality before law, the right to freedom of speech and association, rights against

discrimination on grounds of religion, race, caste, sex and birth. However, given the fact that at

the social level there were certain bottlenecks that impinged on the enjoyment of certain

freedoms, affirmative action constituted an important part of the responsibility that the State had

towards the protection and promotion of civil and political liberties.

The protection of economic, social and cultural rights on the other hand was more

implicit. Placed in a separate section as Directive Principles of State Policy (Part IV, Articles 36-

42Orissa Development Report 2001, http://planningcommission.nic.in/plans/stateplan/stplsf.htm


29/90

25

51), this set of rights were included to serve as policy guidelines for successive governments to

build upon the ideal of a democratic welfare state as set out in the Preamble.43A commitment to

equal pay for equal work for both men and women, conditions of work ensuring a decent

standard of life and full enjoyment of leisure and social and cultural opportunities, the

ownership and control of the material resources of the community to sub serve the common

good, right to work, to education and to public assistance in case of unemployment, old age,

sickness and disablement etc. were some of the important principles enumerated in this section.

While legally the Constitution made the State explicitly responsible for the protection and

promotion of civil and political rights, the States responsibilities to the protection of social,

economic and cultural rights were relatively less explicit. At the time of Independence while

non-justiciability of Directive Principles was justified on the grounds that a State just awakened

from freedom with its many preoccupations might be crushed under the burden,44 there were

demands from certain representatives to make Directive Principles of State Policy justiciable.45

While the constraint on resources was invariably an important consideration it is debatable

whether financial constraints provided the sole justification for the State to refrain from

assuming direct and binding obligations in development. The Kerala experience with

development clearly counters such reasoning. Following independence in 1947, while Kerala

43The Preamble to the Indian Constitution calls upon the State to secure the following ideals for all its citizens:

justice, social, economic and political; libertyof thought, expression, belief, faith and worship, equalityof statusand of opportunity and to promote among them allfraternityassuring the dignity of the individual and the unity andintegrity of the Nation.

44The Constitutional Advisor to the President of the Constituent Assembly, B. N. Rao in fact suggested anamendment that would make Directive Principles enforceable in a court of law. However, the amendment was notcarried out, as it did not find favour with the majority in the Constituent Assembly.

45See n. 4.Debates: Constituent Assembly of India, 29thApril, 1947.


30/90

26

continued with the legacy of allotting a substantial share of public resources to social

investments, this was not the case for the rest of India.46

Given the arbitrary nature of obligations towards development, the issue of justiciability

certainly merits attention. While there is no disagreement over the fact that the State has an

obligation to improve the standard of living of all its citizens, there is relatively little consensus

over whether such a responsibility be made legal and justiciable, creating positive obligations for

the State to undertake certain policy steps in order to fulfill and provide for the social and

economic needs of individuals. This is where the protection of legally enforceable social and

economic rights, as opposed to merely aspirational rights enters the debate.

47

The positive value

of making the category of economic and social rights justiciable in a democracy may be

illustrated by taking up the case of something as basic as the universalisation of primary

education across the country.

The original text of Article 45 of the Indian Constitution dealing with primary education

had laid out that the State shall endeavour to provide, within a period of ten years from the

commencement of this Constitution, for free and compulsory education for all children until they

complete the age of fourteen years. Article 45 has recently been rephrased through an Act of the

Indian Parliament (Eighty-sixth Amendment, 2002), and the article now reads as the State shall

endeavour to provide early childhood care and education for all children until they complete the

age of six years. The above amendment read along with Article 21A48

that appears in the

46Patrick Hellar, From Class struggle to Class Compromise: Redistribution and Growth in a South Indian State,The Journal of Development Studies, Vol. 31 (5), June 1995.

47Jackbeth K. Mapulanga-Hulston, Examining the Justiciability of Economic, social and Cultural Rights, TheInternational Journal of Human Rights, Vol. 6 (4), pp. 29-48.

48The State shall provide free and compulsory education to all children of the age of six to fourteen years in suchmanner as the State may, by law, determine.


