Rights, equality and justice

Legally sanctioned socio-economic rights remain elusive for a large number of people in India. Why?

WHEN it comes to socio-economic rights, the judiciary has a limited role to play, as enforcing these rights requires the cooperation of the government which often takes shelter under budgetary constraints to explain away its insufficient action in helping citizens realise those rights. Besides, the lack of clarity in judicial decisions and the potential for further litigation in decided cases have meant that the citizens have no option but to depend on the government for enacting laws and framing effective rules to implement them in order to ensure meaningful realisation of those rights.

Therefore, it is the laws enacted by Parliament and the State legislatures that tell us about the status of socio-economic rights and the reasons for the lack of progress in ensuring that all sections of the people, especially the marginalised and the excluded, realise these rights.

In his recent book, The Price of Inequality: How Today’s Divided Society Endangers Our Future , (2012), the Nobel laureate Joseph E. Stiglitz, explains lucidly that while a good “rule of law” is supposed to protect the weak against the powerful, legal frameworks have sometimes done just the opposite and the effect has been a transfer of wealth from the bottom and middle to the top. Ironically, he says in his book, while the advocates of these legal frameworks project them as instruments for promoting an efficient economy, they have actually led to a distorted economy.

While much of what Stiglitz discusses in his book pertains to the United States, the three books under review show that his observations are no less true about India.

Elusive justice Rudolf C. Heredia, a sociologist, says in his book Taking Sides: Reservation Quotas and Minority Rights in India that much of our public discourse on social justice may be represented through the allegory of six blind men making assumptions about an elephant on the basis of their physical exploration of its different limbs. Unlike the blind men, however, Heredia goes beyond limited perceptions of social justice that have led to wrong assessments, and tests each perception against the others. In this, Heredia succeeds remarkably. Here are some of his observations, culled from his eight insightful chapters:

Our electoral process seems to throw out one set of rascals and usher in another in a repetitive process that seems only to promote such rascality.

A just society no longer seems to be the first priority of our ruling elite, who have been the principal beneficiaries of the country’s freedom struggle. Since Independence, the elite have often pursued a hidden agenda, focussed on efficiency and merit. Those excluded from this process of growth can only wonder whether today’s democratic polity is any different from the colonial state.

For too many protagonists, reservation quotas are more of a means to their own upward mobility than instruments of social justice. This is a betrayal of the spirit of the Indian Constitution.

Quotas have resulted in a positional change for some groups but they have not brought about any real structural transformation in the broader society.

Justice must protect and promote liberty; it is best measured and authenticated by the principle of equality and it can only be sustained and extended with the principle of fraternity. Any critique of affirmative action (whether in terms of reservation quotas or of protective discrimination) and any discussion on minority rights in terms of constitutional guarantees or Directive Principles of State Policy must be premised on a justice that is defined by all these elements: liberty, equality and fraternity.

In India, caste, religion and patriarchy are the three most resilient obstacles to creating a just society through just means. When change happens, inevitably it is often subverted in new ways that protect the vested interests of those who support retrograde traditions. Our quest must move against and beyond the injustices that these institutions have so long imposed on our people, without burdening them with new ones or consolidating old ones.

Preferential policies consolidate a creamy layer of the more advantaged among Dalits, adivasis and women but do not empower a vast majority of people trapped at the bottom of these categories. They are then left outside the charmed circle of those who have had privileged advancement.

Even though the freedom struggle was against colonial imperialists, our development model has internalised this very “intimate enemy” (to borrow a phrase from Ashis Nandy’s eponymous book published in 1983). We need a second freedom struggle against the internal colonialists and their covert imperialism against our own people: a struggle for the “quality of life” of a happy people, and not for a nation craving for the “standard of life” of a happy people, a nation craving for the “standard of living” of a rich country. We need to create an exemplary state rather than a great power. The ideals of our leaders in our first freedom struggle —Mohandas Karamchand Gandhi, Rabindranath Tagore and Jawaharlal Nehru—were so noble that we must uphold them again and again lest they slip beyond our grasp.

The Constitution legitimises caste-based quotas in order to delegitimise caste hierarchies. But in the absence of other affirmative action policies for an inclusive and egalitarian society, quotas by themselves do the very opposite, heightening an identity politics of caste for short-term, partisan gains. This is the real democratic deficit that precipitates enormous contradictions and anomalies at the heart of our political enterprise.

Much of what Heredia expounds in his book may be debatable, but there can be no gainsaying the sincerity behind his beliefs, which were born out of his prolonged experiment with Indian social reality.

Rights failure In India’s Rights Revolution , S.K. Das, a retired civil servant, takes up four important socio-economic laws, and answers why their benefits have not reached the poor and the marginalised.

According to him, the Right to Information Act, 2005, has failed to create a mechanism to ensure proactive disclosure of information by the authorities. The failure to provide a permanent mechanism with sufficient authority and expertise to supervise the system of proper record keeping is another lacuna in the Act.

The author believes that private bodies should have been included in the ambit of the Act as has been done in South Africa. As a result of the policy of liberalisation, many public service delivery functions have been outsourced to private bodies, which deprives citizens of their right to information. The absence of publicity about the RTI Act and of the awareness of a practical way to use it have been the major factors responsible for its benefits not reaching the poor.

