The State of Rights in Contemporary India

S.V.Jagannath


 

If one has to pick just one field to measure how far the Indian people have come in their quest for emancipation from deprivation, bondage and servitude, one will probably pick the indicator as rights. This is so, because rights characterise what is human, and what is most modern in a society. The state of rights is a measure of whether a society is advancing or is in retrogression.


Before analysing the state of rights in India today, it is instructive to examine what rights actually are, and how they present themselves. It is not the aim of this paper to provide an exhaustive survey of the work being done by various individuals and groups in India on the front of human rights, women's rights, the rights of nations and tribals, the right to livelihood, democratic rights, and so on. However, the paper will examine the main tendencies in the struggle for rights, and the common obstacles these struggles face.


Rights, by definition, belong to everyone in a given society. What is called human rights belong to any human being by virtue of their being human. Similarly, women's rights belong to all women, national rights belong to all nations - big or small.


As such, they can neither be given nor taken away. It is a misconception that rights are legislated and "given". For example, the independence of colonies like India was not something given; the British did not give independence to India. To the extent that India is a country, or a political entity, it affirmed its independence - something that already belonged to India by virtue of its being. All that the British could do was to put as many obstacles on the way to this affirmation.


Essentially, rights have to be looked at as that which belongs to the being. At a certain stage of development of society, these rights are affirmed. Just because a right is not yet affirmed does not mean that it has ceased to exist. The affirmation of rights is a continuous process.


For many different reasons, only certain rights are affirmed at certain stages of development. For example, people as a collective could affirm their right to universal suffrage only in the last 100 years. The collective right to have control over how people earn their livelihood is not yet affirmed, but there is ample evidence to suggest that the affirmation of this right is the order of the day. It is possible that by this time next century, this right will have been affirmed, but by then, some other rights may need to be affirmed.


In short, the existence of rights is an objective process, irrespective of one's will and it carries the stamp of the level of social development as well as the extent to which people have come to gain control over the society in which they live.


There are rights that pertain to individuals - such as the right to conscience. There are rights that pertain to the collective, such as the right to association, education and culture. Then there are rights that pertain to society, such as sovereignty, the right to decide on one's economic and political system, and so on. The level of advancement in society determines how far societal rights and collective rights have been affirmed, and the extent to which individual, collective and social rights have been harmonised.


In contrast to rights, there is a category called privileges Unlike rights, these can be given and taken away. At times, there is the appearance that a right has been granted or taken away. For example, the Kerala High Court recently ruled that all bandhs are henceforth illegal in Kerala. The question arises, do the people have a right to collectively press their political demands by declaring a bandh - or is it a privilege which can be taken away or given by the executive and judicial branches of the government?


Rights and privileges belong to two different domains. If something belongs to the domain of rights - no matter how much one may wish to reduce it to a privilege, it will force its way until it is affirmed as a right.


Take, for example, the right to conscience, or the right to one's beliefs. There have been laws passed through legislative bodies, rulings by judicial authorities, and even persecution carried out with executive power. But nothing has been able to stop people from affirming their right to conscience. The same is the case with other rights. Once the conditions for the affirmation of a right has arisen, no amount of suppression can eliminate its affirmation.


There is an important relationship between rights and privileges. Most often, when a right is suppressed, a privilege will appear within the given political context. When for example, the right to free expression is suppressed, the privilege to express will be granted to those who express official views. Rights belong to all members of the society, but only a few can have the privileges. The right to vote, for example, replaced the system of the privilege to vote, which was accorded by virtue of status and property during the last century in Europe and existed even until 1951 in India.


As has been said earlier, human rights belong to humans by virtue of the fact that they are humans. What distinguishes humans is that they live in society, and that they build society to serve them collectively. It is a human right in every sense that humans are able to run their society to serve their needs.


For that matter, all rights in the modern sense can only be conceived of in the context of society. The right to free expression, for example, makes no sense if society is not the context. It is one of the core human rights for people to have a say in the affairs of society. Even though this right has not been affirmed to any significant extent at this time, the national liberation struggles that have exploded in India and throughout the world are a manifestation of people trying to affirm this right.


Today, whenever there is struggle, one can see that there is a collective right at stake. Whether one speaks of struggles in Ireland, Kashmir or Sri Lanka, they are all tied to the affirmation of the rights of the collectives at stake. Viewed this way, one can say that the struggle for the affirmation of rights is very much a human quality and it is only under the threat of severe repression and terror do people become passive and disoriented.


