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Perspective
Human Rights and the Indian
Constitution
by Dr. Anjana Maitra
The
Constitution of India is one of the most rights-based constitutions in
the world. Drafted around the same time as the Universal Declaration of
Human Rights (1948), the Indian Constitution captures the essence of
human rights in its Preamble, and the sections on Fundamental Rights and
the Directive Principles of State Policy.
The Constitution of India is based on the principles that guided India's
struggle against a colonial regime that consistently violated the civil,
political, social, economic and cultural rights of the people of India.
The freedom struggle itself was informed by the many movements for
social reform, against oppressive social practices like sati, child
marriage, untouchability etc. Thus by the mid-1920s, the Indian National
Congress had already adopted most of the civil and political rights in
its agenda. The movement led by Dr B R Ambedkar against discrimination
against the Dalits also had an impact on the Indian Constitution.
In spite
of the fact that most of the human rights found clear expression in the
Constitution of India, the independent Indian State carried forward many
colonial tendencies and power structures, including those embedded in
the elite Indian Civil Service. Though the Indian State under Jawaharlal
Nehru took many proactive steps and followed a welfare state model, the
police and bureaucracy remained largely colonial in their approach and
sought to exert control and power over citizens. The casteist, feudal
and communal characteristics of the Indian polity, coupled with a
colonial bureaucracy, weighed against and dampened the spirit of
freedom, rights and affirmative action enshrined in the Constitution.
In the
first 15 years of the Indian republic, such inherent contradictions
within the Indian polity were glossed over by the euphoria of
'nation-building', an agenda generally endorsed by political parties,
the middle class and elite civil society. However, when the
contradictions within the Indian polity and State came into the open in
the late-'60s, the oppressive character of the State began to be
challenged by student movements and ultra-left formations like the
Naxalite movement. When the Indian State began to suppress such
expressions of political dissent and mini-rebellions, the violation of
human rights by the State began to command attention.
Over a period of 30 years, the articulation and assertion of human
rights within civil society has grown into a much richer, more diverse
and relatively more powerful discourse at multiple levels. A brief
historical sketch of the different trajectories of human rights
discourse will help us locate human rights in the historical context.
There are four specific trajectories of human rights discourse in the
Indian context
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Civil
and Political Rights,
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Rights of the Marginalized (such as women, Dalits and Adivasis),
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Economic, Social and Cultural Rights, and
-
The
Right to Transparent and Accountable Governance.
Though
each of these trajectories is interconnected, they were promoted by
different sets of actors (often with varying ideological affiliations)
at different points in time. There has always been tension and lack of
mutual appreciation between those who promoted civil liberties and the
left-oriented groups who worked towards the structural transformation of
socio-economic conditions and consequently of the State.
As the concept of human rights was perceived as a western idea to gloss
over inequalities and as a means of legitimising the capitalist and
imperialist projects of the west (particularly the US) the left-oriented
groups were clearly skeptical about human rights, particularly as
expressed by the civil liberties groups. Though in some quarters such
skepticism still exits, there has been a greater recognition of the need
to promote and protect human rights, in spite of the misuse of the human
rights discourse by the new imperialist forces.
Civil and
Political Rights
The growing disenchantment with the Indian State that was expressed in
various movements and political formations in the late-'60s and
early-'70s was not tolerated by Indira Gandhi's regime. It is in this
context that the movement for civil liberties led by liberal middle
class intellectuals and activists became relevant. Organisations like
the People's Union for Civil Liberties (PUCL) played a significant role
in initiating and promoting a new discourse on civil liberties. However,
many of the mainstream left parties, influenced by the socialist
pretensions of Mrs Gandhi's regime, viewed the middle class movement for
civil liberties as the agenda of the bourgeoisie and mistrusted the
liberal voices of human rights groups as part of the American agenda. As
many liberal institutions that promoted civil and political rights
received funding from international agencies, the pro-establishment
conservative groups as well as the leftist groups began to mistrust any
organisation that received foreign funds.
The insecurity of Mrs Gandhi's regime resulted in the suppression of all
dissent and the ultimate suspension of most Civil and Political Rights
during the Emergency (1975-77). Almost all political opponents and
activists were imprisoned and democratic rights suspended. The forced
eviction of slum dwellers in Delhi and forced mass sterilisations
created a sense of fear and insecurity among the people. It was during
the Emergency, when every civil and political right was violated by the
State, that the need to promote and fight for human rights was accepted
across political classes. The civil liberties movement highlighted and
challenged arbitrary detention, custodial violence and police
atrocities.
