FINAL REPORT

January 1, 2001-December 31, 2004

RIGHT TO DEVELOPMENT PROJECT

Ministry of Foreign Affairs of the Netherlands
Activity Number: WW 180301

COUNTRY STUDY No. 4:

THE RIGHT TO DEVELOPMENT IN INDIA

Franois-Xavier Bagnoud Center for Health and Human Rights

Harvard School of Public Health

INDIA COUNTRY STUDY

ON

THE RIGHT TO DEVELOPMENT

C entre for D evelopm ent

and

H um an R ights
New Delhi
CDHR Team
Moushumi Basu (Principal Author)
Rakkee Thimothy
Reji.K. Joseph
Kaushik Ranjan Bandyopadhyay
Anit Nath Mukherjee.
Our sincere thanks to
Arjun Sengupta
Archna Negi
ii

India Country Report

Table of Contents

Introduction

1.1 The Essential Elements of the Right to Development Approach

1.2

12

Right to Development in the Context of the Indian Development

Experience

II

The Institutional Framework Supporting a Human Rights

24

Approach in India
III

The Rights to Food, Health and Education

34

3.1

The Right to Food

37

3.2

The Right to Health

54

3.3

The Right to Education

64

IV

International Cooperation and the Right to Development in India

69

Right to Development in the Future

75

References

83

iii

iv

Introduction
The discourse on rights in India predates the formation of the modern Indian state.1
Providing an important basis to the nationalist discourse on freedom and numerous other
subaltern struggles, rights have formed an integral part of the Indian polity. Representing
claims made upon the State, the notion of rights has played an important role in defining
certain fundamental precepts of the obligations and duties that the Indian State has towards its
citizens. 2 The Constitution of India, drafted roughly around the same period as the Universal
Declaration of Human Rights, provides for a separate chapter on the protection and promotion of
Fundamental Rights.3 However, unlike the Universal Declaration that does not distinguish
between sets of rights (civil, political, economic, social and cultural), the Indian Constitution
makes a fundamental distinction between justiciable and non-justiciable rights.4 While the

Demands for some of the fundamental rights were made as early as in 1918 at the Bombay session of the Indian
National Congress. The Commonwealth of India Bill, finalised by the National Convention in 1925 embodied a
specific declaration of rights like equality before law, freedom of speech, assembly and religion etc. A resolution
passed at the Madras session of the Congress in 1927 reiterated the demand for fundamental rights. The Motilal
Nehru Committee appointed in 1928 by the All Parties Conference in its report declared that the first concern of the
people of India was to secure justiciable fundamental human rights. The Karachi Congress Resolution of 1931
formally adopted the resolution on Fundamental Rights. Interestingly, ten of the nineteen fundamental rights
incorporated in the Nehru Committee Report were included in the Constitution of India in a substantially unchanged
form. For details see Subhash C. Kashyap, Our Constitution: An Introduction to Indias Constitution and
Constitutional Law (Delhi 2004 reprint), pp 8-42. Other references include Granville Austin, The Indian
Constitution: Cornerstone of a Nation (Bombay, 1985), D. D. Basu, Introduction to the Constitution of India ( New
Delhi, 1997, 18th edn.) and P. M. Bakshi, The Constitution of India (New Delhi, 2000).
2

The first civil liberties association in the country was formed in 1936 in Bombay with Rabindranath Tagore as its
president. The basic idea behind setting up of the Indian Civil Liberties Union was to formalise the right to freedom
of expression and association that the Indian people vis--vis the Government. For a comprehensive background of
civil and democratic rights movement in pre and post Independence see Ghanshyam Shah, Social Movements in
India: A Review of Literature (Delhi, 2004), pp. 242-262 and A.R. Desai, ed., Violation of Democratic Rights in
India (Bombay, 1986).
3

Many of the articles of the UN Declaration find specific mention as legally guaranteed rights in the Indian
Constitution. For example, the provisions of equality contained in Article 7, the right to constitutional remedies
(Article 8), freedom of movement and residence (Article 13), freedom of thought, conscience and religion (Article
18), are some of the important provisions of the UDHR that have been accorded the status of fundamental rights in
the Indian Constitution.
4
Discussion within the Constituent Assembly, which was responsible for drawing up the Indian Constitution,
indicates that the Advisory Committees classification of rights into two categories of justiciable and non-justiciable
rights did not have unanimous acceptance. Some members for example, like Mr. Somnath Lahiri from Bengal drew

protection and promotion of civil and political rights is legally binding upon the State, the
responsibilities of promoting economic, social and cultural rights are relatively less explicit.
Enlisted as Directive Principles of State Policy, these do not enjoy the justiciable status of
fundamental rights, but are nevertheless important as they embody policy guidelines that are to
be progressively realised and observed by the State in good faith.
The present study on the implementation of the right to development, builds on the
normative and legal foundations for linking rights with development in the Indian context. While
India is an official signatory to the UN Declaration on the Right to Development, discussions on
the specifics of the right to development at the formal level have been limited. Although there is
recognition of the need to institutionalise more democratic norms of governance, linkages to the
right to development have not been sufficiently explored. At the policy level, while certain
elements of a rights-based approach have been institutionalised, the progress made in adopting a
holistic and comprehensive approach that characterises the right to development has been slow.
The possibility of the implementation of the right to development in India remains as yet a
largely untested proposition. Keeping in mind the constraints political, social, economic, and
cultural that typically inhibit development efforts in low and middle-income countries, as well
as the contradictions and challenges confronting development within the country, there exists a
strong case for exploring how the right to development approach may be adopted in the Indian
context.
The term development has been open to several conflicting interpretations. As an activity,
development has come to signify different things to different classes and groups of people. The

attention to the difficulties of making a fine line of distinction between justiciable and non-justiciable rights.
Similarly Mr. Promatha Ranjan Thakur again from Bengal specifically called for making economic rights
justiciable. Debates: Constituent Assembly of India, 29th April, 1947.

amazingly fast growth of consumerism in the contemporary period, its coexistence with
abominable conditions of poverty and deprivation, and the absence of analysis regarding the
distribution of benefits is a relevant illustration of the problems of finding appropriate definitions
of development. Whereas for some people development is synonymous with economic growth,
for others it is the positive outcomes that flow from growth such as fulfillment of basic needs,
human development, opportunities and freedoms that qualify as development.5 The
conceptualisation of development as a process that consciously focuses on the realisation of the
human rights and fundamental freedoms6 that form the central proposition of the right to
development provides a fresh and innovative interpretation of development.
Coined by the Senegalese jurist, Keba Mbaye, in 1972, the right to development has
been amongst the most controversial issues in contemporary international relations.7 In the last
few years, there has been a significant re-examination of the concept and value attached to
adopting a rights-based approach to development, especially in reducing the levels of poverty
5

See Gerald M. Meier, and Dudley Seers, ed., Pioneers in Development (New York, 1984), John Toye, Dilemmas of
Development: Reflections on the Counter-Revolution in Development Theory and Policy (Oxford, 1987) and
Amartya Sen, Development as Freedom (Oxford, 1999) for an elaboration of the changing theoretical notions of
development.

The process of development, in which all human rights and fundamental freedoms can be fully realized has been
elaborated in the literature on the right to development as objectives of development policies. For a useful summary
of the relevant provisions see Commission on Human Rights, Economic and Social Council E/CN.4/1999/WG.18/2,
Report of the Independent Expert on the Right to Development, 27 July, 1999.
7

Cited primarily as a claim to development by the developing world countries against the more developed states, the
demand for the right to development (read along with the call for a New International Economic Order) was focused
on eliminating injustice and inequality of nations and peoples, with little reference in the beginning to the concept or
instruments of human rights. The reference to right to development was implicit in the articles of the Universal
Declaration and the International Covenants. Taken to be a natural corollary of the right to self-determination, the
right to development was interpreted as a collective right the right of peoples to freely determine and pursue their
economic, social and cultural development than a right of the individual. Keba Mbaye was the first to interpret the
claim of the right to development as a human right. As Chairman of the Commission on Human Rights in 1977, he
was instrumental in securing a formal recognition of the right to development as a human right through a resolution
of the Commission. See Philip Alston, Making Space for New Human Rights: The Case of the Right to
Development, Harvard Human Rights Yearbook, 1988, Vol. 1, pp. 3-40, Oyvind Waeenskjold Thiis, The Right to
Development: A Report to NORAD (Oslo, 2000), Arjun Sengupta, The Right to Development as Human Right,
Working Paper, Harvard School of Public Health, 2000 for a historical account of the debates and discussions
surrounding the right to development in the international fora.

and deprivation prevalent across large areas of the globe. At the policy level, the main discussion
has been in the United Nations forum, where the adoption of the Declaration on the Right to
Development8 has provided a rallying point around which academics, policy-makers and civil
society may formulate concrete proposals identifying the main parameters of the right. The
current resurgence of interest in the right to development amongst policy makers and academia
comes at a time when concerns are being expressed about the contradictions and biases of the
process of globalisation, especially its effects on the lives of the poor in the developing world.
The present study is part of a larger research project undertaken by the Franois-Xavier
Bagnoud Center for Health and Human Rights of the Harvard School of Public Health. The
Centre for Development and Human Rights (New Delhi) has attempted to document the
prospects and challenges confronting the implementation of the right to development; thus this
report focuses on the meaningful applications of the right to development in the realisation of
basic needs and rights in India. The report is based on preliminary research undertaken by the
Centre concerning the application of a rights-based framework in the areas of food, health and
education.9 The report has five main sections. Section I lays down the basic precepts of the right
to development approach that differentiates it from other approaches to development. Section II
presents an historical overview of the process of development in India encompassing a review
of the goals, policies, approaches and structures influencing the formulation and implementation
of development programmes. Section III reviews the possibilities and implications of adopting
the rights approach in fulfilling the basic needs related to food, health and education in
8

UN General Assembly Resolution 41/128. December 4, 1986.

See Centre for Development and Human Rights, The Right to Development: A Primer (New Delhi, 2004) and the
three background reports by S. Mahendra Dev, Right to Food in India (2003), Ravi Duggal, Health and
Development In India: Moving Towards Right to Health Care (2003) and Ravi Srivastava, The Right to Education in
India (2003) prepared as a part of the above project on the Implementation of the Right to Development in India.

development.10 Section IV outlines the role of international cooperation in realising the right to
development. The last section, Section V, presents the conclusions and main findings of the
research.
The interpretation of development in human rights language undoubtedly raises certain
questions.11 For example, how does the claim to a right to development actually help
individuals? To whom does the right belong and who are the duty bearers? What is the scope of
the right, or the range of specific cases or instances to which the right applies? While the actual
content and meaning of the right may still not be in a final form, the importance of assimilating
rights with development cannot be discounted. For example, while a country may not
consciously follow the right to development model, it is still possible to identify the linkages
between development and rights and the extent to which the rights framework is interwoven with
the realisation of development. The section below takes a look at the basic precepts of the right
to development, before undertaking a larger discussion on the relevance of the right to the Indian
context.

10

Whether a right is basic or not is determined fundamentally, by the relationship that it has vis--vis all other
rights. A right is genuinely basic when the enjoyment of all other rights is dependent on the realisation of this basic
right. Needs related to food, health and education qualify as basic rights. Basic needs interpreted in the rights
language are represented as justifiable claims and not mere gifts or favour, motivated by love or pity. See Henry
Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (Princeton, New Jersey, 1980).

11

For further reference on the discussion on the above aspects of the right to development see Philip Alston, ed.,
Peoples Rights (Oxford, 2001), Henry J. Steiner and Philip Alston, Law, Politics, Morals (Oxford, 1996), J.
Donnelly, In Search of the unicorn: The Jurisprudence and Politics of the Right to Development, California
Western International Law Journal (1985) pp. 473-509, Franciscans International, The Right to Development:
Reflections on the First Four Reports of the Independent Expert on the Right to Development (Geneva, 2003).

1.1: The Essential Elements of the Right to Development Approach

The inclusion of certain distinct elements differentiates the right to development thesis from
other mainstream theories on development (e.g. economic growth, basic needs, human development,
centralised planning, free market neo-liberal, participatory and community-driven models). These
include:

The right to development is a right to a process, not just outcomes, based on the five
principles

of

rights-based

approach

equity,

non-discrimination,

transparency,

accountability and democratic participation. 12

The right to development requires the realisation of all rights in an integrated

manner, rather than viewing them as discrete components. Trade-offs among rights or
between rights and economic growth that lead to the diminution of the enjoyment of
any right are inconsistent with the right to development.13

12

The above interpretation of the right to development as a process of development in which all human rights and
fundamental freedoms are realised, forms the crucial vantage point that distinguishes the right to development from
other mainstream theories of development. A process implies an interdependence of different elements. The
interdependence can be understood in terms of time, as a related sequence of what happens today and what happens
tomorrow The right to development in other words is the right to a process that expands the capabilities or
freedom of individuals to improve their well being and to realize what they value. Report of the Independent Expert
on the Right to Development, General Assembly, A/55/306, 17 August 2000.

13

There may be many different ways that a country can develop a sharp increase in GDP or rapid
industrialization or export-led growth which may result in growing inequalities, regional or international disparity,
fluctuating employment with little social security, together with a concentration of wealth and economic power,
without a commensurate reduction in poverty or improvement in social indicatorswith no improvement in the
fulfilment of civil and political rights or of equity and social justice. These processes of development would not be
regarded as part of the process of development protected by the 1986 Declaration, as objects of claim as a human
right.The implementation of the right to development should be seen as an overall plan or programme of
development where some or most of the rights are realized while no other rights are violated. Report of the
Independent Expert on the Right to Development A/55/306, 17 August 2000.

There exists a strong connection between the realisation of all the rights taken
together in the right to development and the need for economic growth in relaxing the
constraints of resources, technology and institutions.14

The identification of development with the fulfillment of rights and freedoms both at a
particular time and over a period of time or the phased realisation of rights distinguishes the
right to development from other existing approaches to development. Encompassing a broader
canvas of development that includes freedom from poverty, social deprivation and tyranny, the
right to development draws attention to the crucial aspects of the ends and means of
development. Whereas ends focus on goals or final outcomes, the process reflects the means by
which such goals are actually achieved. For policy makers, goals and objectives invariably form
an important basis for selection and design of policies. Expressed either in quantitative or
qualitative terms or a mix of both, goals lay the basis for programmes or policies, reflecting upon
what ought to be. In this respect, they stand to be distinct from outcomes. The process refers to
the crucial aspects of social, economic and political life that determines the possibilities of
change and transformation. The right to development makes it mandatory for both outcomes and
the process through which such outcomes are achieved to be consistent with human rights
standards. In such a framework both ends and means are accorded equal importance.
Unlike the preoccupation of most theories of development with achievements of certain
targeted goals without any considerations for the means or the process through which these ends
are achieved, the association of development with the process and not just the outcomes gives
14

Like the rights to health, education etc., the growth dimension of the right to development is both an objective
and a means. It is an objective because it results in higher per capita consumption and higher living standards; it is
instrumental in that it allows for the fulfilment of other development objectives and human rights. However, to be
recognised as an element of the human right to development, growth of resources must be realized in the manner in
which all human rights are to be realizedensuring in particular equity or the reduction of disparities. Third Report
of the Independent Expert on the Right to Development, Commission on Human Rights, Economic and Social
Council, E/CN.4/2001/WG.18/2, 2 January 2001.

the right to development a distinct identity. A process of development that does not follow the
principles of rights-based development (equity, non-discrimination, transparency, accountability
and participation) violates the tenets of the right, and thus the essence of development, even if it
manages to attain certain rights and freedoms. For example, a country may choose to prioritise
certain outcomes, such as compulsory schooling for all children or a social security programme
for the aged, as its goals for development. While consensus may prevail on the goals, there is a
possibility of disagreement over the process of realising the goals, given the existence of several
alternative processes.15
For example, among the many alternative processes available for implementing
compulsory education, there may be a situation in which the Government is faced with three
main policy options: (i) coercing parents to send their children to school; (ii) creating a demand
for education amongst parents and children; or (iii) diverting money from other development
needs in order to construct schools where none exist. The choice of options in the case of the
right to development is not determined simply by utilitarian calculations of the number of
persons benefited. Rather, in deciding upon the choice of policies, the consistency of human
rights with both outcomes and process is given primary importance. In all cases, policy decisions
must be evaluated in terms of each of the tenets of a rights-based development approach. Option
one, for example, directly contradicts the accepted norms of democratic decision-making.
However, if the State fails to create demand for education among minority groups, or follows a
discriminatory, non-participatory process of policy making, then option two likewise does not
15

The right to development, especially the interpretation provided by the Independent Expert of the right to
development as a right to a process of rights-based development, has been criticised by some scholars on the
grounds that the process is of purely instrumental value, and it would be a mistake to conceptualise it also as an end
of development. See Siddiq Osmani in his article, Some Thoughts on the Right to Development in Franciscans
International, The Right to Development: Reflections on the First Four Reports of the Independent Expert on the
Right to Development (Geneva, 2003).

constitute a suitable, rights-based policy choice. In the case of option three, while the
construction of new schools does improve upon the accessibility and availability of education, at
the micro level the cost of school construction could result in the corresponding reduction in
spending on the realisation of another right, such as a supplemental nutrition program for
pregnant women and children. The achievement of one right at the expense of another also fails
to be a viable policy choice.
The right to development framework does not sponsor a trade-off approach to
development outcomes, as all human rights are regarded as inviolable and none of them is
considered superior or more basic than another.16 Even so, it is possible to prioritise the
progressive realisation of rights, as the rate of fulfillment of some rights may be accelerated more
than others depending upon resource constraints and social preferences. One set of rights is not
considered superior over other rights; rather, individual communities and societies would choose
their own programmes of development in accordance with the given state of affairs. For instance,
a developing country may choose to prioritise the fulfillment of the right to food or the right to
basic health care while a relatively better-off country may choose to accelerate other areas of
rights fulfillment.
The integrated and holistic approach that takes into account the rights and freedoms of
citizens in determining the processes as well as outcomes of development distinguishes the right
to development from other existing approaches to development. Emphasising the interdependent
nature of rights, the right to development consciously links the realisation of each right with the
performance of other rights, conceptualising a framework of progressive and integrated
realisation of all rights. In doing so, it explicitly presses for a more comprehensive treatment of
16

Report of the Independent Expert on the Right to Development A/55/306, 17 August 2000.

rights than has traditionally been the case in highlighting the inadequacies of the existing
processes of development.
Attention to process also raises other related concerns. The identification of development as a
human right makes it obligatory for the State, by virtue of being the primary duty-holder, to
undertake specific responsibilities towards respecting, fulfilling and protecting the right to
development of citizens. States have the obligation to respect, which includes a positive
affirmation on the part of the State not to undertake any action that would cause obstruction or
hindrance in the process of rights fulfillment. Then States also have the obligation to protect and
safeguard the rights and freedoms of individuals from negative actions arising on account of
unethical practices. The protective function of the State is the most important as well as
manageable aspect of the States obligations, as the States role in the protection of economic,
social and cultural rights are very similar to its role as protector of civil and political rights.
However, the State also has the positive obligation to facilitate and aid the process of rights
realisation by undertaking affirmative action that guarantees suitable opportunities and means for
citizens to realise their needs.
The lack of sufficient resources has often been quoted by States, especially in the
developing world, as a reason for the inability to provide for certain basic rights for all. While
this may be a plausible situation, in order for a State party to be able to attribute its failure to
meet at least its minimum core obligations to a lack of available resources, it must demonstrate
that every effort has been made to use all resources that are at its disposition in an effort to
satisfy, as a matter of priority, those minimum obligations.17 While the full realisation of

17

United Nations, Compilation of General Comments and General Recommendations Adopted by Human Rights
Treaty Bodies, HRI/GEN/1/Rev.5, 26 April 2001, p. 20.