31/90

27

section on Fundamental Rights is significant. Constitutionally now, the State is under an

obligation to ensure free and compulsory education to all children aged six to fourteen years. The

transformation of indirect responsibilities into a more direct obligation through a constitutional

amendment holds significance for potentially supporting the gradual interpretation of

development from a rights perspective in India.

However, the above example also throws light on some of the inherent limitations of the

justiciability thesis in making rights realisable. The States obligation for rights fulfilment

extends to three basic spheres the right to respect, protect and fulfil. Legislation on rights

constitutes only one part of this entire process. In the Indian context, while the Indian State may

respect and protect the right to education for all children by including it as a Fundamental Right,

the duty to fulfill necessarily entails affirmative action to ensure the full realisationof the right.

In other words, while the constitutional recognition of the right to education, as a justiciable right

is undoubtedly a positive step forward, yet justiciability per sedoes not automatically lead to a

guarantee of realisation. There can be a situation where peoples rights may have no protection

despite being guaranteed in the Constitution. The right to education is a relevant citation of how

the realisation of rights is connected to and dependent on a much larger process that involves

both the State and the community to engage in a programme of affirmative action.

At this point it would be useful to examine the constitutional and legal framework

supporting the institutionalisation of a system of rights-based governance in India. Rights in

India derive their primary legitimacy from the assertion of fundamental principles of justice,

liberty, equality and fraternity, mentioned in the Preamble to the Indian Constitution. Table 2.1

displays the various provisions existing for the realisation of rights-based principles in India. The

principle of equity, for example, finds substantive elaboration in specific provisions that connote


32/90

28

Table 2.1: Legal Framework Supporting Rights in Governance

Principles Constitution of India : Principles & Provisions

Special provisions for socially and educationally backward classesScheduled Castes, Scheduled Tribes and women and children (15)

Equality of Opportunity in matters of Public Employment (16)

Fundamental

RightsRight to Education for all children between 6 and 14 years of age(21)

State to secure a social order for promotion of welfare of all people(38)

Ownership and control of material resources of the community to bedistributed as best to serve the common good. (39)

Operation of the economic system does not result in concentration ofwealth and means of production to the common detriment (39)

Right to Work, to education and to public assistance in certain cases(41)

Living Wage for workers (43)

DirectivePrinciples

Promotion of educational and economic interests of ScheduledCastes, Scheduled Tribes and other weaker sections (46)

Reservation of seats for Scheduled Castes, Scheduled Tribes &Women in Panchayats (243)

Equity

Other

Reservation of Seats for Scheduled Castes, Scheduled Tribes inUnion and State Legislative Assemblies (330, 332)

Equality before Law & Equal Protection of Laws (14)

Prohibition of discrimination on grounds of religion, race, caste, sexor place (15)

Abolition of Untouchability (17)

FundamentalRights

Abolition of Titles (18)Equal pay for equal work for both men and women (39)

Non-discrimination

DirectivePrinciples Equal justice and free legal aid (39)

Protection of life and Liberty : Fair procedure & fair trial (21)FundamentalRights Protection against arrest and detention in certain cases (22)Transparency

DirectivePrinciples

Foster respect for International law and treaty obligations in thedealings of organised people with one another (51)

FundamentalRights

Right to Constitutional Remedies (32)

DirectivePrinciples Separation of Judiciary from Executive (50)Accountability

Other Appointment of Comptroller and Auditor General of India (148)

FundamentalRights

Freedom of speech and expression (19)

Organisation of Village Panchayats (40)Participation DirectivePrinciples Participation of workers in management of industries (43)


33/90

29

a positive commitment on the part of the Indian State to undertake affirmative action based on

the principles of distributive justice. While the Constitution explicitly calls for non-

discrimination amongst citizens on grounds of religion, race, caste, sex and place, it does,

however, allow for positive discrimination undertaken specifically for the welfare of under-

privileged sections such as Scheduled Tribes, Scheduled Castes, socially and educationally

backward classes, women and children.

