THE LANGUAGE OF RIGHTS - Is the creation of new rights always a good thing?
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- Published 29.10.09
The language of rights has come into increasing use in India in public debate in the course of the last couple of decades. In this process, the word ‘right’ has acquired a more capacious and flexible meaning than is ordinarily given to it by the Constitution and the law. It is becoming more a matter of politics than of law, an instrument of political combat more than legal adjudication. If our judges take their cue from politicians and social activists — as some of them seem to do — there will be long-term consequences for the operation of the legal system.
Where in the past those seeking to promote a particular programme might ask for the adoption of a new policy, they are likely today to call for the creation of a new right. The demand for new rights seems to infuse a greater sense of urgency than the call for new policies. Advocacy groups have been no less active in these matters than political parties. There are many more such groups now than there were in the early decades of Independence, and some of them, unlike political parties in general, have an international reach which adds greatly to their self-confidence and their influence.
The shift from the language of policies to the language of rights may be seen in a number of fields, out of which I will choose two for illustration. The first relates to the specific field of elementary education, and the second to the more broad, and ill-defined, field named ‘development’. Both were once treated as matters of policy, and both have since come to be regarded as matters of right.
At the time of Independence, there was considerable anxiety about the low levels of literacy and education in the country. The prevalent view then was that India’s stagnation was due to the apathy and negligence of the colonial government that adopted policies that maintained, and even reinforced, the country’s backwardness. The independence of India presented to its leaders the opportunity for changing all this by the adoption of policies whose main concern would be a better and a more meaningful life for the people.
The Constitution of 1950 made free and compulsory education for all children till the age of 14 a directive principle of state policy. It also set a time limit of 10 years from the adoption of the Constitution for meeting the objective. In the event, the objective was not met within 10 years, and has not been fully met even to this day. With the advantage of hindsight, it seems evident that the task could not have been completed within 10 years under the prevalent social and economic conditions. But it is also evident that the government did not act with the will and the determination needed to meet the objective in any significant way. The government dragged its feet and India fell behind while other countries moved ahead.
It is in this context that the movement to make elementary education a right acquired strength in the last 10 or 15 years. There never has been any serious disagreement in independent India about the importance of universal elementary education for the health and well-being of the nation. Has making it a right made a substantial difference to the truly disadvantaged in the country? In the meantime, more, if not better, schools have come up in different parts of India. This was bound to happen with the all-round development of the economy set in motion roughly 20 years ago. How far the creation of a right to education has contributed to what was likely to happen in any case is not easy to determine.
It is not enough to create new rights; one must do something to ensure that those rights can be enforced. It has been said that India is the country with the most rights and the fewest sanctions. The creation of rights that remain unenforced, and are perhaps unenforceable, undermines the credibility and the integrity of the legal system. Again, it is difficult to know what meaning the ‘right to development’ is to have in a court of law, and which court is to determine whether the right has been violated, and what remedy it is to prescribe in the event of a violation.
Those who press for the creation of more rights may not all have a clear view of the capacities of our judicial institutions or of the limits to those capacities. It may be a mistake to believe that the judiciary will be more effective than the executive in solving every kind of social problem. Perhaps many of those who call for the creation of new rights are aware of the limitations under which our courts function. Not all of them have greater faith in the judiciary than in the executive. For many of them rights are more a matter of politics than of law.
The growth of identity politics has given a new turn to the language of rights and greatly extended its appeal. The primary application of rights in the Constitution of India is to the rights of the individual as a citizen. During the long period of imperial rule, Indians had been subjects rather than citizens: as Nirad C. Chaudhuri reminded the readers of his autobiography, the British Empire had conferred subjecthood on us but withheld citizenship. The makers of the Constitution of India sought to take the country on a new path by creating a new social order of which the individual citizen would be the cornerstone. Without the rights of citizenship, equality before the law and the equal protection of the laws would have very little meaning; nor would protection from discrimination on grounds of race, caste, creed or gender have much substance.
The surge of identity politics is pushing the rights of citizenship into the background by demanding recognition of the special rights of religious minorities, backward castes and a variety of other communities of birth. It is undeniable that India is a land of deep and pervasive inequalities. There are not only inequalities between individuals and households but also disparities among communities. These disparities cannot be eliminated at one stroke, but they can be mitigated and reduced by constructive social policies. Compared with rights, policies are tame affairs. They cannot be used for galvanizing the masses or mobilizing electoral support. There is something stirring in the language of rights that appeals to demagogues of every political persuasion.
The use of the language of rights as an instrument of identity politics raises the temperature of public debate. That may indeed be the intention of some of the more impassioned exponents of the language of rights. A nation such as ours, with its many castes and communities, cannot advance or even be at peace with itself in the absence of a fiduciary basis or a basis in mutual trust. Nothing is easier than to destroy trust among communities, and nothing more difficult than to create it. It cannot be said that we are today at the high watermark of trust among communities. The champions of more rights for disadvantaged castes and communities must ask whether their actions are likely to weaken or strengthen social prejudice.