10

relevant rights may be achieved progressively, deliberate, concrete and targeted steps towards
that goal must be taken by the State to demonstrate its seriousness in according importance to the
realisation of basic rights. It is significant that a State in which a significant number of
individuals are deprived of essential foodstuffs, of essential primary health care, of basic shelter
and housing, or of the most basic forms of education, is prima facie considered as having failed
in the discharge of its primary obligations.18
The obligation to take steps towards the realisation of basic rights by all appropriate
means by States includes a commitment to all three levels of obligations respect protect and
fulfill. While the obligations to respect and protect may appear to be less demanding than the
right to fulfill, which necessarily involves a certain degree of affirmative action on the part of
States, representatives of the State must still struggle to make themselves relatively autonomous
of the dominant structures of power within a country, in order to address conflicts and differing
interests among groups or individuals while respecting and protecting fundamental rights.19 In
India, contradictions in the development process necessarily create divisions between groups and
communities, so that affirmative action becomes a social necessity. In addressing concerns such
as equity, the selection of a set of policies from amongst many is not as technical as is made
out to be: the choice is a political one involving considerations and calculations of policies that
may not be acceptable to both powerful and dispossessed segments or classes of society.
Therefore, the State must mediate the crucial interests or various stakeholders, in the process of
ensuring a fair and equitable solution to the problems of development.
18

Ibid., p 20.

19

The concept of relative autonomy referring to the ability of the capitalist State to act and formulate policies
independent of and even against interests of dominant groups and classes has been borrowed from the work of
scholars such as Nicos Poulantzas State, Power and Socialism (New York, 1980) and Theda Skocpol, States and
Social Revolutions: A Comparative Analysis of France, Russia and China (Cambridge, 1979).

11

1.2: Right to Development in the Context of the Indian Development Experience

As a country, the Indian experience with development provides an interesting test case.
Predominantly capitalist in orientation, traces of feudal life still exist in certain parts of the
country that pose a challenge to the democratic norms of modern society.20 Bonded wage labour
as opposed to free employment, small-scale labour intensive manufacturing units vis-a vis larger
and fully automated units of production, the co-existence of a relatively small organised sector
with a massively huge and heterogeneous unorganised sector, are a few reflections of the
complexities involved. For example, while India ranks high in terms of global competitiveness
(rank 57)21, Indias social indicators remain weak by most measures of human development. In
terms of human development ranking, India ranks at par with countries having lower per capita
incomes (rank 127)22. Desperately low achievements in attaining equity of opportunities to basic
goods and services, such as schools and hospitals, make the application of the rights-based
approach to development imperative in India.
The history of the last fifty-plus years of development planning in India has been
characterised precisely by attempts at resolving and reducing contradictions in development,
either through State-encouraged initiatives or direct public action. Despite impressive gains in
economic investment and output, massive overpopulation, disparate levels of welfare, extensive
poverty and high environmental degradation place India in a peculiar situation. On the one hand,
the country produces highly qualified professionals, yet on the other, approximately 20 percent
20

See Andre Beteille, Studies in Agrarian Social Structure (Delhi, 1974), Sumanta Banerjee, In the Wake of
Naxalbari (Calcutta, 1980), K. Balagopal, Probings in the Political Economy of Agrarian Classes and Conflicts
(Hyderabad, 1988), Navdita Gandhi and Nandita Shah, The Issues at Stake: Theory and Practice in the
Contemporary Womens Movement In India (New Delhi, 1991) for an elaboration of the interface between
feudalism and capitalism in modern Indian society.

21

Global Competitiveness Report 2003-2004 (New York, 2004).

22

Human Development Report 2003 (New York, 2003).

12

of the worlds out-of-school children belong to India.23 The issue at hand is not just about unmet
needs and aspirations, but a larger question of the States responsibilities and obligations towards
maximising the redress of socio economic imbalances and inequities. The poor suffer from
extreme lack of access to a range of basic services, denying them economic, social and cultural
rights, while assaulting the principles of political equality and social justice enshrined in the
Preamble of the Indian Constitution.
Historically, the formal end of two hundred years of colonial rule in August 1947
presented a significant opportunity for social and economic transformation. From 1757, the year
the East India Company established its control over Bengal till the very last years of colonial
rule, India remained a prized possession of the British.24 An ideology of paternalistic
benevolence, occasionally combined with talk of trusteeship and training towards selfgovernment, thinly veiled the realities of the Raj.

25

The unsatisfactory diffusion and denial of

the accrued benefits to a large majority of the native Indian population, along with gradual
impoverishment under colonialism, provided the immediate imperative for an indigenously
designed, self-reliant programme of development. Amid other developing countries who gained
independence around the same period, the relatively better position of India gave rise to genuine
23
24

As a colony, India served as an important post for markets and raw materials which arose as a result of the
Industrial Revolution in Britain. Initially cotton, silk, spices and handicrafts formed the main exports from India, but
with the decline of traditional exports in the face of competition from Manchester, India started exporting
commodities such as raw cotton, jute, tea, oilseeds, hides and skins. For a more exhaustive commentary of the
economic consequences of colonial rule, see Romesh Dutt, The Economic History of India: In the Victorian Age
1837-1900 (Delhi, 1963) and R. Palme Dutt, India To-day (Calcutta, 1970, 2nd edn.).

25

Sumit Sarkar, Modern India 1885-1947 (Madras, 1983 reprint), p. 1. Administrative charges levelled by the
British Government ,euphemistically referred to as the Home Charges came to 17.3 million in 1901-02 of which
interest on railways made up for 6.4 million, the interest on India Debt 3 million, army expenses 4.3 million,
stores purchase 1.9 million and pensions 1.3 million. Sumit Sarkar, pp. 25-27.This drain of wealth propounded
by early nationalist leaders such as Dadabhai Naoroji to highlight the exploitative relationship existing between
Britain and India represented a potential surplus that if invested properly within the country might have helped raise
Indias income considerably.

13

expectations that despite the grinding poverty, the country would manage to embark on a
successful programme of national reconstruction and development. India benefited from a rich
stock of natural resources, an industrial base which by the standards of other colonies was fairly
broad and advanced, a bureaucratic and administrative apparatus and lastly a political leadership
committed to a programme of modernisation.
It is interesting to note that while the very political strategy of building up a mass
movement against colonial rule had required the nationalists to espouse Gandhis idea of
machinery, commercialisation and centralised state power as the curses of modern civilisation
imposed by European colonialism, Gandhis vision of national self-sufficiency through a vibrant
and largely self-reliant village economy was considered to be too impractical and unrealistic at
the eve of Independence.26 Instead of the Gandhian model of community-based decentralised
development, a centralised model of planned development was adopted, in the hope of rapid
industrial and economic transformation, very much influenced by the theories of socialist
development. The central core of the development policy was a move towards a capital intensive,
public sector led programme of heavy industrialisation. The strategy did not draw its principal
inspiration from a reasoned analysis and assessment of the political economy of the country, its
resources, social structure and the immediate needs of its people.27 Instead, it drew upon the
very model of the modern industrial economy that the freedom struggle had criticised severely in
its drain of wealth theory. The initiation of an aggressive policy of industrialisation minus

26

Partha Chatterjee, The Nation and its Fragments: Colonial and Postcolonial Histories (Delhi, Indian edn.1995), p.
201.

27

Paul R. Brass, The Politics of India Since Independence (Delhi, 1994, 2nd edn.), p. 275.

14

commensurate attention on other equally more important goals of development therefore left
much to be desired. 28
The Planning Commission in Delhi was designated as the nodal body responsible for
formulating development plans between the Centre and the States. At the regional level, the State
was recognised as the fundamental planning unit. Each State unit was divided into several
districts, which in turn were divided into blocks. A cluster of villages made up a particular block.
While the administrative structure was kept the same for all States, there was relatively little
uniformity maintained between States in terms of area or population size. For the smaller states
while the three-tiered structure did not create problems, for bigger states such as Madhya
Pradesh, even a district formed too big an administrative unit. While the village was accepted as
the basic unit of the organisational framework, there was relatively very little delegation of
decision-making powers at the level of local Panchayat bodies.29 The call for decentralised
planning that had been a rallying point during the freedom movement was shelved, inadvertently
leading to the exclusion of the community from the realm of policy making.
28

The reluctance of the political leadership to undertake structural reforms has been theorised in the works of many
scholars such as Partha Chaterjee, Sudipto Kaviraj, Gunnar Myrdal and others. Both Chatterjee and Kaviraj have
borrowed Gramscis concept of passive revolution to describe the context in which the new claimants of power,
lacking the social strength to launch a full scale assault on the old dominant classes, opt for a path in which the
demands of a new society are satisfied in small doses, legally in a reformist manner in such a way that the
political and economic position of the old feudal classes is not destroyed, agrarian reform is avoided, and the
popular masses are prevented from going through the political experience of a fundamental social transformation.
Gunnar Myrdal on the other hand uses the soft state analogy to describe very much the same phenomena.
According to him there is unwillingness among the rulers to impose obligations on the governed and a
corresponding unwillingness on their part to obey rules laid down by democratic procedures. See Partha Chatterjee,
The Nation and its Fragments: Colonial and Postcolonial Histories (Delhi, Indian edn.1995), Sudipto Kaviraj, ed.,
Politics in India (Delhi, 1999),Gunnar Myrdal, Asian Drama : An Inquiry into the Poverty of Nations (New Delhi,
1992 reprint).
29

Debates of the Constituent Assembly reveal that there existed a wide spectrum of views on Panchayati Raj,
ranging from the Gandhian model of a decentralised village republic to a complete rejection of the village as a sink
of localism and a den of ignorance by Ambedkar. Even those who supported some sort of devolution of power
preferred an arrangement within the larger framework of the modern nation state. Panchayti Raj as the foundation of
decentralised governance was thus rejected and included instead as Article 40 of the Directive Principles of State
Policy.

15

While a popularly elected representative form of government provided both the

legitimacy and the mandate to the Executive to determine the vision and course of development,
the Executive in India also retained a degree of autonomy from the civil society in determining
the goals and objectives of development. The Westminster model of parliamentary democracy in
fact replicated the colonial practice of giving the Executive de facto powers to decide, plan and
execute all policies related to national and regional development. A strong consensus existed
among the political leadership and the immensely powerful bureaucracy concerning the central
importance of industrialisation in laying the groundwork for development. While the
Government formally announced the abolition of zamindari and placed ceilings on land
ownerships, these concerns were considered to be of secondary importance to the
industrialisation that continued to be closely identified with modernisation.30
While it is understandable that situation prevalent at the time of Independence was a
complex one, the failure of the Indian State to undertake a proactive programme of social
reconstruction and development remains an anomaly. For example, on the issue of caste, while in
1955 the Government passed the Untouchability (Offences) Act, which made its practice in any
form a punishable offence, there was little that was done in concrete terms to tackle the issue of
caste-based discrimination. While the Act provided protection against social disabilities imposed
on certain classes of persons by reason of their birth in certain castes, it did not cover social
boycott based on conduct.31 In other words, there was no affirmative action to regulate
customary practices that prohibited persons belonging to lower castes from using the same wells,
30

For a review of these two programmes see Atul Kohli, The State and Poverty in India: The Politics of Reform
(Cambridge, 1987).

31

In Devarajiah v. Padmanna (1961), the Supreme Court of India interpreted the objective of Article 17 of the
Indian Constitution relating to the abolition of untouchability, as proclaiming the end of the inhuman practice of
treating certain fellow human beings as dirty and untouchable by reason of their birth in certain castes.

16

attending the same temples or marrying persons from other castes. Constitutional provisions
provided legal guarantee of greater equality; however, in practice, considerable inequalities
persisted. The majority of the lower caste either worked as agricultural workers or continued to
be engaged in traditional occupations, such as flaying and scavenging.32
Therefore, while economic growth and democratic arrangements buttressed the
legitimacy of political authorities by providing economic rewards to the upper class urban
professionals and the rural landed elite, the majority of workers in both agricultural and the
industrial sectors received relatively little benefits from this growth.33 Studies undertaken have in
fact shown that the pattern and process of development in fact strengthened the primordial
system of caste-based loyalties.34 The Community Development Programme, instituted in 1952,
serves as a useful illustration of the inherent limitations of a process of development biased
against persons coming from lower castes. Although the first phase of the programme focussed
on the improvement of social amenities such as schools, health centres, roads, wells, etc., the
major beneficiaries were upper caste elites; lower caste workers who constituted the majority of
the poor continued to be both physically and socially deprived of the benefits of such
investments.35
Experiences in development planning in India over the last few decades have confirmed
the persistence of similar contradictions. For example, nearly fifty years later, scheduled castes
32

Gail Omvedt, Dailt Visions: The Anti-Caste Movement and the Construction of an Indian Identity (New Delhi,
1995), M.N. Srinivas, Social Change in Modern India (Berkeley, 1966), Ghanshyam Shah, n. 2, pp.118-136, for a
review of caste-based discrimination in India.
33

Atul Kohli, The State and Poverty in India: The Politics of Reform, n.30, p. 8.

34

See James Manor, Karnataka: Caste, Class, Dominance and Politics in a Cohesive Society in Sudipto Kaviraj,
ed., Politics in India, n.28, pp.262-273.

35

Gunnar Myrdal, Asian Drama: An Inquiry into the Poverty of Nations, n. 28.

17

and tribes continue to be discriminated against and deprived of the right to participate in the
formulation and making of development policies affecting them. Although their exclusion from
the policy process as actors and beneficiaries has significantly reduced over the years, as a
community they continue to lag behind the rest of the population in terms of overall
development. For example, the highest proportion of underweight children continues to be from
scheduled caste and tribe families. The relative poverty in which they are forced to live makes
them vulnerable to increased morbidity and mortality that has a debilitating effect on their
capabilities. Intra-State and intra-commmunity differences in important indicators such as infant
mortality the infant mortality rate is over 80 among scheduled caste or tribe households,
compared to the national average of 70 deaths per 1000 live births signify the need for special
attention to be focussed on the development of socially and economically disadvantaged
communities. 36
Based on the Census for the last four decades, literacy rates of scheduled tribes and
scheduled castes vis-a-vis the rest of the population illustrates the widening gap and the
relatively slow progress that has been made in creating equal opportunity for all people.
Systemic discrimination in India is not just confined to grounds of caste, race and class, but
extends to criterion of sex and disabilities. For example, while the Constitution specifically
provides for equality between sexes, the roots of gender discrimination lie deeply entrenched in
the social and cultural fabric of communities. Elimination of the girl foetus through illegally
executed pre-natal sex determination and female infanticide is responsible for the declining sex

36

A similarly broad difference exists in the under-five mortality rates too. While for India as whole the under-five
mortality is roughly 100, for scheduled caste and scheduled tribe families the rate is over 120 deaths per 1000 live
births. Planning Commission, Tenth Five Year Plan, 2002-07, Vol. 2.

18

ratio between males and females,37 and is indicative of how technological advances can be
subverted to further discrimination and gender biases prevalent in modern Indian society. A
similar situation prevails in case of physically challenged persons. The lack of opportunities
towards the fulfilment of basic needs such as freedom of movement, schooling, employment,
etc., places such persons at a relative disadvantage vis-a-vis others living in the same society.
The above examples seek to reinforce the need for institutionalising a framework of
development that seeks to make the individual the central focus of attention. The legal
guarantees related to equality, non-discrimination, freedom of movement and association that
continue to be violated in different contexts across different segments of the population supports
a revision of conventional legal principles. Translated as a goal of development policy, the rights
framework shifts the focus of policy making from the realm of outcomes to a deeper concern
with the qualitative aspects of life. Development in such a framework is not judged solely on the
basis of achievement of certain quantitative targets but rather by the positive improvement or
contribution that the intervention makes to the enhancement of human capabilities. The right to
development in its form and spirit supports such a representation. The complexities and the
paradoxes prevalent in India support the association that the right to development makes between
development and public action. Disparities at multiple levels that have a direct bearing on all
facets of development (personal, social, political, cultural and economic) make it impending to
consciously articulate and integrate development with the rights discourse.
The reconceptualisation of the role of economic growth in development represents such a
move. The right to development intrinsically supports a process of growth that aids the positive

37

As per official estimates, for India as a whole, the sex ratio in the age group 0-6 years has fallen from 945 in 1991
to 927 in 2001. Source: Census 2001.

