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Human Rights Law, Development and Social Action Litigation in India
Wouter Vandenhole*
I. Human Rights and Human Development
II. Social Action Litigation
A. Procedural Characteristics of Social Action Litigation
1. Relaxation of the Rules of Locus Standi
2. Access to Justice: Epistolary Jurisdiction
3. Investigative and Collaborative Justice
4. Remedies
5. Supervision on Implementation
B. Cases and Outcome
1. Labour and Labourers
2. Child Labour
3. Forced Evictions
C. Impact
III. Integrated Human Rights Social Action Litigation
A. Characteristics of Human Rights Social Action Litigation
1. Collective and Deformalised Access to Justice
a. Collective Access to Justice
b. Deformalised Access
2. Inquiry Commissions
3. Remedies
4. Monitoring
B. Delineation From Other Doctrines and Institutions
1. Public Interest Litigation
2. Legal Aid
3. Ombuds and Human Rights Commission
C. Preconditions
1. Social Action Groups
2. An Independent and Socially Activist Judiciary
3. Human Rights Catalogue and Social Welfare Law
4. The Rule of Law
D. Integrated Human Rights Social Action Litigation
E. Integrated HRSAL: Is Generalisation for the South Feasible?
IV. Conclusions
1.There is a growing interest in the role human rights can and should play in development (nowadays often framed in terms of poverty reduction). At the international level, the right to development has long been the central focus. Since a number of years however, the field has fortunately been opened up to a number of other issues.
The internet pages of the Office of the High Commissioner for Human Rights are representative of this trend: till recently under the heading of “Right to Development”, they now cover issues like poverty, rights-based approaches, mainstreaming human rights, globalisation, good governance and right to development under the heading of “Human Rights in Development”.[1]
2.By integrating human rights in development work, a rights-based approach to development links human rights to development both normatively and operationally. Normatively, it offers a conceptual framework for development that is based on international human rights standards. Operationally, it is directed to promoting and protecting human rights.
In the UNDP Human Development Report 2000 on Human Rights and Human Development, an attempt was made to conceptualise the added value of this human rights perspective for development.[2]
In the present article, the focus is on the operational aspect, and it is narrowed down to the issue of the contribution of human rights law to development at the national level.
Considering the contribution of human rights law to development, it is argued first that procedural aspects of human rights law, namely human rights litigation, should receive more attention; secondly, that the procedural rules of human rights litigation need liberalisation;[3] and thirdly, that the national level should not be lost out of sight in the conceptualisation of the operational side of a rights-based approach to development.
The option for emphasizing human rights litigation has to be understood against the background of the one-sided attention paid so far on the conceptual level to the elaboration of a new substantive human right, the right to development, rather than to the reorientation of human rights litigation procedures towards the poor and vulnerable. The latter is more in tune with the general shift from norm-setting to effective protection, and with growing “judicialisation”[4] of society. It corresponds also to some of the lessons learnt in the field of law and development studies, in particular with regard to the failure of legal instrumentalism and to the crucial importance of the rule of law.
The need for liberalisation of procedural rules is deduced from the very instructive experience of pro-poor human rights litigation, termed Social Action Litigation (SAL), in India. It will serve as a starting point for our conceptualisation of a potential human rights law contribution to development at the national level.
In the context of globalisation, a lot of attention is being paid to new developments in international human rights law, like the accountability of non-state actors and international organisations, and interest is shown in the possible relevance of economic, social and cultural rights as a check on neo-liberal economic globalisation. Little attention has been paid however to the actual relevance of human rights law on the ground. In our view, although it is crucially important to adapt human rights law so as to enable it to face the new challenges posed by globalisation, it is equally important to improve and strengthen the existing human rights mechanisms to make them more relevant to real life situations and peoples, in particular at the national level.
The focus on the national level is moreover informed by both a pragmatic and a legal-technical argument. From a pragmatic point of view, it seems preferable to locate pro-poor human rights litigation as closely as possible to the poor, so before national courts, in order to allow them to keep some control over events. Legally technically speaking, exhaustion of domestic remedies is often an admissibility requirement for complaints before a regional or UN human rights body.
3.In what follows, first the conceptualisation of the human rights contribution to human development as elaborated in the Human Development Report 2000 is shortly scrutinised; at the same time, a working definition of development is suggested. Secondly, Social Action Litigation in India is succinctly presented. Thirdly, a conceptual framework is developed – termed “Integrated Human Rights Social Action Litigation” – to grasp the operational relationship between human rights law and development on the national level.