These underlying assumptions have provided the foundation for the assertion and

interpretation of newer rights in the Indian context. Rights of communities and individuals to

and indevelopment constitute one such set of rights. A review of some important cases in the

next few pages illustrates the varied usage of the rights language pertaining to the civil and

democratic rights of citizens in the context of development.49

In Maneka Gandhi v. Union of

India(1978),50the Supreme Court for example, interpreted the right to life (Article 21) as being

beyond mere physical existence, including within its ambit the right to live with human

dignity. The same was reiterated inFrancis Coralie v. Union Territory of Delhi(1981)51

where

the right to life was interpreted to include all the bare necessities of life such as adequate

nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse

forms The Supreme Courts judgment in the case ofPeoples Union forDemocratic Rights v.

Union of India (1982), the non-payment of minimum wages to workers was interpreted as

49The term democratic rights refers to the struggle for the assertion of liberties that are guaranteed formally but arenot ensured in practice. The assurance of fair trial in the dispensation of justice, compensation for illegal detention

and death in custody, safeguard against physical and mental torture, provisions for legal aid etc., are some of theimportant democratic rights issues espoused by the civil liberties and democratic rights movement in India.

50The case involved the refusal by the Government to grant a passport to the petitioner, which thus restrained herliberty to travel. In its judgement the Supreme Court pronounced that a citizens passport could not be impoundedfor an indefinite period of time.

51The Supreme Court in this case pronounced that any form of torture or cruel, inhuman or degrading treatment wasoffensive to human dignity and constituted a violation of the right to life enshrined in Article 21 of the Constitution.


34/90


35/90


36/90

32

those who would otherwise be unable to access them on their own, 57the fact that the Supreme

Court also serves as the highest court of appeal means that once the Court has taken the final

decision, the public have no right to further appeal.

The Supreme Courts judgements in certain cases involving violation of rights in the

course of economic liberalisation serves as a relevant illustration. The Supreme Court, in cases

involving the violation of rights such as Shri Sitaram Sugar Co. Ltd v. Union of India (1990),

Peerless General Finance and Investment Co. Limited and Another v. Reserve Bank of India

(1992), Narmada Bachao Andolan v. Union of India and Others (2000) and the BALCO

Employees Union v. Union of India (2001) has strongly maintained a position supporting the

exclusion of economic policies from the purview of judicial review.58In theBALCO Employees

Union v. Union of India (2001) case, the Supreme Court actually reversed its own ruling

delivered in National Textile Workers' Union and Others v. P.R. Ramakrishnan (1983) that

supported the right of workers to be consulted in the decision-making involving the closure of

the industry concerned. The present position of the Court in fact creates an anomaly of sorts as it

forecloses all possibilities of public litigation on the subject of economic reforms.

57Public Interest Litigation or third party litigation have been admitted in the following few situations: (i) where theconcerns underlying a petition are not individualist but are shared widely by a large number of people (bondedlabour, undertrial prisoners, prison inmates), (ii) where the affected persons belong to the disadvantaged sections ofsociety(women, children, bonded labour, unorganised labour etc.), where judicial law making is necessary to avoidexploitation(inter-country adoption, the education of the children of the prostitutes), where judicial intervention is

necessary for the protection of the sanctity of democratic institutions(independence of the judiciary, existence ofgrievances redressal forums), where administrative decisions related to development are harmful to the environmentand jeopardize people's to natural resources such as air or water. See chapter on Public Interest Litigation in Centrefor Democratic and Human Rights, The Right to Development: A Primerpp. 231-249 for a background of thehistory of the PIL mechanism in India.

58Courts are not to interfere with economic policy which is the function of experts. It is not the function of thecourts to sit in judgement over matters of economic policy and it must necessarily be left to the expert bodies. See

Peerless General Finance and Investment Co. Limited and Another v. Reserve Bank of India(1992).