19

realisation of rights and freedoms. The achievement of growth per se is not taken to be the
representative indicator of development. Rather it is the process of growth its consistency with
the rights framework its content and character that are considered more important. For
example, if the distribution of growth is skewed disproportionately in favour of a few groups,
classes or regions, then such a process of growth is incompatible and fundamentally contrary to
the framework provided in the right to development. A comparative analysis of the trends in
growth in Tables 1.1 and 1.2 brings out the intricacies existing between growth and development
in India.
While progressive growth has been a regular feature of the Indian economy indicating a
steady improvement in the growth potential of the country, the widening gaps between regions
and communities in terms of income, resources and opportunities call for concern. Per capita
income in the richest State (Maharashtra) is approximately nine times that of Assam, the poorest
State in the country.38 While disparities between States certainly form an important area of
concern at the national level such as the relative backwardness of the North-Eastern States vis-vis the rest of the country, from the rights perspective, it is iniquitous distribution at the local
intra-State level that is of greater concern. The case of Tamil Nadu provides a relevant
illustration of the above point. Tamil Nadu that ranks first in terms of growth in per capita

38

The categorisation of rich and poor States is limited to the selected 15 States in Tables 1.1 and 1.2.

20

Table1.1: Gini Coefficient for Per Capita Consumption Expenditure Across State
1983

1993-94

1999-00

State

Rural

Urban

Rural

Urban

Rural

Urban

Andhra Pradesh

0.294

0.327

0.257

0.321

0.238

0.310

Assam

0.192

0.276

0.176

0.285

0.201

0.311

Bihar

0.256

0.301

0.221

0.309

0.208

0.318

Gujarat

0.256

0.172

0.236

0.285

0.233

0.288

Haryana

0.272

0.313

0.300

0.280

0.240

0.285

Karnataka

0.303

0.334

0.269

0.340

0.241

0.321

Kerala

0.330

0.374

0.290

0.340

0.270

0.320

Madhya Pradesh

0.295

0.306

0.278

0.326

0.241

0.312

Maharashtra

0.285

0.337

0.301

0.350

0.258

0.345

Orissa

0.267

0.296

0.243

0.304

0.242

0.292

Punjab

0.279

0.319

0.264

0.276

0.238

0.290

Rajasthan

0.343

0.304

0.260

0.290

0.209

0.281

Tamil Nadu

0.325

0.348

0.308

0.344

0.279

0.398

Uttar Pradesh

0.290

0.319

0.278

0.324

0.245

0.327

West Bengal

0.286

0.327

0.250

0.335

0.224

0.328

India

0.298

0.330

0.282

0.340

0.258

0.341

Source: Planning Commission, National Human Development Report 2001, p. 148.

income however also ranks first in terms of inequalities. The urban Gini39 of 0.39 for Tamil
Nadu vis-a-vis the rural Gini of 0.27 indicates that internal inequalities in terms of per capita

39

The Gini coefficient is an indicator of the level of inequalities existing in a given society, where 0 and 1 represent
two extremes of perfect (0) equality and extreme (1) inequality.

21

consumption are higher in urban than rural Tamil Nadu. In contrast to Tamil Nadu, Assam which
ranks lowest in terms of income stands out as the State having the lowest rural Gini (0.20)
amongst the rest of the States selected for consideration.40
The relationship between growth and development is dependent on a number of
exogenous and endogenous factors. While centre-state relationships play an important role in the
determination and allocation of resources, at the local level the potential for growth is invariably
determined by the composition and structure of society, politics and the economy. Kerala and
West Bengal illustrate the contribution that social sector policies and land reform programmes
can have in reducing inequities associated with the development process. Rajasthan, which was
for long identified as a BIMARU (backward) State, has been successful improving human, while
other relatively faster growing states, such as Karnataka, Gujarat and Andhra Pradesh, have
fallen in their human development rankings.
While nearly all State Governments encounter problems in fiscal deficit management,
some states in India are worse off than others. Tamil Nadu, which carries a record of continuous
improvement in growth performance, has been better positioned to overcome challenges than the
states of Orissa or Bihar, which have long had lower rates of growth. While persistence of interState disparities is a cause for concern, underdevelopment over a period of time, as in the case of
the Koraput-Bolangir-Kalahandi (KBK) region,41 is of greater concern. The KBK region in
Orissa accounts for approximately 30 percent of Indias total land area, and 19.7 percent of the

40

The states of North East India it may be noted have lower rural Gini coefficient figures than those recorded for
the rest of India. While the rural Gini for the India as a whole was 0.25 in 1999-2000, for Meghalaya, Manipur,
Tripura and Nagaland the Gini was 0.14, 0.19, 0.18, 0.15 respectively. See Planning Commission, National Human
Development Report 2001, and p. 148.
41
The eight districts that make up the region are: Koraput, Malkangiri, Nawrangpur, Rayagada, Bolangir, Sonepur,
Kalahandi and Nuapada.

22

Table 1.2: Growth and Human Development

Ranks
Ranks
HDI Rank based on based on
state wise per capita
NSDP
NSDP
(1999-00 (1999-00
at
at
constant constant
1991 2001 prices)
prices)
1
1
12
8

States
Kerala

Per capita
NSDP 1993-94
to 1999-00

Literacy Rate

Infant Mortality Rate

Average
Annual
Growth
Rate Rank 1991 Rank 2001 Rank 1996 Rank 2000 Rank
4.6
6
89.8
1 90.92 1
13
1
14
1

Punjab

11

2.6

10

58.5

69.95

52

52

Tamil Nadu

6.7

62.7

73.47

54

51

Maharashtra

3.6

64.9

77.27

48

48

Haryana

13

3.9

55.8

68.59

68

67

Gujarat

5.5

61.3

69.97

62

62

Karnataka

6.6

56

67.04

53

57

West Bengal

6.5

57.7

69.22

55

51

Andhra Pradesh

10

10

4.2

44.1

12

61.11

12

66

65

Assam

10

14

15

13

0.8

13

52.9

64.28

75

11

75

Rajasthan

11

10

11

5.1

38.5

15

61.03

13

86

13

79

Orissa

12

11

14

15

2.1

11

49.1

10

63.61

11

96

14

95

12

Madhya Pradesh

13

12

2.6

10

44.7

11

64.11

10

97

15

87

11

Uttar Pradesh

14

13

12

3.5

40.7

13

57.36

14

85

12

83

10

Bihar

15

15

14

1.9

12

37.5

14

47.53

15

72

10

62

India

5.15*

44.69

59.21

72

68

Sources: Handbook of the statistics on Indian Economy, RBI, 2002; Economic Survey2002-03, Provisional
Population Totals Paper 1 of 2001, Series 1, Census of India 2001, India, Statistical Abstract 1997 and 2002, CSO,
National Human Development Report 2001, Planning Commission, Government of India 2001, Economic Survey
2002-03,GOI.
Note:

States are sorted according to HDI rank of 1991.

NSDP figures were taken from RBI, and Per capita NSDP are obtained by dividing NSDP with
population totals computed from Economic Survey.
*The figure for India is calculated from the per capita net national product.

23

total population. However, nearly 87.1 percent of the population living here subsists below the
poverty line.42 Despite the investment of various Government programmes, the KBK region
continues to be plagued by poor social and economic development. This continued persistence of
poverty points to the need for a wider range of public action, so as to create pressures for better
policy administration.

2: The Institutional Framework Supporting a Human Rights Approach in India

Historically, while rights constituted an integral theme of the nationalist movement and
were accorded special importance in the Constitution of India, the conceptualisation of
development in the post-Independence period was bereft of the rights framework. India it may be
noted was one of the few countries that constitutionally accorded equal civil and political rights
to both men and women at a time when certain countries such as Switzerland continued to deny
to its women the right to franchise. A separate section (Part III, Articles12-35) was devoted to
rights that were considered to be fundamental in the new Constitution. These were essentially
rights of a civil and political nature delineating limitations or restrictions on the actions of the
State, such as equality before law, the right to freedom of speech and association, rights against
discrimination on grounds of religion, race, caste, sex and birth. However, given the fact that at
the social level there were certain bottlenecks that impinged on the enjoyment of certain
freedoms, affirmative action constituted an important part of the responsibility that the State had
towards the protection and promotion of civil and political liberties.
The protection of economic, social and cultural rights on the other hand was more
implicit. Placed in a separate section as Directive Principles of State Policy (Part IV, Articles 36-

42

Orissa Development Report 2001, http://planningcommission.nic.in/plans/stateplan/stplsf.htm

24

51), this set of rights were included to serve as policy guidelines for successive governments to
build upon the ideal of a democratic welfare state as set out in the Preamble.43 A commitment to
equal pay for equal work for both men and women, conditions of work ensuring a decent
standard of life and full enjoyment of leisure and social and cultural opportunities, the
ownership and control of the material resources of the community to sub serve the common
good, right to work, to education and to public assistance in case of unemployment, old age,
sickness and disablement etc. were some of the important principles enumerated in this section.
While legally the Constitution made the State explicitly responsible for the protection and
promotion of civil and political rights, the States responsibilities to the protection of social,
economic and cultural rights were relatively less explicit. At the time of Independence while
non-justiciability of Directive Principles was justified on the grounds that a State just awakened
from freedom with its many preoccupations might be crushed under the burden,44 there were
demands from certain representatives to make Directive Principles of State Policy justiciable.45
While the constraint on resources was invariably an important consideration it is debatable
whether financial constraints provided the sole justification for the State to refrain from
assuming direct and binding obligations in development. The Kerala experience with
development clearly counters such reasoning. Following independence in 1947, while Kerala

43

The Preamble to the Indian Constitution calls upon the State to secure the following ideals for all its citizens:
justice, social, economic and political; liberty of thought, expression, belief, faith and worship, equality of status
and of opportunity and to promote among them all fraternity assuring the dignity of the individual and the unity and
integrity of the Nation.

44

The Constitutional Advisor to the President of the Constituent Assembly, B. N. Rao in fact suggested an
amendment that would make Directive Principles enforceable in a court of law. However, the amendment was not
carried out, as it did not find favour with the majority in the Constituent Assembly.

45

See n. 4. Debates: Constituent Assembly of India, 29th April, 1947.

25

continued with the legacy of allotting a substantial share of public resources to social
investments, this was not the case for the rest of India.46
Given the arbitrary nature of obligations towards development, the issue of justiciability
certainly merits attention. While there is no disagreement over the fact that the State has an
obligation to improve the standard of living of all its citizens, there is relatively little consensus
over whether such a responsibility be made legal and justiciable, creating positive obligations for
the State to undertake certain policy steps in order to fulfill and provide for the social and
economic needs of individuals. This is where the protection of legally enforceable social and
economic rights, as opposed to merely aspirational rights enters the debate.47 The positive value
of making the category of economic and social rights justiciable in a democracy may be
illustrated by taking up the case of something as basic as the universalisation of primary
education across the country.
The original text of Article 45 of the Indian Constitution dealing with primary education
had laid out that the State shall endeavour to provide, within a period of ten years from the
commencement of this Constitution, for free and compulsory education for all children until they
complete the age of fourteen years. Article 45 has recently been rephrased through an Act of the
Indian Parliament (Eighty-sixth Amendment, 2002), and the article now reads as the State shall
endeavour to provide early childhood care and education for all children until they complete the
age of six years. The above amendment read along with Article 21A48 that appears in the

46

Patrick Hellar, From Class struggle to Class Compromise: Redistribution and Growth in a South Indian State,
The Journal of Development Studies, Vol. 31 (5), June 1995.

47

Jackbeth K. Mapulanga-Hulston, Examining the Justiciability of Economic, social and Cultural Rights, The
International Journal of Human Rights, Vol. 6 (4), pp. 29-48.

48

The State shall provide free and compulsory education to all children of the age of six to fourteen years in such
manner as the State may, by law, determine.

26

section on Fundamental Rights is significant. Constitutionally now, the State is under an

obligation to ensure free and compulsory education to all children aged six to fourteen years. The
transformation of indirect responsibilities into a more direct obligation through a constitutional
amendment holds significance for potentially supporting the gradual interpretation of
development from a rights perspective in India.
However, the above example also throws light on some of the inherent limitations of the
justiciability thesis in making rights realisable. The States obligation for rights fulfilment
extends to three basic spheres the right to respect, protect and fulfil. Legislation on rights
constitutes only one part of this entire process. In the Indian context, while the Indian State may
respect and protect the right to education for all children by including it as a Fundamental Right,
the duty to fulfill necessarily entails affirmative action to ensure the full realisation of the right.
In other words, while the constitutional recognition of the right to education, as a justiciable right
is undoubtedly a positive step forward, yet justiciability per se does not automatically lead to a
guarantee of realisation. There can be a situation where peoples rights may have no protection
despite being guaranteed in the Constitution. The right to education is a relevant citation of how
the realisation of rights is connected to and dependent on a much larger process that involves
both the State and the community to engage in a programme of affirmative action.
At this point it would be useful to examine the constitutional and legal framework
supporting the institutionalisation of a system of rights-based governance in India. Rights in
India derive their primary legitimacy from the assertion of fundamental principles of justice,
liberty, equality and fraternity, mentioned in the Preamble to the Indian Constitution. Table 2.1
displays the various provisions existing for the realisation of rights-based principles in India. The
principle of equity, for example, finds substantive elaboration in specific provisions that connote

27

Table 2.1: Legal Framework Supporting Rights in Governance

Principles

Constitution of India : Principles & Provisions

Fundamental
Rights

Equity

Directive
Principles

Other

Special provisions for socially and educationally backward classes

Scheduled Castes, Scheduled Tribes and women and children (15)
Equality of Opportunity in matters of Public Employment (16)
Right to Education for all children between 6 and 14 years of age
(21)
State to secure a social order for promotion of welfare of all people
(38)
Ownership and control of material resources of the community to be
distributed as best to serve the common good. (39)
Operation of the economic system does not result in concentration of
wealth and means of production to the common detriment (39)
Right to Work, to education and to public assistance in certain cases
(41)
Living Wage for workers (43)
Promotion of educational and economic interests of Scheduled
Castes, Scheduled Tribes and other weaker sections (46)
Reservation of seats for Scheduled Castes, Scheduled Tribes &
Women in Panchayats (243)
Reservation of Seats for Scheduled Castes, Scheduled Tribes in
Union and State Legislative Assemblies (330, 332)
Equality before Law & Equal Protection of Laws (14)

Fundamental
Rights

Directive
Principles

Prohibition of discrimination on grounds of religion, race, caste, sex

or place (15)
Abolition of Untouchability (17)
Abolition of Titles (18)
Equal pay for equal work for both men and women (39)
Equal justice and free legal aid (39)

Fundamental
Rights
Directive
Principles

Protection of life and Liberty : Fair procedure & fair trial (21)
Protection against arrest and detention in certain cases (22)
Foster respect for International law and treaty obligations in the
dealings of organised people with one another (51)

Fundamental
Rights
Directive
Principles
Other

Right to Constitutional Remedies (32)

Fundamental
Rights
Directive
Principles

Freedom of speech and expression (19)

Non-discrimination

Transparency

Accountability

Participation

Separation of Judiciary from Executive (50)

Appointment of Comptroller and Auditor General of India (148)

Organisation of Village Panchayats (40)

Participation of workers in management of industries (43)

28

a positive commitment on the part of the Indian State to undertake affirmative action based on
the principles of distributive justice. While the Constitution explicitly calls for nondiscrimination amongst citizens on grounds of religion, race, caste, sex and place, it does,
however, allow for positive discrimination undertaken specifically for the welfare of underprivileged sections such as Scheduled Tribes, Scheduled Castes, socially and educationally
backward classes, women and children.
These underlying assumptions have provided the foundation for the assertion and
interpretation of newer rights in the Indian context. Rights of communities and individuals to
and in development constitute one such set of rights. A review of some important cases in the
next few pages illustrates the varied usage of the rights language pertaining to the civil and
democratic rights of citizens in the context of development.49 In Maneka Gandhi v. Union of
India (1978),50 the Supreme Court for example, interpreted the right to life (Article 21) as being
beyond mere physical existence, including within its ambit the right to live with human
dignity. The same was reiterated in Francis Coralie v. Union Territory of Delhi (1981)51 where
the right to life was interpreted to include all the bare necessities of life such as adequate
nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse
forms The Supreme Courts judgment in the case of Peoples Union for Democratic Rights v.
Union of India (1982), the non-payment of minimum wages to workers was interpreted as
49

The term democratic rights refers to the struggle for the assertion of liberties that are guaranteed formally but are
not ensured in practice. The assurance of fair trial in the dispensation of justice, compensation for illegal detention
and death in custody, safeguard against physical and mental torture, provisions for legal aid etc., are some of the
important democratic rights issues espoused by the civil liberties and democratic rights movement in India.

50

The case involved the refusal by the Government to grant a passport to the petitioner, which thus restrained her
liberty to travel. In its judgement the Supreme Court pronounced that a citizens passport could not be impounded
for an indefinite period of time.

51

The Supreme Court in this case pronounced that any form of torture or cruel, inhuman or degrading treatment was
offensive to human dignity and constituted a violation of the right to life enshrined in Article 21 of the Constitution.

29

amounting to the denial of their right to live with basic human dignity.52 Other relevant citations
include rulings in Olga Tellis v. Bombay Municipal Corporation (1986),53 where the court drew
attention to the relevance of livelihood; Jolly George Verghese v. Bank of Cochin (1980),54
where imprisonment of a poor person for non-payment of debts was considered to be equivalent
to depriving the person of his or her personal liberty; and Neerja Choudhari v. State of M.P
(1984), which focused on the rehabilitation of freed bonded labourers. 55
It would at this stage be useful to take a closer look at the judicial and administrative
process as it works in India. Article 32 of the Indian Constitution, gives citizens the power to
directly appeal to the Supreme Court concerning the violation of rights. The Supreme Court of
India, as part of its juridical duties, has the power to issue directions or orders or writs in nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of
rights conferred. Orders passed by the Supreme Court are equivalent and binding on all
authorities. A Court Order generally contains two main parts: the declaratory and the mandatory.
The enforcement of orders thus depends on the specific type and nature of order. Declaratory
parts to be enforceable have to await the acceptance of the State government concerned. In

52

The case dealt with the denial of minimal wages to workers in Delhi. The Supreme Court observed that a
deprivation of rights and benefits guaranteed under various labour laws constituted a violation of Article 21, the
right to life.
53

The petition took up the case of the rights of the pavement dwellers to shelter in the city of Bombay. The Supreme
Court in this case extended the meaning of right to life in Article 21 to include a right to livelihood.

