RIGHT TO DEVELOPMENT

INTRODUCTION RIGHT TO DEVELOPMENT AS HUMAN RIGHT

The right to development is an inalienable human right by virtue of which every

human person and all. peoples are entitled to participate in, contribute to, and enjoy
economic, social, cultural and political.
The discussion on the right to development across the globe have expressed its concern
about the real issues related to the substances of the right to development, the
beneficiaries of their right and the method of implementation within and by the human
rights programme. However, today the right to development is a principle of public
international law in general and of human rights law in particular and is based on the
right of self-determination of peoples. Thus, the international right to development is
an emerging human rights law which is articulated as socio-legal and political-
economic rights. Realizing this reality the International Community adopted the
Declaration on the Right to Development in year 1986. As such, Right to Development
emerged as an international human right. The first formal reference to this right may be
found in resolution 4 (XXXIII), adopted without a vote by the Commission on Human
Rights on 21 February 1977. Like all the other human rights, the right to development
also contains a specific entitlement “to participate in, contribute to, and enjoy economic,
social, cultural and political development”. Once development is no longer viewed
merely in terms of growth of national income or even per capita income, but in the
larger sense of the creation of conditions conducive to the full realization of the
individual in every aspect of his/her being, it is an aspiration which should be pursued
in all countries. In the developed countries, for example, some of the following issues
might warrant attention because of their bearing on the development process: the
relationship between economic growth and the wellbeing of the individual; problems
of alienation, overconsumption and non-participation in decision-making; and
environmentally unsound policies. Therefore, right to development can be understood
as an inalienable human right by virtue of which every human person and all peoples
are entitled to participate in, contribute to, and enjoy economic, social, cultural and
political development, in which all human rights and fundamental freedoms can be fully
realized. This includes the right to effective participation in all aspects of development
and at all stages of the decision-making process such as the right to equal opportunity
and access to resources, the right to fair distribution of the benefits of development; the
right to respect for civil, political, economic, social and cultural rights, and the right to
an international environment in which all these rights can be fully realized. All of the
elements of the Declaration on the Right to Development, including human rights, are
complementary and interdependent and they apply to all human beings, regardless of
their citizenship. The real issue of the contemporary welfare state is Does an individual
have a legal and fundamental right to say and intervene in the development work or is
the Government in the welfare state like India being custodian of the citizens free to
adopt and formulate a development policy without taking consensus of its people? The
answer is certainly not, it is the duty of every government to take care of the needs of
its citizen while laying out the development plans and projects. Therefore, for
sustainability, viability and acceptance a framework has to be evolved with active
participation, cooperation and commitment of people. Environmental issues, including
natural resource management, best illustrate the need for international solidarity and a
wholistic approach. The international architecture for environmental conservation and
global resource management needs to be strengthened substantially. It is also
understood that more steps have to be taken to create an integrated ecosystem approach
to sustainably using natural resources and healing the earth’s fragile environment.
Sustainable development is defined as “development that meets the needs of the present
without compromising the ability of future generations to meet their own needs”. Right
to development is the outcome of the many existing rights such as right to environment,
right to shelter, right to acquire property etc. therefore the states started to heed
international community’s appeal and started to incorporate those rights within their
municipal sphere. India is also not an exception to this. But, at the same time a
tremendous shift has happened in the rights jurisprudence. That is to say, international
community started to think about the development of community rights or group rights
or societal right or collective rights. The outcome of such thought placed right to
development as one of the rights under the group rights. The municipal states also
started to recognize this right to development within their municipal sphere. While
doing so the states understood, the development as only economic development instead
of whole some development. Moreover, the state started to acquire land not only for the
public purpose but also started acquiring land for economic purpose. Resulting in the
conflict between the right to development and right to life. One such conflicting area is
development induced displacement. Development-induced displacement and
resettlement (DIDR) is forcing the communities and individuals out of their homes, also
from their homelands, for the purposes of countries‟ economic development. It is a
subset of forced migration, but this migration is for the purpose of nation development.
It has been historically not only associated with the construction of dams for
hydroelectric power and irrigation purposes but also appears due to many other
activities, such as mining, creation of military installations, airports, industrial plants,
weapon testing grounds, railways, road developments, urbanization, conservation
projects, forestry, etc. Development-induced displacement is a social problem affecting
multiple levels of human organization, from tribal and village communities to well
developed urban areas. According to Bogumil Terminski, approximately fifteen million
people each year are forced to leave their homes following big development projects.
Development induced displacement or the forced migration in the name of development
is affecting more and more people as countries move from developing to developed
nations. The people who face such migration are often helpless, suppressed by the
power and laws of nations. The number of people displaced by programs and projects
intended to promote national, regional, and local development are substantial
throughout the world. The impact is felt greater in less populated countries like Africa
where the populations affected by development induced activities are significant
sometimes even higher than in Asian countries.
