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One of the explanations given for the success of the Bharatiya Janata Party in Uttar Pradesh in the recent state election, is personalisation of the delivery of free rations to the needy during the pandemic. This, ironically, is presented as a spectacular act of generosity by leaders in times of disease, destruction and death. Of course, governments must provide their people with food in times of need. But recollect that benevolent despots also ensure that their people do not starve. They do not starve as long as they accept restrictions on freedom of expression, particularly the right to protest. Benevolent despots in essence trade off social goods against civil liberties.
There used to be a time when liberal capitalist societies assured their citizens civil and political liberties, and socialist societies emphasised social rights but not freedom. This dichotomy in rights talk ended with the winding up of the Cold War. Political philosophers now recognise that the language of rights does not permit trade-offs. Rights are indivisible; a hungry human being cannot be free. But a well-fed individual cannot also be free if she is denied basic civil liberties and political rights. Nor can she be free if she is discriminated on some morally arbitrary ground, such as birth into a group that is stigmatised, insulted, dismissed, and ignored by the political elite. We entered an era of indivisible rights post the cold war.
The first significant moment
Following this remarkable moment in global history, in the first decade of the 20th century civil society activists in India set out to upgrade the provision of social goods, which forms part of the Directive Principles of State Policy, to the status of justiciable fundamental rights. In the period 2004-2014, social legislation enacted by the United Progressive Alliance government headed by the Congress party, was accompanied by civil society campaigns, participation of civil society activists in the making of policy, filing of Public Interest Litigation in the Supreme Court, and a new phase of judicial activism. In direct contrast to the early years of post-independence India, when the Supreme Court had privileged fundamental rights over the Directive Principles, and extended tacit and overt support to the internal emergency imposed by Prime Minister Indira Gandhi’s government in 1975-1977, it became an ardent advocate of social rights.
The scene was set by Justice Bhagwati in the Minerva Mills case (1980). He famously argued that social rights are substantive rights. A rule that imposed an obligation on the state or an entity, he stated, was still a legal rule because it prescribed a norm of conduct to be followed by an authority, even if the rule was not enforceable in court. Taking on a new role, the Supreme Court began to intervene in basic livelihood matters such as health, education, shelter and environment.
In 2001 in response to a Public Interest Litigation filed by the Peoples Union for Civil Liberties, Rajasthan, on widespread hunger in the country, the Supreme Court passed a number of strictures on the government. It was of utmost importance, instructed the highest court in the land, that food should be provided to vulnerable sections. In case of famine ruled the court, there may be shortage of food. Today however there is scarcity amidst plenty. Food distribution amongst the very poor and the destitute is scarce and non-existent leading to malnourishment, starvation and other related problems.
The scolding bore results, and the Atal Bihari Vajpayee government initiated a massive programme of employment generation via the Sampoorna Grameen Rozgar Yojana, streamlining the Public Distribution System in food grains, and mandating mid-day meals for school children. The campaign led to the passing of the National Food Security Act 2013 under the aegis of the United Progressive Alliance. Whereas every step to widen the coverage of food security schemes is welcome, the delivery of food grains to the poor and hungry is hardly a substitute for universal rights-based entitlements to food. The tragic spectacle of millions of people walking home after the lockdown during the pandemic in 2020, because in the village they might not remain hungry, should have reminded policymakers of the need to legislate a universal right to food. The time has come to move beyond a handful of grain, for too many discrepancies stalk the targeting of needy populations. The Union government should take inspiration from Tamil Nadu which has universalised the supply of food grains, and Chhattisgarh which supplies subsidised pulses and other food to almost 90% of households. This is not attributed to the benevolence of a leader, but because a democratic government is obliged to secure the basic goods to which people have a right.
A right is not only a right, it is a right to certain goods. There are certain things that must not be done to people (torture, imprisonment, penalties for exercising their right to protest, and encounter deaths). In this case the obligation imposed upon the government is negative, not to do. In other cases, such as the right to food, the obligation is positive; to provide free or subsidised food to all people, institutionalise nutritious mid-day school meals, meet the special needs of pregnant and lactating mothers, ensure that children are not malnourished and in general to see the right to food as part of the right to preventive health.
The campaign for the right to food realised fairly early on that assured employment is an essential precondition for food security, simply because it liberates people from dependence on others. The demand for this right (as distinct from the demand for food-for-work programmes) has not raised a new entitlement onto policy agendas. Several employment generation schemes existed in some form or the other in, for example, Maharashtra. But when in December 2005 the long awaited National Rural Employment Guarantee Act (now MGNREGA or the Mahatma Gandhi National Rural Employment Guarantee Act) was passed in Parliament, it was met by a rush of enthusiasm. Notably, the Act does not guarantee a generic right to employment. It is time that this right is also universalised, keeping in mind several decisions of the Supreme Court that have expanded the right to life to mean the right to live with dignity.