54

This case took up a review of the procedures that were to be followed in case of non-payment of debts. The Court
in its judgement ruled that the respect for human dignity and worth as enshrined in Article 21, placed an obligation
on the State not to incarcerate except through law that satisfies the just, fair and reasonable test.
55

The petition related to the rights of bonded labour and the possibilities of their absorption into mainstream society,
after they have been freed.

30

Unnikrishnan J.P. v. State of Andhra Pradesh (1993),56 the Court declared the right to education
as a basic right linking it with the right to life in Article 21, but it was not accepted by the State
until nine years later, when the State responded by introducing the Ninety-third amendment
making education a fundamental right. Mandatory orders, on the other hand lay down a plan of
action as well as a time frame within which compliance with court orders is expected. The
Supreme Courts orders in Peoples Union for Civil Liberties v. Union of India case is a good
example of the above. In this case, the Court upheld the duty of each State or Union Territory
to prevent deaths due to starvation or malnutrition, by establishing specific guidelines to
operationalise the principles of transparency and accountability in the functioning of the villagelevel food for work programme. The Orders specifically provide for the appointment of
Commissioners who have the responsibility of providing periodical reports on the
implementation of the Courts directives.
While progressive interpretation of Directive Principles by the Supreme Court has been
instrumental in clarifying the scope and content of rights, the fact that the judiciary among all
other institutions is the least accountable to public opinion, brings to fore the limitations of
articulating a discourse of rights based on judicial interpretations alone. Litigation in India has its
own limitations. Heavy monetary costs, time constraints, physical and social inaccessibility to
courts and the absence of legal help and advice are some of the factors that deter individuals
(especially the poor) from accessing courts of justice. While the institutionalised practice of
Public Interest Litigation (PIL) by the Supreme Court in late 1970s has actually made it possible
for individuals and organisations to approach the courts directly in public interest on behalf of

56

The case involved the petitioner challenging the State legislation that granted private medical and engineering
colleges the right to charge additional fees from students seeking admission. The Supreme Court in this case
expressly denied the claim of the college management and proceeded to examine the nature of the right to education.

31

those who would otherwise be unable to access them on their own,

57

the fact that the Supreme

Court also serves as the highest court of appeal means that once the Court has taken the final
decision, the public have no right to further appeal.
The Supreme Courts judgements in certain cases involving violation of rights in the
course of economic liberalisation serves as a relevant illustration. The Supreme Court, in cases
involving the violation of rights such as Shri Sitaram Sugar Co. Ltd v. Union of India (1990),
Peerless General Finance and Investment Co. Limited and Another v. Reserve Bank of India
(1992), Narmada Bachao Andolan v. Union of India and Others (2000) and the BALCO
Employees Union v. Union of India (2001) has strongly maintained a position supporting the
exclusion of economic policies from the purview of judicial review.58 In the BALCO Employees
Union v. Union of India (2001) case, the Supreme Court actually reversed its own ruling
delivered in National Textile Workers' Union and Others v. P.R. Ramakrishnan (1983) that
supported the right of workers to be consulted in the decision-making involving the closure of
the industry concerned. The present position of the Court in fact creates an anomaly of sorts as it
forecloses all possibilities of public litigation on the subject of economic reforms.

57

Public Interest Litigation or third party litigation have been admitted in the following few situations: (i) where the
concerns underlying a petition are not individualist but are shared widely by a large number of people (bonded
labour, undertrial prisoners, prison inmates), (ii) where the affected persons belong to the disadvantaged sections of
society(women, children, bonded labour, unorganised labour etc.), where judicial law making is necessary to avoid
exploitation(inter-country adoption, the education of the children of the prostitutes), where judicial intervention is
necessary for the protection of the sanctity of democratic institutions(independence of the judiciary, existence of
grievances redressal forums), where administrative decisions related to development are harmful to the environment
and jeopardize people's to natural resources such as air or water. See chapter on Public Interest Litigation in Centre
for Democratic and Human Rights, The Right to Development: A Primer pp. 231-249 for a background of the
history of the PIL mechanism in India.

58

Courts are not to interfere with economic policy which is the function of experts. It is not the function of the
courts to sit in judgement over matters of economic policy and it must necessarily be left to the expert bodies. See
Peerless General Finance and Investment Co. Limited and Another v. Reserve Bank of India (1992).

32

On the whole however, the Indian experience over the last fifty years shows a positive
trend towards the progressive interpretation of development as a human right. The right of
citizens to be treated equally in a non-discriminatory manner, right to a dignified life, right to
information concerning public programmes are all relevant citations of the increasing recognition
of rights in development. The Indian State, as the situation as it exists today, can no longer
excuse itself of its responsibilities towards development without demonstrating that it is has in
effect utilised all possible avenues in maximising the protection and promotion of rights of
individuals in the process of development.59 Inquisitorial justiciability, which involves the
institution of an enquiry mechanism that investigates the compliance of obligations in practice,
further reinforces the increasing importance of rights in the Indian context.
The Constitution provides for the creation of special commissions such as the National
Commission for Minorities (religious and cultural), National Commission of Women and the
National Commission for Scheduled Castes and Scheduled Tribes to oversee and address specific
problems of the concerned group of citizens. A National Human Rights Commission (NHRC)
and similar commissions at the State level also exist to facilitate the monitoring of human rights
situation within the country. The NHRC at the national level has the power to inquire, suo motu
or on a petition presented to it by a victim or any person on his behalf, into complaint of: (i)
violation of human rights or abetment or (ii) negligence in the prevention of such violation by a
public servant. It also has the power to review the safeguards provided by or under the
Constitution or any law in force for the protection of human rights, study treaties and other
international instruments on human rights and make recommendations for their effective
59

The judgement in J.P.Unnikrishnan v. State of Andhra Pradesh is significant in this respect. The Court in its
judgement clarified that by recognising the right of a citizen to call upon the State to provide education facilities did
not mean that the State could absolve itself of its responsibilities by arguing that the limits of its economic capacity
and development did not permit so. Similarly in Vishaka v. State of Rajasthan (1997) the Court laid down legally
binding guidelines to deal with the problems of sexual harassment of women at the work Place.

33

implementation. Some of the more important cases taken up by the NHRC involve those related
to food related starvation deaths, use of bonded and child labour, rights of mentally ill persons
and rights of communities affected by ethnic and communal riots and disturbances.
The section below takes a look at the articulation of development in the rights language
by different agencies in three basic areas of intervention food, health and education. The
present report builds on previous studies undertaken the Centre as part of the Right to
Development project. The focus of the present discussion has been consciously restricted to these
three areas to illustrate some of the limitations of the human development approach that governs
the making of development policies in the contemporary period. The objective of concentrating
specifically on food, health and education is to identify some of the bottlenecks and challenges
standing in way of the institutionalisation of a model of development patterned on the right to
development in India. At the present juncture, while the Indian Government has formally
recognised the right to education as a fundamental right, there has been no such reference
regarding a specific right to food and health. These two legally still remain outside the purview
of justiciability. The situation is not any different for other areas of development such as shelter
and housing.

3: The Rights to Health, Food and Education

The use of the rights language in analysing the development situation in India, where the
delivery of basic services has yet to be recognised as an entitlement, and where well over a
quarter of the population have no secured access to food, health and education, merits definite
attention. The last fifty-five years and more of modernisation and development have led to the
creation of several paradoxes. The conspicuous absence of a comprehensive social security cover

34

for all citizens that includes access to food, health and education represents one such dilemma.
The fulfillment of basic needs in such circumstances is a more than just an individual
responsibility whose failure creates and aggravates further the division between those able and
those incapable of fulfilling their needs the division between haves and the have-nots. This
divergence in capabilities to secure ones needs provides in fact a strong justification for laying
down explicit responsibilities of various actors including the State, towards development.
The reconceptualisation of development from a rights perspective that lies at the heart of
the right to development thesis provides an interesting basis for addressing some of the
fundamental problems associated with development in India. The sections below provide an
analysis of the situation by examining various facets of policy-making in specific sectors of food,
health and education, addressing questions of access and availability of relevant basic services to
justify the application of the rights approach in the contemporary model of development. The
report builds on the preliminary reports submitted by experts in the field as part of this study and
builds on the normative framework provided by them related to availability, accessibility,
acceptability and adaptability to illustrate the possibilities of implementing a model of
development that explicitly gives a central place to rights to and in development.
The report on the right to food written by Mahendra Dev examines the situation with
relation to the insecurities faced by the poor regarding the availability and distribution of food in
India. The central concern in implementing the right to food according to him, relates to the
question of accessibility. Availability per se is not a major problem because at the national level
there is food self-sufficiency. The problem lies in economic access to food at the household
level. The access that households have to food invariably depends on a mix of endogenous and
exogenous factors such as the economic capacity and purchasing power of the household, the

35

existence of food distribution networks, availability of public food distribution centres, and a
socially iniquitous food allocation at the intra-household level between sexes.
The report on the right to health written by Ravi Duggal too has a similar focus. The
paper draws upon the limitations that exist in health planning that get reflected in the periodic
outbreak of public health related epidemics such as plague, malaria and dengue that occur in
different parts of the country. Reflecting upon health as being more than the mere absence of
disease, the author calls for a comprehensive programme that supports various dimensions of
health care into one integrated programme. The paper challenges the existing divisions between
preventive, curative and tertiary health care that define health interventions in the contemporary
period. In the framework provided, health care requires a more positive commitment on the part
of the State including reallocation of finances that provides a guaranteed access to health services
for all segments of the society, especially the poor.
The report on the right to education by Ravi Srivastava similarly reviews the challenges
existing at the ground-level with relation to the problems that children have in terms of access to
schools. As both a human right in itself and an indispensable means of realising other human
rights, the right to education is of universal importance in the making of modern societies. The
right to education constitutes a fundamental right, contributing directly to the progress and
intellectual development of both individuals and the nation-state concerned. The paper takes a
look at the process of exclusion that deters children from accessing primary-level education. The
author also discusses in detail the public movement regarding the right to education that was
responsible in a large way for the transformation of education into a fundamental right from
being a Directive Principle of State Policy.

36

3.1 The Right to Food

Hunger in the modern day presents a real and serious contradiction. The massive
expansion in agricultural production over the last few centuries has made it possible more than
ever before for countries such as India to ensure a guaranteed access to food for all. However,
the fact that 8 percent of Indians still do not get two square meals a day and that every third child
born in the country is under weight despite surplus food grain production, points to the paradoxes
that exist in modern day India in relation to consumption and distribution of food.60 As per the
directives of the United Nations Food and Agricultural Organization (FAO) a country is
supposed to be food secure when all people, at all times have physical and economic access to
sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active
and healthy life.61 The persistence of chronic hunger and deprivation amidst reports of surplus
production in the present circumstances, presents not only a morally outrageous but also a
politically unacceptable challenge.62 The Constitution it must be noted does not explicitly make
any mention of a right to food for citizens. The reference is implicit and finds mention in
Article 47 of the Directive Principles of State Policy that says: The State shall regard the raising
of the level of nutrition and the standard of living of its people as among its primary duties.
The provision of food is not technically therefore a constitutionally legal responsibility of the
State. However, recent interpretations of the Directive Principle by the Supreme Court of India

60

Tenth Five Year Plan, Vol. II, p. 316

61

Declaration on World Food Security, Rome, 1996.

62

Jean Dreze and Amartya Sen, Hunger and Public Action (Delhi, 1993), pp. 3-4.

37

have sought to make it legally obligatory for the State to undertake explicit responsibilities in the
provision of food to school-going children within the country. 63
The report by Mahendra Dev64 highlights some of these central issues related to the right
to food in the Indian context. The report makes accessibility its entry point to the subject of food
consumption. India, unlike several countries of Sub-Saharan Africa, is self-sufficient in the
production of basic food grains and at the national level availability of grains poses no grave
problems. The real problem, however, lies with accessibility at the micro-level. The question of
accessibility encompasses both economic and physical dimensions. Economic accessibility refers
to the personal or household financial costs associated with the acquisition of food for an
adequate diet at a level so that the attainment and satisfaction of other basic needs are not
threatened or compromised.65 Physical accessibility, on the other hand, refers to the availability
of adequate food either directly from productive land or other natural resources, or through a
well functioning distribution, processing and market system that ensures that everyone,
irrespective of their social and economic position, have access to adequate food at all times.66
The concept of adequacy has been interpreted in a broader sense, conditioned by the prevailing
social, economic, cultural, climatic, ecological and other conditions, to signify the availability of

63

Reference made is to the Supreme Court Orders delivered in Peoples Union for Civil Liberties v. Union of India
(2001), discussed later in the main text.

64

S. Mahendra Dev, Right to Food in India, report prepared for the project on Right to Development in India,
Centre for Development and Human Rights, 2003.

65

United Nations, Compilation of General Comments and General Recommendations Adopted by Human Rights
Treaty Bodies, HRI/GEN/1/Rev.5, 26 April 2001. p. 69.

66

Ibid., p.68.

38

food in a quantity and quality sufficient to satisfy the dietary needs of individuals on a
sustainable basis.67
The report provides an extensive elaboration of the existing paradoxes, to raise important
questions related to natural and man-made factors influencing the per capita availability of food
among different communities in India. Attention is drawn to fact that in the last fifty years, the
per capita net availability of food grains has increased by only 10 percent. The per capita
availability of food grains in 2002-03 is only a few points higher 157.6 kgs. when compared to
152.7 kgs. in 1950-51.68 The increase in buffer stocks and exports alongside a relatively sharp
decrease in off take of food through networks of public distribution is explained as being one of
the main reasons for the relatively low increase in per capita availability. The author cites
National Sample Survey (NSS) data to indicate the sharp decline in per capita calorie intake in
rural India to demonstrate the severe crisis in food security that prevails at the micro-level in
various parts of the country. Protein-energy malnutrition in India, for example, is nearly twice
higher than Sub-Saharan Africa. Attention is also drawn to the fact that India has yet to achieve
self-sufficiency in non-cereal foods like fruits, vegetables, milk, meat and fish and to the
significant decrease in per capita availability of cereals in recent years. In the year 2001, the
availability of cereals in the country dropped to an all-time low of less than 143 kg. per head,
and that of pulses per head similarly dropped to below 10 kgs. The largest consumers of coarse
cereals in India are mainly the poor and it is significant that the last time such abysmally low

67
68

Utsa Patnaik, The Republic of Hunger, Paper presented on the occasion of the 50th birthday of Safdar Hashmi
organised by SAHMAT on 10 April, 2004, New Delhi.

39

levels of availability were seen, was just before the Second World War in the 1930s and again
briefly for two years during the food crisis of the mid-1960s.69
While the case for application of the right to development framework to food appears
strong, the operational framework required to implement the right in practice however requires
further elaboration and thought. The right to food refers to food security at both the household
and the individual level. In India, as in other countries of South Asia, food distribution at the
household level is rarely based on needs of all members. Socialisation of patriarchal norms
inevitably gives male members of the household the right to stake the first claim to the food
cooked within the house. The next in line are the children, with the women coming at the end,
making do with whatever remains. Among children, boys are given preference to girls and in
times of scarcity it is invariably the women along with their daughters who are the worst
affected. Thus, even if the household were to have adequate food entitlements, a gender
discriminatory pattern of intra-household distribution would still qualify as an inherent violation
of an individuals right to food.70
Food policy interventions in India presently include procurement measures, creation of
buffer stocks and maintenance of food distribution networks. In addition to these, there are
employment programmes to increase economic access (Jawahar Gram Samriddhi Yojana,
Employment Assurance Scheme, Food for Work) nutrition programmes (Integrated Child
Development Services and Midday Meals Schemes), the Annapurna Scheme for the old and the
Antodaya Scheme for the destitute. Although there has been substantial discussion on all these
policies, the intricacies between development policies and public action need to be further
69

Utsa Patnaik, Food Stocks and Hunger in India, www.macroscan.org (accessed July 2004).

70

Meera Chatterjee, The Nutritional Challenge to Health and Development in Monica Das Gupta, Lincoln C.
Chen, T.N. Krishnan, ed., Health, Poverty and Development in India (Delhi, 1996), pp. 202-238.

40

explored to illustrate the importance of a rights approach to food and the difference between the
existing policy and a rights-based policy of food security.
The Public Distribution System (PDS) is one of the more well known instruments
instituted by the State for improving food security at the household level in India. Through the
PDS, the Government ensures availability of essential commodities like rice, wheat, edible oils
and kerosene to the consumers at below market prices through a network of outlets or fair price
shops. Previously whereas the access to PDS was unrestricted, from 1997 access to the system
has been limited to below poverty line households. The scope of the programme has therefore
been modified to serve poverty alleviation. Interestingly, the PDS was never conceived to be an
anti-poverty programme. In fact, it was only during the Sixth Five Year Plan that the welfare
notion was gradually introduced to cover many of the backward districts within the country. A
restructured PDS exists within the country today in the form of Targetted PDS (TPDS).
The PDS programme, its objectives, scope and limitations provide a relevant case study
for the purpose of this paper. The PDS, for example, plays an important role in transferring food
grains from surplus areas to food deficit regions and States such as Kerala. The food distribution
networks set up under the PDS help persons, especially those from poorer households, to access
food grains at cheaper prices. However, like other public programmes, the PDS too has its share
of implementation problems. The off-take of foodgrains by states like Kerala and Andhra
Pradesh is higher than the relatively poorer states like Bihar, Orissa and Madhya Pradesh where
the need to provide relatively cheaper food is greater. Coupled with this is the problem of
incessant leakages and significant diversion of PDS rations into the market where they are made
available at much higher prices. Moreover, there is no transparent procedure for the
identification of the below poverty households. Also, the monthly quota per family made

41

Table 3.1: Food and Nutrition Programmes in India

Programme/Scheme
A. Targeted Public
Distribution System
1. Antyodaya Anna
Yojna
2. Annapurna Scheme
B. Food Grain Price
Stabilisation

Volume of Food-Based Transfer

BPL/ APL: 35 kg rice and wheat/
family/ month
35 kg of rice and wheat per family
classified as poorest of the poor
10 kg/ month/indigent senior citizen

Programme Interventions
Price subsidies on rice wheat, sugar, edible oils.

