Basic Rights and RTD
 

(i ) Right to Food

The right to food is not just a basic human right but also a basic human need. It essentially requires the state to ensure at least that the people do not starve. States have to take all necessary steps towards fulfilling the right to adequate food. The International Instruments which recognises right to food are Universal Declaration of Human Rights (UDHR), International Covenant on Economic Social and Cultural Rights (ICESCR) and Convention on the Rights of Child (CRC). Under the Indian Constitution, there is no fundamental right to food but the fulcrum of justiciability of the right to food comes from a much broader "right to life and liberty" as enshrined in Article 21.
 

An important instrument in asserting the right to adequate food is legal action. Of late, the Supreme Court has started entertaining Public Interest Litigation highlighting questions of public importance. The outcome of one such PIL is an interim Supreme Court order directing States to implement eight different centrally-sponsored schemes on food security including implementation of cooked meals in all Government and Government-assisted schools.

However, such legal action does not encompass all aspects of right to food. The role of civil society is of paramount importance. Article 10 (Part IV) of the International Code of Conduct on the right to adequate food mentions that the active participation of all civil society actors - individuals, families, local communities or non-governmental organisations - is essential. Recently, social mobilisation has begun in the form of public hearings. Only a participatory approach will be able to give a more humane shape and the much needed rights perspective to the Government's policies in ensuring food and nutrition security.

(ii) Right to Health

Health, as described in the Preamble of the Constitution of the World Health Organization (WHO), 1946, is “a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity”. The notion of right to health is thus not only limited to the pathological and biomedical aspects but goes far beyond to incorporate social well-being. The International Instruments, which recognises right to health, are Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights, and Constitution of the World Health Organization, 1946.

Although the Indian Constitution does not explicitly mention health or health care as a fundamental right, the justiciability of right to health is based on right to life and liberty (Article 21 of the Fundamental Rights). The various Directive Principles, which talks about health and health care, are Articles 39, 41, 42, and 47. In addition to the Constitution, there are five main instruments in the Indian legal system that deal with regulation of health care and safeguarding individuals against medical negligence (World Bank, 2001). These are:Law of Torts, Consumer Protection Act, 1986, Indian Penal Code, Indian Medical Council Act, 1956, Indian Contract Act, 1872.

The foundation of India’s health policy was laid by the Bhore Commission Report in 1946. The report established primary health care as the foundation for the national health care system, and developed the first patterns for primary health care facilities and health personnel in the public sector. The Bhore Commission enunciated the principle that primary health care is a basic right to which people should not be denied access because of their inability to pay or for other socio-economic reasons. Building on this thinking over the years, India became a strong supporter of the Alma Ata Declaration of 1978, where it committed itself to attaining the goal of ‘Health For All’ based on a primary health care approach.

India’s health status is characterized by shifting demographics, altered health behaviours and changes in disease patterns. Although significant improvements have been made in reducing infant mortality and increasing the life expectancy of the population in the last half a century, a high proportion of the population continue to suffer and die from communicable diseases, preventable infections, pregnancy and childbirth related complications, malnourishment and so on. There is also the trend in recent years of a rise in the incidence of non-communicable diseases such as diabetes, cancer and cardiovascular ailments.  CDHR’s work in this regard is based on the rights framework aimed at securing the objectives of the universal right to health and healthcare as determined by the Universal Declaration and the ICESCR. It is aims at focusing and fostering research to fulfill all aspects of the Right to Health in India.

(iii) Right to Education

The international consensus, expressed in the Universal Declaration of Human Rights and International Covenant on Economic, Social and Cultural Rights, recognizes that education is a basic human right. The right to education (RTE) has been formalised in Article 26 of the Universal Declaration which states unequivocally that “(e)veryone has the right to education”.

Education as a human right includes the right to, in, and through education. The right is both a civil and political, as well as an economic, social and cultural human right. The right to education is based on the realization of four main aspects related to: accessibility, availability, adaptability and acceptability.

