N. Nayak; India: Rights and Guarantees
‘India: Rights and Guarantees’
Draft chapter for ODI/UNDP Report on ‘Addressing Intersecting Inequalities’
by Nandini Nayak
Contents
Introduction
Rights based approaches in context
A brief history of rights based collective action in India (or, accounting for the enactment of ‘new rights’)
Do ‘rights’ work?
The enactment of the NREGA and implications of rights enactment
Has the NREGA worked?
Using ‘rights’ for more than ‘work’, or, ‘using the law beyond the law’
Conclusion
Introduction
India is commonly regarded a prominent ‘emerging’ economy. It is the most populous democracy in the world, with a population of 1.2 billion. Along with its status as a prominent economy, India also has the dubious distinction of housing an alarming number of the world’s poor. Counting the poor in India has long been a controversial exercise. The Planning Commission of India suggests that as on 2009-10, 29.8% of the Indian population lived below the poverty line[1], and further that the proportion of the poor in India has steadily declined at least since the early 1970s.[2] In comparison, 76% of the Indian population was income poor in 2009 as per the international $2/day poverty line. The proportion of the poor in the total population of India was pegged at 55% according to the ‘multidimensional poverty index’ (MPI), used for the 2009 UNDP Human Development Report. Importantly, according to the same MPI dataset, 65.8% of Scheduled Castes and 81.4% of Scheduled Tribes in India were poor, as of 2009 (OPHI).[3]
Since Independence in 1947, efforts in India to tackle intersecting inequalities have included social protection measures and affirmative action. In the last decade (2004 onwards), the most significant development initiatives, have been rights based initiatives for development, that have taken root with the enactment of new laws by the Indian Parliament pertaining to civil, political and also economic and social rights. This paper considers the implications of India’s new ‘rights and guarantees’, and the manner in which these have been both pushed for and used by civil society and social movements to contain inequalities.
Rights based approaches in context
Over the past ten years, ‘rights-based approaches’ to development have acquired prominence both in the international development bureaucracy and in national level social policy in several countries, including India. The language of ‘rights’ is now regularly deployed in discussions of governance and in the the framing of policies for social protection (Cornwall and Molyneux, 2006).
In the international development arena, the ascendance of the rights based approach to development (RBAD) can be traced to a few broad trends. The RBAD acquired prominence in the mainstream, during a period that roughly coincides with the ‘Post-Washington Consensus’ when ‘getting institutions right’ was being given prominence over the Washington Consensus adage of ‘getting prices right’ (Saad-Filho, 2010). Thus in the international arena, the rights based approach to development coincided with talk of ‘bringing the state back’ into development, albeit with the limitations of neo-liberal inclusive development. In simple terms, the Post-Washington Consensus advocated an ‘effective’ and ‘accountable’ state. On its part, the Rights Based Approach to Development made a case for state accountability in relation to human rights along with ‘participation’ by civil society actors (Cornwall & Nyamu-Musembi, 2004).
Prior to the above, the 1986 UN Declaration on the Right to Development made a case for the ‘collective obligation of all states to create a just and equitable international environment’ for ‘the realisation of the right to development’ (Cornwall & Nyamu-Musembi, 2004: 1422). The 1986 UN Declaration was opposed by the USA. It was only at the Second UN World Conference of Human Rights at Vienna, in 1993, that a Declaration with a ‘broader’ consensus was adopted. It was subsequent to this that ‘rights-talk’ emerged as a ‘blueprint for emancipation’ (Santos, 2002) in the international arena. In other words, ‘rights’ acquired prominence when other ‘blueprints’ for emancipation were in crisis. The ideas adopted at Vienna in 1993, drew on the UN Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights and subsequently fed into the UN Millennium Declaration and the Millennium Development Goals in 2000 (Sengupta, 2003).
