[ This is Essay # 18 in our Spotlight Series. Click here for the archives.]
Rural Poor- Human Rights, Inhuman State?
Theory and Practice in a Liberal Democracy
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Over the past two years or so the normally un-newsworthy rural poor in India have time and again made the headlines with their vehement opposition to the forced acquisition of their lands by the state at prices much lower than their market value. The role of state has thus been seen as favouring the industrialists at the expense of the rural poor.
This has brought the spotlight to bear on the role of the state in a framework that is both liberal democratic and capitalist. Classical Marxist theory has asserted that the state in a capitalist society is a handmaiden of the ruling classes and the democracy that is practiced is a sham.
Liberal democrats, however, have demurred and asserted that while the liberal democratic state has the monopoly of the use of force to subordinate the individual to the common good nevertheless it is possible to ensure that the state’s use of force is curtailed through the rule of law.
The first person to grapple with this problem of legitimising the liberal democratic state was the English political philosopher John Locke. He showed how a regulatory state would necessarily develop from an anarchistic “state of nature” situation given the need for ensuring individual freedom of all citizens.
Many philosophers have followed this up and enhanced this line of argument. The most cogent exposition about how a state is bound to evolve so as to maintain the maximum amount of freedom is the one put forward by the American libertarian philosopher Robert Nozick. In perhaps the most seminal libertarian text of all times- “Anarchy, State and Utopia”, he argues that the liberal democratic state is there to ensure freedom for all its citizens. It has to intervene if this freedom is jeopardised and if necessary use force against the “culprits”.
This use of force by the state is, however, governed by laws that the state cannot bypass by unleashing its armed forces or police on its citizens if they decide to protest against what they perceive to be an infringement of their rights or the implementation of an unjust law.
A case in point in India is the colonial Land Acquisition Act 1894 which is brought into play to displace people from their lands for a project that is purportedly in “public interest”. Every citizen has the right to a due process of law and should under a truly liberal democratic dispensation be able to challenge whether a project is really in “public interest” or not.
This understanding forms the basis of human rights activists’ criticism of the state for stepping in on behalf of the industrialists to acquire land for a song from poor rural people.
It is a tribute to the wisdom of even illiterate people that they have learnt the basics of the rule of law the hard way in the course of repeated displacements as well as their participation in the formal democratic processes. They rightly feel that in reality some people in this ostensibly democratic dispensation are more equal than others.
They feel that the state- contrary to the role ordained by the constitution- is illegally upholding this inequality and violating the rule of law.
Apart from ensuring freedom and equality among citizens, another important function of the liberal democratic state is to uphold justice for all its citizens.
Here too there has been a lot of debate regarding the definition of justice and once again the most powerful exposition of justice to date is by another American philosopher John Rawls in his seminal book called “A Theory of Justice”. According to him, justice within a liberal democratic state envisages that social and economic inequalities are so arranged that they are both to the greatest benefit of the least advantaged and attached to offices and positions of governance open to all under conditions of fair equality of opportunity.
This implies that the state should so operate that its most disadvantaged citizens, in this case the rural poor of this country, are benefited by its actions.
Can we say that this is true of the actions of the independent Indian state to date?
If anything the rural poor in this country have not only not benefited from the actions of the Indian state but on the contrary have continuously been sacrificed to the illegality of these actions. Millions of people have been displaced through direct and indirect means since independence without rehabilitation and resettlement and this mountain of injustice has now begun breaking down on the state and those well heeled industrialists who have consistently used its monopoly over the use of force to subvert the rule of law.
What is of prime concern from the human rights point of view is that even the judiciary condones the illegal actions of the state as it has done in the Singur case by saying that the acquisition of land for the Tata car plant by the state government was legally valid.
Nevertheless, today the only line of hope that remains within the democratic setup for the establishment of the rule of law is still the judiciary. Even with all its deficiencies it does provide some relief sometimes.
One of the greatest judgments of the Supreme Court is undoubtedly the one delivered in the Samatha Case (Samatha vs State of Andhra Pradesh, 1997 8 SCC 191) against the granting of mining leases by the Andhra Pradesh government to a private non-Adivasi company in an area that had been notified as a scheduled tribal area under the provisions of the Fifth Schedule of the Constitution.
The state contended that the provisions of the Fifth Schedule regarding the non-transfer of adivasi land or government land in a scheduled tribal area to non-adivasis is not binding because the operative word in the constitution is that the governor of a state “may” advise the government to enact such affirmative laws for the adivasis but it was not mandatory for the state to do so or having done so not to repeal them.
In a fascinating majority judgment quoting extensively legal luminaries from across the world and from the debates in the constituent assembly the supreme court laid down that even though the operative word is “may” the intention of the framers of the constitution was that it should be “shall” and that the provisions are binding on the state to protect
the adivasis’ entitlements!
We need more such judgments to further deepen liberal democratic principles in the country as more and more protests gather strength- as indeed they must- against illegal laws of colonial vintage and the violation of the rule of law by the state in favour of industrialists.