C. Food for Work

1.Jawahar Gram
Samriddhi Yojana
2. Employment
Assurance Scheme
3. Swarnjayanti Gram
Swarozgar Yojana
4. Food-for-Work

1 kg of rice or wheat/workday

Employment in lean agricultural season for rural

workers below poverty line

1 kg of rice or wheat/workday

100 days employment during lean agricultural

season up to 2 members/family
Employment at minimum wage, partly paid in kind

D. Mid-Day Meals
Scheme for School
Children
E. Other Nutrition
Schemes
1. Integrated Child
Development Services
Scheme/ Tamil Nadu
Integrated Nutrition
Program
2. Pradhan Mantri
Gramodaya Yojana
3. Balwadi Nutrition
Program
4. Day Care Centers

Up to 5 kg grains per person per day

A higher price subsidy on rice and wheat than BPL

rates
Free grain to indigent senior citizens
Food grain procurement and price support, rice
and wheat buffer stocks and open market sales at
below market prices; Controls on private storage,
movement, access to credit, rice milling, external
trade

Food grains up to 5 kg per man-day

3 kg rice or wheat/child/month for 10
mos. Or cooked meal (100 grams
(gms.)/day) for 200 days

Employment in natural calamity areas

Cooked meal or distribution of food grains to
primary schools

0 to 6 yrs: 300 calories (ready to eat

food) + 8-10 gms. protein for 300 days
Malnourished Children: 600 calories +
20 gms. protein for 300 days
Adolescent girls: 500 calories + 20-25
grams protein for 300 days
Pregnant & nursing mothers: 500
calories + 20-25 gms. protein for 300
days
300 calories and 8-10 gms. of protein
for Grade I and II children, double the
amount for Grade III and IV children.
300 calories + 12 15 gms. protein for
270 days
300 calories + 12 15 gms. protein for
270 days

Supplementary feeding, growth monitoring and

promotion, nutrition and health education to adult
women and adolescent girls, pre-school education
to 3-6 years old, immunization, health check-ups
and referrals, income generating programs

Supplementary feeding
Supplementary feeding to children 3-5 yrs,
promote childs social and emotional development
Day care services to children below 5 yrs to low
income families, supplementary nutrition, health
care, medical check up and immunization

Source: S. Mahendra Dev, Right to Food in India, p. 31.

42

available is not adequate to meet the nutritional standards set by the Indian Council of Medical
Research.71 It has been estimated that for every rupee spent, less than 22 paise reach the poor in
all states except Goa, Daman and Diu where a slightly higher proportion28 paise reaches
the poor.72
Policy-makers may claim credit for the fact that officially India has never had a single
famine since 1943. However, as mentioned above, repeated stories of starvation-related deaths in
various parts of India, discredit such claims. A public hearing on hunger and the right to food
held in Manatu block of Palamau district of the eastern state of Jharkhand in 2002 following
starvation deaths revealed gross irregularities in food related programmes. The PDS was found to
be non-functional and no mid-day meals were being given in the local schools. Also more
importantly, no significant efforts were made by the Government to tackle cases of hungerrelated deaths. There were no drought relief programmes even though the area had been affected
by drought. Development works were at a standstill with people having no recourse to either
rations through the PDS or government operated work for food programmes.73
The contemporary paradox of starvation amidst plenty whereby food grain stocks are
proportionately higher than the actual buffer requirements raises certain important points related
to the functioning of food programmes in India.74 Food grain procurement, despite the recent
deceleration in food grain production, has been increasing significantly over the years. The
Governments open-ended policy of procurement with no set targets limiting the amount of food

71

PUCL v. Union of India (2001).

72

Ibid.

73

Bela Bhatia and Jean Dreze, Starving still in Jharkhand, Frontline, Vol.19 (16), August 3-16, 2002.

74

Central food grain stocks as on 1 Januray 2003 at 48.2 million tonnes for example were much above the buffer
requirement of 16.8 million tonnes Economic Survey 2002-03, p. 92.

43

grains to be procured, along with disproportionate off take of food, is partially responsible for the
massive accumulation of food stocks in the public warehouses. It is this paradoxical situation of
hunger amidst plenty that raises important questions about the States responsibility towards
eliminating hunger-related morbidity and deaths. The lack of adequate food affects the lives of
individuals in multiple ways. Deprivation is not just an individual phenomenon but in majority of
cases, has an inter-generational effect as well. A clear nexus, for example, has been found to
exist between anemic women and infants weighing less than 2.5 kgs. Low birth weights
generally indicate intra-uterine growth retardation (IUGR). Indicative of poor antenatal care and
poor maternal nutrition during pregnancy, infants suffering from low-birth weight are vulnerable
to stillbirths, pre-term deliveries and stunting in childhood. Recent studies have also shown a
positive link between low-birth weight and increased risk of chronic degenerative diseases such
as coronary heart disease, obesity and diabetes.75
While deprivation of food may be a result of several other factors such as insufficient
purchasing power, depletion of natural resources base, physical and geographical inaccessibility
etc., the deprivation has a definite effect on capabilities leaving indelible marks on the question
of dignity and worth of human lives. The irony of the deprivation has been captured by the
Supreme Court of India in its order of 2 May, 2003. The order reads in case of famine, there
may be shortage of food, but here the situation is that amongst plenty there is scarcity. Plenty of
food is available, but distribution of the same amongst the very poor and the destitute is scarce
and non-existing leading to malnutrition, starvation and other related problemsMere schemes
without any implementation are of no use. What is important is that the food must reach the
hungry. A look at the Governments Food for Work Programme reinforces the Courts stand.
75

See C, Gopalan, Low Birth Weights: Significance and Implications and Santosh K. Bhargava and J.P. Dadhich,
Maternal Nutrition and Fetal Outcome in H.P.S. Sachdev and Panna Choudhary, ed., Nutrition in Children:
Developing Country Concerns (Delhi, 1994), pp.1-45.

44

Famine codes operational in various states make it mandatory for the Government to
provide employment when a drought is declared. Food for work programmes were initially
started in 2000-01 as part of the Employment Assurance Scheme (EAS) in eight notified
drought-affected states of India. These programmes now form a part of the Sampoorna Gramin
Rozgar Yojana (SGRY). The SGRY provides for an outlay of Rs. 5000 crores and 5 million
tones of free grain. The length of employment is between 10 to 20 days, which is however much
less than the 100-day period of the EAS. The SGRY seeks to base its strategy of employment on
the creation of useful community assets that have the potential for generating sustained and
gainful employment such as water and soil conservation, afforestation and agro-horticulture,
minor irrigation and link roads.
The experience of the SGRY has a striking similarity to the functioning of the PDS. The
writ petition filed by the Peoples Union for Civil Liberties cites examples of cases where the
SGRY has failed to provide the necessary relief to people affected by drought. It cites for
example the case of the Government of Rajasthan following a policy of labour ceilings which
restricts employment as per the Governments own statistics to less than 5 percent of the drought
affected population. The failure to pay the legal minimum wages has also been reported in
several places. In fact, the latter aspect has been focused upon in the report submitted by the
Commissioner looking into the functioning of the SGRY.76 The hold-up in the allocation and
release of both funds and food grains by the Government has been identified as being one of the
major causes for delay. Other problems such as widespread cases of corruption, mechanization
of work processes that directly undermine the effectiveness of the Scheme, leakages and non-

76

Right to Food Campaign, Legal Action for the Right to Food: Supreme Court Orders and Related Documents
(place of publication not mentioned, January 2004).

45

transparent allocation of both opportunities and funds work jointly to reduce the effectiveness of
the SGRY at the ground level.
The Indian State as part of its constitutional obligations has legally binding
responsibilities towards the achievement of progressive realisation of the right to food within the
country. The States obligation rests on the assumption that human beings, families and groups
strive to take care of their livelihoods through their own efforts or resources, individually or in
association with others, as well as seek to fulfill their needs. At a primary level, the Indian State
therefore has the obligation to respect which includes a positive affirmation on the part of the
State not to undertake any action that would cause obstruction or hindrance in the process of
rights fulfillment. At the same time, the Indian State also has the obligation to safeguard and
protect rights and freedoms of citizens from the negative actions arising due to unethical
practices in trade, marketing, dumping and hoarding of food grains by third parties. Furthermore,
the State also has the positive obligation to facilitate and aid the process of rights realization by
undertaking affirmative action that guarantees suitable opportunities and means for citizens to
realize their needs. This includes strengthening peoples access to and utilisation of resources in
both normal and extraneous circumstances.
The failure to provide adequate nutrition by the State resulting in starvation related deaths
raises important questions related to the political economy of development. For example, can a
food programme such as the PDS be made to work in isolation from the community that it seeks
to serve? Is the programme neutral to questions of caste and class that play an important role in
determining the access that people have to public services in a given region? What is the vision
and approach that the programme propounds? What are the institutionalised mechanisms that
exist that facilitate the participation of even the most disadvantaged section in the process of

46

formulation and transparent and accountable functioning of the programmes? The above set of
implementation-related problems common to all public programmes in fact strengthens the case
for the institutionalisation of a rightsbased approach to food.
The widespread programme of liberalization, especially trade in agricultural goods, in
recent years, poses serious questions from the point of view of the above obligations. The fillip
given to agricultural trade, especially exports of non-food crops, in the early 1990s has had an
overall negative impact on the prospects of increasing the per capita availability of food. Land
usage patterns, for example, have been adjusted to accommodate increased cultivation of cash
crops like cotton and groundnuts. Land devoted to the cultivation of pulses witnessed a
simultaneous reduction as a result of which in the first half of the 1990s, food output declined by
1.7 percent every year with a simultaneous decrease in per capita food availability from 173.5
kgs. (1991-92) to 159.9 kgs. (2000-01).77 The change in cropping patterns from food to non-food
along with the reported decline in outputs of both cereals and pulses were some of the factors
contributing to the decline.78 Trends in dietary patterns indicate disproportionately high intake of
carbohydrates over proteins. The decline obviously has serious ramifications on the future
prospects of food security. The decline in per capita availability, especially in cases of poor
families, women and children will necessarily involve more positive action on the part of the
State.
The National Programme for Nutritional Support to Primary Education, popularly known
as the Midday Meals Scheme that consciously links health, nutrition and education concerns of
children is a relevant example of the type of programme that the Government could actively
77

M.S. Swaminathan, Food for Peace and Development, The Hindu, January 10, 2002.

78

D. Sathe and S. Aggarwal, Liberalisation of Pulses Sector: Production, Economic and Political Weekly, July
2004, pp. 3391-3397.

47

support. A mid-day meal scheme typically involves the supply of cooked meals to school going
children in government and government-aided primary schools. The Government supplies the
schools with raw provisions (vegetables, fruits, pulses and cereals) and the school administration
in turn ensures that cooked meals are provided to all children attending school. Initiated in 1982
in the southern state of Tamil Nadu, the programme was initially dismissed as being nothing
more than a crude electoral gimmick.79 However apparent benefits soon proved the critics
wrong. Not only did the programme assure that school-going children in Tamil Nadu had daily
access to lunchtime meals, a corresponding increase in school attendance was also reported.
Further, the programme helped break age-old practices of segregation based on caste and class,
by making collective eating of meals a classroom norm in all State schools. Additionally it also
provided employment to destitute mothers who worked as cooks in the various noon meal
centres in the State.
The Integrated Child Development Services (ICDS) constitutes another relevant
programme in this regard. The programme initiated in 1975 aims at improving the health and
nutrition status of children (0-6 years) and mothers by providing supplementary food and
training through health and nutrition education programmes. International assistance has been
forthcoming for the ICDS in recent years. The World Bank, for example, has financed the
expansion of the ICDS programme in states of Andhra Pradesh, Orissa, Bihar, Madhya Pradesh,
Kerala, Maharashtra, Rajasthan and Uttar Pradesh. The need for a comprehensive nutrition
programme for pre and primary level school children such as the above is becoming increasingly
79

The mid-day meal scheme for school children was introduced in Tamil Nadu as early as 1925 by the Corporation
of Madras, but became a state-wide scheme in 1956 under then Chief Minister the late K. Kamaraj who introduced it
as the Poor Feeding programme. In 1961, the government started receiving American aid for the programme and it
was expanded to all corporation and government schools in urban areas. But it was only in July 1982 under the
leadership of the legendary Chief Minister the late M.G. Ramachandran that the Puratchi Thalaivar MGR Nutritious
Meal Programme (PTMGR NMP) was introduced in a phased manner in child welfare centres in rural areas for preschool children in the age group two-five years and for primary school children in the age group five-nine years.

48

important given the fact that while mortality rates and fertility rates have come down by 50
percent and 40 percent respectively, reduction in under-nutrition as per official estimates has
been only 20 percent.80 In this context, it is significant that the Mid-day Meal scheme has
recently been given legal sanctity through an interim order of the Supreme Court of India (28th
November 2001) that makes it mandatory for State governments to provide cooked mid-day
meals in all State schools.
However, providing supplementary nutrition is just one component of the larger
programme that the State needs to undertake to ensure adequate food to all. The absorption of
essential nutrients like iron and folic supplements is largely dependent on the health of the
individual. For undernourished individuals, due to greater chances of rejection, the provision of
natural supplements such as vegetables and fruits is more suitable.81 This is more relevant in the
case of women since the nutritional status of the mother is directly related to the infant's chances
of survival and its subsequent growth and development. While the Government through its
programmes can create an awareness about the importance of an wholesome diet, especially for
pregnant women, until it actually ensures that such a diet is readily available to such women
(either through daily supplies of milk and vegetables or through the distribution of food coupons)
a widening gap would continue to exist between reality and practice.
Similarly, the State must also be sensitive towards persons who are actually dependent on
agriculture for their livelihood. The relatively significant decline of public expenditure in

80

Planning Commission, Tenth Five year Plan, Vol. II, p. 316.

81

See Panna Choudhary, Management of Iron Deficiency Anemia in Clinical Practice in H.P.S. Sachdev and
Panna Choudhary, ed., Nutrition in Children: Developing Country Concerns, n. 76, p. 242. The above point does
not seek to generalise against the existing policy of providing routine iron supplementation during pregnancy. It
simply points to the fact that health practitioners need to be sensitive and aware of situation where such
supplementary provisions are not actually yielding any productive results.

49

agriculture in recent years has been a cause for concern. Investments in agriculture (public and
private) as percent of GDP have come down from 1.6 percent in 1993-94 to 1.3 percent in 200001. A large percentage of this decline has been due to decreasing share of public sector
expenditures in agriculture that have come down from 33 percent (1993-94) to 23.5 percent
(2000-01).82 Reduction in important subsidies related to inputs such as fertilizers have increased
dependence and vulnerability among farmers. Punjab, for example, the richest state in India, has
had farmers committing suicides in the last three to four years in the wake of increased costs,
diminishing returns and expanding debt burden. Contrary to popular notions, farmers in Punjab
incur more costs than profits in agriculture. Farming in Punjab is essentially investmentintensive, requiring tremendous inputs of fertilisers, pesticides, new seeds, machinery and
irrigation systems. In recent years, while the costs of agricultural production have increased,
there has been no such increase in the selling price of commodities.
India, like other developing countries, is under pressure from the World Trade
Organization (WTO) to reduce aid and subsidies and lower tariff barriers in agriculture. The
WTO agreement on agriculture states that aggregate measures of support (AMS) must not
exceed 10 percent of the total value of agricultural production in developing countries and 5
percent in developed countries. However, in reality the support given by the developed countries
far exceeds the WTO stipulations. Japan, for example, provides support worth 65 percent of its
agricultural GNP, while the European Union provides 49 percent and the United States 24
percent. India, in comparison, provides 6.5 percent of its agricultural production as support.

83

The Indian Government has a policy of Minimum Support Price (MSP) through which it seeks to
82

Economic Survey 2002-03, Ministry of Finance, Government of India.

83

Roland-Pierre Paringaux, Liberalisation Hurts Indias Subsistence Economy,

www.southcentre.org/info/southbulletin/ bulletin42/bulletin42-02.htm, accessed June 2004.

50

fix procurement prices for listed agricultural commodities. The MSP in principle seeks to work
as a protective cover for farmers guaranteeing them the security of assured sales. However, in
reality, an analysis of its functioning brings out certain glaring defects that reduce the potential
benefit of the MSP mechanism.
For example, an analysis of government procurements under MSP reveals that three main
StatesPunjab, Haryana and Andhra Pradesh where the contribution to the total national
production of foodgrains is only about one-fourth, provide for over 75 percent of the total
purchases.84 Farmers in the rest of India, who contribute nearly three-fourths to the of the total
foodgrain production do not stand to benefit from the government purchases. Also, the greatest
beneficiaries of the MSP regime are invariably the more privileged farmers and not small
farmers and peasants.85 Moreover, since the Government cannot afford to buy every unsold crop,
the price fixed under MSP is often lower than the prevailing market price. However, this has a
certain disadvantage as it sets a standard that may at times depreciate the market prices of
commodities, increasing in effect the cumulative risk faced by farmers, especially those totally
dependent on agriculture for their sustenance. The operation of the MSP in the 1990s is an
indication of the fragile security that the policy can provide to farmers, in a progressively
liberalised economy.
It may be recalled that the initial response to the proposal of increasing exports in
agriculture had been largely positive in the early 1990s. Agricultural exports, for example, had
risen from US$ 3136 million in 1992-93 to US $6868 million in 1996-97. However, towards the
late 1990s, such exports slipped as Indian goods lost out to relatively cheaper products from

84

Economic Survey 2002-03, p. 88.