Das says the National Rural Employment Guarantee Act (NREGA), 2005, too has critical gaps that act as serious constraints to the poor accessing its benefits. The Act restricts guaranteed wage employment to every household whose adult members volunteer to do unskilled manual work to just 100 days in a financial year, whereas the idea should be to provide work as a matter of right as long as they need it. Among the other flaws identified by the author are the Act’s offer of guaranteed employment to households rather than to individual adults, the exclusion of small towns from its purview, and the disparity in the minimum wages fixed under it and the wages fixed by the State governments for agricultural labourers.

The Forest Rights Act, 2006, recognises the traditional rights of people who live inside the forest and on its fringes: the individual forest-dweller can own land and use it for his livelihood, while the forest-dwelling community can access minor forest produce, grazing grounds and water bodies. The rules under the Act prescribe a time limit for filing claims, which the author says is unrealistically short for a complex, multidimensional legislation like the FRA.

The Act, according to him, also misses out on the requirement of prior, informed consent of the gram sabhas for diversion of forest-dwellers’ land. This hurt the poor in the Niyamgiri hills (Odisha), Polavaram (Andhra Pradesh) and Posco (Odisha) projects, he says.

The author regrets that there is little evidence of the government granting development rights to forest-dwellers under the FRA.

The Right of Children to Free and Compulsory Education (RTE) Act, 2009, another flagship legislation of the United Progressive Alliance government, also suffers from serious drawbacks. According to the author, it is silent on the developmental and educational needs of children before the age of six despite the presence of compelling evidence to prove that what happens in the early years of a child exerts strong influence on its physical and intellectual development potential. Moreover, he says, the Act’s definition of a child belonging to a disadvantaged group is disappointing because it leaves out children with disabilities, children from internally displaced communities and migrant families, and children who come under the juvenile justice system.

On discrimination In her book, Non-discrimination and Equality in India , Vidhu Verma, Professor at the Centre for Political Studies, Jawaharlal Nehru University, New Delhi, examines the claim that social justice involves a departure from a fundamental juridical norm of non-discrimination or equality of treatment. According to her, the growing consolidation of neoliberalism and its impact on the social sector place the question of social inequalities at the forefront of the political agenda. This explains why characteristics of a group rather than its individual members should be the basis for granting entitlements and preferences. At the time of independence, a major challenge before Indian democracy was to harmonise two normative values: non-discrimination in respect of religion, caste, creed, race and gender, and avowal of social justice for the less privileged groups.

The author notes that sexual minorities, the disabled, internally displaced groups, victims of the human immunodeficiency virus (HIV) and “denotified” tribes have raised questions of prejudice and discrimination that remain inextricably bound to group claims for attaining social justice. The author distinguishes the discrimination faced by these groups from the social discrimination faced by the Scheduled Castes (S.Cs) and Scheduled Tribes (S.Ts), which is historical. According to her, some of the provisions in the Constitution remain ineffective as they fail to tackle the specific nature of discriminations and forced segregation of people. She cautions, however, that in the urge to address some of these social inequalities one must not overlook the grounds on which the S.Cs and S.Ts were viewed as a distinctive grouping in Indian society because they suffered severe discriminations in the past. As she puts it succinctly: “We cannot obscure what was distinctive about arguments for social justice. At the same time, there is a need to expand the notion of discrimination and reassess public policies by including more beneficiaries.”

While discussing the question of reservations for Other Backward Classes (OBCs) in higher education, the author suggests that creamy layer rules should be complex, taking into account a variety of considerations relating to employment, property, jobs, schooling and higher education. She also advocates that while developing a system of quotas for disadvantaged groups in higher educational institutions, the goal of equity should be separated from that of access. Universities would gain academically and not just socially by becoming more inclusive and by learning to accommodate and manage diversity among their teachers and students, she believes.

In the chapter on “Reservations in the private sector”, the author argues that it is misleading to assume that reservation policies will always promote non-meritorious candidates. She regrets that the government has not taken any major legal steps to ensure equal opportunity for S.Cs, S.Ts and OBCs in the private sector. She underlines the paradox that liberalisation of the economy and its rapid growth, despite the recession, has not led the private sector to adopt affirmative action on a voluntary basis.

She reminds us that the corporate and business groups could not have consolidated their position without the tax breaks and massive subsidies offered by the state. Moreover, the latter has been supportive of the quest for expanding the manufacturing sector in areas that involve encroachment of agricultural, common and forest land. Industrialisation and development is taking place by displacing tribal people and appropriating their land without recognised, registered and individual titles. Many deals for extracting natural resources markedly favour Indian corporations, which make fortunes at the expense of the livelihoods and cultures of people.

She, therefore, suggests inducement for employers to adopt non-discriminatory recruitment policies, so that it enhances their brand image and reputation. In addition, they need to invest in training and skill enhancement of their employees from different social backgrounds to have easier access to human capital that might not otherwise be available.

The author makes a strong plea for enacting the Women’s Reservation Bill, as, in her view, quotas for women in Parliament and State legislatures is a means to giving them recognition and representation so that they become a relevant category in all other groups too. Similarly, the author is sympathetic to Dalit Christians and Dalit Muslims, who nurture the grievances of discrimination and historical disadvantage, and have been demanding the protection of reservations and affirmative action.

There can be little disagreement with the author’s conclusion: Social justice is not only about citizens’ compliance with the laws of the state that benefit the worst-off but also about society producing citizens who show care and concern for their fellow beings, or who simply display an ethos of justice. The main challenge for social justice in the context of a diverse society like India, according to the author, is to motivate people to extend the universe of their benefits to include members of disadvantaged groups.