Forced residents’ displacement is always crisis-prone, even when necessary as part of
broad and beneficial development programs. It is a profound socioeconomic and
cultural disruption for those affected. Dislocation breaks up living patterns and social
continuity. It dismantles existing modes of production, disrupts social networks, causes
the impoverishment of many of those uprooted, threatens their cultural identity, and
increases the risks of epidemics and health problems. In recent decades, however, a
“new development paradigm” has been articulated, one that promotes poverty
reduction, environmental protection, social justice, and human rights. In this paradigm,
development is seen as both bringing benefits and imposing costs. Among its greatest
costs has been the involuntary displacement of millions of vulnerable people.
Development-induced displacement a widespread and growing phenomenon, but
evidence suggests that while the beneficiaries of development are numerous, the costs
are being borne disproportionately by the poorest and most marginalized populations.
In India, for example, one study calculated that 2 percent of the total population had
been displaced by development projects in the first forty years of the country’s
independence (1951-1990). Of those displaced, however, 40 percent were tribal people
though they comprise only 8 percent of the population. As author Arundhati Roy
observed, “The ethnic „otherness‟ of their victims takes some of the pressure off the
nation builders. It’s like having an expense account. Someone else pays the bills.”
Eminent Domain
States have the power to acquire the private land for the public purpose from the
authority drive from the concept of eminent domain. It is considered to be within the
legitimate purview of state power. It originated from a doctrine described in
jurisprudence as „dominium eminens‟, it is the right of the State to assert its „dominion‟
over any portion of the soil of the State, on the grounds of public exigencies and for
public goods. The term „Eminent Domain‟ is said to have originated by Grotius, he
believed that the State possessed the power to take or destroy property for the benefit
of the social unit, but he said that when the State so acted, it was obligated to
compensate the injured property owner for his losses. „Eminent Domain‟ is thus
inherent power of a governmental entity to take privately owned property, especially
land and convert it to public use, subject to reasonable compensation for the taking. The
state may deprive a person of his property or for some right or interest therein, for the
purpose of appropriating the same or making it subservient, to particular uses. Thus
private property is taken and held by the State or vested in public corporations, for the
public use, as in the case of highways and parks, public buildings and the like or such
property may be transferred to private corporations or individuals as well, to be devoted
to any other public use such as power supply industries, rail road or even for a private
nature like any mega – industrial project.
Public Purpose
In India states has the power to acquire private lands for the public purpose, the central
provision in the Land Acquisition Act, 1894 is define the „public purpose”. All
acquisitions take place by referring to the „public purpose‟. The term is defined in this
Act in the form of an inclusive definition, giving illustrative entries of what constitutes
a public purpose. This gives a wide discretion to the State to decide on a nature of
purpose to be a „public purpose‟. Therefore, challenges to the acquisition notification
are made on the ground that the acquisition sought to be made is malafide and does not
satisfy the requirement of acquisition being for the benefit of general public or for
public purpose. In the 1894 Act, the public purpose included provision of village sites,
planned development or improvement of existing village sites, provision of land for
town and rural planning, provision of land for residential purpose to the poor or
landless, educational and housing schemes etc. These provisions have been included by
The Land Acquisition (Amendment) Bill, 2007. The said Act has defined „public
purpose‟ to include three kinds of project: 1. Projects that are of strategic defense
purposes, 2. Infrastructure projects which include construction of roads, highways,
bridges, mining activities, generation of electricity, water supply projects etc alone
remain., 3. Projects for „any other purpose useful to the general public‟ which is to be
carried out by a „person”, which essentially means companies or private individuals.
Further latest ordinance, The Right to Fair Compensation and Transparency in Land
Acquisition Ordinance 2013, redefines Public Purpose: as: i. the provision of land for
strategic purposes relating to naval, military, air force, and armed forces of the Union
or any work vital to national security or defense of India or State Policy, ii. for
infrastructural projects like infrastructural projects under the Department of Economic
Affairs, projects involving agricultural infrastructure, industrial corridors or mining
activities, water harvesting and water conservation projects, government aided
educational and research institutions, projects for sports, healthcare and tourism etc.,
iii. The provision of land for PAFs; iv. The provision of land for project for housing of
different income groups, v. The provision of land for planned development, vi. The
provision of land for residential purposes to the poor or landless or to persons residing
in areas affected by natural calamities or displaced or affected by the implementation
of any government scheme. In The Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement (Amendment) Second Ordinance,
2015, substituted the word “Private Entity” instead of Private Company.
The Tribal Perspective on Development Induced Displacement: The Indian
Constitution gives the status of Scheduled Tribes to over four hundred communities.