In the Indian context, the realisation of RTE still has some way to go. Pressure on successive governments is growing as a result of grass-roots movements across the country campaigning for achieving the objective of education for all. As a result, education has finally been granted the status of a basic right in the Indian Constitution, and several schemes have been drawn up to implement RTE on the ground. Overall, the movement towards realisation of RTE is gathering momentum all across India, and CDHR is a part of this process of intensive research and consultation on different aspects of the implementation of this basic right.

It should be duly recognized that all basic pivotal rights such as the right to food, right to health, right to education or any economic and social rights, for that matter, are interdependent. The Right to Development emphasizes this interdependent feature of these basic rights. Research at CDHR, therefore, takes the RTD framework to analyse the importance of basic rights in the improvement in the well-being of the people.

Poverty and RTD

Poverty has been in the forefront of research in economics for the last half a century. More than one billion people, a sixth of the world’s population, still live in conditions of extreme poverty and hunger. Policies for the upliftment of this geographically disparate and culturally diverse mass of humanity would require a concerted effort looking at the lessons learnt from previous work done in this field, and more importantly, to develop new frameworks for analysing poverty.

The discussion on operationalising the right to development has received significant attention in recent years with the recommendations of the Independent Expert on the Right to Development in his reports to the General Assembly of the United Nations. His interpretation of the Right to Development as the right to a “particular” process of development is based on the fact that it is “basically centered around the concepts of equity and justice, with the majority of the population who are currently poor and deprived to be brought upwards in their living standards and capacity to improve their position”.

There is thus an umbilical link between poverty alleviation and the implementation of the right to development framework. This has been emphasised in the Second Report of the Independent Expert where he contends that “(f)rom the perspective of a rights-based approach to human development, the concept of poverty goes much beyond just income poverty……it is a gross violation of human rights. The eradication of poverty should be the first priority of a policy for realizing the right to development”.

Research on poverty at CDHR stresses the underlying principle of RTD in designing the implementation of poverty alleviation schemes. This involves a substantial rethink of the existing methodologies for analysis of poverty, right for the planning to the design and implementation. In this respect, it is CDHR’s endeavour to learn from the experiences of other countries and regions, and work with policy-makers and civil society organisations for a dialogue on poverty alleviation from the RTD perspective.

Theoretical Formulation of RTD

Right to Development as a concept emerged from the attempts made by the international community to arrive at a comprehensive notion of human rights which would be justiciable and enforceable.  Although it has evolved substantially since its first mention in the Declaration on the Right to Development, the nature, content and form of Right to Development remain a controversial issue till date.

Questions regarding the form of the concept become all the more important when one wants to make it operational.  In order to operationalize a comprehensive notion of human rights it has to be formalized in a way so that the level of achievement of the right can be measured in terms of some indicator. CDHR is continuously working towards this end. Attempt is being made to give the Right to Development a clear and precise form, drawing upon the Social Choice theoretic formulation of rights put forward by Amartya Sen. Legal issues concerning justiciability, institutionalization of transparent and accountable governance, as well as a study of the participatory mechanisms that need to be in place for implementing the right to development, are being undertaken as part of the Centre’s work.

International Legal Aspects of RTD

Despite having engaged the international community in debate for over three decades, the concept of ‘right to development’ remains one of the most controversial and contentious issues in international law, qualifying, as it were, as a ‘conundrum’ in international law. The central problems relate to a conceptual difficulty in accepting the idea of ‘development’ as a ‘human right’ and in identifying the definitional contours of such a right.

