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Collective Rights in India: A Re-assessment

The notion of collective rights resonates strongly in India. With its varied ethnic communities, religious groups, social classes and vast economic differences, India has considerable experience with the challenge of realising and protecting equal rights. Supported by a progressive Constitution, a court system that has witnessed a favourable increase in public interest litigation and an energetic civil society, India has shown signs of progress in the development of collective rights in recent decades.

However, significantly more needs to be accomplished. In this arena, discrimination in society and poorly designed government policies persist. Among the numerous issues of collective rights which must be addressed are the effects of large-scale development projects, inadequate assistance to conflict-induced internally displaced persons, citizenship rights of Chakma tribals and the treatment of the Scheduled Castes and religious minorities.

India’s main weakness in upholding collective rights relates to the disparity between what is declared on paper and what occurs in practice. The Constitution stresses fundamental rights, asserts equality before the law, prohibits discrimination on grounds of religion, race, caste, sex, or place of birth, and guarantees the right to reside in any part of the territory of India. Collective rights are also specifically supported in the Constitution under Article 17, which abolishes untouchability, and under Article 15(4), which enables the State to make special provision for the “advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes”. The provisions on Scheduled Castes and Scheduled Tribes identify certain categories of peoples collectively and provide them with institutional protections to ensure them fair representation. Article 19(e) implies that indigenous peoples, peasants or other groups strongly tied to their land may remain on their land. In terms of international law, India has also ratified the principal human rights treaties which have provisions guaranteeing collective and group rights.

While the provisions of the Constitution and the country’s international pledges suggest India’s commitment to collective rights, the result of these formal commitments is highly questionable. Most jurists appear to agree that at least until the late 1970s and early 1980s, the social impact was negligible as “the poor, illiterate and oppressed had hardly heard about them, nor did they have access to the civil courts”.  Furthermore, although Articles 32 and 226 of the Constitution empower any person to move the highest courts when there is an infringement of a fundamental right, narrow and tortuous procedures have thwarted the cause of justice.

In the late 1970s and early 1980s, some onerous judicial procedures were relaxed due to liberal Supreme Court judgements. Accepting postcards and telegrams as writ petitions, for instance, benefited bonded labourers and illegally detained women and children. In the landmark 1982 case of S.P. Gupta vs. Union of India (AIR 1982 SC 149), the Court relaxed the rule of locus standi, or standing, by announcing that anyone acting in the public interest may petition the court on behalf of the disadvantaged. These changes marked the beginning of public interest litigation (PIL) in India.

However, institutional support for PIL has proven to be neither consistent nor sustainable. According to one legal expert, “the pace of progress of the PIL movement depends to a large extent on the attitude of the judges. There is no legal framework for this type of litigation.” Additionally, the practice of permitting letters and news reports as writ petitions is still rare. Instead, the courts insist on affidavits. The fundamental purpose of PIL to improve access to justice for the disadvantaged has been undermined by the practice of hearing cases associated with prominent names while the same problems raised by unknown individuals have been rejected.

Outside the courts, government policies constitute another area where the safeguarding of collective rights has been problematic. Development projects such as the construction of large dams in the Narmada Valley of Madhya Pradesh have devastated indigenous peoples and minority groups. While the dams are intended to increase farm productivity, power generation and industrial water supply, the safety risks and social and environmental costs are unacceptably high and, with better management, could be minimised. In its 2000 global survey, the World Commission of Dams reported that approximately two-thirds of the people displaced by river valley projects in India are either tribals or members of the lower castes who have the lowest incomes among the country’s poor. Considering that tribals and scheduled castes comprise one-fourth of the Indian population, these groups bear a disproportionate share of the dams’ social costs. In the past 50 years, over 56 million people have been uprooted as a result of dam construction, according to the 2000 survey. While the government promises resettlement and compensation to displaced people, most often, displaced villagers are left significantly worse off. Last year, the state government of Madhya Pradesh reported that it has no land for rehabilitation, an alarming statement considering that 80 per cent of displaced people are in Madhya Pradesh.

