Right to Development an Inalienable Human Right

Declaration on the right to Development made by the general Assembly on 4th Dec 1986, defines “Development” as “ comprehensive, economic, social, cultural and political process, which aims at the constant improvement of the well being of entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom”, and then the Declaration proceeds to proclaim ; “the right to development is an inalienable Human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedom can be fully realized. The Vienna Declaration and Program of Actionadopted by the World Conference on Human Rights on 25th June 1993, recommends:

“The World Conference on Human Rights reaffirms the right to development, as established in the Declaration on the Right to Development, as an universal and inalienable right and an integral part of fundamental human rights. As stated in the Declaration on the right to development the human person is the central subject of development.”

Human Rights are those rights which are inherent in human existence and belong to all human persons irrespective of gender, race, caste ethnicity, religion etc. Human rights are indivisible, interdependent and inter-related having a clear linkage with human development; and both share a common vision with a human purpose. The Constitution of India was drafted nearly at the same time as the UDHR and contains similar provisions. Part III of the Constitution containing the Fundamental Rights corresponds to the international covenant on Civil and Political Rights (ICCPR), and the Directive Principles of State Policy in Part IV of the Constitution correspond to the international covenant on Economic, Social and Cultural Rights (ICESCR).The core value of our Constitutional philosophy indicated in the Preamble to the Constitution of India, is “Dignity of the individual”. It is obvious that, dignity of the individual being a core value, and the aim of a welfare state through Human Development being fundamental to governance, the essence of Constitutional Governance is emphasis on human rights, and that is our Constitutional philosophy.

The Directive Principles which are fundamental in governance of the country (Article 37 to 50) require the state to secure a social order for the promotion of welfare of the people, to secure distributive justice and right to development with full dignity, right to work, to education and social security, provision for just and humane conditions of work, provision for free and compulsory education for children, promotion of the educational and economic interests of the weaker sections, to raise the level of nutrition and standards of living and to improve public health, and protection of environment, ecology and wild life etc.

The Supreme court of India in Air India Statutory Corporation vs United Labour Union (AIR 1997 SC 645) held as follows:

The Directive Principles in our Constitution are fore-runners of the U.N.O. Convention on Right to Development as inalienable human right and every person and all people are entitled to participate in, contribute to and enjoy economic, social cultural and political development in which all human rights, fundamental freedoms would be fully realised. It is the responsibility of the State as well as the individuals, singly and collectively, for the development taking into account the need fuller responsibility for the human rights fundamental freedoms as well as the duties to the community which alone can ensure free and complete fulfilment of the human being. They promote and protect an appropriate social and economic order in democracy for development. The State should provide facilities and opportunities to ensure development and to eliminate all obstacles to development by appropriate economic and social reforms so as to eradicate all social injustice. These principles are imbedded, as stated earlier, as integral part of our Constitution in the Directive Principles. Therefore, the Directive Principles now stand elevated to inalienable fundamental human rights. Even they are justiciable by themselves.

Social and economic democracy is the foundation for stable political democracy. To make them a way of life in the Indian polity, law as a social engineer, is to create just social order, remove the inequalities in social and economic life and socio-economic disabilities with which people are languishing: and to require positive opportunities and facilities as individuals and groups of persons for development of human personality in our civilised democratic set up so that every individual would strive constantly to rise to higher levels.

Dr. Ambedkar, in his closing speech in the Constituent Assembly on 25/11/1949, had lucidly elucidated the meaning of social and political democracy. He stated that it means a way of life which recognises liberty, equality and fraternity as the principles of life. They are not to be treated as separate items in a trinity. They form an integral union. One cannot divorce from the other; otherwise it would defeat the very purpose of democracy. Without equality, liberty would produce supremacy of the few over the many; equality without liberty would kill the initiative to improve the individual's excellence, political equality without socio-economic equality would run the risk of democratic institutions to suffer a set back. Therefore, for establishment of just social order in which social and economic democracy would be a way of life inequalities in income should be removed and every endeavour be made to eliminate inequalities in status through the rule of law.

