I know my rights

You might think that the expansion of what it means to have rights — and what rights people can sensibly be said to have is a very special Congress-under-

Sonia phenomenon,the sort of thing that a National Advisory Council stuffed with left-leaning NGO types would come up with. So persuasive is that story on some level that it is entirely too easy to forget that the original constitutional amendment that made free and compulsory education a fundamental right was passed in December 2002,when the NDA was very firmly ensconced in power.

Nor is it a sudden,local phenomenon,unique to India. In actual fact,the slow two-century shift from the narrow,classical liberal conception of the rights of man — always of men,usually of the right sort of men — as something basic and inviolate,to the hopeful khichdi that are rights today,happy aspirational statements,is one of the modern world’s great,under-told stories,the turning point of which is certainly Eleanor Roosevelt pushing the freshly-born United Nations into ratifying the Universal Declaration of Human Rights — which,startlingly for the times,included the right to education and health,and became possibly the most influential document of the 20th century,judging by the number of new constitutions that would view it as source material.

But the spread of the idea of economic and social rights that can be acted upon in a court of law — an even more radical departure — has been a gradual victory,over the past two decades,for an odd coalition of NGOs,hard-headed economists,technocrats,and activist judges. They needed to overturn not just legal and political status quo,but also the academic consensus — an approach led by Amartya Sen,who refined individual rights as access to “capabilities”,which helped him bring together his two interests,theories of justice and rights,and development economics.

This process — known as constitutionalisation — has been written about at length,but little of that work has informed public policy here. What two decades of research has revealed is that there are broad patterns to where and how constitutionalisation comes about,and what effects it has. First,while the broad patterns of thinking caused people to start viewing constitutionalising economic and social rights as a solution leached across borders as such ideas do,carried by academics on exchange,transnational NGOs,and the occasional influential op-ed,it only becomes viewed as a usable and effective strategy in certain places,a small subset of countries; in most,it remains merely a persuasive idea,a possible future weapon.

The countries where rights-based strategies work politically share certain features. First,they tend to be ethnically,linguistically,or economically very fragmented,making their politics consequently messy. This usually forces reformist or revolutionary policy change in those societies to be carried out by stealth — or by “depoliticisation”,either through putting in “apolitical” technocrats,or by claiming the IMF made you do it,or by bumping things over to the judicial branch. Second,there is usually a shared middle-class disdain for the political process and the murkiness with which policy is formed; and a corresponding,commonly-held respect for the probity,the efficiency,and most of all the approachability of judges. (Notably,it does not require that self-declared “civil society” in those countries be well-developed.) Third,the state machinery should be already large,but underperforming.

And fourth,the executive and legislature should be willing to cede ground to the judiciary — they should be complicit in their loss of power.

India definitely exhibits these four characteristics. So do some other countries: Israel,Brazil,South Africa,for example,and all these have paralleled India’s development of a rights-based policy environment. In each of those,interestingly,the short- and medium-term impact of allowing judges to intervene on questions such as education and health was far from egalitarian,clearly benefiting the litigating middle class rather than the poor. But they also helped make those who carry out policy more accountable to all those who frame it. Most interestingly,assigning rights that the government had no chance of actually enforcing through state machinery forced it to start devolving some of its functions to the private sector. Fears of a govrnment takeover of private education in India,therefore,might be as overblown as hopes that these new rights will significantly expand the state’s accountability to its poorest citizens.

How,thus,should we respond to this blizzard of new rights? With despair,as an admission of political hopelessness,a last attempt to get round failures in governance? Should we view it as an attempt by a modernising middle class to salve its conscience,a set of entitlements on paper that will inevitably serve only those that already have access to courts? Or can we claim that it will substantively change how accountable India’s government will be to its citizens? Indeed,all those could be true. But,perhaps,the most concern should be felt at the dilution of the ideal of the inviolable,enforceable right,won in a time of riot and war,with the air of Europe and America heavy with musket smoke and inflammatory ideas.

mihir.sharma@expressindia.com