Here’s the central conundrum of human rights: States are responsible for protecting rights, but many states are also the worst abusers of rights. And yet, many human rights activists who fight for economic and social justice want those same governments to provide education, healthcare, food, water and other socio-economic goods and services, even as those states detain people without trial or restrain free speech.
Those governments say they’d love to do more in the socio-economic sphere, but they’d have to suspend some civil liberties first. Some activists overlook such transgressions, partly because they believe collective rights trump individual liberties. Hunger affects all; arbitrary detention, only a few; others are pragmatic—when delivering food aid, offer food to the needy, and maybe some soldiers too, even if it prolongs war; too bad there’s chronic torture.
Twenty years after the fall of the Berlin Wall, the wall separating two human rights doctrines—civil liberties and economic security—remains. Maybe today, the international human rights day, it is time to reflect on this.
The dichotomy between political freedoms and socio-economic justice is false. While the Universal Declaration of Human Rights—which turned 60 last year—encompasses all rights, in translating that lofty declaration into commitments to make those rights real and meaningful, governments created two covenants: one for civil and political rights, which democracies swore by; the other for economic, social and cultural rights, which the Soviet Bloc and the Non-alignment Movement considered more important.
One side championed individual freedom: let him speak; let her worship freely; let them organize collectively; don’t detain anyone without trial, abolish torture, outlaw discrimination. States had power, so individuals had rights—claims on those with power. Ergo: restrain the states to prevent abuse.
The other side argued that the state must harness resources for “the greater common good”. You couldn’t trust, or depend solely, on individuals. If someone gets in the way, she should make way. To make an omelette, you have to break eggs—Chinese dissidents and Russian poets, please note. The rice bowl must be filled: German playwright Bertolt Brecht had said eating comes first, morality later.
India, ever the synthesizer, tried the middle way. The Constitution had individual fundamental rights, but there were limits. And the state had directive principles, outlining its duties. What came first? Fundamental rights, of course, but the state had an expansionist agenda, and it began eroding individual freedoms. Lawyers such as Nani Palkhivala challenged that—between 1967 and 1973, in the bank nationalization case, the privy purses case, the Golak Nath case and the Kesavananda Bharati case. The Supreme Court listened, restricting the state’s ability to override individual rights, sanctifying the Constitution’s “basic structure”.
But Indira Gandhi had other ideas. When she found judgements not to her liking, she promoted out of turn those judges who’d do her bidding. And when the going got tough in 1975, when a rule-bound judge unseated her from the Lok Sabha because of unlawful practices, she declared Emergency, suspending key provisions of the Constitution, detaining thousands. Her attorney general argued before the Supreme Court that during an Emergency the state could suspend even the right to life.
To her credit, in 1977 she called elections, lost, and returned to power through democratic means. Others living under dictatorships aren’t so lucky. Think Robert Mugabe. If those leaders don’t like an electoral outcome, they outlaw the results. Brecht again: If you don’t like what people say, elect a different people.
This is why human rights law places restraints on states. True, in the matter of economic and social rights, the law tells the state what it should ensure (education, health and so on). But the state need not be the monopoly provider, nor does it have to suspend civil liberties to deliver socio-economic justice.
In The Idea of Justice, Nobel laureate Amartya Sen expects more from states. They should be guided by two principles: nyaya, or justice, certainly, but also niti, or morality. That’s good; it is equally important to empower people, particularly the poor. Irene Khan, the outgoing head of Amnesty International, says in her book, The Unheard Truth, that rights are interlinked; the fight against poverty is meaningless if the rights of the poor aren’t recognized. The poor don’t have healthcare, nor access to food and education. And when they go to a police station, their complaints aren’t taken seriously, they face unfair trials, are denied legal aid, they are often beaten up, enslaved, their women raped, their children forced to work.
Any struggle against poverty that focuses only on economic and social rights and ignores the political dimension will be ineffective. The poor have needs, but they also have rights. In linking these alternate worldviews, Khan reminds us of their interdependence.
Salil Tripathi is a writer based in London. Your comments are welcome at firstname.lastname@example.org