The Constitution of India has guaranteed certain fundamental rights for the citizens of India, which are enumerated in Part III of the Constitution. In Part IV of the Constitution, there is a direction to ensure, that 'the ownership and control of material resources of the community are so distributed as best to sub serve the common good ; and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment and the state shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life'. These Directives are not “enforceable by any court, the principles therein laid are nevertheless fundamental in the governance of the country'. State, which has to enforce fundamental rights in part III and who has to govern on the fundamental principles in Part IV has been defined in Article 12 and 36 as to include “The govt. and Parliament of India and the govt. and legislature of each of the states and all local or other authorities within the territory of India or under the control of Govt. of India”.

The Constitution of India was adopted by the Constituent Assembly on 26th November 1949 and Hon'ble members appended their signature on 24t h January 1950. The Constitution of India came into force on 26th Jan 1950. On that day the Assembly ceased to exist transforming itself in to Provisional Parliament until a new Parliament was constituted in 1952, and RepresentationofPeople'sAct1951 was enacted in accordance with the requirement of Article 324 to 329 of the Constitution so that a set of laws exist for holding the election of Parliament and the State Legislatures, electing a President of India who would appoint a Prime Minister and other ministers on the recommendation of Prime Minister and so on. The first elections to constitute the Parliament and the State Legislatures were held in 1952 where after the first cabinet of ministers headed by Jawahar Lal Nehru came into being and then the other constitution functionaries like Finance Commission of India, Comptroller and Auditor General of India were appointed by the President of India on the advice of the Council of Ministers.

Within seven weeks of the adoption of the Constitution the Govt. of India set up, Planning Commission of India by a Cabinet resolution dtd. 15thMarch 1950. This resolution specifically refers to the Fundamental Rights and the Directive Principle of State Policy and proceeds as follows:

“3.The Constitution of India has guaranteed certain fundamental rights to the citizens of India and enunciates certain Directive Principles of State Policy, in particular, that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the National life and shall direct its policy towards securing, amongst other things:-

(a) that the citizens, men and women, equally, have the right to an adequate means of livelihood .

(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; and

(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment

“4. Having regard to these rights and in furtherance of these principles as well as of the declared objective of the government to promote a rapid rise in the standard of living of the people by efficient exploitation of the resources of the country, increasing production,andofferingemployment opportunities to all in the service of the community.

The Planning Commission will:

1. make an assessment of the material, capital and human resources of the country, including technical personnel, and investigate the possibilities of augmenting such of these resources as are found to be deficient in relation to      the nation's requirements;

2. formulate a Plan for the most effective and balanced utilisation of the country's resources;

3. on a determination of priorities, define the stages in which the plan should be carried out and propose the allocation of resources for the due completion of each stage;

4. indicate the factors which are tending to retard economic development, and determine the conditions which, in view for the current social and political situation, should be established for the successful execution of the Plan;

5. determine the nature of the machinery which will be necessary for securing the successful implementation of each stage of the Plan in all its aspects;

6. appraise from time to time the progress achieved in the execution of each stage of the Plan and recommend the adjustments of policy and measures that such appraisal show to be necessary; and

7. make such interim or ancillary recommendations as appear to it to be appropriate either for facilitating the discharge of the duties assigned to it; or on a consideration of the prevailing economic programmes; or on examination of such specific problems as may be referred to it for advice by Central or State Governments.

5. The Planning Commission will be composed of the following:Chairman: Shri Jawahar Lal Nehru;Deputy chairman - Shri Gulzarilal Nanda; Members : Shri V.T. Krishnamachari, Shri Chintaman Deshmukh, Shri G.L. Mehta, Shri R.K. Patil; Secretary: Shri N.R. Pillai;Deputy Secretary: Shri Tarlok Singh.

6. The Planning Commission will make recommendations to the Cabinet. In framing its recommendations, the Commission will act in close understanding and consultation with the Ministries of the Central Government and Governments of the States. The responsibility for taking and implementing decisions will rest with the Central and the State Governments. The Government of India feel confident that the States will give the fullest, measure of help to the Commission, so as to ensure the maximum coordination in policy and unity in effort.