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The trouble with such analysis is that it remains within the framework of a classical marxist conceptualization of the state- as if a state can be only capitalist or socialist. The wide variety of state formations in the 20th century is simply missed out, as if there could not be any intermediate formations. Once this dichotomy is set aside and one sees the emergence of a broader spectrum of classes coming to power, one does not really need to bring in western liberal philosophers and counterpoise them to an Indian ‘capitalist’ state to understand the nature of the State in post Independence India.
The state that came into picture post 1947 was essentially capitalist in nature, but provided space to other classes. The need is to expand that space and not see the state as intrinsically inimical to the Indian people. This is pretty much borne out by the examples that you state. But the origin of the liberal aspect lies not in western conceptualizations of liberalism, but in the anti- colonial or anti- imperialist nature of the Indian struggle for independence. It is fruitless to bring in notions of western liberalism into the debate.
The legally operative parts of the Indian Constitution adopted in 1947 were largely based on a classical western form of liberalism with the anarchist, anti-industrial and anti-colonial Indian prescriptions of Gandhi being relegated to the non-justiciable Directive Principles of State Policy. Moreover roughly 70 percent of the provisions of this constitution were lifted verbatim from the colonial Government of India Act of 1935. Thus whether we like it or not the “law” by which we are supposed to be “ruled” in this country is very much steeped in western liberalism whatever our personal predilections or understanding may be. That is why I went to the philosophical roots of western liberalism by whose practical tenets the Indian state is supposed to rule to show that it is not doing so.
Coming to the struggles for Indian independence and the later post independence struggles of the peasantry and the working class these have in many ways been able to democratise the functioning of the Indian state but what is surely evident is that not enough has been done. Most glaringly in the case of involuntary displacement which is being discussed here the right to property is still being unequally administered. While the right to property of the rich is religiously protected by the state that of the poor is disdainfully disregarded. For instance one major positive legal development in the post independence period has been the 73rd amendment to the Constitution making Panchayati Raj a mandatory third tier of governance in rural areas. According to this and also according to the provisions of the Environment Impact Assessment guidelines it is mandatory to take the permission of the Gram Sabha before implementing a project in its area. However, this provision is routinely neglected or worked around through various underhand means. When resources have to be extracted and centralised then there is no way in which we can have true decentralisation. So when we start debating about displacement and its politics then we will invariably have to question centralised development and the politics associated with it whether liberal or marxist.
The modern state is a very powerful entity and it is an incontrovertible fact that it is never in the control of the poor. How to make it more accountable to the majority of its citizens is a problem that has not been solved at the practical level either by the marxists or by the liberals despite some excellent theory on both sides (i gave examples of the liberal pedigree in this regard but the marxists like E.P. Thompson and George Lukacs have been equally brilliant). I was just pointing out some of the obvious problems associated with involuntary displacement due to industrialisation and not making any prescriptions. Nor was I arguing from a standpoint of picturising the state as being either liberal democratic or socialist. I personally am an anarchist who believes that the centralised state can never be made citizen friendly however much we may try!
rahul,
i agree with most of what you say in your post and in your response to marxman.
but i don’t think the right to property is unequally administered between the rich and the poor in india. what makes you say that?
I made that statement primarily in the context of the The Land Acquisition Act 1894 which provides for the acquisition of land from a citizen for a “public purpose”. Since the government has the monopoly of deciding what is public purpose the citizen can challenge this only in a court of law. Now as we all know approaching the courts of law is an expensive proposition that is beyond the means of a majority of poor citizens in this country. There are various other provisions of this colonial law which if they are not challenged in the courts leads to the oustee being deprived of a just compensation for the land that is lost. While rich people have always gone to the courts and got a better deal than what the government initially offers the poor and especially the adivasis have been cheated. While it can be argued then that the government is equally unjust to rich and poor but under the circumstances the poor are unequally placed vis-a-vis the rich. now over the past decade or so the government has been acquiring land at cheap rates from the poor and then selling it to the industrialists. Or as in the case of many public sector units that have been privatised the land acquired cheaply from the poor is being transferred equally cheaply to capitalists.
rahul,
i didn’t say the law isn’t unequally administered. i’d said the law doesn’t discriminate on grounds of the economic background of the property holder.
or rather, the justice system and the adminstration don’t discriminate on economic grounds.
In theory the law and the rules for its implementaion do not discriminate between the rich and the poor but in reality the socio-economic situation prevailing does tend to favour the rich. As the french nobel laureate anatole france has sarcastically said in his novel “red lily” - “Another reason for pride, that of being a citizen! For the poor citizenship consists of supporting and sustaining the power and idleness of the rich. They must work for those goals before the majestic equality of the laws, which forbids rich and poor alike to sleep under bridges, to beg in the streets and to steal bread.” Take the case of stealing. A lot more money is being stolen by the rich when they do not pay the legally ordained taxes. Yet they are able to employ the highest paid lawyers to win their cases in court while the petty thieves get beaten up in police lockups and end up in jail.