I. Human Rights and Human Development
4.Although human rights rhetoric has been mainstreamed more and more in development thinking, little progress has been made so far in thinking out a comprehensive conceptual framework on the human rights contribution to development in both normative and operational terms.
It is now generally accepted in scholarly literature and in political documents alike that human rights relate positively to development, so that any development concept should include human rights, but the nature of the relationship has hardly been clarified. Some interesting starting points can be mentioned however.
5.In the first place, the integration of human rights in development and the ensuing (human) rights-based approach to development have been qualified as a qualitative change in development thinking, as development is no longer merely a goal to be reached by the state, but also a right of individuals belonging to that state. Human rights allow these individuals “to hold the state accountable on the fulfilment of its development mission”.[5]
6.Secondly, a very inspiring attempt was made in the UNDP Human Development Report 2000 to conceptualise the added value of a rights-based approach to development. First that conceptualisation will be briefly presented. Secondly, it will be argued that more refinement is necessary, in particular on the operational side.
In the report, it is stressed several times that human rights and (human) development have a common motivation and purpose: “Human rights and human development share a common vision and a common purpose – to secure the freedom, well-being and dignity of all people everywhere.”[6] “Human rights and human development are both about securing basic freedoms.”[7]
What is meant by both terms? Human rights are said to “express the bold idea that all people have claims to social arrangements that protect them from the worst abuses and deprivations – and that secure the freedom for a life of dignity.”[8] The main characteristic of human rights is that they entail some entitlements to help from others in defence of one’s substantive freedoms.[9]
Human development is considered to be a process of enhancing human capabilities – to expand choices and opportunities so that each person can lead a life of respect and value.[10] Capabilities include the basic freedoms of being able to meet bodily requirements, enabling opportunities, “social” freedoms.[11]
7.The relationship between human rights and human development is one of mutual reinforcement,[12] mainly because of their different strategic form and focus, thanks to which a value added is in each of them.
The value added of human rights is to be found on four issues. First of all, human rights bring in the idea that others have duties to facilitate and enhance human development. Invoking duties in turn focuses attention on accountability, culpability and responsibility. Locating accountability for failures within a social system can be a powerful tool in seeking remedy.[13] So human rights bring legal tools and institutions such as laws, the judiciary, the process of litigation as means to secure freedoms and human development.[14]
Secondly, the language of claims holds important empowerment potential: rights lend moral legitimacy to the objectives of human development.[15]
Thirdly, human rights offer tools that focus attention on the process of development: they “express the limits on the losses that individuals can permissibly be allowed to bear, even in the promotion of noble social goals.” Equally, human rights thinking gives special weight to threats from institutions and official sources.[16]
Fourthly, the human rights perspective helps to shift focus to the most deprived,[17] and finally, it directs the attention to the need to consider civil and political rights as integral parts of the development process.[18]
Applied to poverty eradication, the human rights perspective makes one to consider poverty eradication not just as a development goal, but as a matter of social justice, fulfilling the rights and accountabilities of all actors.[19]
The added value of human development for human rights is to be situated on four levels as well. First, the tradition of qualitative and quantitative human development analysis can give concreteness to human rights analysis. Secondly, assessment of the human rights impact of policies can be informed by human development analysis. Thirdly, human development literature emphasizes the importance of institutional complementarity and resource constraints, thus pointing out the socio-economic context, both in terms of constraints and of resources and policies. Lastly, human development insists on a dynamic view and adds the perspective of change and progress in conceptual and practical reasoning:[20] “Human development thus contributes to building a long-run strategy for the realization of rights.”[21]
In sum: “Human development and human rights are close enough in motivation and concern to be compatible and congruous, and they are different enough in strategy and design to supplement each other fruitfully.”[22]
8.Notwithstanding the merits of the conceptualisation of the human rights contribution to development in the UNDP Report, some questions remain to be answered. In our (legal) view, the main being what specific role is to be expected from human rights law and litigation in the overall picture.
In the report, mention is made of the mobilisation of legal institutions as one of the contributions human rights can make to human development thinking. Equally, the importance of institutional capacity, of the rule of law and a fair administration of justice,[23] and of a well-functioning independent judiciary[24] is fully recognised. On the other hand, it is stressed in very clear words that the analysis given does not focus primarily on legal rights, or in other words, on human rights law.[25]
9.In what follows, the question is scrutinised what particular contribution from human rights lawand litigation can be expected for development, primarily from an operational perspective. The bottom-line of our argument is that human rights litigation can contribute in an important way to development, provided that a number of procedural liberalisations are introduced and provided that some societal minimum preconditions are met.
Two preliminary comments are to be made.