7. The work of the Planning Commission will affect decisively the future welfare of the people in every sphere of national life. Its success will depend on the extent to which it enlists the association and cooperation of the people at all levels. The Government of India, therefore, earnestly hope that in carrying out its task the Commission will receive the maximum support and goodwill from all interests and, in particular, from industry and labour. 8. The headquarters of the Commission will be at New Delhi”. The planning commission was set up to carry out the Directive Principles in the terms of reference dated 15th March 1950 and it was required to make an assessment of material, capital and human resources of country, including technical personnel, to formulate a plan for the most effective and of the country's resources, and determine the nature of machinery which will be necessary for securing the successful implementation of each stage of the Plan in all its aspects. Such a wide power having been given to the planning commission of India, there was nothing left for the other constitutional functionaries to do . For more than 64 years, the governments of this country- Central as well as States have been totally negligent and have been putting aside the Directive Principles of State Policy apparently under a belief that this task was entrusted to the planning commission of India by the resolution dated 15th Mar 1950 by which it was set up, and they have only to look towards the planning commission for grants etc. Even the functioning of the Parliament and state legislative assemblies has been largely affected by the existence of this extra constitutional body.

There was no transparency in the working of the planning commission. In regard to the constitutional functionaries there are safeguards in the constitution to make them accountable. The planning commission was working on the basis of the wide terms of reference in the resolution dated 15th March 1950, and ever since then it has been evolving its own methodology and procedure. Planning Commission of India, with the passage of time has really become a “modern day leviathan”.

The style of functioning of the planning commission gave rise to great economic and social disparity and deprivation of the basic rights like education, health, right to work etc and only brought disaster. In `Nandini Sunder vs State of Chhattisgarh', 2011 SCC (7) 547 examined the working of the Planning Commission of India and the development paradigm pursued by it as follows :

That violent agitator politics, and armed rebellion in many pockets of India have intimate linkages to socio-economic circumstances, endemic inequalities, and a corrupt social and state order that preys on such inequalities has been well recognized. In fact the Union of India has been repeatedly warned of the linkages. In a recent report titled "Development Challenges in Extremist Affected Areas", an expert group constituted by the Planning Commission of India makes the following concluding observations:

"The development paradigm pursued since independence has aggravated the prevailing discontent among the marginalized sections of the society.... The development paradigm as conceived by policy makers has always imposed on these communities.... causing irreparable damage to these sections. The benefits of this paradigm have been disproportionately cornered by the dominant 3 Ajay K. Mehra "Maoism in a globalizing India" in "The Dark Side of Globalization" eds. Jorge Heine and Ramesh Thakur (United Nations University Press, 2011) 4 Report of an Expert Group to Planning Commission, Government of India (New Delhi, April, 2008) sections at the expense of the poor, who have borne most of the costs. Development which is insensitive to the needs of these communities has inevitably caused displacement and reduced them to a sub- human existence. In the case of tribes in particular it has ended up in destroying their social organization, cultural identity and resource base.... which cumulatively makes them increasingly vulnerable to exploitation.... The pattern of development and its implementation has increased corrupt practices of a rent seeking bureaucracy and rapacious exploitation by the contractors, middlemen, traders and the greedy sections of the larger society intent on grabbing their resources and violating their dignity." [paras 1.18.1 and 1.18.2, emphasis supplied]

4. It is also a well known fact that Government reports understate, in staid prose, the actuality of circumstances. That an expert body constituted by the Planning Commission of India, Government of India, uses the word "rapacious", connoting predation for satisfaction of inordinate greed, and subsistence by capture of living prey, is revelatory of the degree of human suffering that is being visited on vast sections of our fellow citizens. It can only be concluded that the expert body, in characterizing the state of existence of large numbers of our fellow citizens, in large tracts of India, as "sub- human," is clearly indicating that such an existence is not merely on account of pre-existing conditions of significant material deprivation, but also that significant facets that are essential to human dignity have been systematically denied by the forces and mechanisms of the developmental paradigm unleashed by the State. Equally poignantly, and indeed tragically because the State in India seems to repeatedly insist on paying scant attention to such advice, the Expert Group further continues and advises:

