PUCL Bulletin, Nov., 2000

Population policy and Human Rights

Writ petition in the Supreme Court on population policy

Shri Ravi Kiran Jain, Senior advocate, Allahabad High Court has filed a writ petition under the Supreme Court of India under Article 32 of the constitution, which claims relief at the initial stage "to examine the policy of the government of India, if any, regarding stabilization of population of the country, find the causes for population exclusion and thereafter suggest remedial measurers". Further to monitor the stabilsation of population at least for a period of 10 years. A Supreme Court bench consisting of Chief Justice C. J. Dr. A. S. Anand, Mr. Justice Lahoti, and Mr. Justice Patel have directed by an order dated of October 9, 2000 the solicitor general of India should appear to assist the Court on the next date. The case has been directed to be listed after 4 weeks and is likely to come up in the list of November 6.

The important arguments advanced in the petition are on the following lines: -

Human Rights can be classified into 3 categories:

(a) Civil and political Rights.
(b) Economic, Social and Cultural Rights
(c) Collective Right to development.
The first categories of these rights are contained in part III of the Constitution of India under the heading of "fundamental Rights". The second and third category of rights are contained in part IV under the heading of "Directive principles of State Policy" which are Fundamental in the governance of the country" and it is the duty of the state to apply these principles in making laws."

The Directive principles exhort the state to ensure that citizens have and adequate means of livelihood, that the operation of the economic system and the ownership and control of the material resources of the country subserve the common good, that the health of the workers, including children, is not abused, and that special consideration be given to pregnant women. Workers, both agricultural and industrial as to have a standard of living that allows them to enjoy leisure and soicl and cultural opportunities. Among the primary duties of the State is the raising of the level of nutrition and the general standard of living of the people. The Principles express the hope that within ten years of the adoption of the constitution there will be compulsory primary education for children up to the age of 14 years. The other provisions of the principles seek equally to secure the renovation of Indian Society by improving the techniques of agriculture husbandry, cottage industry, etc.
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A little simple arithmetic will show that if the present rate of growth is allowed to continue unchecked the population of this country will be 160 crores 2025. In 1951 census it was 361 million. In 1967 it crossed 600 million marks and in early 2000 it has crossed 1000 million. This means that in 25 years between 1951-76 there was an increase of 24 million, but 24 years between, 1976 to 2000 there is further increase of 400 million. With this trend there will be further increase of 600 million by 2025.
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The national Human Rights commission (NHRC) in its Annual report of 1996-97 referring to the famous "Tryst with density" speech of Jawaharlal Nehru put6 a question to itself in the context of the statutory responsibility of promoting and protecting Human Rights in Para 2.1, 2.2 and 2.3 of the said report which are quoted below:

"2.1 This report is being written as India approaches the 50th anniversary of its independence. In words etched in the historical memory of the nation, its first prime Minister, speaking in the Constituent Assembly at mid night on 14-15 August 1947 said:
"Long ago we made a tryst with destiny and now the time comes when we shall redeem our piedge, not wholly or in full measure, but very substantially".

2.2 for this Commission, charged with the statutory responsibility of promoting and protecting Human Rights, it becomes necessary to ask:

Have we, 50 years after independence, done enough to redeem that pledge in terms of our compatriots? Has our pledge to the people of India, that their rights to life, liberty equality and the dignity of the individual, as guaranteed by our constitution and underwritten by our treaty commitments, been redeemed if "not wholly"; then "very substantially"?

2.3 the answer to these questions is complex and it can scarcely be the purpose of this Annual report to provide commentary on fifty years of independence. Yet the contours of the answer need to be delineated, if only to relate the commission's functions and efforts in 1996-97 with the realities of the nation as they are today, half a century after independence. What do the contours reveal"?

The elaborate answer to the NHRC to the aforesaid question is to be found in paragraph 2.4 to 2.16. A photocopy of the relevant extract of the report of the NHRC (1996-97) is enclosed herewith (Annexure-1). A perusal of Para 2.9 of the said report shows that:

NHRC has observed that in recent years, there has been growing concern in the country that the processes of governance have been corroded by a nexus between criminals, some political elements and members of the executive lacking in integrity which has the deleterious effect on Human Rights and on account of which supposed protectors of rights have themselves turned predators. Kindly see that in Para 2.12 the NHRC says that it has a conviction that all Human Rights whether Civil and Political, economic, social and political, economic, social or cultural must be viewed as the 1993 Vienna Declaration And Program of Action did as "Universal, indivisible, interdependent, and inter related". Then in Para 2.14 it gives the data as to how many 100 million Indians are illiterate, how many are below the poverty line, how many children are not attending schools, how many (135 millions) people have yet to gain access to primary health care, how many are deprived of safe drinking water and how
many are without the safe sanitation facility. Kindly peruse Para 2.1 to 2.16 of the report.

