The fundamental rights to water, food, and education have been in the news in recent months. Along with these human miseries arising out of wide-spread drought, starvation deaths in the face of grain-filled godowns and the continuing low levels of literacy have also found some space in the media. To talk of fundamental rights in areas where things continue to be a mess very clearly suggests two things. One, that Rights haven't corrected the wrongs. The second, more important, pointer is that even amidst the mess, it is difficult the escape the need for Rights. There is a continuing reaffirmation that the language of Rights today is the only language available to people to communicate with the State and enforce their wants.
The debate centers on the rights themselves and the processes through which the rights have to be realised, as also on the threshold question of whether a claim should be recognised as a right. On all these aspects the problem has been more with what is called 'collective rights', commonly termed as the "Third Generation Rights". The collective rights like the right to development, right to healthy environment, right to peace and right to self-determination are difficult to fit in the traditional sense of the term 'human right', because as group rights they do not vest in, nor is exercised by, an individual alone, although the individual is clearly their beneficiary. Eminent sociologists like Andre Beteille oppose the creation of new rights on the grounds of - (a) the problems associated with its formulation and implementation and (b) the apprehension that it might encourage avoidable 'judicial interventionism'.
In the Indian context the controversy has been most acute on the question of fundamental right to development. In addition to the above argument against collective rights, recent initiatives for the creation of a new right to development signal a shift from the 'language of policy' to the 'language of rights'. All these contentions merit closer examination.
The various arguments of rights-bashers generally include these: that
they are "perhaps unenforceble", that they set at nought the distinction
between matters of right and matters of policy, that they increase the
burden of courts and that the tendency to create new rights can be
"ominous for our fragile democracy". All these arguments neatly fit into a
classification developed by Prof. Upendra Baxi not very long ago. In the
Annual Capital Foundation Lecture delivered in New Delhi in 1996,
Prof. Baxi identified critics of Judicial activism as deploying "a
Psychological Strategy" aimed at "activating a whole variety of fears in
the judicial psyche:" and designated them as-ideological fears, epistemic
fears, management fears and biographic fears. He saw the activation of
these multiple fears as continually threatening "public interest judicial
invigilation."
However, the arguments against the rights-based approache should, and can be addressed apart from seeing them as a strategy against judicial psyche. The changing language of the discourse from policy to law is not necessarily a negative development in itself. The key difference between policy and law is that the latter is enforceable. The history of development policies has been a history of departures from them, entailing absolutely no consequences for the executive who framed them in first place. If aspects of development are not addressed they have to be enforced. The language of the Courts pushing the government to at least talk is a shift to language that is positive, decisive and result-oriented.
The language of the Courts is also of immense significance as a communication medium. It is not a coincidence that all successful Public Interest Litigation in the past have provoked strong responses in the media and helped evolve a public opinion on the concerned issue. In this context a categorical carving out of say, a fundamental right to development, has the potential to mobilise the people, the media and ultimately the decision-makers. The fact that judicial activism has been the greatest mobiliser of the public, including govermental, opinion in recent times is often under emphasized. The capacity of law to evoke a response - even when faced with total apathy-should be understood and utilized.
Therefore, the utility of creating rights, particularly in areas that require urgent attention and action, should not missed. The creation of fundamental rights of livelihood, of a clean environment, and even of a right to information, can be seen in this context. It is now being increasingly realised that even though courtrooms are inappropriate forums for resolution of complex "policy" issues, they need to empower individuals and communities to claim the right due to them. For instance, even though the fundamental right to livelihood created by the Supreme Court in the Olga Tellis case in 1986 could not come to the rescue of pavement dwellers who were parties to that case, the subsequent assertion of the right repeatedly in various forums has been noticeable.
Recent reports from one of the poorest districts - Kalahandi in Orissa - have confirmed some stark truths that exist in most of the poor parts of India. Daily wages are in disregard of minimum wages, most children do not go to schools, there is a persistent water crisis which results from scarcity - not drought, alienation of land of tribals continues unabated with poorly maintained land records, there is the stranglehold of moneylenders, apprehensions over displacement by dams and denial of rights over non-timber forest products (NTFPs). Significantly, in all these areas specific Central and State laws apply, vesting an array of rights to the people. Rights that exist but do not help.
When seen together all these rights add up to entitling every human person "to paricipate in, contribute to and enjoy economic ,social, cultural , and political development, in which all human rights and fundamental freedoms would be fully realised." This is nothing but the right to development as adopted by the United Nations. The elevation of all these most basic concerns to the level of fundamental rights can do no harm, and will strengthen the legal case for them. The fundamental right to development as the right of livelihood, environment and information - are all required by an individual at the same time. Having granted them the desired judicial recognition, the operation and enforceability of these rights in a given fact is the continuos task of the executive, and of the judiciary when called upon, only as a last resort.
Besides, opposition to a new right on the ground that this may provoke judicial aggression is open to question. The argument against a tyrannical judge is always at the expense of camouflaging the advantages of an activist judge. An activist judge is willing to explore new areas for effective judicial intervention while always being aware of the limits of his exploration. Judicial activism in India in its first phase of social and human rights reforms was the direct result of creative imagination of then-Justices Krishna Iyer and P N Bhagwati. In its second phase this activism was powered by environmental concerns, and here again the initiative to Justice Kuldeep Singh stood out. In addition, the truth that increasingly complex issues demand greater administration and correspondingly expanded judicial power to maintain the balance of the system, needs to recognised. The creation of new rights is a response to this felt need. Not creating them on the ground that the courts are already overcrowded - what Prof. Baxi termed "management fears" - can never be a valid argument against fundamental rights.
In sum, the Rights-based approach to development concerns continues to have a central role - and for good reasons! This does not negate the concerns raised about Rights-based approaches, but only recognizes that there is another side to them, much like a coin. And this other side isn't necessarily the darker one.