In the last 20 years, the movement for civil and political rights has
become much more coherent and widespread. It has grown beyond a set of
urban middle class liberal intellectuals to a wide and diverse
socio-political base. With the increase of insurgencies in the 1980s and
the consequent State suppression of separatist movements in different
parts of the country, various kinds of human rights organisations --
some genuine and some fronts for underground groups -- began to appear.
The massacre of the Sikh community following the assassination of Mrs
Gandhi in 1984 raised serious questions about the role of the State in
protecting the fundamental rights of citizens.
The rise of right-wing Hindu 'nationalist' forces, the biased stand of
the State machinery, and the consequent communal violence all over the
country in the last 15 years have given rise to a different set of
actors who stress on the civil and political rights of the minorities.
The complicity of the State in abetting and supporting the planned
violence against the Muslim community in Gujarat in 2002, where more
than 1,500 people were killed and hundreds of homes and shops destroyed
and looted, brought out the contradictions inherent in the Indian polity
and State. But the rise of fanatical and right-wing forces and their
anti-human rights postures have, in a way, helped to bring together
human rights activists across the political spectrum, including leftist
groups and minority rights groups.
Public Interest Litigation and the judicial activism of the Supreme
Court initiated by Justices V R Krishna Iyer and P N Bhagwati has played
a major role in expanding the scope of human rights and giving it a
much-needed legitimacy through some very important verdicts (on
prisoners' rights, rights of landless labourers, release of bonded
labourers, etc). Justice Krishna Iyer, the law minister of the first
elected communist government in Kerala in 1956, was instrumental in
building a new discourse that brought together the left-oriented groups
and the civil liberties groups as part of the larger human rights
community in India. Most of his judgements reiterated the obligation of
the State to protect rights and equally, the participation of people in
securing their rights and giving them meaning. The establishment of the
National Commission of Human Rights under the Human Rights Act of 1993
provided a new impetus to civil and political rights in India.
Rights of the
Marginalized
While civil and political rights focused largely on the rights of the
individual, in the mid-'70s a new human rights discourse, based on group
rights, collective rights and people's rights, began to be articulated
within the framework of social and political empowerment.
The emergence of the women's movement in the 1970s gave a new dimension
to the rights discourse in India. In 1974, the Committee on the Status
of Women in India submitted a report that highlighted the
marginalisation of women in every sphere of life. The emergence of a
number of women's groups such as Self Employed Women's Association (SEWA),
Manushi, Joint Women's Forum etc raised a new consciousness and public
debate on the issue of women's status, domestic violence, dowry, rape,
custodial violence, trafficking and the invisible labour of women in the
household.
The women's movement not only critiqued the Indian patriarchy, casteism
and feudalism, it also promoted a new awareness of women's rights.
Though it began as a largely urban movement, over a period of 30 years,
the women's movement has emerged as one of the most articulate and
widespread movements in India, with new campaigns for women's political
participation and rights. It is partly because of the pressure from the
women's movement that the 73rd and 74th Constitutional Amendments to
introduce local self-government provided 33% reservation for women in
local self-government institutions. The women's movement has played a
key role in ensuring the participation of women in the electoral process
and governance.
In the post-Emergency period a number of political and social activists
and public-spirited professionals opted out of party/electoral politics
and focussed on the micro-level process of social mobilisation amongst
marginalised communities. These social action groups working at the
micro level began to highlight the historic and structural
marginalisation of the Dalits (the so-called outcasts), Adivasis (more
than 80 million tribal people who form around 8.3% of the Indian
population) and landless labourers. The empowerment of the marginalised
has been the key mission of such social action groups. However, when it
came to the demand for entitlement for these communities, most of these
groups began to use the rights language, particularly because of the
constitutional guarantees. As many of these groups were skeptical of
mainstream human rights discourse, they have used the term 'People's
Rights' to emphasise the collective characteristics of rights and to
focus on the political aspect of their rights.
Thus from the mid-'80s there has been a consistent effort to define and
re-articulate Dalit rights, the rights of Adivasis, people's rights over
natural resources, etc. This became more pronounced following the
large-scale displacement caused by large dams, development projects,
forestry projects, mining companies, etc. Most of the displaced people
were Adivasis and Dalits. The Narmada Bachao Andolan (Save Narmada
Movement), the Fishworkers Struggle and the Dalit Human Rights campaigns
brought the issue of people's rights and rights of the marginalised
communities into the mainstream political discourse of India. This
trajectory of human rights discourse combined an integrated vision of
human rights based on social justice, affirmative action, people's
participation and economic justice. The adverse effects of neo-liberal
globalisation helped to develop a pan-Indian discourse on people's
rights and also helped to connect with similar movements in the global
south.