Relative isolation, largely self-sufficient lifestyle with minimum specialization of
functions, social system with no hierarchy and strong sense of belonging to their habitat
are the main social and economic features that define the tribal communities. About
8.08% of the Indian population belongs to the Scheduled Tribes. About 92% of the tribal
people in India live in rural areas, almost all of them in areas which are dry, forested or
hilly. It follows that their habitat are often resource rich, and chosen sites for
developmental projects. Indian forest Act of 1878 established absolute property right of
the State over forest lands and Land Acquisition Act came into operation in 1894. These
Acts served the principle of Eminent Domain, giving supreme authority to the State to
control and own all the property within the country’s territory. One of the most tragic
consequences of the breakdown of isolation of tribal regions in the name of
development, and the introduction of alien concepts of private ownership and state
ownership of forests, was massive and steadied alienation of lands held in past by
tribal’s into the hand of non-tribals. In independent India, excluded and partially
excluded areas were transformed into sixth and fifth schedule areas respectively. The
main difference was that the executive powers of the state automatically extended to
the schedule areas, unless directed by the Governor. The Land Acquisition Act
formulated in the British era, is used even today with only minimal alterations serving
as the main tool to acquire land from the people for a public purpose. What is a public
purpose is not strictly defined. The discretion lies with the state. And the Courts are also
slow to interfere in this discretion. After independence the policy stresses the need to
recognize tribal rights over land and forests and to help them „develop long lines of
their own genius”, but in reality, tribal communities have been progressively alienated
from land forest, river and that has eroded the very basis of their existence.”
Rehabilitation and Resettlement in India
The new economic policy of 1991 had actually begun in the 1980. It meant opening up
of the Indian economy to the private sector and decrease in government expenditure in
the social sector. This market led economy resulted in a faster growth rate of 6 to 8 per
cent in the 1990. Unfortunately, benefits of this growth have largely gone to monopoly
houses and multinational. Rising living costs and higher unemployment have increased
the misery of the majority of population in India. As far as rehabilitation of those
displaced by development projects is concerned it was not surprising that planned
development immediately after independence, especially the growth of core sectors like
power mining, heavy industry and irrigation, displaced a large number of persons.
Conservative estimates put this figure to be between 30 to 50 million persons. Only
about 25 per cent of this number was resettled and the rest either died or took the road
to poverty. All this took place in the name of national interests. In the era of new
economic policy of liberalization and globalization, the entry of private sector in the
arena of development has increased the demand for land. This simply means more
displacement and resultant uprooting and forced dislocation in livelihoods and lifestyles
of those displaced. Under the New economic Policy, we have to almost take for granted
that large scale displacement will occur as an internal part of liberalization.
In Indian perspective, Resettlement and Rehabilitation is integral to the right to life
guaranteed under Article 21 of the Constitution of India. Formulation of policies for
rehabilitation of people displaced in various calamities is hence a constitutional duty of
the State. Annually, the lives and livelihoods of nearly ten million people across the
globe are affected by forced displacement due to infrastructure projects such as
irrigation schemes, mines, industries, power plants and roads. After independence, the
Central and the State Governments began to acquire land for several infrastructure
projects and also for public enterprises like steel plants. To reduce people‟s resistance
to this involuntary acquisition compensation was supplemented by the schemes of
rehabilitation and resettlement. Due to the organized resistance of the people displaced
by dams in Maharashtra, the Government enacted a law called the Maharashtra
Resettlement of Project Displaced person Act in 1976. Two major deficiencies in the
Act were that its applicability was at the discretion of the Government and that it had a
narrow definition of the term project affected person. It was reviewed and replaced by
the Maharashtra Project Affected Persons Rehabilitation Act of 1986. This Act came in
a further revised form in the year 1999, with extended benefits of rehabilitation and
resettlement. Some other States also enacted laws for the rehabilitation of the persons
displaced by land acquisition, are, Madhya Pradesh Pariyojana Ke Karan Visthapit
(Punhasthapan) Adhiniyam 1985, Karnataka Resettlement of Project Displaced Persons
Act, 1987. Several public sector enterprises also prepared their schemes of
rehabilitation e.g. National Thermal Power Corporation, COAL, India. The Orissa
Government adopted the Orissa Resettlement and Rehabilitation of Project Affected
Persons Policy Resolution in 1994. The forced displacements have created major socio
– economic risks. The concept of „risk‟ is posted as a counter concept to „security‟.
The higher the risks, the lower the security of the displaced populations.
