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Development: Give rights pride of place by Arjun Sengupta


Development literature is now increasingly talking about rights-based development built on the appeal of the right-rhetoric when every government professes its commitment to realising human rights.

Human rights are norms that bind a society and governments derive their legitimacy from fulfilling them. The source of these rights is many — natural rights, divine rights, inherent rights of human beings or self-evidence. The American Declaration of Independence of 1776 considered these rights as self-evident, proclaiming if the governments cannot fulfil those rights they lose their legitimacy and people can justly overthrow them.

After the Universal Declaration of Human Rights (UDHR) (1948), however, any set of norms that a community accepted through due process, would be considered as human rights as fundamental norms that every agency would be responsible for fulfilling. The UDHR was followed by the enactment of several international treaties recognising some civil and political rights and economic, social and cultural rights as binding norms of international community. They are to be enjoyed and exercised individually even if provided collectively by the government. They have to be provided equitably to all members of society and the authorities responsible for providing them must be accountable and can be reprimanded by the judicial system through a due process of law, making human rights enforceable legal rights.

In 1986, building upon UDHR, the United Nations adopted the declaration on "the right to development", which could not go through the full non-creating process of making it enforceable legal rights, because of both conceptual and operational differences among the countries. UN held regular discussions for more than 12 years and then in 1998 appointed me as the independent expert on the "Right to Development" to work out the contents and implementation of this right. Over the next six years, I gave about 10 reports to the Human Rights Council which was discussed at intergovernmental meetings in Geneva and New York and they triggered substantial debate, including a Nobel Symposium to specifically discuss my contention about the difference between right to development and rights-based development.

The debate has by now produced enormous literature and a growing consensus on some major issues, such as the definition of development in a form of human rights. Amartya Sen’s definition of "development as freedom" formed the basis — a process of realisation of those freedoms identified as development. Some of their freedoms have been accepted through the non-creating forums of international treaty as enforceable human right, such as the covenant of civil and political rights and of economic, social and cultural rights.

Right to development is defined as the right to the process of realisation of those freedoms and corresponding fundamental rights. What was still needed to be explored was a consensus about the method of implementation and the responsibility of the governments and other powerful actors to realise those rights. Rights-based development, however, is one step prior to the right to development and is concerned with the realisation of the rights in a manner consistent with the definition of human rights.

The reach of the process of development built upon a rights-based approach is enormous. The essentials of these rights call for a programme of action where such rights can be fulfilled, identifying specific duties of specific duty bearers such as the state or local governments or empowered institutions.

The programme must be implemented within available fiscal, monetary and technological resources and while they may not all be realisable immediately, the programmes must have a roadmap for progressive realisation. Most importantly, once such programme is adopted, the accountability of individual duty bearers can be tested through different institutional mechanisms including the courts of law.

In India, today, some social programmes have been accepted as rights to which all eligible individuals are entitled. Let me illustrate the power of this approach by using first the example of right to food security, where all individuals as members of families below the poverty line would be entitled to Rs 5 per kg of rice at Rs 3 per kg.

The programme of action behind this right must lay down the eligibility of people who can claim this right and the duty of each agency responsible for procuring food and supplying them to those who are eligible. Now suppose if an individual who has not got this right goes to the court of law asking for enforcement of the right, the court can summon the authorities such as the local public distribution centres who must be able to explain that they made their "best efforts" to provide the food but could not because the next higher authorities like the Food Corporation or the district agencies failed to supply them. If the court is satisfied that all efforts were made at that level to supply the food, can summon the higher authorities to explain why they have failed. The court may reprimand them, ask for corrective action including compensation and if the failure was due to willful negligence the courts may actually penalise them.

In other words, once providing food security is accepted as right, it lays bare the vulnerability of all the agents responsible for the failure to provide that right at different stages of the process.

Similarly, consider the example of NREGA (National Rural Employment Guarantee Act), where 100 days employment at minimum wages are guaranteed to unskilled rural labour. It is clearly recognised that such a right can be realised only progressively and subject to the availability of resources. But within those constraints each local authority would adopt a programme of action recognising eligibility, providing jobs and wages to a given number of people accommodated in the first stage.

Here again a rural worker who is entitled for such a job but does not get it can claim his right must be fulfilled. There may be a number of mechanisms for amicably settling these claims, including dispute settlement and social auditing.

It is not difficult to work out specific programmes with identifiable responsibilities of authorities for fulfilling their rights and rights-based approach to development call for a clear identification of specific responsibilities. The failures then can definitely be justifiable and the reach of this accountability can go quite far irrespective of the politics and the level of authorities. It is this which has changed the course of implementing development.

Dr Arjun Sengupta is a Member of Parliament and former Economic Adviser to Prime Minister Indira Gandhi