Economic,
Social and Cultural Rights
The explicit focus on Economic, Social and Cultural (ESC) Rights is
relatively new compared to civil and political rights and group rights.
The emergence of ESC rights in the mainstream development agenda is in
consonance with the emergence of more institutionalised and funded
initiatives for poverty eradication and social development. In the
initial years, many such initiatives and institutions (commonly termed
non-government organisations or NGOs) began with a welfarist approach,
trying to supplement or substitute the welfare State.
However, over a period of time there has been a widespread realisation
of the limitations of micro-level development intervention and poverty
eradication programmes that do not question the politics and policy
frameworks that perpetuate deprivation. Most of the welfare/development
NGOs, with foreign funding support, became either subcontractors of the
dominant development models or well-meaning do-gooders who addressed the
symptoms of poverty and not the socio-political conditions and
structural inequalities that perpetuate poverty. It is in this context
that the need to bridge the micro-level action and macro-level political
and policy arenas became relevant. As a result, a number of grassroots
action groups and mass movements working with women, Dalits, Adivasis
and the landless poor began to draw from the fundamental rights and
directive principles of the Indian Constitution to pressurise and
persuade the State to meet its obligation to fulfil ESC rights.
An activist judiciary has also served to expand the scope of fundamental
rights to incorporate economic and social rights as well. Progressive
and creative judicial intervention expanded the scope of Article 21 of
the Indian Constitution which guarantees the Right to Life. Justice
Krishna Iyer and other activist judges, through a series of very
significant judgements, drew extensively from human rights law, to
conclude that the right to life means the right to live with dignity,
and that the right to live with dignity includes the right to
livelihood, right to education and right to health.
These progressive judicial pronouncements were in many ways a response
to the social action groups and movements that sought judicial
intervention to persuade and pressurise the government to protect and
fulfil the rights of the most marginalised. Thus the emergence of ESC
rights is the result of advocacy efforts by grassroots action groups and
NGOs in India.
The series of World Summits, starting with the Vienna Summit on Human
Rights in 1993, helped to bring ESC rights onto the agenda of many
international development organisations. This in turn also resulted in
many of the specialised groups taking up campaigns to promote specific
rights. This includes the campaign for the fundamental right to
education, which resulted in the 86th amendment to the Constitution,
guaranteeing the fundamental right to education. There have been similar
campaigns for the rights of self-employed women and unorganised workers,
the right to universal healthcare and a number of other campaigns
focussing on economic and social rights.
The emergence of the environmental and consumer movements in the1980s
paved the way for a series of new legislations and policy interventions
to protect the rights of consumers and people. The resurgence of the
Adivasi (tribal) movement and the increased marginalisation of the
minority communities by the right-wing Hindu nationalist government has
brought cultural rights into public debate and policy discourse.
While the 1970s can be termed the decade of the emergence of the civil
liberties movement, the 1980s witnessed the emergence of group rights
and people's rights over resources and livelihoods. It is in the 1990s
that ESC rights came center-stage. Various factors including rights-based
reorientation by international development agencies and organisations,
political compulsions on the ground and the increased visibility of the
rights discourse provided the right conditions for advocating ESC
rights.
However, it is ESC rights that are most elusive. This is because the
rhetoric of economic and social rights is not necessarily reflected in
policies, programmes and budgetary allocations. As a result, the State
pretends to promote economic and social rights, while systematically
undermining these rights following the dictums of the IMF, World Bank
and WTO. This situation leads to a growing sense of disillusionment and
cynicism about the so-called rights-based approach. As a result the
political content and policy feasibility of the rights-based approach is
increasingly questioned, particularly because it is more often used as a
development strategy than a means for political empowerment of the
people and policy transformation.
Right to
Transparent and Accountable Governance
The great expectations of India's welfare State began to recede after 20
years of hope and optimism. Over a period of time, the welfare State
became too fat to be functional. The saturated State failed to either
deliver welfare or protect and fulfill rights. The government apparatus
and the government itself faced a credibility crisis. Political parties
as the legitimising vehicle of parliamentary democracy suffered a lack
of credibility due to the criminalisation of politics. The proliferation
of career politicians and increasing instances of corruption in all
aspects of governance brought the issues of accountability and
transparency into the development discourse. The saturation of the
State, coupled with the debt crisis, forced the government to seek
financial and policy assistance from the Bretton Wood institutions to
make the failed welfare State work. However, the accompanying
neo-liberal policy prescriptions of these institutions in the form of
structural adjustments, privatisation and liberalisation further
alienated the poor from the Indian State. That is how two clear
tendencies in governance became clear by the mid-'90s.