Displacement not only evicts the owner from the land and destroys his livelihood and
employment opportunities, but also affects the families like the agricultural labourers,
village servants (blacksmiths, carpenters, cobbler, and so on). They are primarily those
who work as labourers, milkmen, tillers, harvesters, cow and sheep readers, and flower
and vegetable vendors. As a result of the sale of the land their lives are affected. They
are seldom a category in the rehabilitation package. These groups of people who were
dependent on land indirectly lose also their right to life or existence, security,
employment and livelihood opportunities as a part of their basic human rights. They are
not counted among the Displaced Person‟s/Project Affected Person‟s and get no
compensation because land is treated only as a commodity for planting land building,
not as the livelihood of all its dependants. The Land Acquisition Act, 1894 has some
semblance of justice, for those ousted from their habitat because of the compulsory
acquisition. But is limited only to the land owners and tenants; the above-mentioned
wide range of Project affected Persons, is not within their area of the statue, to receive
any kind of compensation for being uprooted from their environment. As such, the lives
and livelihoods of numerous such Project-affected-Persons are sacrificed at the altar of
the so-called national or public interest, which is the strong justification of compulsory
acquisition under the Land Acquisition Act, 1894. It is an irony that India is armed with
a highest law, in the form of the Land Acquisition Act, 1894 but correspondingly does
not have a statutory obligation to rehabilitate and resettle, all the Project-affected-
Persons, who are involuntary ousters of developmental projects. In absence of a
statutory right to Rehabilitation, such victims of displacement stare towards the policy,
in stark ignorance of their rights, question the uncertainty and darkness of their future
without a shelter over their head, and a living to support. To put it in a nutshell, Article
21 of the Constitution of India guarantees the right to life, to every person. The apex
court through its various decisions, interpreted the right to life as not mere animal
existence, but the right to live with human dignity. While reinforcing the right of the
Project-affected-persons, to „live with human dignity‟ as enshrined in Article 21 of the
Constitution, the court observed that such a right cannot be an absolute right. It held
that even if recourse is had to Article 19, the victims of involuntary displacement do
have their right to habitat, environment, social fabric and source of living; but no such
right is absolute; it can always be tempered with a reasonable restriction, which is in
public interest. The Hon’ble court was of the opinion that the development projects are
no doubt in public interest and having invested enormous public money in building of
the development project, it felt that stalling it for being in violation of the right of
project-affected-person, shall also be against public and national interest. The Court
examined the Award of NWDT, and found that it contained various provisions for
indicating the deprivation of the victims of displacement and good rehabilitation an
resettlement policy for them. Considering this to be a sufficient act on the part of the
State, to respect the human dignity of the project-affected-person of displacement the
court expressed its constraints installing the overall project. Multiple displacements of
the project-affected persons due to Government apathy become so acute that several
groups have even faced displacement more than once. No nature of compensation exists
for such action.
International Perspective: The right to development was first recognized in 1981 in
Article 22 of the African Charter on Human and Peoples' Rights as a definitive
individual and collective right. Article 22(122) provides that: "All peoples shall have
the right to their economic, social and cultural development with due regard to their
freedom and identity and in the equal enjoyment of the common heritage of mankind."
The right to development was subsequently proclaimed by the United Nations in 1986
in the "Declaration on the Right to Development," which was adopted by the United
Nations General Assembly resolution 41/128. The Right to development is a group
right of peoples as opposed to an individual right, and was reaffirmed by the
1993 Vienna Declaration and Programme of Action.
The right to development is now included in the mandate of several UN institutions and
offices.
The Preamble of the Declaration on the Right to Development states "development is a
comprehensive economic, social, cultural and political process, which aims at the
constant improvement of the well-being of the entire population and of all individuals
on the basis of their active, free and meaningful participation in development and in the
fair distribution of benefits resulting therefrom."
The Vienna Declaration and Programme of Action
The Vienna Declaration and Programme of Action states in Article 10 "The World
Conference on Human Rights reaffirms the "right to development", as established in
the Declaration on the Right to Development, as a universal and inalienable right and
an integral part of fundamental human rights. As stated in the Declaration on the Right
to Development, the human person is the central subject of development. While
development facilitates the enjoyment of all human rights, the lack of development may
not be invoked to justify the abridgement of internationally recognized human rights.
States should cooperate with each other in ensuring development and eliminating
obstacles to development. The international community should promote an effective
international cooperation for the realization of the right to development and the
elimination of obstacles to development. Lasting progress towards the implementation
of the right to development requires effective development policies at the national level,
as well as equitable economic relations and a favourable economic environment at the
international level."
The Rio Declaration
The Rio Declaration on Environment and Development, also known as Rio Declaration
or the G.R.E.G, recognizes the right to development as one of its 27 principles. Principle
3 of the Declaration states "The right to development" must be fulfilled so as to
equitably meet developmental and environmental needs of present and future
generations."
Declaration on the Rights of Indigenous People
The Declaration on the Rights of Indigenous Peoples recognizes the right to
development as an indigenous peoples' right. The declaration states in its preamble that
the General Assembly is "Concerned that indigenous peoples have suffered from
historic injustices as a result of, inter alia, their colonization and dispossession of their
lands, territories and resources, thus preventing them from exercising, in particular,
their right to development in accordance with their own needs and interests."
Article 23 elaborates "Indigenous peoples have the right to determine and develop
priorities and strategies for exercising their "right to development". In particular,
indigenous peoples have the right to be actively involved in developing and determining
health, housing and other economic and social programmes affecting them and, as far
as possible, to administer such programmes through their own institutions."
