Rights reconceived: India’s new approach

Instead of viewing India’s role in global human rights from a foreign policy perspective, it is also important to examine whether India offers any lessons on human rights for other states by providing an alternative to the dominant discourse on rights. A contribution to the openGlobalRights debates on Emerging Powers and Human Rights and Economic and Social Rights.

Mathew Idiculla
3 September 2013

“Can India be an international human rights leader?” asks Meenakshi Ganguly in a lead article on openGlobalRights’ theme of “Emerging Powers and Human Rights”. Considering the fact that openGlobalRights seeks to be a platform that openly discusses the future of global human rights, it becomes pertinent to question the kind of questions we ask.  Ganguly addresses the question of India’s human rights from a foreign policy standpoint.

To have a “voice in global affairs”, she argues, India should have a strong foreign policy that promotes human rights abroad. This narrative echoes statements made by states of the global north which, blind to their own behavior, strongly urge emerging democracies to take positions against countries that violate human rights. Aseem Prakash in his response argues why India should not aim to be a global human rights leader while Ram Mashru reasons why it makes little strategic sense to have such aims.

India’s role in the global human rights movement should not be viewed purely through a foreign policy outlook of why/how/whether India should be human rights leader. A more edifying question to consider would be whether India, as an emerging power from the global south, offers any lessons on human rights that other states can learn from. And perhaps more importantly- can it offer an alternative perspective on human rights beyond the individual-centered negative rights paradigm that currently dominates global discourse?

Expanding socio-economic rights

India, as an emerging power with high economic growth rate and low social indicators, presents an interesting field to understand how human rights are recognized and enforced. Though Indian society has not become fully “modern”, it is a liberal constitutional republic with a modern legal system that guarantees the protection of fundamental rights. Over the years, the Indian Supreme Court has expansively interpreted the rights enshrined in the Constitution to hold that the right to life and liberty means the right to live with human dignity which includes basic right to food, clothing, shelter, education, health, among others.

In the last decade, India has undertaken a robust rights-based approach to development with its Parliament enacting legislations that reconstitutes welfare provisions as statutory rights and these include the right to information, education, work and food. Hence, through the legal recognition of socio-economic rights, both the judiciary and the legislature in India are moving beyond the negative conception of human rights and including positive rights as enforceable entitlements. In many ways it blurs traditional boundaries in international jurisprudence drawn between civil and political rights and economic, social and cultural rights as enshrined in UN Conventions.

Interestingly, the genesis of many of these rights lies in persistent, broad-based social and political movements that demanded the legal recognition of such rights. What is also exceptional about India’s new rights regime is that they are not social security schemes which operate as per the expediency of the government. Rather, these are rights based in statutory law that enforces legal accountability by providing concrete mechanisms for its realization. It is true that even with such institutions human rights violations can continue.  Nevertheless, the transformation of claims to socio-economic rights to legal entitlements in India is a crucial progression that needs wider global deliberation.

Exercising collective rights

Beyond the liberal conception of individual-centered rights that is contingent on state action, India’s recent experience also brings into focus the concept of customary group rights. The Forest Rights Act enacted in 2006 empowers tribal communities living in forests to ensure that their habitat is preserved from all forms of destructive practices that affect their cultural and ecological heritage. Over the last one month, the implications of this law were dramatically played out, across 12 tiny villages in Niyamgiri hills in interior India, as a battle between primeval tribal groups and the British Multinational Vedanta.

As per a Supreme Court decision, Gram Sabha (Village Assembly constituting all adult members) meetings were held in 12 villages affected by Vedanta’s mining project to determine whether the religious and cultural rights of the tribal communities would be violated by mining activities. In an incredible exercise, each of the 12 Gram Sabha’s were given separate public hearings in which all the 12 assemblies rejected  Vedanta’s mining project while asserting their cultural rights.

The global discourse on human rights, inevitably emerging from the global north, usually assumes a singular and uniform conception of rights. Efforts and experiences arising out of emerging powers like India, has the potential to challenge the orthodoxy of the current human rights discourse.  The elevation of socio-economic rights to the level of negative rights and the recognition of religious and cultural rights of indigenous groups in India redefines rights and raises relevant questions on which conceptions of human rights needs to be fortified globally. 


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