The first set of actors, led by the World Bank, advocated 'good
governance' to address resource leakage, misappropriation and
mismanagement of the loans taken from the Bank and to ensure that there
would be relatively less risk in credit management and repayment. This
was more for strategic reasons than any commitment to the democratic
principles of public accountability and transparency. The second set of
proponents of transparent governance have been grassroots action groups
(like the Mazdoor Kisaan Shakti Sangathan in Rajasthan) and advocacy
organisations who sought government accountability as part of the
citizen's right to know and the right to participate in governance.
The Jan Sunwais (public hearings) and social audits initiated by MKSS in
Rajasthan are a well-known example of a process of mobilization that
combines a rights-based approach with people's participation. The
people's planning process in local self-governance in Kerala promoted by
the Kerala Shastra Sahitya Parishad (KSSP) is another example of
participatory practices with a rights-based perspective. The Community
Learning Movement for accountable governance, promoted by the National
Centre for Advocacy Studies (NCAS), is an example of a rights-based
praxis, based on the principles and practice of participation. Thus the
new movements and institutions are working to advance the right to
accountable governance and ensure that the peoples' right to participate
in governance and development are the basic premises for people-centred
governance and development.
In spite of the relatively greater visibility and legitimacy of the
human rights discourse, the meaning and utility of rights is still a
highly contested arena. Though India has ratified five of the six
covenants (ICCPR, ICESCR, CEDAW, ICCRC, and CERD) and conventions that
constitute the legally-binding international human rights treaties, the
implementation of these rights is rather poor. Although the new policy
papers and the documents of the Planning Commission of India
increasingly use the rights language, in terms of real programmes and
implementation the performance of the Government of India is far from
satisfactory.
Making
Human Rights Work: Linking Rights with Participation
If human rights are to have real meaning, they must be linked to public
participation. And participation must be preceded by empowerment of the
people. A sense of empowerment requires a sense of dignity, self-worth
and the ability to ask questions. The sense of empowerment along with a
sense of legal entitlements and constitutional guarantees gives rise to
a political consciousness based on rights. A process of political
empowerment and a sense of rights empowers citizens to participate in
the public sphere.
Most mass movements in modern India (the All India Democratic Women's
Association, Ragpickers Union etc) have emphasised the process of
empowerment while they also 'struggled' for rights. The notion of
'struggle' was implicit in claiming and promoting rights. Most social
action groups and people's organisations started by challenging and
changing oppressive power structures that perpetuate patriarchy,
casteism and poverty. Thus at the core of many such organisations was
political transformation through people's empowerment wherein people can
assert their rights and voices and demand justice. The process of social
and political empowerment encompassed a sense of conscience based
on dignity, rights and participation. That is why the slogans of the
Shramajeevi Sanghatana, the union of erstwhile bonded labourers and
Adivasis (tribals) in Thane district of Maharashtra assert that "We are
not animals, but human beings", "We are not here to beg, but to demand
justice".
People-centred advocacy is a possible link between rights and
participation. People-centred advocacy seeks to connect social
development, human rights and governance. It is about creating enabling
conditions for socio-political empowerment and enhancing the capability
of the marginalised to advocate for themselves so that they can claim
their rights, seek public accountability and participate in the process
of governance. People-centred advocacy seeks to go beyond changing
public policies to changing people's attitudes, behaviour and unjust
power relationships.
The Community Learning Movement (CLM) promoted by the National Centre
for Advocacy Studies (NCAS) is an effort to empower grassroots
communities so that they can seek accountability from the institutions
of governance, demand their rights and participate in the political
process. CLM takes a cluster of 10-25 villages. Four volunteers from
each village participate in an action-learning cycle of 18 months, in
six phases of three months each. Once in three months, the volunteers
meet for two to three days to share experiences, learn new topics and
build strategic plans for addressing local issues. The Learning Space or
Open Notice Board maintained by the CLM local unit provides information
(policy, budget, local government etc) that affects the villagers and
the volunteers update the Board regularly. As a result of these
initiatives, the CLM group in Karnataka has come up with its own
community newspaper and wall magazine. Ordinary women, who have
developed a sense of their rights and responsibility, have sought
accountability from local government officials and exposed corrupt
forest officials involved in illegal tree-felling and smuggling of
timber from the forest.
People-centred advocacy can be an effective way to link rights and
participation. However, the challenge is how to transform this linkage
into an emancipatory politics that would help the poor emerge from the
structural inequalities that perpetuate poverty.
Human rights are legitimized claims and the State has an obligation to
respect, protect and fulfil these rights. However, rights become real
only when people begin to realise their full potential as human beings
and assert their rights in the private and public sphere.
May 13, 2007
More
writings of
Dr. Anjana Maitra can be viewed here.
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