Revisiting India’s Exclusionary Approach to Human Rights

The human rights discourse in India has always been institution–centric instead of being oriented towards people. In 2003, Sumanta Banerjee wrote that the National Human Rights Commissions (NHRC) in India has largely been ornamental, and its interventions have been dismissed by successive governments. In recent years, India has witnessed an increase in human rights violations, the most glaring being the situation in Kashmir since the abrogation of Article 370. The 2019 Human Rights Watch report states that,

The [Indian] government failed to prevent or credibly investigate growing mob attacks on religious minorities, marginalised communities, and critics of the government—often carried out by groups claiming to support the government. At the same time, some senior BJP leaders publicly supported perpetrators of such crimes, made inflammatory speeches against minority communities, and promoted Hindu supremacy and ultra-nationalism, which encouraged further violence.

Why has this happened? Part of the answer may be found in the manner in which the human rights discourse has developed. A recent article in the EPW looked at how the human rights discourse is rooted in a colonial–civilising mission, in which the idea of the victim and the saviour is fetishised. Another article published in 2011 argued that the true value of human rights can only be attained once it goes beyond its abstract juridical–political context, and fits into local cultural contexts.

The inadequacy of the present discourse means that several instances of rights violations remain ambiguous. Some instances may lie beyond the scope of the present discourse, both legally and politically. Given that the mechanisms of redressing these violations are dependent on the discourse at hand, there is an urgent need to reconceptualise the human rights discourse, taking into account the lived experiences of diverse peoples and cultures. 

In this reading list, we attempt to understand how various kinds of marginalisation in India have shaped the experience of individuals when fighting for human rights. 

Women’s Rights 

Despite strides in the women’s movement with respect to legal and police reform, violence continues to pervade the private and public lives of women. Nitya Rao argues that the problem lies in the state’s inability to adequately address structural inequalities that perpetrate and perpetuate violence. She asserts that if women are to attain legitimacy, it has to be both material as well as symbolic. 

It is not just a question of changing hearts and minds, but rather, squarely addressing structural inequalities that perpetrate and perpetuate such violence. Law and legal institutions are socially embedded. The interpreters of law and upholders of social order are a part of the same patriarchal society, subject to the same biases and prejudices as the larger social world. Their patriarchal beliefs and attitudes, seeking to retain the social legitimacy of male power through ‘protecting women’ by their further control and confinement, have thoroughly been exposed in various statements over the past month—from regulation of school uniforms and other forms of dress or, indeed, curbs on mobility. The now oft-repeated phrase of ‘dented and painted women’ reflects a perceived threat to the idea of women as male property, easily controlled and controllable.

Caste-based Violations

N M Panini comments upon the proposal put forth by Dalit intellectuals to include caste in the agenda of the United Nations sponsored World Conference Against Racism at Durban. He argues that their articulation of caste as “caste is race plus,” pacifies the urgency required in undoing strategies that, in fact, legitimise caste and caste-based politics. Especially a marked feature of electoral politics, where one’s caste becomes the deciding factor of a vote, Panini notes that India needs to be serious about addressing the pervasiveness of the caste system, because its organised hierarchical imposition is akin to the systemic erosion of human rights. 

The rising trend of ‘atrocities’ in a sense is a sign of the empowerment of the scheduled castes. Periodic elections and parliamentary democracy have taught the scheduled castes and scheduled tribes the arithmetic of caste. They have realised that by pooling their caste votes and casting them in favour of one or the other electoral candidate, they can make a significant difference to the election outcome. Hence they now assert their rights and even openly challenge the hegemony of the upper castes … Such acts often lead to violent backlashes from the upper castes. In some regions of Bihar, the landowning dominant castes have even organised private armies to put down the dalits with force.

Rights of Sexual Minorities

Arijeet Ghosh and Diksha Sanyal observe that the recently passed Surrogacy (Regulation) Bill, 2019 as well as the Transgender Persons (Protection of Rights) Bill, 2019 perpetuate a narrow vision of the “family,” which is entirely based on hetero-patriarchy and caste purity. With legal recognition only given to monogamous, heterosexual, and conjugal relationships legitimised by the institution of marriage, non-biological kinship networks such as Hijra gharanas, same-sex couples, those in polyamorous relationship, or fluid friendship networks, are excluded from accessing basic civil rights that marriage provides. In doing so, the bills seriously impose on the basic liberties of transgender persons and women, and rob them of their right to self-determination, both in terms of identity as well as in terms of who they choose to call their families. 

A vision of the family, which is broad and inclusive and is based on recognising functional aspects of families rather than their form, that is, what families do rather than what families look like, would serve as a useful template when lawmakers are drafting legislations that regulate intimacy and dependency. Recognising that families are diverse, complex, and dynamic means providing individuals with the freedom to nominate/designate their beneficiaries wherever possible and not assuming ties of blood and conjugality as the only relevant ones. In addition, it would also involve closely evaluating factors of economic and emotional interdependence and interpreting them flexibly depending on the legislative objective and situation. For instance, in some situations, co-habitation and duration of the relationship could be a relevant factor, but in other cases, it may not matter. Hence, maintaining flexibility as opposed to pursuing a one-size-fitsall policy is essential and could in the future, legitimise families of choice.

Disability Rights 

Jayna Kothari observes that though India enacted the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act (the PWD Act) in 1995, it is devoid of a strong anti-discrimination and human rights core. Disability activists in India have questioned whether the PWD act is sufficient to guarantee equal rights to people with disabilities for participation in society as citizens. The authors note that the PWD act, a socio-economic right at its core, is not as immediately effective as a civil or political right would be. The act, in its current form, would be unable to provide those with disabilities the right to participate as fully equal citizens.

While civil and political rights are immediately effective, socio-economic rights are only realisable progressively and subject to available resources. The artificiality of such distinctions has become increasingly clear in the development of human rights law. As Henry Shue states in his theory of basic rights, the protection of 'negative rights' also requires positive measures, and therefore, their actual enjoyment requires positive measures. Shue states there are many ways in which civil and political rights give rise to positive duties: for example, the duty to set up an electoral system stems from the fundamental right to democratic elections. Conversely, socio-economic rights can give rise to duties of restraint as much as positive duties. For example, the right to housing includes a duty of restraint on the State from interfering in home and family life. Thus, the nature of the duty attached to a right should not depend on whether it is classified as a civil and political or socio-economic right. Instead, all rights give rise to a range of duties. The Disabilities Convention is really the first international human rights treaty that has exposed this artificial dichotomy and made a strong case for the indivisibility of rights. This indivisibility is an integral theme that runs right through the treaty and systematically highlights both the negative and positive dimensions of all rights.

Read More: 

Audit of Human Rights | A G Noorani, 2001

The ‘Inside–Outside’ Body: National Human Rights Commission of India | Ujjwal Kumar Singh, 2018

Multiculturalism, Group Rights, and Identity Politics | Nalini Rajan, 1998