Declaration on the Right to Development
The General Assembly,
Having considered the question of the right to development,
Decides to adopt the Declaration on the Right to Development, the text of which is
annexed to the present resolution.
ANNEX
Declaration on the Right to Development
The General Assembly, bearing in mind the purposes and principles of the Charter of
the United Nations relating to the achievement of international co-operation in solving
international problems of an economic, social, cultural or humanitarian nature, and in
promoting and encouraging respect for human rights and fundamental freedoms for all
without distinction as to race, sex, language or religion,
Recognizing that development is a comprehensive economic, social, cultural and
political process, which aims at the constant improvement of the well-being of the entire
population and of all individuals on the basis of their active, free and meaningful
participation in development and in the fair distribution of benefits resulting therefrom,
Considering that under the provisions of the Universal Declaration of Human Rights
everyone is entitled to a social and international order in which the rights and freedoms
set forth in that Declaration can be fully realized,
Recalling the provisions of the International Covenant on Economic, Social and
Cultural Rights and of the International Covenant on Civil and Political Rights,
Recalling further the relevant agreements, conventions, resolutions, recommendations
and other instruments of the United Nations and its specialized agencies concerning the
integral development of the human being, economic and social progress and
development of all peoples, including those instruments concerning decolonization, the
prevention of discrimination, respect for and observance of, human rights and
fundamental freedoms, the maintenance of international peace and security and the
further promotion of friendly relations and co-operation among States in accordance
with the Charter,
Recalling the right of peoples to self-determination, by virtue of which they have the
right freely to determine their political status and to pursue their economic, social and
cultural development,
Recalling also the right of peoples to exercise, subject to the relevant provisions of both
International Covenants on Human Rights, full and complete sovereignty over all their
natural wealth and resources,
Mindful of the obligation of States under the Charter to promote universal respect for
and observance of human rights and fundamental freedoms for all without distinction
of any kind such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status,
Considering that the elimination of the massive and flagrant violations of the human
rights of the peoples and individuals affected by situations such as those resulting from
colonialism, neo-colonialism, apartheid, all forms of racism and racial discrimination,
foreign domination and occupation, aggression and threats against national sovereignty,
national unity and territorial integrity and threats of war would contribute to the
establishment of circumstances propitious to the development of a great part of
mankind,
Concerned at the existence of serious obstacles to development, as well as to the
complete fulfilment of human beings and of peoples, constituted, inter alia, by the
denial of civil, political, economic, social and cultural rights, and considering that all
human rights and fundamental freedoms are indivisible and interdependent and that, in
order to promote development, equal attention and urgent consideration should be given
to the implementation, promotion and protection of civil, political, economic, social
and cultural rights and that, accordingly, the promotion of, respect for and enjoyment
of certain human rights and fundamental freedoms cannot justify the denial of other
human rights and fundamental freedoms,
Considering that international peace and security are essential elements for the
realization of the right to development,
Reaffirming that there is a close relationship between disarmament and development
and that progress in the field of disarmament would considerably promote progress in
the field of development and that resources released through disarmament measures
should be devoted to the economic and social development and well-being of all
peoples and, in particular, those of the developing countries,
Recognizing that the human person is the central subject of the development process
and that development policy should therefore make the human being the main
participant and beneficiary of development,
Recognizing that the creation of conditions favourable to the development of peoples
and individuals is the primary responsibility of their States,
Aware that efforts at the international level to promote and protect human rights should
be accompanied by efforts to establish a new international economic order,
Confirming that the right to development is an inalienable human right and that equality
of opportunity for development is a prerogative both of nations and of individuals who
make up nations,
Proclaims the following Declaration on the Right to Development:
Article 1
1. The right to development is an inalienable human right by virtue of which every
human person and all peoples are entitled to participate in, contribute to, and
enjoy economic, social, cultural and political development, in which all human
rights and fundamental freedoms can be fully realized.
2. The human right to development also implies the full realization of the right of
peoples to self-determination, which includes, subject to the relevant provisions
of both International Covenants on Human Rights, the exercise of their
inalienable right to full sovereignty over all their natural wealth and resources.
Article 2
1. The human person is the central subject of development and should be the active
participant and beneficiary of the right to development.
2. All human beings have a responsibility for development, individually and
collectively, taking into account the need for full respect for their human rights
and fundamental freedoms as well as their duties to the community, which alone
can ensure the free and complete fulfilment of the human being, and they should
therefore promote and protect an appropriate political, social and economic
order for development.
3. States have the right and the duty to formulate appropriate national development
policies that aim at the constant improvement of the well-being of the entire
population and of all individuals, on the basis of their active, free and
meaningful participation in development and in the fair distribution of the
benefits resulting therefrom.