37/90

33

On the whole however, the Indian experience over the last fifty years shows a positive

trend towards the progressive interpretation of development as a human right. The right of

citizens to be treated equally in a non-discriminatory manner, right to a dignified life, right to

information concerning public programmes are all relevant citations of the increasing recognition

of rights in development. The Indian State, as the situation as it exists today, can no longer

excuse itself of its responsibilities towards development without demonstrating that it is has in

effect utilised all possible avenues in maximising the protection and promotion of rights of

individuals in the process of development.59

Inquisitorial justiciability, which involves the

institution of an enquiry mechanism that investigates the compliance of obligations in practice,

further reinforces the increasing importance of rights in the Indian context.

The Constitution provides for the creation of special commissions such as the National

Commission for Minorities (religious and cultural), National Commission of Women and the

National Commission for Scheduled Castes and Scheduled Tribes to oversee and address specific

problems of the concerned group of citizens. A National Human Rights Commission (NHRC)

and similar commissions at the State level also exist to facilitate the monitoring of human rights

situation within the country. The NHRC at the national level has the power to inquire,suo motu

or on a petition presented to it by a victim or any person on his behalf, into complaint of: (i)

violation of human rights or abetment or (ii) negligence in the prevention of such violation by a

public servant. It also has the power to review the safeguards provided by or under the

Constitution or any law in force for the protection of human rights, study treaties and other

international instruments on human rights and make recommendations for their effective

59The judgement inJ.P.Unnikrishnan v. State of Andhra Pradesh is significant in this respect. The Court in itsjudgement clarified that by recognising the right of a citizen to call upon the State to provide education facilities didnot mean that the State could absolve itself of its responsibilities by arguing that the limits of its economic capacityand development did not permit so. Similarly in Vishaka v. State of Rajasthan(1997) the Court laid down legallybinding guidelines to deal with the problems of sexual harassment of women at the work Place.


38/90

34

implementation. Some of the more important cases taken up by the NHRC involve those related

to food related starvation deaths, use of bonded and child labour, rights of mentally ill persons

and rights of communities affected by ethnic and communal riots and disturbances.

The section below takes a look at the articulation of development in the rights language

by different agencies in three basic areas of intervention food, health and education. The

present report builds on previous studies undertaken the Centre as part of the Right to

Development project. The focus of the present discussion has been consciously restricted to these

three areas to illustrate some of the limitations of the human development approach that governs

the making of development policies in the contemporary period. The objective of concentrating

specifically on food, health and education is to identify some of the bottlenecks and challenges

standing in way of the institutionalisation of a model of development patterned on the right to

development in India. At the present juncture, while the Indian Government has formally

recognised the right to education as a fundamental right, there has been no such reference

regarding a specific right to food and health. These two legally still remain outside the purview

of justiciability. The situation is not any different for other areas of development such as shelter

and housing.

3: The Rights to Health, Food and Education

The use of the rights language in analysing the development situation in India, where the

delivery of basic services has yet to be recognised as an entitlement, and where well over a

quarter of the population have no secured access to food, health and education, merits definite

attention. The last fifty-five years and more of modernisation and development have led to the

creation of several paradoxes. The conspicuous absence of a comprehensive social security cover


39/90

35

for all citizens that includes access to food, health and education represents one such dilemma.

The fulfillment of basic needs in such circumstances is a more than just an individual

responsibility whose failure creates and aggravates further the division between those able and

those incapable of fulfilling their needs the division between haves and the have-nots. This

divergence in capabilities to secure ones needs provides in fact a strong justification for laying

down explicit responsibilities of various actors including the State, towards development.

The reconceptualisation of development from a rights perspective that lies at the heart of

the right to development thesis provides an interesting basis for addressing some of the

fundamental problems associated with development in India. The sections below provide an

analysis of the situation by examining various facets of policy-making in specific sectors of food,

health and education, addressing questions of access and availability of relevant basic services to

justify the application of the rights approach in the contemporary model of development. The

report builds on the preliminary reports submitted by experts in the field as part of this study and

builds on the normative framework provided by them related to availability, accessibility,

acceptability and adaptability to illustrate the possibilities of implementing a model of

development that explicitly gives a central place to rights to and indevelopment.