"This concludes our brief review of various disturbing aspects of the socio-economic context that prevails in large parts of India today, and that may (and can) contribute to politics such as that of the Naxalite movement or erupt as other forms of violence. It should be recognized that there are different kinds of movements, and that calling and treating them generally as unrest, a disruption of law and order, is little more than a rationale for suppressing them by force. It is necessary to contextualize the tensions in terms of social, economic and political background and bring back on the agenda the issues of the people - the right to livelihood, the right to life and a dignified and honourable existence. The State itself should feel committed to the democratic and human rights and humane objectives that are inscribed in the Preamble, the Fundamental Rights and Directive Principles of the Constitution. The State has to adhere strictly to the Rule of Law. Indeed, the State has no other authority to rule.... It is critical for the Government to recognize that dissent or expression of dissatisfaction is a positive feature of democracy, that unrest is often the only thing that actually puts pressure on the government to make things work and for the government to live up to its own promises. However, the right to protest, even peacefully, is often not recognized by the authorities, and even non-violent agitations are met with severe repression.... What is surprising is not the fact of unrest, but the failure of the State to draw right conclusions from it. While the official policy documents recognize that there is a direct correlation between what is termed as extremism and poverty.... or point to the deep relationship between tribals and forests, or that the tribals suffer unduly from displacement, the governments have in practice treated unrest merely as a law and order problem. It is necessary to change this mindset and bring about congruence between policy and implementation. There will be peace, harmony and social progress only if there is equity, justice and dignity for everyone." [paras 1.18.3 and 1.18.4, emphasis supplied]

With this backdrop we proceed to look at the constitutional scheme emerging after the 73rd and 74th Constitutional Amendment Acts, by which Part IX and IX A were inserted in the constitution providing for democratic institutions .Now part IX and IXA of the Constitution have brought, through Article 243 to 243 ZG, the Panchayats, Zilla Parishads and Municipalities as constitutional instrumentalities to elongate the socio-economic and political democracy under the rule of law. Articles 243G and 243W enjoinpreparation of plans for economic development and social justice. The State, i.e., the Union of India, the State Governments and the local bodiesconstituteanintegralexecutive to implement the directive principles contained in Part IV through planned development under the rule of law.

It is really unfortunate that the political activity in this country ignores the insertion of Part IX and IX-A in the Constitution of India. Many debates take place on issues like corruption and criminalization of politics. There is no debate on the core issue of “Governance” on the Fundamental Principles contained in Part IV. The issues like corruption and criminalization of politics is the outcome of centralized system of governance with a strong bureaucracy which works as a coordinator between the various evil forces. The debates of administrative reforms and electoral reforms etc. remain confined to the centralized politics.

Now the Constitution decentralizes the governance of the States by a four tier administration i.e. Central Government, State Government, Union territories, Municipalities and Panchayats. See Constitution for Municipalities and Panchayats: Part IX(Panchayats) and Part IX-A (Municipalities) introduced through the Constitution 73rd Amendment Act, making the peoples participation in the democratic process from grass root level a reality. Participation means that people are closely involved in the economic, social, cultural and political processes that affect their lives. People may, in some cases, have complete and direct control over these process-in other cases, the control may be partial or indirect. The important thing is that people have constant access to decision - making and power. Participation in this sense is an essential element of human development .Participation of the people in governance of the State is sine qua non of functional democracy implies people's participation not only in decision making about preparation of plans for economic development and social justice but also in execution of such plans. What should be the model of development can now be decided by the people themselves. Disadvantaged sections of the people in our country have been living in rural as well as urban areas. In the past, it was always believed that urban areas would develop automatically whereas concerted efforts will have to made to plan the development of rural areas. Now these two Constitutional amendments show that the path to the city runs through villages .It is just not possible to create healthy cities surrounded by sick villages .Now if we havealookattheitemsinthe11th and 12th Schedule, we would find that health, culture, education, poverty elevation programme, public distribution system, small- scale industries, rural housing, and things like that have become subject-matter of decentralized planning by people's participation without any bureaucratic interference for development of rural areas as well as urban areas.