Somewhat independent of the above trends, the decade of the 2000s saw the enactment of prominent laws related to civil, political, economic and social rights in India. The enactment of each of these legislations was driven by social movements that emerged in the Indian context, and in one way or another made a case for the extension and expansion of Constitutional Rights in India. A ‘Right to Information Act’ aimed at creating transparency in governance was passed by the Indian Parliament in 2005. Two legislations expanding social democratic rights, and creating rights to social protection included the following - the National Rural Employment Guarantee Act (NREGA), which was passed in 2005[4] (see Box 1), followed by a Right to Education Act (RTE) for children in the six to fourteen age group in 2009. [5] A right to land titles in forest areas was created under a ‘Forest Rights Act’ in 2006.[6] An initiative towards social security of unorganised sector workers was taken under the Unorganised Workers Social Security Act, 2008.[7] A ‘National Food Security Ordinance’ was signed by the President of India in 2013, the provisions of which are to be implemented in rural and urban areas (see Box 2).[8]
This paper considers the National Rural Employment Guarantee Act, 2005 in particular, and more briefly looks at the ‘National Food Security Ordinance’, to discuss the implications of this new ‘language of rights’ for addressing poverty and intersecting inequalities in India.
A brief history of rights based collective action in India (or, accounting for the enactment of ‘new rights’)
The historical root of the recently enacted legislations can be traced to a ‘wave’ of litigation based on constitutional law that began from the late 1970s onwards, in fact from the period immediately following the ‘Internal Emergency’ in India from 1975-1977. The late 1970s and 1980s saw a significant phase of what Upendra Baxi (1985) calls ‘judicial activism’. ‘Judicial activism’ in turn is one of the factors that helps explain the enactment of the above mentioned legislations. Social movements arguing for all of the above legislations have built on and used legal pronouncements from the higher courts and the Supreme Court in India while making a case for new rights in law. The movement for a legal, justiciable ‘right to food’ is ongoing,[9] but in this case too, it is pertinent to note that collective action for the right to food grew around a writ petition that is pending in the Supreme Court of India. This of course still leaves the question of ‘why now’, or, why have these legislations been enacted now? Another part of the explanation for this question might be found in work done by Deepta Chopra (2009), where she explains the process that went into the enactment of the NREGA in particular. Chopra demonstrates the blurred boundaries between ‘state’ and ‘society’ in the Indian case that allowed key social movement actors to engage directly in the law making process. Arguably, this process is being somewhat replicated in relation to the Right to Food Bill (RTFB). It is important to note though, that the nature of state-civil society interaction[10] that contributed to NREGA implementation, was markedly absent in the case of the UWSSA, 2008, which had widespread support from civil society, and yet lacked a coherent civil society voice (more on this later). This said, while the ‘social movements’ pushing for new ‘rights’ in India are not driven by the ‘international acceptance of rights based approaches to development’ mentioned above, they do, at several points deploy ‘rights talk’ in their claim making against the state. Part of the explanation for the enactment of new laws, if marginally and somewhat tangentially, might therefore be related to the recent ‘emergence of rights as an emancipatory script’ (Santos, 2002). It might be suggested that the avowedly neoliberal government in power in India, has found the narrative of rights acceptable partly owing to the international acceptance of the rights agenda.
I now return to the discussion on ‘judicial activism’ and ‘(constitutional) rights based collective action’ mentioned earlier. In the early 1980s, the higher courts where writs of mandamus[11] and habeus corpus[12] could be filed, evolved a particular tradition of ‘social action litigation’ where rules related to locus standi[13] were waived. The waiver of rules related to locus standi implied that even without being directly affected by a violation of constitutional or legal rights, an organisation or individual could file a writ in a higher court of law. For the Indian context, Upendra Baxi pointedly uses the term ‘social action litigation’ to distinguish Indian ‘judicial activism’ form the American tradition of ‘public interest litigation’, with its own specific characteristics (Baxi 1985: 109).[14] As highlighted by Baxi (1985), Social Action Litigation in India was focussed substantially on civil and political rights violations experienced by the rural and urban poor, at the hands of the state. The rights being drawn on in the above mentioned wave of litigation, were constitutionally defined ‘fundamental rights’, or civil, political, economic and social rights laid out in part III of the Constitution of India.[15] Once adopted in 1950, the Constitution of India was spoken of as ‘a charter of social revolution’ [Granville Austin cf Baxi 2001: 921]. Further, ‘constitutional theory and practice’ were viewed as being at the very centre of Indian development [Austin cited from Baxi 2001].