If these suppositions are examined further, it leads to some important revelations. For example, it is not well known that India has no inviolable rights. All rights present in the Articles 13-35 of the Indian Constitution are subject to "reasonable limitations". It is not surprising then, that under these condition, privileges make an appearance. By definition, privileges are granted to a the few that are accommodated by the trustees of society.


The selective distribution of privileges in this manner in place of rights is at the heart of the division of society, the polity, and collectives. This phenomenon is happening now on the world scale. Whether in Albania, or Bosnia-Herzegovina, one can see what happens when society is divided on the basis of privileges for a few. The consequences of the denial of rights to all and the distribution of privileges to a select elite has led for example to the Kashmir and Punjab problems in India in the last decade.


Right now, for example, the Bishop of Atlanta, the Prime Minister of India, Congress party officials and who knows who else, are negotiating the distribution of some concessions and privileges to select factions of the Naga movement - (as opposed to some of the other factions) and thereby plan to "solve" the Naga problem. Given the situation in Nagaland, this kind of selective deal-brokering will succeed only in wrecking the Naga movement and it will be a blow against the right of the Naga people to determine their own affairs.


This has happened before in the north-east as well as in Punjab, Kashmir, and elsewhere, when certain "leaders" became instrumental in sabotaging the movements of their peoples in return for securing a few privileges for themselves. It is another matter altogether when one examines what has since happened to the people themselves and their struggles. Ultimately, one can only conclude that they have suffered temporary setbacks, and that they will rise again until such time as their national rights are affirmed.


How is the system of privileges kept in place? The colonialists did it with colonial laws, the ideology of the white-man's burden, the colonial army and colonial humiliation. Today, the same is done in India through black laws and state terrorism, through divisions and diversions. Black laws, or laws that are selectively applicable, such as TADA, NSA, MISA the AF(SP)A are manifestations of a serious lack of rights. The Kerala High Court's ruling also reflects the same tendency. In fact, this ruling points to another issue, since a political problem has been turned to a legal problem, or a problem of "law and order". In the past, this chain of events has invariably led to state repression and state terrorism. Such things have happened before in other parts of India and will happen in Kerala unless the people of Kerala stop this from developing further.


In conclusion, the struggle for affirmation of rights is an objective struggle, which appears at specific moments in the life of a society. The main obstacle to this affirmation is the division introduced from without through a privilege distribution system. The Indian state is organised to do this in a systematic way.


Breaking with the past, or ending the legacy of division is really about the struggle for rights in opposition to the system of privilege distribution. This fundamental thesis will explain the division of the polity in terms of caste, religion, region, language and so on. This division is as objective as its opposite. In other words, as the struggle for affirmation advances, divisions becomes acute.


For instance, look at the newest of polarisations in India between "secular forces" and "communal forces". The forces of the "left" claim that the main enemy of the Indian people is communalism, while the main ally is secularism. People are pressured to define themselves according to which camp they belong to. To acquire progressive credentials, one must declare oneself as for secularism and against communalism.


Communalism is a problem which cannot be finished without eliminating the conditions which exist in India at this time. How is it possible to eliminate communalism when millions of people suffer from ignorance? Millions and millions of Indians face all kinds of backward notions about life - and how can it be that the only danger to them is communalism?


The division of the polity is fundamental to the continuation of the rule of the elite - again we have the history of colonial times repeating itself. In addition to this division, there is the creation of tension and anxiety - that some disaster is always just around the corner. In the name of eradicating these division and to eliminating these tensions, crores are spent to organise the agencies of what is called "law and order". Under these circumstances, to split the polity further on the basis of communal and anti-communal forces will only play into this scheme.


This is where the struggle for rights and the struggle against privileges stands. As the elaboration and discussion of these notions takes place, progress will be made towards creating a more humane and modern society.


The wave of cutbacks to social spending as well as the backlash against minorities and the reservations programs can be analysed based on these conceptions, and it becomes clear how these are meant to force everyone to fend for himself or herself - while society absolves itself of any responsibilities towards the collective interests of society. Such a tendency is tantamount to the withdrawal of modern human society itself.


In medieval society, everyone fended for oneself. The advancement of civilisation has been precisely because the state took up the task of centralising resources to provide for the welfare of all - for education, medical-care and so on. These are not mere "entitlement" programs or privileges, but are social rights of the people which cannot be taken away without destroying society itself. As discussed above, this wave of cutbacks is bound to lead to popular opposition and mass struggles, both in India and other countries.


The struggle for rights - whether individual, social, national or of other kinds, is bound to emerge as a powerful force for bringing about change to society itself.