Now under part IX of the Constitution Panchayats “shall be constituted in every state” at the village, intermediate and district levels in rural areas, and under part IX-A, Municipalities “Shall be constituted for(a)transitional areas, i.e. to say an area in transition from rural area to an urban area(b)for small urban areas, and for larger urban areas, to be known as Nagar Panchayat, Municipal Council and Municipal Corporation respectively, for urban areas. Kindly see Article 243-B and 243-Q of the Constitution. Now these panchayats for rural areas and Municipalities for urban areas are the creation of the Constitution and not creation of an ordinary Statute. These institutions are Constitutional functionaries. These institutions can be used to realize the rights contained in Directive Principles of State Policy which is evident by the perusal of the relevant provisions of the Constitution. Article 243-G give power to the Panchayats in rural areas and Article 243-W gives power to the Municipalities in urban areas “to function as institution of Local Self Government” having powers with regard to “the preparations of plans for economic development and social justice” as well as the implementations of the schemes for the economic development and social justice as may be entrusted to them including those in relation to the matters listed in Eleventh Schedule(for rural areas) and Twelfth Schedule of the Constitution(for urban areas).

The Eleventh Schedule and Twelfth Schedule of the Constitution of India are reproduced below:
Eleventh Schedule: 1. Agriculture, including agricultural extension.2. Land improvement, implementation of land reforms, land consolidation and soil conservation.3. Minor irrigation, water management and watershed development.4. Animal husbandry, dairying and poultry.5. Fisheries.6. Social forestry and farm forestry.7. Minor forest produce.8. Small scale industries, including food processing industries.9. Khadi, village and cottage industries.10. Rural housing.11. Drinking water.12. Fuel and fodder.13. Roads, culverts, bridges, ferries, waterways and other means ofcommunication.14. Rural electrification, including distribution of electricity.15. Non-conventional energy sources.16. Poverty alleviation programm17. Education, including primary and secondary schools.18. Technical training and vocational education.19. Adult and non-formal education.20. Libraries.21. Cultural activities. 22. Markets and fairs. 23. Health and sanitation, including hospitals, primary health centresand dispensaries. 24. Family welfare.25. Women and child development.26. Social welfare, including welfare of the handicapped and mentallyretarded.27. Welfare of the weaker sections, and in particular, of the ScheduledCastes and the Scheduled Tribes.28. Public distribution system.29. Maintenance of community assets.

Twelfth Schedule: 1. Urban planning including town planning.2. Regulation of land-use and construction of buildings.3. Planning for economic and social development.4. Roads and bridges.5. Water supply for domestic, industrial and commercial purposes.6. Public health, sanitation conservancy and solid waste management.7. Fire services.8. Urban forestry, protection of the environment and promotion ofecological aspects.9. Safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded.10. Slum improvement and upgradation.11.

Urban poverty alleviation.12. Provision of urban amenities and facilities such as parks, gardens,playgrounds.13. Promotion of cultural, educational and aesthetic aspects.14. Burials and burial grounds; cremations, cremation grounds; and electric crematorium15. Cattle pounds; prevention of cruelty to animals.16. Vital statistics including registration of births and deaths.17. Public amenities including street lighting, parking lots, bus stops and public conveniences.18. Regulation of slaughter houses and tanneries.

We have to appreciate how wide are the powers of these institutions which include a power of “preparing plans for economic development and social justice” and the execution of such plans. The development activity has been brought at the grass root level available at the doorstep of “We the people of India” who will involve themselves in economic development and social justice, which means human development on the Fundamental Principles of governance, contained in Part IV. In the lists contained in Eleventh and Twelfth Schedule of the Constitution there is hardly any item which might be required for the exercise of the collective right to human development.

According to the Ministry of Rural Development, there are 2,26,188 village panchayats in the country with 31,98,554 members. That works out to an average of about fifteen members per panchayat. At the intermediate level, which in some States is referred to as the Taluk, Mandal or Block panchayat, there are 5,736 such panchayats with 1,51,412 members. Additionally, there are 467 district panchayats with 17,935 members. Compared to this the number of urban local bodies and their elected representatives is rather limited. In 1998, there were 95 Municipal Corporations, 1436 Municipal Councils and 2,055 Nagar Panchayats. Elections have always been a large-scale event in India. Even by these standards the panchayat and nagarpalika elections following the 73r d and 74t hAmendments of the Constitution have been an exercise on an unprecedentedscale.

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