India did not undergo a social revolution, but in the ten years of UPA rule (2004-2014) attention began to be paid to zones of poverty and ill being vide civil society interventions. Among other significant legislation on social rights, the enactment of the right to information and the right to primary education are particularly noteworthy. Most of these laws were initiated by the National Advisory Council headed by the president of the Congress party Sonia Gandhi. A number of experienced civil society leaders, bureaucrats, politicians and experts were appointed to the NAC, and they recommended a number of important laws to Parliament. One important omission from these laws was the right to health, which still remains an aspiration in a country where infant and maternal mortality is cause for concern.
The role of civil society organisations in promoting social legislation in the period 2004-2014 cannot be underestimated. What trade unions and political parties, whose hearts ostensibly bleed for the poor could not do, civil society accomplished in the space of ten years. India was fortunate that the UPA government viewed civil society mobilisation favourably. A democratic government gave civil society enough space to collectively mobilise on various issues, to demand that the state undertake appropriate action to realise objectives laid down in the Directive Principles, and to approach a supportive Supreme Court. If the Directive Principles of State Policy have laid down goals that are worth struggling for, civil rights have provided the arsenal for the struggle.
All governments are inherently repressive. Power breeds arrogance, and arrogance breeds insensitivity, and insensitivity breeds some or the other malady of the human condition. Basic rights of citizens have to be wrested from even democratic governments through continuous vigilance and critical engagement. For this precise reason civil society activism is extremely important to bring unfulfilled issues to the forefront of political agendas, to press for the expansion of projects to prioritise health, education, and income, and to monitor the implementing of state policy. We arrive at the paradox of civil society. Civil society activism enables democracy, but the precondition of civil society activism is a democratic state. Civil society can never be autonomous of the state, but it can act as a watchdog of democracy provided the government does not crack down on activism.
The second significant turn
The political scene changed dramatically in 2014. In the run up to the general elections the Congress rightfully claimed credit for social legislation. Yet for a variety of reasons the party lost out to the BJP. The victory of the party in the 2019 general elections was attributed to hyper-nationalism but also to various welfare schemes that the government had launched in its first term with a great deal of fanfare, grandiose rhetoric, and tightly centralised monitoring.
There is reason to be concerned about the approach of the current government to social wellbeing. A rights-based approach to wellbeing, which had been emphasised by civil society activists during the period of UPA I and II, has been replaced by the enactment of social policy ‘from above’. The rights-based approach governed welfare legislation in the post Second World War period in Europe, and particularly in Scandinavia for good reasons. An emphasis on rights rules out paternalism, and reiterates the entitlement of citizens to the goods that they have a right to-from life and liberty to fulfilling employment. It was precisely this line that was emphasised by civil society activists in 2004-2014.
The BJP government has sharply moved from the discourse of rights and entitlements, to the provision of social goods by a paternalist government. In the first decade of the 21st century, it was recognised that India had charted out a new route to welfare, that of civil society intervention. In the decade that followed, we saw impatience with civil society and intolerance with activism. From 2001 to 2014, civil society organisations came together in a series of coalitions to press upon the government the need to recognise social rights as legally enforceable rights. These organisations kept watch on the performance of the government. A number of social audit organisations issued report cards on how government policy had fared, and whether it had been implemented at all.
Today social policy plans are announced without corresponding mobilisation of, consultation with, or intervention of civil society. The government has come down heavily on human rights organisations, that are arguably the conscience of society, by blocking their funding, casting doubts on their legitimacy, and questioning the need for human rights. We see major truncation of the domestic space of debate and dissent, as the BJP and its front organisations proceed to monopolise the space of both civil and political society. This is in sharp contrast to the role played by civil society organisations from the post-emergency period to 2014. They spoke the language of rights, and propelled social legislation during the ten years of UPA rule. Today our leaders pronounce that rights talk is a ‘waste of time’, protest is repressed by brutal police action, the government decides who to punish and how quite independently of the judiciary, and the media, regulatory institutions, and courts kneel before power. But needy sections of society are given a handful of grain.
In sum, we need to distinguish between social policy ‘enacted from above’ for reasons that have to do with political prudence, and social rights that are claimed by citizens in and through mobilisation in civil society. Today civil society organisations are suppressed and harassed. If civil society activists are jailed because they protest against the violation of basic rights of citizens, if citizens are penalised because they have dared to challenge palpably unjust law, and if bulldozers are brandished as the USP of a government, democracy is sorely compromised. People might still be given a handful of grain in times of emergency, but this will be for reasons other than the fact that they are holders of rights. This is neither democratic nor welfarist. It reduces rights-bearing citizens to consumers of policies enunciated by the power elite.
Neera Chandhoke was a professor of political science at Delhi University.