In this next annual report (i997-98) the NHRC reiterated its conviction that there is integral relationship between the promotion and growth of Civil and Political Rights in Para 2.1 and 2.2, which are quoted below.

"2.1 In its preceding report, the commission sought to provide an assessment of the political, economic and social conditions prevailing in India in the 50th year of its independence and of the factors-to use the words of the section 12 (e) of the 1993 Protection of Human Rights Act that "inhibit the enjoyment" of such rights by the people of India half a century after the commencement of the odyssey that began with independence.

2.2 This will not reiterate the conviction of the Commission that there is an integral relationship between the proper promotion and growth of civil and political right and the furtherance of economic, social and cultural rights. It greatly diminishes the dignity and worth of vast numbers of people of India- and indeed of the country as a whole as long as situation is allowed to persist where the numbers of those afflicted by illiteracy increases each year, to a point to where it now exceeds the population of the country at the time of independence, a situation in which over 60 million children between the age group 6 14 years do not attend school, but in which many loose their and often their lives - in child labour. It does not do credit to a country with a talent and potential that we have, the one third of the world's poor should be Indian, which numbers that are in themselves numbing in scale of those who lack clean drinking water, basic sanitation and minimal standards of health care, food and nutrition. In the view of the Commission the persistence of such a situation constitutes a failure of governance which must be urgently remedied. For it is on the pillars of good governance and a firm commitment to politics of equity and justice that the promotion and protection of Human Rights in the final analysis, rests".

NHRC is constituted under the provisions of Protection of Human Rights Act 1993. It has been enacted to promote and protect human rights and the Commission is headed by former Chief Justice of India. Its report is an authentic material to be placed in the Supreme Court to demonstrate that after more than 50m years of the working of the constitution the State has miserably failed in taking the country on a path where Fundamental in establishing the egalitarian social order".
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In Vellore Citizens Welfare Forum v. Union of India AIR 1996 Supreme Court 2715 the Supreme Court elaborately discussed the concept of "Sustainable development" in the following words:

"The traditional concept that development and ecology are opposed to each other is no longer acceptable. "Sustainable Development" as a concept came to be known for the first time in the Stockholm Development of 1972 "Sustainable Development has come to be accepted as a viable concept to eradicate poverty and improve the quality of human life while living within the carrying capacit6y of the supporting eco systems. "Sustainable Development" as defined by the Brundtland Reports means "development that means the needs of the present without comprising the ability of the future generations to meet their own needs". We have no hesitation in holding that "Sustainable development" as a balancing concept between ecology and development has been accepted as a part of the Customary International law through its salient features have yet to be finalized by the international law Jurists".

In Bandhuva Mukti Morcha v. Union of India (1984) 2 SCR 67: (AIR 1984 Supreme Court 802) Bhagwati, J. while affirming the proposition that Article 21 must be construed in the light of the Directive Principles of State Policy observed thus (at pp.811 and 812 of AIR):

"This right to live with human dignity enshrined in article 21 derives its life breath from the directive Principles State Policy and particularly clauses (e) and (f) of Article 39 and Article 41 and 42 and at least therefore, it must include protection of the health and strength of workers men and women, and of the tender age of children against abuse, opportunities and facilities of children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief. These are the minimum requirements, which must exist in order to enable a person to live with human dignity.

In Olgas Tellis v. Bombay Municipal Corporation (1986 S.C. 180). Chandrachud, CJ speaking for the Court observed:

"Article 39 (a) of the constitution, which is a Directive Principles of State Policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally have the right to an adequate means of livelihood. Article 41, which is another directive principle, provides, inter alia, that the state shall, with in the limits of its economic capacity and development make effective provision for securing the right to work, in cases of unemployment and of undeserved want. Article 37 provides that the Directive principles, although not enforceable by any court, are nevertheless fundamental in the governance of the country. The principles contained in Article 39 (a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to Secure to the citizens and adequate secure means of livelihood at the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life".

The new tools and the new remedies for the enforcement of HUMAN RIGHT TO DEVELOPMENT can be found in the Institutions of local self governments created by 73rd and 74th Constitutional Amendments Acts for the rural as well as the urban decentralized planning. What should be the model of Development can be decided now by the people themselves at the local level.

The right to development encompasses within its ambit all Human Rights and Fundamental Freedoms including right of self-determination. The RIGHT TONDEVELOPMENT is multi dimensional character incorporating all civil, political and economic social and cultural rights necessary for the full development of the individual and the protection of his dignity.

The principle goal of development policy is to create sustainable improvement in the quality of life for all people. The sustainable development is the key to a social order based on equality, prosperity and security. It is a process in which development can be sustained for many generations to come. The phenomenon provides for improving the quality of both human life and natural surroundings. In thus aims at harmonizing and maintains the carrying capacity of the life supporting Eco-system sustainable a development that meets the needs of the present without comprising the ability of the future generations to meet their own needs.