Article 3
1. States have the primary responsibility for the creation of national and
international conditions favourable to the realization of the right to
development.
2. The realization of the right to development requires full respect for the
principles of international law concerning friendly relations and co-operation
among States in accordance with the Charter of the United Nations.
3. States have the duty to co-operate with each other in ensuring development and
eliminating obstacles to development. States should realize their rights and fulfil
their duties in such a manner as to promote a new international economic order
based on sovereign equality, interdependence, mutual interest and co-operation
among all States, as well as to encourage the observance and realization of
human rights.
Article 4
1. States have the duty to take steps, individually and collectively, to formulate
international development policies with a view to facilitating the full realization
of the right to development.
2. Sustained action is required to promote more rapid development of developing
countries. As a complement to the efforts of developing countries, effective
 international co-operation is essential in providing these countries with
appropriate means and facilities to foster their comprehensive development.
Article 5
States shall take resolute steps to eliminate the massive and flagrant violations of the
human rights of peoples and human beings affected by situations such as those resulting
from apartheid, all forms of racism and racial discrimination, colonialism, foreign
domination and occupation, aggression, foreign interference and threats against
national sovereignty, national unity and territorial integrity, threats of war and refusal
to recognize the fundamental right of peoples to self-determination.
Article 6
1. All States should co-operate with a view to promoting, encouraging and
strengthening universal respect for and observance of all human rights and
fundamental freedoms for all without any distinction as to race, sex, language
or religion.
2. All human rights and fundamental freedoms are indivisible and interdependent;
equal attention and urgent consideration should be given to the implementation,
promotion and protection of civil, political, economic, social and cultural rights.
3. States should take steps to eliminate obstacles to development resulting from
failure to observe civil and political rights, as well as economic, social and
cultural rights.
Article 7
All States should promote the establishment, maintenance and strengthening of
international peace and security and, to that end, should do their utmost to achieve
general and complete disarmament under effective international control, as well as to
ensure that the resources released by effective disarmament measures are used for
comprehensive development, in particular that of the developing countries.
Article 8
1. States should undertake, at the national level, all necessary measures for the
realization of the right to development and shall ensure, inter alia, equality of
opportunity for all in their access to basic resources, education, health services,
food, housing, employment and the fair distribution of income. Effective
measures should be undertaken to ensure that women have an active role in the
development process. Appropriate economic and social reforms should be
carried out with a view to eradicating all social injustices.
 2. States should encourage popular participation in all spheres as an important
factor in development and in the full realization of all human rights.
Article 9
1. All the aspects of the right to development set forth in the present Declaration
are indivisible and interdependent and each of them should be considered in the
context of the whole.
2. Nothing in the present Declaration shall be construed as being contrary to the
purposes and principles of the United Nations, or as implying that any State,
group or person has a right to engage in any activity or to perform any act aimed
at the violation of the rights set forth in the Universal Declaration of Human
Rights and in the International Covenants on Human Rights.
Article 10
Steps should be taken to ensure the full exercise and progressive enhancement of the
right to development, including the formulation, adoption and implementation of
policy, legislative and other measures at the national and international levels.

Indian Perspective:
The discourse on rights in India predates the formation of the modern Indian state.
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. 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. 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. While the 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 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 fulfilment
of basic needs, human development, opportunities and freedoms that qualify as
development. The conceptualisation of development as a process that consciously
focuses on the realisation of the human rights and fundamental freedoms that form the
central proposition of the right to development provides a fresh and innovative
interpretation of development. Coined by the Senegalese jurist, Keba M’baye, in 1972,
the right to development has been amongst the most controversial issues in
contemporary international relations. 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 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
Development 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 François-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.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 development. 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. 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.
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.
• 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.
• 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.
The identification of development with the fulfilment 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 give 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.
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 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.” Even so, it is possible to
prioritise the progressive realisation of rights, as the rate of fulfilment 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 fulfilment 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 fulfilment.
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 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 right’s fulfilment. 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 State’s obligations, as the State’s 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.”
While the full realisation of 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.
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 fulfil. While the obligations to respect and protect may appear to be less
demanding than the right to fulfil, 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. 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.
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. Bonded
wage labour as opposed to free employment, small-scale labour-intensive
manufacturing unit’s 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),
India’s 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). 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 of the world’s out-of-school
children belong to India. The issue at hand is not just about unmet needs and aspirations,
but a larger question of the State’s 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. An ideology of “paternalistic benevolence, occasionally
combined with talk of trusteeship and training towards self-government”, thinly veiled
the realities of the Raj. 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 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
Gandhi’s idea of machinery, commercialisation and centralised state power as the curses
of modern civilisation imposed by European colonialism, Gandhi’s 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. 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.” 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 commensurate attention on other
equally more important goals of development therefore left much to be desired.
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. 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.
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.
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 cases, “it did not cover social boycott based on conduct.”
