Indian Societal Responses to the Ideology of Human Rights

The answer, in two parts.

The Constitution already accommodates the group. Article 26 gives rights to a denomination; article 29(1) to any section of citizens with a distinct language, script or culture; article 30 to minorities; articles 15(4), 15(5), 16(4) and 46 to backward classes and to the Scheduled Castes and Scheduled Tribes; and the Fifth and Sixth Schedules to Scheduled Areas and tribal areas.

And the individual guarantee is what protects a person against their own group. The strongest case for an individual right in India is not against the State at all; it is the case of a person facing exclusion, violence or coercion from the community they belong to, for whom article 17, article 21 and article 25's subjection to the other provisions of Part III are the only protection available.

4. Rights are a luxury for a poor country

The claim. Civil and political rights are affordable once basic needs are met; a country with mass poverty should prioritise development and treat liberties as a later stage.

The answer, in three parts.

The Constitution did not accept the trade-off. It enacted both, putting the civil rights in Part III and the economic claims in Part IV, and article 38's social order in which justice, social, economic and political, informs all the institutions of national life treats them as one project.

The Emergency is the Indian evidence against the trade-off. The suspension of rights between 1975 and 1977 was defended on developmental grounds and did not deliver development. That episode is the strongest single argument available to an Indian answer and should be used.

And the courts refused the trade-off in doctrine. Reading livelihood, shelter, health and food into article 21 was precisely a refusal to treat the two categories as alternatives.

The positive responses, which should not be omitted

An answer that gives only the objections has answered half the question.

The social reform movements of the nineteenth and twentieth centuries, against untouchability, for widow remarriage, against child marriage and for women's education, are human rights movements in substance and are entirely indigenous.

The freedom struggle framed itself in the language of rights from the 1890s onwards.

The civil liberties organisations formed in and after the Emergency, and the public interest litigation they and others brought, are the reason much of Module II exists.

And the constitutional culture is real. Indian litigants approach the courts in very large numbers, and article 32 and article 226 petitions are brought by people of very limited means. Whatever the theoretical objection, the practice is widespread.

The honest conclusion

Three propositions to close on.

The objection is not baseless. The universalist vocabulary was carried by institutions that were unequal, and the criticism that it can be selective in its application is fair.

But the import objection specifically is weak in India, because the Indian demand is older than the instruments and the colonial power opposed it.

And the real Indian problem is not acceptance but delivery. The rights are accepted, written down, litigated and cited. What fails is enforcement, and that is Module III.

Worked example

Her Set 1 Q7(b), on Indian societal responses towards the ideology or philosophy of human rights.

Give the four objections as four numbered claims, each with its answer.

Use the pre-constitutional history against the import objection, and note that the colonial power made the same objection.

Use article 17 as the Indian entry no model supplied.

Use the Emergency against the luxury objection, because it is Indian evidence rather than argument.

Give the positive responses, four of them.

Close on the honest conclusion: the objection is not baseless, the import form of it is weak here, and the real problem is delivery rather than acceptance.

What it does NOT mean

It does not mean the criticisms are worthless. The selectivity criticism is fair and should be conceded.

It does not mean India has no rights culture. The volume of constitutional litigation says otherwise.

And it does not mean acceptance solves anything. A right that is accepted and unenforced is the subject of the next two modules.

Quick revision

• Four objections: Western import; duties not rights; group over individual; a luxury for a poor country.
• Against import: the demand is older than the instruments (1895, 1928, 1931 against 1948); the colonial power made the same objection, and the 1935 Act has no bill of rights; and article 17 is an entry no model supplied.
• Against duties not rights: duties and rights describe one relationship; and India has both, in article 51A, as do article 29(1) of the Declaration and the Covenant preambles.
• Against group over individual: the Constitution already accommodates the group in articles 26, 29(1), 30, 15(4) and (5), 16(4), 46 and the Fifth and Sixth Schedules; and the individual guarantee is what protects a person against their own group.
• Against luxury: the Constitution enacted both; the Emergency is the Indian evidence that suspending rights did not deliver development; and the courts read the economic claims into article 21 rather than trading them off.
• Positive responses: the social reform movements, the freedom struggle, the civil liberties organisations and public interest litigation, and the volume of constitutional litigation.
• Conclusion: the objection is not baseless, the import form is weak in India, and the real problem is delivery, not acceptance.