Democracy implies people's participation not only in decision making about in preparation of plans for economic development and social justice but also in execution of such plans.
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Kindly appreciate how wide is the powers of these institutions which includes a power of "preparing plans for economic 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. Then kindly see this list contained in Eleventh and twelfth schedule of the Constitution. There is hardly any item in these lists, which might be required for the exercise of the collective right to development for the realization of such economic and cultural rights.
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The institutions created under the status have been used as "new tools" for granting relief under Article 32 by the Supreme Court and by the High Court under Article 226 of the Constitution of India.
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The Central Government is selling out this country's natural resources to the Multinationals. With a nexus of political leadership of this country, the World Bank. The IMF and WTO are killing livelihood, environment and democracy in India.
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Globalization is nothing but loosing our economic and political sovereignty by entering into unequal treaties like GATT and becoming member of W.T.O. There are clauses in these treaties that our Parliament will have to enact laws in tune with some of its provisions and if our parliament does not do so the WTO can take cross-relationary measurers. We are not free to decide what to export, or import. The consequence is that we can never even imagine of having an economy of self-reliance. These unequal treaties suit either the developed countries that have surplus production, or those under developed countries that have an economy of self-restraint like China. It does not suit our country where there is scarcity of certain consumer items but still we want to adopt the western consumer culture.

This globalization is creating unemployment, recession, scarcity of raw materials and a haphazard industrial growth and making this country economically bankrupt and it has put us in the cobweb of multinationals with total loss of sovereignty, both political and economic on account of liberalization and globalization of WTO.

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The Directive Principle are not Fundamental in making the laws after we became the members of WTO it is the dictates of WTO which are fundamental "in the governance of the country".

The World Bank in its World development report 1999-2000 stated as follows: -

"Looking ahead, this report explores the environment in which the major issues of the 21st century-poverty, population growth, food security, water security, climate change, cultural preservation will be faced. Many powerful forces both glacial abd fast paced, are reshaping the development landscape,. These include innovations in technology, the spread of information and knowledge, the aging of populations, the financial interconnectedness of the world and the rising demands for political and human rights. The report focuses in particular on two clusters of change globalization and localization because of their immense potential impact. They open up unprecedented opportunities for growth and development, but they also carry with them the threats of economic and political instability that can erode years of hard earned gains.

Given their already present implications, it is not surprising that Globalization and localization are a central preoccupation of policy makers around the world. Globalization is praised for bringing new management expertise, which in turn holds out the promise of greater productivity and a higher standard of living. Conversely Globalization is feared and condemned because of the instability and undesired changes it can bring: to workers who fear losing their jobs to competition from imports; to banks and financial systems and even entire economies that can be overwhelmed and driven into recession by flows of foreign capital; and not least to the global commons, which are threatened in many ways-with irreversible change.

Localization is praised for raising levels of participation and involvement, and providing people with a greater ability to shape the context of their own lives. By leading to decentralized governments where more decisions happen at sub national levels, closer to the voters, localization can result in more responsive and efficient local governance. National governments may use a strategy of decentralization to defuse civil strife or even civil war. However, when poorly designed, decentralization can result in overburdened local governments without the resources or the capacity to fulfill their basic responsibilities of providing local infrastructure and services. It can also threaten macro economic stability, if local governments, borrowing heavily and spending unwisely, need to be bailed out by the national government.

This report seeks neither to praise nor to condemn globalization and localization. Rather it recognizes them as forces that bring new opportunities but also raise new or greater challenges in terms of economic and political instability. Continuing this instability and providing an environment in which a development agenda can be implemented to seize the opportunities will be major institutional challenges in the coming decades. The discussion in the report of focuses on three mains aspects of globalization trade in goods and services international flows of capital, and global environmental issues such as the dangers of climate change and destruction of biodiversity. The focus of the discussion then shifts to three aspects of localization: the decentralization of political powers to sub national levels of government, the movement of population and economic energy in developing countries towards urban areas, and the provisions of essential public services in these growing cities of the future.

However, the forces of globalization and localization imply that much of the institution building or development will be taking place at either supranational or the sub national levels. In both cases countries will need to focus on development strategies that are implemented through mutual consent whether through constitutional and institutional arrangements between different levels of government and components of civil society within a country. At both the local and global levels, institutions based on partnership negotiation, coordination and regulation would provide the basis for sustainable development".

Looking from any angle decentralized planning is the only remedy of all the evils. The Local Self Governments are functioning in Kerala for the last 4 years with great success. It has appeared in the press that a Panchayat in Kerala had to construct a bridge over a river. The Panchayat given an estimate of Rs. 40 crores for its construction by the Public Works Department of that State. The Panchayat decided to construct the bridge it self which it successfully did in only 4 crores. It is a classic example of the working of democracy at the local level. There is a transparency accountability and honesty of purpose in decentralized planning there would have been no transparency, there would have been bureaucratic interference, a nexus of contractor, engineer, bureaucrat and the minister with no accountability.

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