85

Amartya Sen, Hunger: Old Torments and New Blunders, the little magazine, 2001, pp. 12-13.

51

developed countries.86 There was a significant surge of cheap imports such as cotton, which
caused depreciation in the prices of domestically produced cotton. Low prices combined with
significant damages to crops increased the vulnerability of farmers depending solely upon
production of cotton. The MSP mechanism that was successful in providing some sort of security
to farmers now faced problems on account of fluctuations of commodity prices at the
international level. Lower prices for output (agricultural produce) compared to higher prices of
farm inputs (fertilisers, machinery, seeds, water) led to poor profits for farmers and the relative
stagnation of the Indian farm sector.
The report submitted by Mahendra Dev makes certain recommendations regarding
agriculture and the right to food of people in India. These include reforms in procurement and
buffer stock, improvements in the delivery mechanism of the PDS and increasing access to food
through specific work programmes. Acknowledging the inefficiency of the principal agency
involved with procurement and distribution, the Food Corporation of India (FCI), the report calls
for the involvement of the private sector in the storage and distribution of food grains.
Additionally it also recommends control in the rise of minimum support prices for certain
commodities a suggestion also made by the Commission for Agricultural Costs and Prices
(CACP). Similarly the report also recommends the institutionalization of a system of
decentralised procurement to benefit both farmers and consumers, while simultaneously
improving the financial position of the government. It specifically calls for limited
responsibilities for the FCI, with the responsibility of operating the PDS transferred to respective
state governments.

86

C.P. Chandrasekhar and Jayati Ghosh, Agricultural Trade Policy: The Case for Caution, www. macroscan.org.
Agricultural exports have however picked up since then and in 2000-01, they constituted US $6004 million
Economic Survey 2002-03, Ministry of Finance, Government of India.

52

Regarding the functioning of the PDS, the report recommends geographical targeting
rather than income-based targeting. For minimising diversion and leakages from the PDS, the
report supports the introduction of innovative schemes like the food coupon system or the food
credit card scheme. It also calls for the ready implementation of the recommendations of the
Committee on Long-term Grain Policy to do away with the problem of excess stocks. The report
also highlights the importance of economic access, employment and rural transformation in the
realisation of the right to food. It specifically recommends the effective implementation of Food
for Work Programmes that can improve food accessibility such as Employment Guarantee
Scheme along with innovative Schemes like Grain Bank and Food Credit Schemes to stop the
large scale exodus from rural areas.
Recent moves to relate the provision of food through a constitutionally guaranteed
scheme of employment based on the patterns of the Employment Guarantee Scheme (EGS)
instituted by the State of Maharashtra represents a step in that direction. The EGS has been
functional now for nearly three decades. There have been certain shortcomings such as low wage
rates, low turnout of the unemployed at work sites, submission of false and inflated muster rolls
by officials; yet the fundamental guarantee of employment enforceable in the courts of law that
the EGS provides to individuals, along with a number of secondary benefits such as creation of
productive assets, higher agricultural wages, reduced rural-urban migration and significant reorganisation of social relations, have led to increasing demands for the universalisation of the
EGS to address the specific problems of accessibility and availability of food confronting a large
majority of the under-nourished in India.87

87

Right to Food Campaign, Work for All at a Living Wage: Towards an Employment Guarantee Act, January 2004.

53

3.2 The Right to Health

Linked closely with the right to food, is the right to health. The resurgence of
communicable diseases and the highly inequitable access to health care facilities makes health
care an important area of concern for a country such as India. The public health system in India
is roughly organised along a three tier structure. At the bottom are primary health care facilities
where basic health services are provided, with emphasis on preventive and promotive aspects
such as family planning, maternal and child health, treatment of minor ailments, malarial
treatment and spraying, sanitation and public health education. In the middle are the first referral
hospitals or secondary level hospitals, consisting of hospitals of various bed strengths, ranging
generally between 30 and 550 beds, at community, sub-divisional and district levels. These first
referral hospitals provide in-patient and out-patient care with diagnostic and treatment facilities
that are generally not available at the primary level. At the top of the health structure are the
tertiary hospitals, including teaching hospitals, which are staffed and equipped to provide more
specialised treatments and generally have a capacity of 750 beds.
According to data available, there are roughly 17,000 hospitals, 25,670 dispensaries and
about 1,000,000 million beds in the country as a whole. However, the proportionate distribution
of health facilities between urban and rural areas reveals a highly unequal pattern of distribution
of health infrastructure across areas. In contrast to rural areas, which have approximately 0.77
hospitals, 1.37 dispensaries, 3.2 primary health centres and 44 beds per 1,00, 000 population, the
allocation of health services is disproportionately higher for urban areas where there are roughly
4.48 hospitals, 6.16 dispensaries and 308 beds per 1,00, 000 population.88 The prevalent situation

88

Ravi Duggal, Health and Development in India: Moving Towards Right to Health Care, report prepared for the
project Right to Development in India for Centre for Development and Human Rights, 2003, p. 12.

54

where a small minority have access to some guaranteed health care facilities presents a strong
justification for the re-conceptualisation of public health care along the rights framework.
The report by Ravi Duggal89 on the right to health in India draws attention to precisely
such an exercise. As an essential component of individual well-being, the rights approach to
health seeks to reorient policy prescriptions, focussing on the more important aspects of
provision and fulfilment of health care, rather than the limited obligation of respecting and
protecting. The right to health is not restricted simply to the right to health care.90 Rather the
right embraces a wide range of socio-economic factors that promote conditions in which people
can lead a healthy life, extending to the underlying determinants of health, such as food,
nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy
working conditions and healthy environment. In India, approximately 64 percent of all
households have no toilet facility, and roughly about 22 percent do not have any access to
drinking water from pumps or pipes.91 The prevalence of diseases such as gastroenteritis, fever,
etc., is therefore self explanatory. The overcrowding in cities, with people residing in shanty
dwellings also explains the widespread prevalence of cases of tuberculosis, leprosy and malaria
(where stagnant water is a common feature). India accounts for nearly 68 percent of leprosy and
30 percent of the worlds tuberculosis.92
The right to health comprises both freedoms and entitlements. The freedoms include the
right to control ones health and body, including sexual and reproductive freedom, and the right

89

Ibid.

90

United Nations, Compilation of General Comments and General Recommendations Adopted by Human Rights
Treaty Bodies, HRI/GEN/1/Rev.5, 26 April 2001, p. 90.

91

Planning Commission, National Human Development Report 2001 (New Delhi, 2001), pp. 40-43.

92

Tenth Plan, Vol. II, p. 119.

55

to be free from interference, such as the right to be free from torture, non-consensual medical
treatment and experimentation. The entitlements include the right to a system of health
protection, which provides equality of opportunity for people to enjoy the highest attainable level
of health. 93 Violations of the right to heath can occur through the direct action of States or other
entities insufficiently regulated by States. Examples of violations of the obligation to fulfil
include failure to adopt or implement a national health policy designed to ensure the right to
health for everyone; insufficient expenditure or misallocation of public resources which results in
non-enjoyment of the right to health; failure to monitor the realisation of the right to health;
failure to take measures to reduce the inequitable distribution of health facilities, goods and
services; failure to adopt a gender-sensitive approach to health and failure to reduce infant and
maternal mortality among others.94
Ravi Duggal in his report delves on some of the limitations (both conceptual and
structural) that characterise policy making on health in India. According to him, while
Independence in 1947 provided a historic opportunity for the Indian State to institute a
universalised system of health care the Cabinet rejection of the Bhore Committees
recommendations foreclosed the possibilities of any such changes.95 There was relatively little
difference between the health policies of the colonial and post independence period. The health
sector was developed in enclaves with a clear bias towards urban segments. The rural
population consisting of the poor, vulnerable and underprivileged sections enjoyed restricted

93

United Nations, Compilation of General Comments and General Recommendations Adopted by Human Rights
Treaty Bodies, HRI/GEN/1/Rev.5, 26 April 2001, p. 91.
.

94

Centre for Development and Human Rights, The Right to Development: A Primer, pp. 97-100.

95

The Bhore Committee was a contemporary of the Beveridge Committee that laid the basis for Britains National
Health Service Act of 1946.

56

access due to non-availability of public heath care facilities of credible quality. The inequity was
further strengthened for instance by State policies which facilitated the growth of rapid and
generally unregulated private health sector. These included the production of doctors for the
private sector through State financing, production of bulk drugs to supply at subsidised rates to
private formulation units, and the setting up of private hospitals through State funding were
measures that helped the private sector to gradually develop an overwhelming presence in the
country.96
The report draws attention to a number of limitations that were a part of the historical
baggage and continue to be associated with the administration of health services in India, which
need to be sorted out to fit the new strategy of rights-based approach to health. Specific features
of this historical baggage include: (a) a very large and unregulated private health sector with a
disinterest in organising around issues of self-regulation, improvement of quality and
accountability; (b) a declining public health care system providing selective care through a
multiplicity of schemes and programmes and discriminates on the basis of residence (ruralurban) in providing entitlements for health care; (c) existing inequities in access to health care
based on employment status, gender and purchasing power; (d) inadequate development of
various pre-conditions of health like water supply and sanitation, environmental health and
hygiene and access to food; (d) very large numbers of unqualified and untrained practitioners; (e)
inadequate and declining investments and expenditure in public health; (f) adequate resource
availability when we account for out-of pocket expenses; (g) human power and infrastructure
reasonably adequate, though inequitably distributed and last but not the least of all wasteful
expenditures incurred due to lack of regulation and standard protocols for treatment.

96

Ravi Duggal, Health and Development in India: Moving Towards Right to Health Care, n. 88.

57

To establish the right to health and health care, the report recommends the following
measures: (i) equating directive principles with fundamental rights through a constitutional
amendment, (ii) incorporating a National Health Act (like for example the Canada Health Act)
that would organize the present health care system under a common umbrella organization as a
public-private mix governed by an autonomous national health authority responsible for bringing
together all resources under a single-payer mechanism; (iii) generating a political commitment
through consensus building on right to health care in civil society; (iv) development of a strategy
for pooling all financial resources deployed in the health sector; and lastly (v) the redistribution
of existing health resources, public and private, on the basis of standard norms (these would have
to be specified) to assure physical (location) equity.
Recognising the fact that the above would necessarily entail a long time to realise,
Duggal recommends following measures as priority: (i) allocation of health budgets as block
funding, that is on a per capita basis for each population unit of entitlement as per existing
norms; this would lead to redistribution of current expenditures and substantially reduce
inequities based on residence. Local governments would also have the autonomy to use resources
as per local needs within a broadly defined policy framework of public health goals; (ii) strictly
implementing the policy of compulsory public service by medical graduates from public medical
schools, as also make public service of a limited duration mandatory before seeking admission
for post-graduate education. This would increase human resources with the public health system
substantially and would have a dramatic impact on the improvement of the credibility of public
health services; (iii) essential drugs as per the World Health Organization (WHO) list ought to be
brought back under price control (90 percent of them are off-patent) and/or volumes needed for
domestic consumption must be compulsorily produced so that availability of such drugs is

58

assured at affordable prices and within the public health system; (iv) local governments must
adopt location policies for setting up of hospitals and clinics as per standard acceptable ratios, for
instance one hospital bed per 500 population and one general practitioner per 1000 persons. To
restrict unnecessary concentration of such resources in over-served areas, fiscal measures to
discourage such concentration should be instituted.
In addition, he also recommends that medical councils be made responsible of monitoring
medical practices. Such monitoring is the core responsibility of the council by law, but is not
being fulfilled, and as a consequence the Council is failing to protect patients who seek care from
unqualified and untrained doctors. Medical councils should, for example, not renew licenses (as
per existing law) if the required hours and certification are not accomplished. Additionally the
existing employee-based health schemes ought to be integrated with the general public health
system so that discrimination based on employment status is removed, making more public
resources available for use. Additionally, strict regulation of the private health sector as per
existing laws ought to be enforced, so as to contribute towards improvement of quality of care in
the private sector as well as create some accountability. Finally, he recommends strengthening
the health information system and database to facilitate better planning as well as audit and
accountability.
According to Duggal, execution of the above measures would provide the essential basis
to move onto implementing the core contents of health care. Keeping the Indian context in mind,
primary health care services should include the following: general practitioner/family physician
services for personal health care; first level referral hospital care and basic specialty and
diagnostic services (general medicine, general surgery, obstetrics and gynaecology, paediatrics
and orthopaedic), including dental and ophthalmic services; immunisation services against all

59

vaccine preventable diseases; maternity and reproductive health services for safe pregnancy, safe
abortion, delivery and postnatal care and safe contraception; pharmaceutical services supply
of only rational and essential drugs as per accepted standards; epidemiological services including
laboratory services, surveillance and control of major diseases with the aid of continuous
surveys, information management and public health measures; ambulance services;

health

education; rehabilitation services for the physically and mentally challenged and the elderly and
other vulnerable groups; occupational health services with a clear liability on the employer; safe
and assured drinking water and sanitation facilities, minimum standards in environmental health
and protection from hunger to fulfil obligations of underlying preconditions of health. The above
listed components of primary health care according to the author are basic whose realization
cannot be broken up into stages, as they are the core minimum and hence non-negotiable.
While as a country India has made progressive movement in improving health outcomes
such as an increase in life expectancy, decrease in infant and child morbidity and mortality,
successful eradication of certain diseases, the fact remains that these achievements have not
formed the basis for the emergence of a healthy society, and makes it important to have a closer
look at the framework governing the administration of health policies in India. Health planning
in India, despite attempts at decentralisation, remains highly centralised. The Ministry of Health
and Family Welfare along with the Directorate of Health Services form the two main nodal
agencies responsible for formulating and coordinating resources and plans between the Centre
and the States. While the First Five Year Plan earmarked a share of 3.3 percent for health, the
share of health in total plan outlays has been progressively decreasing. At present, health
expenditures make up for only 0.9 percent of the total central allocations. While the
proportionate share of health may be relatively less, State governments are nevertheless

60

dependent on Central assistance for execution of State health programmes. This indirectly
creates and reinforces a pattern of vertical dependence that invariably leads to further
centralisation.
The lack of transparency and accountability in the making of health policies represents
another serious concern. The absence of debate on the health sector reforms initiated by the
Government in the mid-1990s largely ordered by the World Bank, which made policy reforms a
condition for continued assistance, serves as relevant case in point.97 The Social Safety Net
(SSN) Credit that was signed between the World Bank and the Government of India on
December 17, 1992, contained specific conditionalities and guarantees by the Government to
introduce a series of sectoral reforms in health within the country.98 The specific reforms
recommended by the World Bank in the context of health sector are basically the following: (a)
redirecting incremental resources almost entirely to primary and secondary health care,
particularly preventive and promotive, (b) substituting public funds with private funds in
secondary and tertiary hospitals by instituting user-charges, (c) implementing full cost recovery
from private and government-subsidised insurance schemes, as well as enhancing non-tax
revenues, (d) reducing public subsidies for medical education, and (e) protecting expenditures on
preventive and promotive services from fiscal cuts engendered by the stabilisation program.99 In
addition to these, the World Bank also seeks to enhance the role of the private and voluntary
sectors in the delivery and management of health services by essentially encouraging (a)
97

Moushumi Basu, World Banks Lending to the Social Sector in India, Doctoral Thesis (unpublished),
Jawaharlal Nehru University, 2003.

98

India: Completion Report of the Social Safety Net Sector Adjustment Program, Report No. 14666, Population and
Human Resources Operations Division, South Asia Country Department II (Washington DC, 22 June, 1995).

99

India: Policy and Finance Strategies for Strengthening Primary Health Care Services, Report No. 13042-IN,
Population and Human Resources Operations Division , South Asia Country Department II (Washington DC, 1995),
pp. xv-xvi.

61

contracting of select services, and (b) promotion of health care delivery by private and voluntary
sectors.
While there are certain merits in the World Banks thrust of re-organising the public
health systems in India, there are, however, certain issues arising especially from the point of
view of the rights framework, that need to be specifically addressed. At the conceptual level, for
example, the exclusion of concerns for improving the immediate environment through the
provision of safe potable water, toilet facilities and so on, from the purview of health policies,
works to restrict the scope of public health care to a minimalist programme of essential clinical
services. The World Banks logic of equating health services as having mostly private benefits,
for which there is greater willingness to pay, with curative care while those with mostly public
benefits, for which there is lesser willingness to pay, with preventive care works to pit curative
services versus preventive in a most devious way. The emphasis becomes inevitably on reducing
the specific disease burden of death and disability rather than on controlling the prevalence or
source of disease. Such an approach is highly unsuitable for a country like India where control of
the total number of infectious cases is equally important as the cure of the chronically infected
cases.
Recent moves to introduce user-charges for health care services as part of the reform
programmes represents another major issue of concern. The introduction of user-charges for
health services within the country seeks to divide individuals depending on their economic
ability into various categories. The identification of health as an entitlement in such a framework
gives way to a new culture of health care where a persons ability to pay determines the quality
of health care that he/she receives. Generally the transaction of payments introduces a certain
level of responsiveness and accountability between service providers and consumers. However,

62

in the context of health reforms in India, no such guarantees exist for patients. The example of
health insurance provides a relevant illustration of the contradictions that further increase the
disadvantages that the poor face vis--vis the rich in relation to health care. The absence of a
personalised health insurance policy for the economically disadvantaged sections restricts the
access that the poor have to services associated with tertiary-level health care. The reduction in
the number of free beds, removal of subsidies for drugs, and a simultaneous cutting down of
services offered, works to further disadvantage the poor.
The present thrust on dis-investing the state sector and privatising health care, also needs
to be further explored. In India, the private sector, apart from individual practitioners, includes
numerous private dispensaries, nursing homes and hospitals. Private dispensaries in the Indian
context, especially in the rural countryside, are usually one or two bed day care centres, while in
the urban areas there are some without beds registered as private clinics. Institution wise,
hospitals and nursing homes constitute the most frequent and the more significant part of private
health care.