Test yourself

1. State the import objection and answer it. The objection is that the vocabulary of individual rights held against the State is a product of European liberalism, carried to Asia and Africa first by colonialism and then by the post-war institutions, and that it does not correspond to how Indian society understands the person or distributes obligation. It is the most frequently made of the four objections and the weakest in India.

It has three answers. The Indian demand for justiciable rights is older than the international instruments: the Constitution of India Bill of 1895, the Nehru Report of 1928 with its nineteen justiciable rights, and the Karachi Resolution of 1931 with its combined civil and economic list all predate the Universal Declaration of 1948 by decades. The colonial power made the same objection: the Simon Commission and the Joint Parliamentary Committee both reported that a justiciable declaration of rights was unsuited to Indian conditions, and the Government of India Act 1935 contains none, so the import argument was deployed by the imperial power against Indians who were demanding these rights, which is an awkward pedigree for anyone advancing it now. And Part III contains entries no Western model supplied, principally article 17, which abolishes untouchability, makes the enforcement of any disability arising out of it an offence, binds private persons and admits no exception, and which comes from Indian social reform politics rather than from any American or Irish precedent.

2. How should the duties objection and the group objection be answered? The duties objection is that classical and medieval Indian thought is organised around dharma, an order of obligations attaching to a person's station, rather than around entitlements a person holds and asserts against others. The answer is that duties and rights are two descriptions of a single relationship: an obligation on a ruler not to inflict cruelty and a right in the subject not to be treated cruelly protect the same person against the same conduct, and which of the two is written down is a drafting choice rather than a difference of substance. India in any event has both, since Part IVA, article 51A, states eleven duties of every citizen, and the international instruments themselves do the same, article 29(1) of the Universal Declaration providing that everyone has duties to the community in which alone the free and full development of his personality is possible, and the preambles to both Covenants reciting the individual's responsibility to strive for the promotion and observance of the rights they recognise.

The group objection is that Indian society is organised in communities and that a scheme built on the individual misdescribes how entitlement is actually experienced. The answer is that the Constitution already accommodates the group extensively, in article 26 for religious denominations, article 29(1) for any section of citizens with a distinct language, script or culture, article 30 for minorities, articles 15(4), 15(5), 16(4) and 46 for backward classes and the Scheduled Castes and Scheduled Tribes, and the Fifth and Sixth Schedules for Scheduled and tribal areas. And more importantly, the individual guarantee is precisely what protects a person against their own group. The strongest case for an individual right in India is not the case against the State at all, but the case of a person facing exclusion, violence or coercion from the community to which they belong, for whom article 17, article 21 and the subjection of article 25 to the other provisions of Part III are the only protection there is.

3. Give the honest conclusion on Indian societal responses. Three propositions. The objection is not baseless and should not be dismissed: the universalist vocabulary was carried by institutions that were themselves unequal, and the criticism that human rights argument is applied selectively, pressed against some States and not others, is a fair one that an Indian answer can make with force. Conceding it makes the rest of the answer stronger.

The import form of the objection specifically is weak in India, for the reasons already given: the demand is older than the instruments, the colonial power opposed it in the same terms now used against it, and Part III contains provisions no external model produced. And the real Indian problem is not acceptance but delivery. The positive responses are substantial: the nineteenth and twentieth century social reform movements against untouchability and child marriage and for widow remarriage and women's education are human rights movements in substance and entirely indigenous; the freedom struggle framed itself in the language of rights from the 1890s; the civil liberties organisations formed in and after the Emergency produced much of the public interest litigation that Module II describes; and Indian litigants approach the constitutional courts in very large numbers and from very limited means. The rights are accepted, written down, litigated and cited. What fails is enforcement, and that is the subject of Module III rather than a question about ideology at all.