In other words, there was no affirmative action to regulate customary practices that
prohibited persons belonging to lower castes from using the same wells, 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.
herefore, 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.
Studies undertaken have in fact shown that the pattern and process of development in
fact strengthened the primordial system of caste-based loyalties. 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.
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 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-community 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.
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 ratio between males and females, 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 reconceptualization 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 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.
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. 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-à-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 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, is of greater concern. The KBK region in Orissa
accounts for approximately 30 percent of India’s total land area, and 19.7 percent of the
total population. However, nearly 87.1 percent of the population living here subsists
below the poverty line. 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.
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-
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. 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 State’s 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,” there were demands from certain representatives to make
Directive Principles of State Policy justiciable. 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 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.
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 fulfil 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 21A that appears in the 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 State’s 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 fulfil 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 people’s 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.
The principle of equity, for example, finds substantive elaboration in specific provisions
that connote 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 non-discrimination 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.
In Maneka Gandhi v. Union of India (1978), 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) 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 Court’s judgment in the case of People’s Union for Democratic Rights v.
Union of India (1982), the non-payment of minimum wages to workers was interpreted
as amounting to the denial of their right to live with basic human dignity. Other relevant
citations include rulings in Olga Tellis v. Bombay Municipal Corporation (1986), where
the court drew attention to the relevance of livelihood; Jolly George Verghese v. Bank
of Cochin (1980), 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.
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 Unnikrishnan J.P. v. State of
Andhra Pradesh (1993), 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 Court’s orders in People’s 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 village level 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 Court’s 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 those who
would otherwise be unable to access them on their own, 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 Court’s 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. 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.
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.
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
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 application of the right to development in India mainly reflects a legal argument
for the protection of minority rights, such as women’s rights, Dalit rights and Adivasi
rights in cases on affirmative action in education, land acquisition and labour rights.
For instance, in a judgment on the constitutionality of customary law in Bihar in 1996,
which had until then excluded tribal women from the inheritance of property, the right
to development was used to argue for an amendment of the discriminatory law ‘…to
ensure that women have an active role in the development process. Appropriate
economic and social reforms should be carried out with a view to eradicate all social
injustice’ (Madhu Kishwar vs. State of Bihar). There is, however, a risk of misuse
involved as exemplified by a judgment in 2010 on the land acquisition for the
construction of the Yamuna Expressway. There it was argued that ‘…the scales of
justice must tilt towards the right to development of the millions who will be benefited
from the road and the development of the area, as against the human rights of 35
petitioners therein…’ (Nand Kishore vs. State of U.P.). In my mind, this interpretation,
uses the right to development for a utilitarian legal argument to justify human rights
restrictions.
Sustainable Development and Indian Judiciary
Meaning: Right to wholesome environment is a fundamental right protected under
Article 21 of the Constitution of India. But the question is, can the environment be
protected at present times when almost all the countries in South-East Asia are still at
their developing stages? Development comes through industrialization, which in turn
the main factor behind the degradation of environment. To resolve the issue, the experts
worldwide have come up with a doctrine called 'Sustainable Development', i.e. there
must be balance between between development and ecology.
Origin of the doctrine: The concept of 'Sustainable Development' is not a new concept.
The doctrine had come to be known as early as in 1972 in the Stockholm declaration.
It had been stated in the declaration that: " Man has the fundamental right to freedom,
equality and adequate conditions of life, in an environment of a quality that permits a
life of dignity and wellbeing and he bears a solemn responsibility to protect and improve
the environment for present and future generation. " But the concept was given a
definite shape in a report by world commission on environment, which was known as '
our common future'. The commission, which was chaired by the then Norway Prime
Minister, Ms. G.H. Brundtland defined 'Sustainable Development' as: Development
that meets the needs of the present without compromising the ability of the future
generations to meet their own needs.
The report was popularly known as 'Brundtland report' the concept had been further
discussed under agenda 21 of UN conference on environment and development held in
June 1992 at Rio de Janeiro, Brazil.
Various principles of 'Sustainable Development':
Some of the basic principles of 'Sustainable Development' as described in 'Brundtland
report' are as follows: -
a) Inter-Generational Equity: The principle talks about the right of every generation
to get benefit from the natural resources. Principle 3 of the Rio declaration states that:
"The right to development must be fulfilled so as to equitably meet developmental and
environmental needs of present and future generations.
"The main object behind the principle is to ensure that the present generation should
not abuse the non-renewable resources so as to deprive the future generation of its
benefit.
b) The Precautionary Principle: This principle has widely been recognized as the
most important principle of 'Sustainable Development'. Principle 15 the Rio declaration
states that: "In order to protect the environment, the precautionary approach shall be
widely applied by States according to their capabilities. Where there are threats of
serious or irreversible damage, lack of full scientific certainty shall not be used as a
reason for postponing cost-effective measures to prevent environmental degradation."