In a number of landmark cases, the Supreme Court of India ‘expanded’ the meaning of the fundamental ‘right to life and personal liberty’ under ‘Article 21’, of the Constitution of India [Bhushan 2004: 1774]. The ‘right to life’ under Article 21 was interpreted to include within its meaning, a wide range of civil and political rights which were not explicitly written into the constitution. Thus, Article 21 of the Constitution of India was interpreted to include the civil right to trial without delay in the event of arrest [Hussainara Khatoon case, 1980] and a right against forced labour [Bandhua Mukti Morcha case, 1984].
Litigation related to Part III of the Constitution of India, was also used to seek economic rights. This included a decision on the right to housing and livelihood, in the Olga Tellis case (1986), where a petition was filed to oppose the eviction of ‘pavement dwellers’ (or shack dwellers) in Mumbai by the Municipal Corporation. The Supreme Court ruled that the eviction of pavement dwellers would violate their right to housing and livelihood. Employment works or public works implemented by central and state governments were also the subject of social action litigation in the early 1980s. In 1983, the Supreme Court passed a judgement under Article 23 (right against human trafficking and forced labour) and Article 14 (equality before law and equal protection before the law),[16] of the Constitution of India in the Sanjit Roy v. State of Rajasthan case, where it was stated that state governments would stand accused of engaging forced labour if the statutory minimum wage is not paid to workers engaged on public worksites run by the government.[17]
‘Social action litigation’ based on constitutional law and the interpretation of fundamental rights was critical to ‘extending’ the idea of ‘citizenship’ for ‘India’s poor’ [Kesavananda Bharti cf Baxi 1985: 112]. Upendra Baxi traces this significant change in role of the Indian higher judiciary, to ‘judicial populism’ as a form of ‘catharsis’ in the aftermath of the internal Emergency imposed in India from 1975-1977 [Baxi 1985: 107-108]. During the Emergency, the Supreme Court effectively towed the line of the Executive.[18] In contrast, in the post Emergency period and particularly throughout the 1980s, the higher judiciary played an ‘interventionist role’ often issuing directions to the Executive to ‘perform its role’. In the process, the Supreme Court of India ‘established the principle that the judiciary was morally required and constitutionally mandated to increase its responsiveness to citizen requests for investigative and if required remedial action’ in relation to government agencies [Goetz 2001: 367-368].
In Baxi’s view, the Indian appellate judiciary transitioned, at least for a certain period, from a ‘traditional captive agency with low social visibility’ into a ‘liberated’ agency with ‘high socio-political visibility’ (Baxi 1985: 107).[19] The higher courts, and the Supreme Court in particular moved from being courts for ‘traditional adjudication’, (where cases were argued by lawyers and were decided in common-law-like judicial process’), to courts seen to have ‘Constitutional powers of intervention’ (Baxi 1985: 108).
The moot point here is that though not without its contradictions, this was an important phase ‘in the extension of the idea of citizenship’ drawing on fundamental rights listed in the Constitution of India. To some extent the post-colonial ‘legal fiction of equality before law’ [Chatterjee, 1984] was challenged by way of ‘social action litigation’, with the expansive interpretation particularly of Article 21 of the Constitution of India.
The trend of ‘pro poor’ decisions from the Supreme Court of India in the 1980s had abated by the decade of the 1990s. Prashant Bhushan [2004] for instance cites several cases where in the decade of the 1990s, the Supreme Court took a position of non-interference with Executive decisions of the government of the day. In a prominent case pertaining to government disinvestment from BALCO,[20] a state run company, a ‘social action litigation’[21] was filed in the Supreme Court raising concerns about the loss to the public exchequer due to the arbitrary price at which the company was being sold. The case was dismissed by the Supreme Court. Amongst other observations the Court stated, ‘public interest litigation (sic.) was not meant to be a weapon to challenge the financial or economic decisions which had been taken by the government in exercise of their administrative power’. Importantly for the purpose of this paper, Bhushan also cites instances where the Supreme Court put forward overtly ‘anti-poor’ decisions. In a judgement delivered in 2000, the Supreme Court ruled against the right to housing of slum dwellers in the capital, New Delhi. In this petition, arguing for the re-housing of evicted slum dwellers the Court observed ‘the promise of free land at taxpayers expense (in place of a slum hutment),... attracts land gabbers (and is akin to) giving a reward to a pickpocket’.[22]