Entitlement only by ‘right’

When it comes to social policy in India, everywhere one turns these days you seem to find a right. The Supreme Court has declared a right to food, a right to a clean environment, a right to shelter, and even a right to sleep.

The Parliament has passed Acts that guarantee a right to education, a right to information, a right to rural employment, and is currently considering sweeping legislation that would provide rights concerning food security. State Assemblies in India, responding to the complaints of weary citizens, have recently started enacting right to public service Acts that guarantee that designated government services — such as driver’s licences or residence certificates — must be processed within set time frames or the responsible officials will be fined.

The emergence of these rights has been dramatic. If one were to travel back in time to the India in the 1980s, there were plenty of large-scale schemes to uplift the poor, but almost no such rights. Some have criticised the rise of all these rights as simply being empty promises. Others have pointed out that most countries around the world that have successfully implemented social-welfare programmes have done so without such extensive or explicit use of rights. What explains this blizzard of rights in India?

PRO-ACTIVE APEX COURT

Certainly there has been a global trend — often promoted by international organisations — to adopt a human-rights framework, including social and economic rights, to foster development. Economic liberalisation in India also arguably moved the policy focus from top-down planning to individual empowerment, for which the language of rights is perhaps a more natural fit. But it would be wrong to label the shift towards rights in Indian social policy as merely a product of outside or economic forces, since these same forces have been at work in other countries, too. A larger confluence of factors is at work.

To understand this larger movement, one should differentiate between rights being articulated by the Supreme Court and those by the political branches of government. From the 1980s onward, a more populist Supreme Court has monitored and actively intervened in government social-welfare policies.

The judges have been widely seen as correcting a government that has abdicated many of its governing responsibilities. However, the Supreme Court has limited tools to intervene. Luckily for the Court, the right to life in the Constitution (Article 21) can be read to provide a wide constitutional basis for its orders, and it has invoked this right often.

For example, the Court directed the Government to provide a free midday meal for children in all government schools, because it found doing so constituted an element of a right to food, which it pronounced to be part of the right to life.

INDIVIDUAL REMEDY

Yet, the social and economic rights the Supreme Court has articulated involve the Court more broadly supervising government activities, rather than creating an individual right of action against the government.

For example, if one’s child does not receive a midday meal in a government school, the Court has created no specific mechanism by which one can claim compensation or penalise the responsible government official. Instead, one can complain to a court-appointed right-to-food commissioner, who may then report the violation and others like it to the Supreme Court, and the Court may then ask a minister to remedy the broader problem.

In other words, the social and economic rights the Court has articulated have usually been curiously disembodied, focusing more on general policy setting or scolding the government for inaction, rather than developing individualised remedies that may be claimed by specific citizens.

Rights created by the legislature have tended to be different, even if not uniform, in their architecture. If one does not receive requested information under the Right to Information Act, one can approach a right-to-information commissioner who, if he or she finds it appropriate, may penalise an errant official for non-compliance with the Act.

The Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA) works a bit differently. If an individual is not provided work within a set number of days, they are automatically entitled to unemployment compensation. In both cases, the focus is on the entitlement of a specific individual and the consequences in case of non-compliance by the government.

LOWER BUREAUCRACY

The first wave of these rights-based Acts was generally pushed by civil-society campaigners, such as the National Campaign for People’s Right to Information or the Right to Food Campaign. Advocates in these groups generally distrusted the motivation of government officials to implement these Acts and saw a rights-based approach as a way to legalise the specific actions a bureaucrat needed to take in order to implement legislation.

This same concern about the trustworthiness of officials on the ground has also been shared by many top-level politicians and administrators. Right to service Acts, for example, were generally pushed through by proactive Chief Ministers, and not civil society campaigns. These Chief Ministers did so in part because these Acts were seen to be politically popular with voters, but also because it gave them an added tool to control the lower bureaucracy.

In other words, a turn towards rights-based Acts derived in large part from historically poor implementation of government programmes and a widespread distrust of the bureaucracy.

In practice, the rights-based approach has been ineffective at improving implementation of government policy. It is easy to say that just because a right has been created a problem is on the way to being solved, when the underlying structural reasons for poor implementation — whether it is insufficient funds, the low capacity of officials, poor policy design, or the need for civil service reform — are left unaddressed. Furthermore, rights are absolutist in their claims, and are generally poor vehicles for balancing the competing interests made on the state’s time and resources.

For example, some lower officials have remarked that right to service Acts do influence their behaviour, such as making them prioritise processing an income certificate more quickly to avoid a fine, but their other — often equally meritorious — work suffers as a result.

Finally, an expectation that often highly impoverished individuals will be able to successfully navigate the bureaucracy and the courts to claim rights when they are denied them has generally proved unrealistic.

This is not to say a rights-based strategy for implementing social welfare programmes is the wrong path. Rights can certainly be part of a broader strategy to address implementation challenges. In a society like India’s where social divisions are often stark, rights can give those who have traditionally been disempowered the confidence and legitimacy to make claims on the government for basic social goods.

(The author is a Visiting Fellow at the Centre for Policy Research in New Delhi. He is a Fall 2012 Visiting Scholar at the Centre for the Advanced Study of India.)

This article is by special arrangement with the Centre for the Advanced Study of India, University of Pennsylvania