In other words it means:
1) Environmental measures by the state government and the local authority must
anticipate, prevent and attack the causes of environmental degradation.
2) Where there are threats of serious and irreversible damage, lack of scientific certainty
should not used as a reason for postponing measures to prevent environmental
degradation.
3) The 'onus of proof' is on the actor or the developer to proof that his action is
environmentally benign.
c) Polluter Pays Principle
Principle 16 of the Rio declaration states that:
National authorities should endeavor to promote the internalization of environmental
costs and the use of economic instruments, taking into account the approach that the
polluter should, in principle, bear the cost of pollution, with due regard to the public
interest and without distorting international trade and investment.
It is quite obvious that the object of the above principle was to make the polluter liable
not only for the compensation to the victims but also for the cost of restoring of
environmental degradation. Once the actor is proved to be guilty, he is liable to
compensate for his act irrelevant of the fact that whether he's involved in development
process or not.
Role of judiciary: Judiciary in India, more precisely, the Supreme Court and the High
Courts has played an important role in preserving the doctrine of ' Sustainable
Development '. Parliament has enacted various laws to deal with the problems of
environmental degradation. In such a situation, the superior courts have played a pivotal
role in interpreting those laws to suit the doctrine of ' Sustainable Development'.
It is worthwhile to mention here that principle 10 of Rio declaration, 1992 states that
"Environmental issues are best handled with participation of all concerned citizens, at
the relevant level. At the national level, each individual shall have appropriate access
to information concerning the environment that is held by public authorities, including
information on hazardous materials and activities.
In their communities, and the opportunity to participate in decision-making processes.
States shall facilitate and encourage public awareness and participation by making
information widely available. Effective access to judicial and administrative
proceedings, including redress and remedy, shall be provided."
It is also to be remembered that most of the environmental cases have come before the
court through PIL (public interest litigation) either under Article 32 or under 226of the
constitution.
The first case on which the apex court had applied the doctrine of ' Sustainable
Development' was Vellore Citizen Welfare Forum vs. Union of India. In the instant case,
dispute arose over some tanneries in the state of Tamil Nadu. These tanneries were
discharging effluents in the river Palar, which was the main source of drinking water in
the State. The Hon'ble Supreme Court held that:
We have no hesitation in holding that the precautionary principle and polluter pays
principle are part of the environmental law of India
The court also held that: Remediation of the damaged environment is part of the process
of 'Sustainable Development' and as such polluter is liable to pay the cost to the
individual sufferers as well as the cost of reversing the damaged ecology.
But before Vellore Citizen's case, the Supreme Court has in many cases tried to keep
the balance between ecology and development. In Rural Litigation and Entitlement
Kendra Dehradun vs. State of Uttar Pradesh, which was also known as Doon valley
case, dispute arose over mining in the hilly areas. The Supreme Court after much
investigation ordered the stopping of mining work and held that:
This would undoubtedly cause hardship to them, but it is a price that has to be paid for
protecting and safeguarding the right of the people to live in healthy environment with
minimal disturbance of ecological balance and without avoidable hazard to them and to
their cattle, homes and agricultural land and undue affection of air, water and
environment."
However, in 1991, in the Rural Litigation and Entitlement Kendra vs. State of U.P. the
Supreme Court allowed a mine to operate until the expiry of lease as exceptional case
on condition that land taken on lease would be subjected to afforestation by the
developer. But as soon as the notice was brought before the court that they have
breached the condition and mining was done in most unscientific way, the Supreme
Court directed the lessee to pay a compensation of three lacs to the fund of the
monitoring committee. This has been directed on the principle of 'polluter pays'.
Likewise, various forests have also been protected. In a landmark case Tarun Bhagat
Singh vs. Union of India, the petitioner through a PIL brought to the notice of the
Supreme Court that the state government of Rajasthan though empowered to make rules
to protect environment, failed to do so and in contrary allowed mining work to continue
within the forest area. Consequently, the Supreme Court issued directions that no
mining work or operation could be continued within the protected area.
But it would be unwise to hold that the courts always favour environment without
giving any significance to the development aspect when dispute arises between
environment and development.
In M.C.Mehta vs. Union of India, (Oleum Gas Leak Case) the Supreme Court issued
directions towards the closing of mechanical stone crushing activities in and around
Delhi, which was declared by WHO as the third most polluted city in the world.
However, it realised the importance of stone crushing and issued directions for
allotment of sites in the new 'crushing zone' set up at village Pali in the state of Haryana.
Thus it is quite obvious that the courts give equal importance to both ecology and
development while dealing with the cases of environmental degradation.
Conclusion: environment and development are two sides of the same coin. Any one of
these cannot be sacrificed for the other. On contrary, both are equally important for our
better future. Thus, the responsibility lies on the Supreme Court and the various High
Courts to deal with these cases with caution of high degree. Then only, we will achieve
our goal i.e. to secure a pollution free developed country for our next generation