100

Taking care of nearly three-fourths of the total health related problems of the

country, the private sector in India is largely an unregulated one. While there are specific laws
which have been enacted by the Government for this purpose, the private sector in India
functions largely immune, without any minimum standards in the provision of services. For
example, though the law of the country stipulates that Medical Councils assure that only those
having the appropriate qualifications be allowed to practice, in reality, there are numerous
instances where unqualified persons set up practice or indulge in irrational or other malpractices.
The absence of fixed schedules of charges for medical services is yet another instance of the

100

Usually small private hospitals, 5-10 bedded are referred to as nursing homes.

63

disparate functioning of private health care providers. Charging more than government hospitals,
or charging of exorbitant fees for even routine tests and services constitute relevant examples101
Realisation of the right to health therefore involves a much larger spectrum of issues than
just the mere provision of health care. At present the discussion on the right to health pertains
more to the aspects of health care than to the determinants of health. The majority of the cases
that come at various courts deal with the procedural violations of the right to medical care, such
as medical negligence, wrong diagnosis, compensation etc. There are relatively few cases that
deal with a more comprehensive right to public health. The Supreme Court, in its judgement in
State of Punjab v. Ram Lubhaya Bagga (1998) for instance upheld the obligation of the State to
secure health to all its citizens as its primary duty. The Court held that the State could neither
urge nor say that it had no obligations to provide medical facilities. Supreme Court judgements
related to various categories of persons such as workers, under-trial prisoners, HIV affected
patients have sought to emphasise the importance of the right to health and health care to these
specific groups of people.102

3.3 The Right to Education

Ravi Srivastavas report103 on the right to education provides a comprehensive review of
the status of education in India. As in the case of food and health, in education too, there exists a
strong case for institutionalising a participatory approach based on the concept of rights. It is an
illusion of sorts among policy makers that the poor have relatively little interest in sending their
101

Surveys conducted by the NSSO 1996, Report No. 441-52nd Round (New Delhi, 1998) for example found that
the expenditure per ailment in the private sector in rural areas was approximately Rs. 58 more than that charged in
the public sector. In the urban areas, the difference was still larger Rs. 89.
102
See The Indian Law Institute, Legal Framework for Health Care in India (New Delhi, 2002) for further details.
103

Ravi Srivastava, The Right to Education in India, report prepared for the project on the Right to Development in
India for the Centre for Development and Human Rights, 2003.

64

children to school. In education, like in other cases, the discussion is not about interests but
opportunities and spaces. While the primary responsibility of providing education especially
after the new amendment lies with the State, there is an essential role that members of civil
society can play in ensuring that all children actually go through the process of schooling.
Presently, in India as a whole, 24 percent of the children in the 6-14 year age group are still out
of school. In the rural areas, the percentage of such children is higher at 27 percent. Five
educationally poor states have a higher percentage of children out of school compared to the
national average (Bihar, Rajasthan, Madhya Pradesh, Uttar Pradesh and Orissa). The gender
differentiation is equally noticeable with more girls than boys out of school in most states. While
there have been significant improvements in the number of children going to school over the past
decade, access to education still remains restricted for a large number of children on grounds of
caste, class, gender and region/location.
Ravi Srivastava in his report focuses on some of the measures undertaken to address
these concerns. While facilities for schooling according to him have grown very significantly in
post-independent India the number of primary schools have trebled during the period, 195191 yet 17 percent of rural habitations continue to remain without primary schools. He also
draws attention to qualitative discrepancies in education that exist between private and public
schools in India. Despite the minimum norms for infrastructure laid down under the Operation
Blackboard scheme launched in 1986, about 15-20 percent of state schools make do with only
one classroom while 5 percent of schools do not have any classrooms at all. Similarly children
have no access to safe drinking water in 40 percent of schools and no access to separate toilet
facilities for girls in 15-20 percent of the schools. The same is the case regarding the availability
of teachers. In 1986-87, 40 percent of primary schools were single teacher schools with a single

65

teacher teaching in a one instructional room. However, while in the 1990s this gap was reduced
through increased recruitment of teachers under the Operation Blackboard scheme as well as the
externally financed District Primary Education Programme (DPEP), the pupil-teacher ratio,
especially in the educationally backward states of Uttar Pradesh, Madhya Pradesh, Bihar and
Rajasthan has increased considerably.
The report also analyses the implications of the recognition of the right to education as a
fundamental right in India. Undoubtedly, the right to education forms a basic and fundamental
pre-condition for the realisation of other rights, and its recognition as a fundamental right in the
Indian context is significant. However, certain questions remain unanswered pertaining to this
aspect of the States obligation. Is the obligation towards fulfilling the right to education limited
to providing for more schools, or does it also involve taking up initiatives that specifically
address the content and quality of education that children receive. What do the obligations of
respect, protect and fulfilment signify in terms of specific actions that the State must undertake to
make primary education universally available? Or can receiving poor quality education be
classified as a violation of the right to education. At present, while a number of Government
programmes have begun focussing on the qualitative aspects of education, it is not very clear as
to how the right to education enshrined in the Constitution shall ensure that children in India will
not be deprived of receiving quality-level schooling.
A childs right to education is not only a matter of access but also of content.104 Such
challenges include the tensions between, inter alia, the global and the local, the individual and
the collective, tradition and modernity; long and short-term considerations, competition and

104

United Nations, Compilation of General Comments and General Recommendations Adopted by Human Rights
Treaty Bodies, HRI/GEN/1/Rev.5, 26 April 2001.

66

equality of opportunity, the expansion of knowledge and the capacity to assimilate it and the
spiritual and the material. The right to education for a child is as much about the quality of
education received as access to schools. At present, considering the high drop out rate ranging up
to 60 percent and the large number of out-of-school children (about one-third) and high wastage
taking 7.2 years for 5 years of primary schooling by 33 percent indicate the need to focus on the
qualitative aspects of education to make the right more meaningful for children. The Government
has in this regard initiated the process of consideration of a bill titled The Free and Compulsory
Education For Children Bill, 2003105 that seeks to provide for free and compulsory education for
all children from the age of six years up to fourteen years throughout India. Compulsory
education as per the bill means and implies an obligation on the part of the appropriate
Government to take all steps to ensure that every child is enrolled and retained till the prescribed
level of education, free education means exemption from the obligation to pay tuition or other
charges which schools usually collect from pupils. It could also extend to provision of free
supply of textbooks, notebooks, other study materials, health care and nutrition where State
Governments undertake to make provisions for such services.
External aid coming in for primary education in the 1990s provides an opportunity to
examine the potential impact that increased resources can have in meeting the goal of universal
primary education in India. External funding for primary education is a relatively new
experience. Except for a few technical assistance programmes in the 1950s and the 1960s, the
Indian Government did not consider approaching international aid agencies for funding in
education. In 1983, the first externally funded basic education project in Andhra Pradesh was
drawn up with British support. The Andhra Pradesh Primary Education Project (APPEP)
105

Department of Education, Ministry of Human Resource Development, Government of India,

www.education.nic.in

67

focussed broadly on two main components: construction of schools and teacher training. In 1987,
the Shiksha Karmi Project was started in Rajasthan with assistance from the Swedish
Government. The project sought to address the problem of inadequate schooling facilities in rural
areas and experimented with alternatives to primary schooling. Around the same time the United
Nations Childrens Fund (UNICEF) too came forward to support the Bihar Education Project
(BEP). Based on a holistic vision of basic education, the BEP sought to integrate all three
components related to primary schooling, non-formal education and adult education within a
single comprehensive framework.
The DPEP, funded jointly by the World Bank, DFID, European Union and UNICEF
pursued in the 1990s made individual districts the focal point of its intervention. Under the
DPEP, selected districts were each given a sum of Rs. 40 crores annually, to plan a district
specific programme, ensuring accessibility of primary education to all. Under the DPEP, State
Governments received nearly 85 percent of the total costs as transfers from the Central
Government. The issuance of grants and not loans to States by the Centre ensured that additional
resources were created for States. Nine main areas of action were identified for the improvement
of primary education within the chosen districts. These included: (a) multi-grade teaching, (b)
reading and mathematics teaching and learning, (c) education planning and management, (d)
school management and effectiveness, (e) alternative and non-formal education, (f) development
of instructional materials, (g) new methods of pedagogy, (h) in-service training and (i)
educational research and evaluation.

68

4: International Cooperation and the Right to Development in India

The brief description of externally funded projects in education in the section above,
takes us onto the next part of the discussion concerning international assistance and its role in the
facilitation of rights in India. The subject of development aid has generally been a controversial
one. In ordinary everyday usage while the word aid refers to financial or material help
provided, commonly by one country to another. But when the main protagonists involved in the
process are nation states and other politically motivated actors, this simple rendering of help
across borders, takes on surcharged overtones.106 No matter what label is used the subject of aid
remains controversial, evoking a multiplicity of emotional and intellectual responses. A
phenomenon largely of the post-Second World War period, development aid has usually been
justified by donor countries for the following ends: relief in the form of consumer goods
designed to alleviate acute suffering in the short run; reconstruction, the Marshall Plan type of
aid to repair damages on account of war or other catastrophe; stabilisation aid to ease the shortterm balance of payment problems, and finally long-term development aid, in the form of
investable resources, designed to ease the shortage of domestic savings and to alleviate chronic
poverty. Whereas the scope and the declared objective of relief and reconstruction aid is more or
less short-term and limited to making available humanitarian assistance, stabilisation and project
aid involves a more long term engagement, encompassing a broader agenda of concerns than the
mere objective of providing help. As a result, while there is relatively little disagreement over

106

In its correct sense, the term aid refers only to those parts of capital inflow that are not provided for by the
market. It is important therefore to distinguish between foreign capital inflow and aid, as both cannot be treated as
synonymous. For aid to exist, the country or agency providing the assistance, must decide on making available help
which is otherwise not being provided through the market, i.e. trade. Thus while private capital movements may
yield substantial benefits to less developed countries, these can hardly be considered as foreign assistance.

69

relief and reconstruction aid, it is primarily the third, and the fourth type of development aid, that
have generated the greatest amount of controversy and debate.
India has been a beneficiary of the above mentioned forms of aid at some point of time or
other. Of late, the aid package has largely consisted of a combination of project cum policy loans
and grants from both bilateral and multilateral agencies, in support of the programme of
economic reforms currently underway. While it may not be possible to clearly pinpoint the
specific contribution of aid to the realisation of rights, it may be stated that aid coming in during
the 1990s following the structural adjustment agreement of 1991, has been largely instrumental
in inducing policy-level reforms in important sectors of the Indian economy. Recent assistance
coming in for health and education serve as relevant illustrations of the above. In recent years,
the external assistance coming in for social sector projects has increased by nearly six times
between the period 1992-93 and 2001-02.107 External assistance has not just helped ease the
pressure of resources for social sector programmes, but have also supported Government
initiatives in creating decentralised and participative models of planning.
At this stage, however, certain clarifications on aid are in order. The ability of aid to deliver
the desired results depends to a large extent on the domestic and social milieu of the specific
society that it seeks to serve. For example, donor agencies have little control over certain
limitations that may exist at the ground level, such as poor response rate, low capacity building,
weak administrative structures, etc. Judging the performance or contribution of aid without
recognizing local level obstacles in such a situation would thus be unfair. At the same time
however, the design of the aid programme may itself be at fault. For example the principle of
selectivity that justifies the giving of more aid to countries undertaking reforms, does not mean
107

Department of Economic Affairs, External Assistance Brochure 2001-02, Government of India.

70

that the aid will necessarily be provided to ameliorate poverty in the worst-off countries.108 The
World Banks Country Assistance Strategy for India provides an useful illustration of how an aid
framework governed by principles that makes acceptance of market-led reforms the condition for
assistance, be contrary to the rights framework.
The World Banks Country Assistance Strategy (CAS) for India is based on three
strategic principles selectivity, partnership and a programmatic approach. Adherence to the
principle of selectivity demands that the ddevelopment projects or programmes be encouraged in
only those States whose governments have (a) chosen to embark on a comprehensive programme
of economic reforms, including fiscal and governance and sectoral reforms of key sectors such as
power, (b) have expressed interest in entering into a partnership with the World Bank, or (c)
where poverty levels are relatively high. Andhra Pradesh in this context has been one of the main
beneficiaries followed by Uttar Pradesh, Karnataka, Orissa and Rajasthan of World Bank aid.
Such a selective policy of assistance has serious implications from the rights perspective. The
selection based on the above criteria obviously does not give importance to the extent or range of
deprivation. Instead, the choice of states depends upon the assessment of likely impact. The
selection of districts in Kerala in the first phase of the DPEP and not Orissa or any other
educationally backward state confirms the above thesis.
A similar problem lies with the World Banks notion of participation. As defined in the
language of rights, participation refers to the mechanism for ensuring that people have say in the
decision that affect their lives and that they become aware of their entitlements so that they can
claim them. In other words, it refers to the right that people have over the direction of the
development process, rather than simply being consulted about projects or policies that have
108

World Bank, Assessing Aid: What Works, What Doesnt and Why? (Washington DC, 1998).

71

already been decided upon. While the language of participation and accountability has been
adopted by the World Bank as part of its Country Assistance Strategy, the thrust of the World
Banks focus on participation has been solely on gaining inputs for its projects rather than on
broadening the realm of participation. The selection of partners has been ad-hoc the World
Banks interactions with civil society are restricted to a small circle of non-governmental
organizations (NGOs) of friendly disposition. The rise of anti-World Bank struggles in several
project areas accompanied by growing State repression confirms the limited role/acceptance that
non-conformist organisations have in decision-making. Considering that the loans are processed
ostensibly for the benefit of the public, who also ultimately bear the costs of repayments, it
would seem natural to expect a measure of transparency in the dealings. Ironically, however the
public neither gets to participate in the process of policy formulation nor do they have access to
the final loan documents that remain shrouded in secrecy under the Officials Secrets Act.
While donors have generally been favourable to the idea of institutionalising the rightsbased approach to development in the context of their country programmes in India, acceptance
of the rights framework is still not universal. While the World Bank has formally acknowledged
the importance of participation, transparency and accountability in development, it has however
made very little effort to institutionalise these principles in its country operations. It may be
recalled that the campaign by the oustees of the Narmada Dam in 1991-92 compelled the World
Bank administration to undertake certain structural changes such as the establishment of an
Inspection Panel to review cases of violation of rights in World Bank-sponsored development
projects, setting up of Public Information Centres, etc. In the four cases that have come up before

72

the Inspection Panel from India, in two of them, the Panel in its report have confirmed the
violation of rights in the course of the World Banks operations. 109
UNICEF in this context was the first agency to adopt the rights-based approach to its
country programmes in 1996. The Sitamarhi district plan that it took up as part of its Bihar
Education Project represented a positive commitment towards actual institutionalisation of
participatory structures in development. Additionally the principles of universality and
indivisibility of rights implied the absence of target groups except consideration for those
belonging to the disadvantaged sections of the society. A similar rights-based approach was
adopted by the United Nations Development Programme (UNDP) too. For example, the
introduction of a rights-based strategy to poverty alleviation provoked a shift from more standard
and traditional interventions focused on the improvement of peoples incomes through economic
growth toward interventions focusing on poverty alleviation as a process of expanding
fundamental choices and freedoms of people.
Overall, however, there has been a gradual and steady incorporation of the rights
language at both the multilateral and bilateral levels.110 The coming together of such
organisations under the United Nations Development Assistance Framework (UNDAF) initiative
where India is one of the 18 countries selected by the international community for preliminary
testing of the UNDAF initiative increases the probabilities of the gradual and steady
incorporation of the rights-based approach in development cooperation. Under this initiative,
donor institutions such as the WHO, ILO, UNICEF, UNIFEM, World Bank and others, have

109

India National Thermal Power Corporation (19970, India: Eco Development Project (1998), India: Coal sector
Rehabilitation Project (2001) and India-Mumbai Urban Transport Project (2004) See Inspection Panel,
Accountability at the World Bank (Washington DC, 2003).
110

Examples of bilateral organisation who have embraced the rights approach in their operations in India include
Department for International Development, (DFID) and NORAD.

73

agreed to channel the flow of aid resources through a common programme established under
UNDAF, in various sectors of the economy. Consensus at present is primarily limited to the
coordination of finances across programmes.
The DPEP in this context serves as a relevant example. Given the situation in some other
countries where a multitude of donor agencies work on primary education, the formation of an
umbrella organization converging external funding for primary education is a commendable
innovation. The DPEP is both supervised and evaluated jointly by donor agencies including the
World Bank, European Community, Department for International Development (DFID) (UK),
UNICEF, Netherlands and the Government of India, which meet regularly, twice a year.
Nominated education specialists and other professionals are constituted into teams that visit
selected districts of the project states. The World Banks Human Development Network has
specially identified the DPEP as a suitable case study of Education Reform and Management
practice.
While the DPEP makes explicit references to rights such as participation, in its focus on
decentralised planning, village education committees, gender, just curricula, and accountability,
it does not present an ideal example of a programme that adheres to the right to development
framework. The DPEP programme that operates at the level of districts, for example, follows a
highly selective policy that has serious implications from the rights perspective. The selection
based on the criteria of high and probable returns does not give importance to the extent or
range of intra-district deprivation that exists in parts of the country. The selection of districts in
Kerala in the first phase of the DPEP, and not Orissa or any other educationally backward state,
confirms the above thesis. Such a strategy not only creates a divide between states/districts but
more importantly has serious ramifications in terms of the achievement of the goals of human

74

development. Such a selective approach to aid allocations in fact contradicts the basic spirit of
development cooperation.