Whereas international legal instruments explicitly recognize what are categorized as ‘first generation’ (civil and political) rights and ‘second generation’ (economic, social and cultural) rights, there is no legally-binding international instrument recognizing ‘third generation’ rights such as the right to development. There has emerged, nevertheless, a strong plea in favour of recognizing new rights to match the need of the times. This plea has found manifestation in international law in the form of several international instruments such as the 1986 UN Declaration on the Right to Development and the 1993 Vienna Declaration and Programme of Action, both of which affirm that there exists a right to development. However, aside from the fact that these instruments do not impose binding legal obligations, they also fail to clearly enunciate what exactly a ‘right to development’ entails, thus leaving intact most of the definitional confusion surrounding the concept.

Thus a multitude of questions arise in the consideration of the Right to Ddevelopment as a concept in international law. When a ‘right to development’ is claimed, what constitutes ‘development’? Who can claim this right, i.e. is it an individual right or a collective one? On whom will the obligations rest to fulfil such a right? Would such a right be justiciable in law, i.e. are there definitive mechanisms to ensure the realization of such a right? If this right is not justiciable, can it be made enforceable through other means? How is the realization of the right to be assessed? What are the indicators that the right is being fulfilled? How will the realization of this right relate to other recognized human rights? The above-mentioned questions are illustrative of the numerous questions associated with the concept of the Right to Development. Apart from examining these legal problems surrounding the concept, research at CDHR is also directed at documenting the evolution and current status of the right to development in international law.

Development Co-operation and RTD

The controversies surrounding international aid have been innovatively addressed in the formulation of the concept of development co-operation within the RTD framework. This formulation introduces certain distinct characteristics aimed at reducing the stigma attached to development aid, moving from a traditional recipient-donor relationship to a mutually beneficial partnership. Moreover, in contrast to a singular focus on aid flows, the RTD framework suggests a comprehensive package of development cooperation comprising other measures such as trade and investments.

Article 2(3) of the Declaration on the Right to Development specifically calls upon states as members of the international community to co-operate with each other for the creation of conditions favourable to the realisation of the Right to Development. This necessarily entails the introduction of a rights-based approach into the realm of international economic relations, placing centrestage, principles of equity, non-discrimination, accountability, transparency and effective popular participation. An externally funded programme that is found to violate the specific rights of individuals would fundamentally stand to contradict the Right to Development principles. A development partnership must therefore complement and support the active realisation of Right to Development. The Development Compacts initiative proposed by the Independent Expert, seeks to regularise and institutionalise the reciprocal obligations existing between countries of gradually realising and fulfilling the Right to Development.

Trade and RTD

International trade, given its instrumental role in economic growth and welfare enhancement, has an important role in a Right to Development based development approach. The Trade and Development linkage has been one of the major issues that has been widely debated and discussed in recent times. It has been recognized that openness to trade would bring about more efficient allocation of resources and facilitate technology diffusion, encouraging higher levels of economic growth. Besides, engaging in gainful trade by exchange of goods and services produced at home for acquiring goods and services produced abroad would lead to an expansion of the set of goods and services available for final consumption of the country and thus realizing an improvement in welfare. Trade is in an integral part of right to development because it facilitates generation of resources, which in turn is required in the process of its realization. Without adequate resources, the realization of human rights becomes stagnant after certain point.  

However, the important question concerns the distribution of the benefits of the process of trade liberalization among the various economic agents. The policies and programs of national governments and international organizations are critical factors in this regard. The policies of the World Trade Organization are the most crucial factor because these provisions are binding on all the members. The WTO agreements particularly the Agreement of Agriculture and the Trade Related Intellectual Property Rights have direct implications on the realization of the Right to Development in the developing countries. It is estimated that around 80 percent of the poor are in developing countries and 60 percent among them depend on agriculture for their livelihood.  The provisions of the Agreement of Agriculture therefore would be highly significant in mitigating or worsening the plight of the poor in the developing countries. An orderly management of trade with lower distortions would open avenues for their betterment. Similarly the TRIPS agreement has to do a lot with the access and availability of drugs. An increase in the prices of drugs would make health care inaccessible for the poor. The Trade and Development division of the Centre currently focuses on the impacts of WTO agreements on Agriculture and TRIPS on India.

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