First, the option is taken not to distinguish between social development, economic development, sustainable development or human development. On the contrary, it is believed that the concept of development should always include social and sustainable connotations, so use is made of the general term “development”. Development is understood to be a participative process of structural economic, social, cultural and political change, which aims at the sustainable improvement of the well-being of each individual, the whole population and in particular of the vulnerable groups within a given society.
Secondly, it should be remembered that there exists a whole literature on law and/in development, in which an instrumentalist approach of law and development has long been favoured. It is submitted that the discussion on human rights law and development cannot be conducted but against the backdrop of that field of literature and experience. The lessons learnt there, such as the demise of naïve instrumentalism should be taken into account when conceptualising the contribution of human rights law to development.[26]
10.Any attempt of conceptualisation of the operational side of a rights-based approach to development should take as a starting point as much as possible real life experiences in the South. In our opinion, a very instructive experience can be found in Social Action Litigation (SAL) in India.
There are a number of reasons for singling out SAL:
- the doctrine of SAL has originated and has been applied in the South. Not being a product from the North, it may prove a more successful source of inspiration for other countries in the South, being tailored better to the needs of vulnerable groups in the South.[27]
- SAL has transcended the experimental phase. It has developed into a comprehensive doctrine, which has been studied extensively in India and abroad, and which allows for a reliable evaluation of its potential and its limits thanks to its application in hundreds of cases.
- SAL corresponds to the major insights gained from the critical evaluation of the law and development literature on the relationship between law and development.[28]
The option for SAL does not imply a blind admiration for or uncritical acceptance of the doctrine. However, it is believed that notwithstanding its weaknesses and limitations, it offers a very interesting starting point for the elaboration of a conceptual framework grasping more clearly the potential operational contribution of human rights law to development.
It should be stressed that our study of SAL has been limited largely to its conceptual aspects. Therefore, only SAL-cases before the Supreme Court of India (not those before the High Courts) have been studied exhaustively. Moreover, its societal impact has been examined only in an investigative way, not in a strictly sociological one. It has been deemed important however to offer some insight in its societal impact, in order to show its potential relevance.
II. Social Action Litigation
11.Social Action Litigation has been defined in a number of ways, but a generally accepted definition is lacking. At least three reasons can be found for this. First of all, SAL has developed on a case-to-case base. Secondly, even within the Supreme Court of India, a consensus has never been reached on the basis features of SAL. And thirdly, different legal developments and phenomena have all been labelled Social Action Litigation or Public Interest Litigation.[29]
Social Action Litigation is defined here as a doctrine of procedural relaxations in cases of human rights violations, in order to make both access to justice and furnishing of proof easier. Furthermore, in allowing specific and detailed remedies to be given and supervision on the implementation thereof to be organized, it attempts to protect effectively the human right(s) under threat in a given case.
SAL boils down to an enforcement and implementation strategy: it aims at the implementation of the fundamental rights in the Indian Constitution, first and foremost for the weakest sections of society. At the same time, like all human rights litigation, it allows people to hold those in power accountable and to make them observe the rule of law.
12.Throughout the years, an important shift in focus has taken place. Broadly speaking, during the 1980s SAL was predominantly concerned with the protection of the weakest and most vulnerable groups in society.[30] From the 1990s onwards, SAL has been used mainly in the public interest. This shift in focus does not fundamentally weaken however any inquiry into the conceptual potential of SAL for the protection of the human rights of the vulnerable, as our interest is mainly with the procedural aspects.
13.The reasons for the elaboration of Social Action Litigation have been sought in the Emergency period from 1975 till 1977 in India.[31]
In the years preceding the Emergency period, the Supreme Court had been marginalized by the legislature and the executive. Moreover, during the Emergency period, it had not been able to safeguard the fundamental rights of the Indian people. Therefore SAL has been characterised as “a strategic reversal of previous judicial priorities in order to win popular support and achieve a more prominent role in Indian society.”[32]
14.A landmark decision in the conceptualisation of Social Action Litigation was the Gupta case of 30 December 1981.
In this case, the Supreme Court of India relaxed the rules of locus standi in a double sense (see below no. 18).
In a way, the further progressive elaboration of the procedural modalities of SAL could be considered as having been forced upon the Court by its first innovations regarding locus standi. Or put more positively: from the liberalisation of the rules of locus standi ensued almost logically and inevitably the other procedural innovations, like the appointment of commissions of inquiry for the gathering of evidence, the extensive powers to order remedies and the possibility to follow up on the execution of the orders given. Initially considered as a “strategic arm of the legal aid movement”[33], SAL developed later on in a human rights litigation doctrine sui generis.