The courts and the government have, at times, been at odds in the protection of collective rights. In the 1995 Samatha Judgement, the Supreme Court reasserted the guarantees of the Fifth Schedule of the Constitution, specifying, “Tribal lands in Scheduled Areas cannot be leased out to non-tribals or to private companies for mining/industrial operations.” The Attorney General attempted to subvert the Court’s ruling by pushing for an amendment that would allow land transfers for the purposes of non-agricultural operations such as mining. Such a step would set a dangerous precedent, not only in reducing safeguards for one of India’s most vulnerable groups, but also in undermining the Supreme Court.

The courts and government have also worked in tandem to deny the protection of collective rights. On 18 October 2000, the Supreme Court issued a judgment ordering that construction of the Sardar Sarovar Dam to continue as quickly as possible in spite of pleas relating to environmental costs, relief and rehabilitation. Most recently in March 2001, in another example of governmental neglect of group rights, the state police of Madhya Pradesh arrested nearly 250 adivasis, or tribals, for occupying dam construction sites on the Man River. This action exemplifies the governmental attitude and response to the tribals’ insistence that construction halt until all affected people were adequately compensated.

Government policies toward indigenous peoples that have become displaced as a result of armed conflict, though sometimes well intentioned, have been woefully inadequate. Since the early 1990s, hundreds of thousands of people have been displaced in the Northeast and Kashmir. However, the government has yet to develop a coherent IDP policy. IDPs in the Northeast remain vulnerable to infectious disease, malnutrition, and rebel attacks. Hundreds of Reangs have died of starvation and disease in camps in Mizoram, and 32 people were killed in a 1997 attack on a relief camp in Tripura State. Although hundreds of Kashmiri Hindus must reside in cardboard “rooms” in displacement facilities in Delhi, Kashmiri IDPs overall have received more substantial rehabilitation packages than their Northeastern counterparts, including semi-permanent housing and educational and medical facilities. So much for equal treatment.

The fate of Chakma and Hajong tribals, who were displaced in 1964 from their ancestral home in the Chittagong Hill Tracts of Bangladesh, is another example of the mismatch between government words and deeds. In January 1996, the Supreme Court directed that Chakmas be given Indian citizenship, yet these people still do not have Indian citizenship, and they continue to suffer significant social and economic discrimination from other residents of Arunachal Pradesh. In the case of the Chakmas and Hajongs of Arunachal Pradesh, the Indian Government has been embarrassingly sluggish in meeting its clear obligations.

The Dalits, or Scheduled Castes, continue to suffer discrimination and poor treatment in spite of some laws and institutions created to protect them. Comprising 15 per cent of the Indian population, Dalits are denied access to roads, wells, temples, certain professions, and political participation in some areas. Dalit women and girls are vulnerable to sexual violence by upper-caste men. The state is also complicit in violence and other injustices against Dalits, as police show little sympathy for Dalit complaints and are often used as tools for exacting revenge or punishment by upper-caste Hindus. Torture, rape and death of Dalits in police custody have taken place in Rajasthan, Gujarat, Tamil Nadu, Kerala, and Uttar Pradesh. Few reported cases of crimes against Dalits are actually registered, and few of the small number of cases that reach a court of law are ever tried.

Discrimination against religious minorities, such as Muslims, Christians, and Sikhs, constitutes another area where collective rights are threatened. While tensions are still high between Hindus and Muslims since the December 1992 destruction of the Babri Mosque in Ayodhaya, Uttar Pradesh, violence against Christians has itself seen a marked intensification over the past year. Most perpetrators of communal violence are linked to the Sangh Parivar, which consists of Hindu fundamentalist organisations such as the Vishwa Hindu Parishad (VHP) and the ruling Bharatiya Janata Party (BJP). Few members have been tried or convicted for these acts.

With its progressive Constitution, developments in public interest litigation, and a robust civil society, India has significant potential for the protection of collective rights. However, there is also plenty of potential for Indian society to develop authoritarian traits as caste discrimination, communalism and the marginalisation of indigenous peoples continues in many cases to be worse or unabated.

Clearly, much more must be done to guarantee the rights of all groups in India. To be a strong democracy, India must uphold group rights as human rights, ensuring that all individuals enjoy equal protection before the law and equal dignity in society. One India, unified in its respect and protection of diverse groups is not so difficult to imagine. It will, however, take hard work by politicians and leaders in society to work for the greater good of India to make this happen. To most outsiders, India’s formal legal commitments give the veneer that this has already been accomplished. We know better.

-Human Rights Features

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