5: Right to Development in the Future

Positive signs of change are thus gradually becoming more and more visible. Education
that was previously a Directive Principle of State Policy has been granted the status of a
Fundamental Right. The Supreme Court Order that formed the basis for the Constitutional
Amendment observed Directive Principles and Fundamental Rights to be complementary to each
other. The Court cited Article 41 of the Indian Constitution that clearly calls upon the State
within the limits of its economic capacity and development to effectively make provisions for
securing the right to education for all citizens. The Court drew on the empowering role of
education in enhancing the intrinsic dignity and worth of human beings. The right to education
flows directly from right to life. The right to life under Article 21 and the dignity of an individual
are not being assured unless it is accompanied by the right to education.
The focus on the creation of an institutionalised mechanism of providing the public with
access to information is another salient feature. State governments have been asked to pass the
Right to Information Act that would make it mandatory for the government offices to make
available all vital information related to public programmes to the people. The states of
Rajasthan and Madhya Pradesh have passed such an act, empowering the local public to exercise
the right to participation at the village level. The public have the right to obtain duplicate
photocopies of all documents related to development projects in the village/block at an
affordable price. The Supreme Court, in face of complaints received that Governments were

75

overcharging the public for photocopying, has explicitly fixed the cost of reproduction to be no
more than a rupee for a single page.
Similar empowerment of the public has also happened in the case of health. Patients in
India have been given the legal power to challenge the quality of health care services provided to
them under the provisions of the Consumer Protection Act (1986). The significant judgement by
the State Commission of Orissa in Smt Sukanti Behera vs. Dr. Sashi Bhusan Rath (1993)
upholding the rights of patients, was a landmark decree that sought to rectify the power equations
between doctors and patients. Until then the medical fraternity had generally resisted,
acknowledging that medical services came within the purview of the broader provisions of
consumer protection. The judgement by the Supreme Court in the Indian Medical Association vs.
V. P. Shantha (1995) settled the matter by explicitly including medical services under the
protective sheath of the Consumer Protection Act.
Judicial interpretations such as the above have been instrumental in creating the
necessary space for the gradual institutionalisation of a rights-based approach to development in
India. The judiciary has relied heavily on Article 21 of the Constitution that recognises the right
of every citizen to live with human dignity. The linkages drawn by the Supreme Court between
the rights to food, primary education and basic health services and the right to life are important
as they establish the basis for a holistic and comprehensive human right to development.
However, these developments represent just mere beginnings. While the Government has
recognised through policy legislations the importance of instituting a rights-based approach to
development, and has committed itself to establishing a rights-based order, it still has a long way
to go before it begins to implement programmes within the proposed right to development
paradigm.

76

However, the whole problem of unemployment requires a more systemic treatment. The
absence of employment opportunities at the village level is responsible for the steady exodus of
people from the rural to urban areas. There are many States such as the hill state of Uttaranchal,
where remittances from outside play an important role in the running of the local economy.
These money-order based economies as they are popularly called have little infrastructure to
support employment opportunities within the State. The absence of employment opportunities
arising out of the relatively less developed character of such areas can in some cases become the
main reasons for social and political conflicts. The situation in the North Eastern States is a
relevant example of how economic poverty can become the flashpoint for ethnic strife, leading to
an escalation of both political and social violence. In such situations, to view the movements as
being simple law and order problems as is the case of Andhra Pradesh and Bihar where
Marxist-Leninist parties have been waging a movement against the States development policies,
does not make much headway. The central question remains development that includes all
aspects personal, social, economic, cultural and political.
The last five decades and more have seen the emergence of a number of social
movements of different political hues and colour articulating a strong critique of the existing
model of development. These include workers in both organised and unorganised sectors,
peasant struggles, displacement related movements and others. Invariably, all of them have
engaged with the question of obligations and the rights of individuals in development in some
form or the other. The non-implementation of labour laws, or the fixing of agricultural wages or
recognition of traditional land rights, reflect significant attempts at highlighting the importance
of economic, social and cultural rights in the process of development. The history of the rights

77

movement in India, especially in the post-Independence phase, is built up of narratives

concerning livelihood questions.
Unfortunately in India while politically all citizens are given equal rights, there is no such
guarantee concerning the realisation of social, economic and cultural rights. Social security
protection exists for a very small segment of the society. For example, pension, provident fund,
maternity benefits, etc. exist on a regular basis only for those working in the organised sectors of
the economy. For a large part of the work force involved in agricultural or small-scale
manufacturing or mining work, there is no such security. Presently, across India about 93 percent
of the total workforce is employed in the unorganised sector. This section of the workforce that
makes up for almost 99 percent of the total workers in the agricultural and trade sectors stands to
be ironically excluded from the benefits that are provided under existing laws to those working
in the organised sectors. This inequality gets captured in the highly skewed distribution of
income and opportunities, resulting in divisions of groups into visible categories of the privileged
and the under-privileged.
The impact of an institutionalised social protection mechanism over the lives of
agricultural labour serves as a relevant illustration of the above irony. The structure of land
ownership plays an integral part in determining the standard and quality of lives of those
engaged in agriculture. Reforms in land relations in the post-Independence period such as the
abolition of landlordism and subsequent equitable redistribution of land among small and
marginal farmers did not take off as expected and contributed little to the restructuring of
agrarian relations in the countryside. Agricultural workers, the bulk of the rural workforce,
continued to be at the bottom of the agrarian hierarchy with relatively no other asset but labour to
fall back upon. Although the State did provide for a Minimum Wages Act as far back as 1948, the

78

rigidity and divergence in wage rates between states proved to be of little benefit to workers
across the country. The initiative undertaken in Kerala where the State government provided for
pension and other family benefits to agricultural workers is a noted exception. However, for the
rest of the agricultural workforce, there was relatively little improvement in social conditions. It
is ironic that whereas the provision of a dearness allowance in the organised sector ensured
regular revisions of the wage rate, no such attempt was made to revise minimum wages that
seemed to stagnate at exceptionally low levels. Table 5.1 below provides a glimpse of the
existing variations in the structure of wages across a few states.

Table 5.1: Structure of Minimum Wages Across Sample States (2001)

Source

No. of Scheduled Employments for Range of Minimum wages per

which

minimum

wages have been day (in Rs.)

fixed/revised

Minimum

Maximum

Central Government

44

47.5

90.2

Andhra Pradesh

62

25.9

78.8

Bihar

74

41.0

58.6

Goa

18

21.0

140.3

Karnataka

59

40.5

79.1

Kerala

35

30.0

184.2

Maharashtra

63

8.4

119.3

Orissa

83

40.0

40.0

Punjab

60

70.8

73.4

Rajasthan

38

47.0

60.0

Tamil Nadu

60

32.0

105.7

Source: Government of India, http://labourbureau.nic.in/wagetab.htm

79

The above table shows the diversity in basic minimum wages across states. Not only are
there variations existing at the level of wage rates, there is also a huge difference in the number
of professions to which minimum wages have been made applicable. In Goa, whereas the
number of occupations covered under the minimum wage law has been 18, it is 83 in Orissa. The
review of the number of revisions made since the Act was first brought into being in 1948
reveals the relatively inflexible nature of wage rate escalation. A similar picture is visible in
other cases too. For example, in the Employment Guarantee Scheme fixed by Maharashtra, the
unemployment dole that has been fixed per person per day continues to be Rs.2, a sum that
would probably just about fetch a cup of tea keeping in mind the rising cost of basic
commodities.
Presently, the Government spends approximately Rs. 28, 225 crores towards social
security schemes.111 However, a large part of pension payments are made by both Central and
State Governments. If we take a broader look at social security encompassing public
expenditures made towards, health, education, nutrition etc, these too amount to a very small
portion of the resource plans. At the national level, the central Government spends only 4.02
percent of its GDP on financing education. It is notable that in its consideration of the report
submitted by the Government of India, the Committee on the Rights of Child has expressed
concern at the slow increase in the budget allocations for education. In its report, the Committee
has specifically called upon the Government to (a) make every effort to increase the proportion
of the budget allocated to realisation of childrens rights to the maximum extentof available
resources and in this context, to ensure the provision, including through international
cooperation, of appropriate human resources (b) develop ways to assess the impact of
111

Tenth Plan, Vol. II, p. 396.

80

budgetary allocations on the implementation of childrens rights, and to collect and disseminate
information in this regard.
The above issue draws attention to restructuring of resource allocations necessary to
ensure the realisation of basic rights within the country. The focus of the restructuring must be
on positive redistribution that does restrict the exercise to an internal reallocation of resources
within a particular sector, without making additional allocations in the total volume of resources.
Ironically, the present exercise of readjustment does precisely the same. The total expenditure for
education as a percentage of GDP has grown comparatively very little from 0.64 in 1951 to 4.02
percent in 2001. The Government has yet to meet its target of allocating 6 percent (GDP)
towards education. At the local level, where there is a paucity of resources, there is very little
coordination and convergence of programme objectives and goals that can potentially help tide
over some of the bottlenecks obstructing the achievement of the desired goals of development.
A number of unresolved issues relating to the implementation of the right to development
in India continue to exist. The practical integration of a rights perspective with development
requires a systematic change in some of the fundamental precepts of policy making. In the
present context of globalisation, the rights framework provides a useful entry point for
implementing a process of rights-based growth. The relationship between globalisation and
rights at present is double-edged. When states weaken, there are compelling arguments for
strengthening international social policy norms and principles to guard against new forms of
vulnerability, as well as enhance peoples capacity to take up new challenges. But globalisation
also undermines the States relative autonomy to carry out its responsibilities, particularly its
obligations related to social development and protection. The dilemma presents itself in a cyclic
form. Whereby globalisation generates a causal demand for social development, it ironically also

81

at the same time affects gravely the capacity of individual actors in meeting the goals of social
development. The above contradiction therefore makes it more imperative for Indian policy
makers to consciously interweave the rights framework into existing programmes of
development.

82

References
Primary Sources
UN Documents
Commission on Human Rights, Study on the Current State of Progress on the Implementation of the Right
to Development, First Report submitted by the Independent Expert pursuant to Commission on Human
Rights Resolution 1998/72 and United Nations General Assembly Resolution 53/155,
[E/CN.4/1999/WG.18/2], 27 July 1999.
Commission on Human Rights, Right to Development, Second Report submitted by the Independent
Expert pursuant to Commission on Human Rights Resolution 2000/5 and General Assembly resolution
54/175, [A/55/306], 17 August 2000.
Commission on Human Rights, Right to Development, Third Report submitted by the Independent expert
pursuant to Commission on Human Rights Resolution 2000/5, [E/CN.4/2001/WG.18/2], 2 January 2001.
Commission on Human Rights, Right to Development, Fourth Report submitted by the Independent
Expert pursuant to Commission on Human Rights Resolution 2001/9, [E/CN.4/2002/WG.18/2], 20
December 2001.
Commission on Human Rights, Right to Development, Fifth Report submitted by the Independent Expert
pursuant to Commission on Human Rights Resolution 2002/69, [E/CN.4/2002/WG.18/6], 17 September
2002.
Commission on Human Rights, Right to Development, Sixth Report submitted by the Independent Expert
pursuant to Commission on Human Rights resolution 2001/9 and 2002/69, [E/CN.4/2002/WG.18/2], 23
January 2003.
United Nations, Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, HRI/GEN/1/Rev.5, 26 April 2001.
United Nations General Assembly Resolution 41/128, Declaration on the Right to Development, 4
December 1986.
Government of India
Annual Reports of the Department of Education, Ministry of Human Resource Development, Government
of India.
Annual Reports of the Ministry of Health and Family Welfare, Government of India.
Annual Reports of the National Human Rights Commission.
Annual Reports of the Department of Women and Child Development, Ministry of Human Resource
Development, Government of India.
Census of India, Office of the Registrar-General, Government of India.
Economic Surveys, Economic Division, Ministry of Finance, Government of India.

83

Planning Commission, National Human Development Report 2001.

Planning Commission, Tenth Five Year Plan 2002-07.

Union Budgets, Ministry of Finance, Government of India.

Secondary Sources
Books
Alston, Philip ed., Peoples Rights (Oxford: Oxford University Press, 2001).
Austin, Granville, The Indian Constitution: Cornerstone of a Nation (Bombay: Oxford University Press,
1985).
Bakshi, P.M., The Constitution of India (New Delhi: Universal Law Publishing, 2000, 4th edn.).
Balagopal, K., Probings in the Political Economy of Agrarian Classes and Conflicts (Hyderabad:
Perspectives, 1988).
Banerjee, Sumanta, In the Wake of Naxalbari (Calcutta: Subarnarekha, 1980).
Basu, Durga Das, Introduction to the Constitution of India (New Delhi: Prentice-Hall, 1984).
Basu, Moushumi, World Banks Lending to the Social Sector in India, Doctoral thesis (unpublished),
Jawaharlal Nehru University, 2003.
Beteille, Andre, Studies in Agrarian Social Structure (Delhi: Oxford University Press, 1974).
Brass, Paul R., The Politics of India Since Independence (Delhi: Cambridge University Press, 1994, 2nd
edn.).
Centre for Development and Human Rights, The Right to Development: A Primer (New Delhi: Sage,
2004).
Centre for Equity Studies, Mid-day Meals: Field Survey (Delhi , 2003).
Chatterjee, Partha, The Nation and its Fragments: Colonial and Postcolonial Histories (Delhi: Oxford
University Press, 1995, Indian edn.).
Das Gupta, Monica, Chen, Lincoln C. and Krishnan, T.N., ed., Health, Poverty and Development in India
(Delhi: Oxford University Press, 1996).
Desai, A.R., ed., Violation of Democratic Rights in India (Bombay: Popular Prakashan, 1986).
Dev, Mahendra, Kannan, K.P, and Ramachandran, Nira, ed., Towards a Food Secure India: Issues and
Policies (New Delhi: Institute for Human Development, 2003).

84

Dreze, Jean and Sen, Amartya, ed., Indian Development: Selected Regional Perspectives (Delhi: Oxford
University Press for UNU/WIDER, 1997).
------- India: Economic Development and Social Opportunity (Delhi: Oxford University Press, 1995).
Dutt, Rajni Palme, India To-day (Calcutta: Peoples Publishing House 1970, 2nd edn).
Dutt, Romesh, The Economic History of India: In the Victorian Age 1837-1900 (Delhi: 1963).
Franciscans International, The Right to Development: Reflections on the First Four Reports of the
Independent Expert on the Right to Development (Geneva: Franciscans International, 2003).
Gandhi Navdita and Shah Nandita, The Issues at Stake: Theory and Practice in the Contemporary
Womens Movement in India (New Delhi: Kali for Women, 1991).
Kashyap, Subhash C., Our Constitution: An Introduction to Indias Constitution and Constitutional Law
(Delhi: National Book Trust, 2004 reprint).
Kaviraj, Sudipto, ed., Politics in India (Delhi: Oxford University Press, 1999).
Kohli, Atul, The State and Poverty in India: The Politics of Reform (Cambridge: Cambridge University
Press, 1987).
Meier, Gerald M. and Seers, Dudley, ed., Pioneers in Development (New York: Oxford University Press
for the World Bank, 1984).
Murlidhar, S., Implementation of Court Orders in the Area of Economic, Social and Cultural Rights : An
Overview of the Experience of the Indian Judiciary, Paper presented at the First South Asian Regional
Judicial Colloquium, New Delhi, 1-3 November, 2002.
Myrdal, Gunnar, Asian Drama: An Inquiry into the Poverty of Nations (New Delhi: Kalyani, 1992 Indian
reprint).
Omvedt, Gail, Dalit Visions: The Anti-Caste Movement and the Construction of an Indian Identity (New
Delhi: Sage, 1995).
Right to Food Campaign, Legal Action for the Right to Food: Supreme Court Orders and Related
Documents (place of publication not mentioned, January 2004).
Sachdev, H.P.S, and Choudhary, Panna, ed., Nutrition in Children: Developing Country Concerns (Delhi:
Department of Pediatrics, Maulana Azad Medical College, 1994).
Sarkar, Sumit, Modern India 1885-1947 (Madras: Macmillans, 1983 reprint).
Sen, Amartya, Development as Freedom (Oxford: Oxford University Press, 1999).
---------Dreze, Jean, Hunger and Public Action (Delhi: Oxford University Press, 1993).
Shah, Ghanshyam, Social Movements in India: A Review of Literature (Delhi: Sage, 2004).

85

Skogly, Sigrun I., The Human Rights Obligations of the World Bank and the International Monetary
Fund (London: Cavendish Publishing Ltd., 2001).
Srinivas, M.N., Social Change in Modern India (Berkeley: University of California Press, 1966).
Steiner, Henry J., and Alston, Philip, Law, Politics, Morals (Oxford: Clarendon Press, 1996).
Symonides, Janusz, ed., Human Rights: Concept and Standards (Aldershot: Ashgate for UNESCO,
2000).
The Indian Law Institute, Legal Framework for Health care in India (New Delhi: Butterworths, 2002).
Thiis, Oyvind Waeenskjold, The Right to Development: A Report to NORAD (Oslo: Institutt for
Menneskerettigheter, 2000).
Toye, John, Dilemmas of Development: Reflections on the Counter-Revolution in Development Theory
and Policy (Oxford: Basil Blackwell, 1987).
Articles
Alston, Philip, Making Space for New Human Rights: The Case of the Right to Development, Harvard
Human Rights Yearbook, 1988, Vol. 1, pp.3-40.
Bhatia, Bela and Dreze Jean, Starving Still in Jahrkhand, Frontline, Vol. 19 (16), August 3-16, 2002.
Donnelly, J., In Search of the unicorn : the jurisprudence and politics of the right to development 15,
California Western International Law Journal, Vol.15, 1985, pp. 473-509.
Hellar, Patrick, From Class Struggle to Class Compromise: Redistribution and Growth in a South Indian
State, The Journal of Development Studies, Vol. 31 (5), June 1995.
Hulston, Jackbeth K. Mapulanga, Examining the Justiciability of Economic, Social and Cultural Rights,
The International Journal of Human Rights, Vol. 6 (4), Winter 2002, pp. 29-48.
Sathe, D. and Aggarwal, S., Liberalisation of Pulses Sector: Production, Economic and Political
Weekly, July 2004, pp. 3391-97.
Swaminathan, M.S., Food for Peace and Development, The Hindu, January 10, 2002.

86