The report on the right to food written by Mahendra Dev examines the situation with

relation to the insecurities faced by the poor regarding the availability and distribution of food in

India. The central concern in implementing the right to food according to him, relates to the

question of accessibility. Availabilityper seis not a major problem because at the national level

there is food self-sufficiency. The problem lies in economic access to food at the household

level. The access that households have to food invariably depends on a mix of endogenous and

exogenous factors such as the economic capacity and purchasing power of the household, the


40/90

36

existence of food distribution networks, availability of public food distribution centres, and a

socially iniquitous food allocation at the intra-household level between sexes.

The report on the right to health written by Ravi Duggal too has a similar focus. The

paper draws upon the limitations that exist in health planning that get reflected in the periodic

outbreak of public health related epidemics such as plague, malaria and dengue that occur in

different parts of the country. Reflecting upon health as being more than the mere absence of

disease, the author calls for a comprehensive programme that supports various dimensions of

health care into one integrated programme. The paper challenges the existing divisions between

preventive, curative and tertiary health care that define health interventions in the contemporary

period. In the framework provided, health care requires a more positive commitment on the part

of the State including reallocation of finances that provides a guaranteed access to health services

for all segments of the society, especially the poor.

The report on the right to education by Ravi Srivastava similarly reviews the challenges

existing at the ground-level with relation to the problems that children have in terms of access to

schools. As both a human right in itself and an indispensable means of realising other human

rights, the right to educationis of universal importance in the making of modern societies. The

right to education constitutes a fundamental right, contributing directly to the progress and

intellectual development of both individuals and the nation-state concerned. The paper takes a

look at the process of exclusion that deters children from accessing primary-level education. The

author also discusses in detail the public movement regarding the right to education that was

responsible in a large way for the transformation of education into a fundamental right from

being a Directive Principle of State Policy.


41/90

37

3.1 The Right to Food

Hunger in the modern day presents a real and serious contradiction. The massive

expansion in agricultural production over the last few centuries has made it possible more than

ever before for countries such as India to ensure a guaranteed access to food for all. However,

the fact that 8 percent of Indians still do not get two square meals a day and that every third child

born in the country is under weight despite surplus food grain production, points to the paradoxes

that exist in modern day India in relation to consumption and distribution of food. 60As per the

directives of the United Nations Food and Agricultural Organization (FAO) a country is

supposed to be food secure when all people, at all times have physical and economic access to

sufficient, safe and nutritious foodto meet their dietary needs and food preferences for an active

and healthy life.61

The persistence of chronic hunger and deprivation amidst reports of surplus

production in the present circumstances, presents not only a morally outrageous but also a

politically unacceptable challenge.62The Constitution it must be noted does not explicitly make

any mention of a right to food for citizens. The reference is implicit and finds mention in

Article 47 of the Directive Principles of State Policy that says: The State shall regard the raising

of the level of nutrition and the standard of living of its people as among its primary duties.

The provision of food is not technically therefore a constitutionally legal responsibility of the

State. However, recent interpretations of the Directive Principle by the Supreme Court of India

60Tenth Five Year Plan, Vol. II, p. 316

61Declaration on World Food Security,Rome,1996.

62Jean Dreze and Amartya Sen,Hunger and Public Action (Delhi, 1993), pp. 3-4.


42/90

38

have sought to make it legally obligatory for the State to undertake explicit responsibilities in the

provision of food to school-going children within the country. 63

The report by Mahendra Dev64highlights some of these central issues related to the right

to food in the Indian context. The report makes accessibility itsentry point to the subject of food

consumption. India, unlike several countries of Sub-Saharan Africa, is self-sufficient in the

production of basic food grains and at the national level availability of grains poses no grave

problems. The real problem, however, lies with accessibility at the micro-level. The question of

accessibility encompasses both economic and physical dimensions. Economic accessibility refers

to the personal or household financial costs associated with the acquisition of food for an

adequate diet at a level so that the attainment and satisfaction of other basic needs are not

threatened or compromised.65Physical accessibility, on the other hand, refers to the availability

of adequate food either directly from productive land or other natural resources, or through a

well functioning distribution, processing and market system that ensures that everyone,

irrespective of their social and economic position, have access to adequate food a

Documents

India RTD Final Report